The Illusion of Autonomy in Women's Medical Decision-Making

46 Pages Posted: 6 Jan 2015 Last revised: 3 Mar 2015

See all articles by Jamie R. Abrams

Jamie R. Abrams

University of Louisville - Louis D. Brandeis School of Law

Date Written: January 5, 2015

Abstract

This article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman’s autonomy. This article instead considers the far more common scenario when women and their doctors align in the face of great decision-making complexity and uncertainty. What decision-making framework normalizes this doctor-patient alignment and how does this decision-making framework complicate the actualization of autonomy for the women who do not elect this framework? This article concludes that many, if not most, of the four million women who birth in hospital settings attended by physicians align with their doctors by applying a shared decision-making framework that presumptively elects the outcome that minimizes any, even minor, risks to the fetus. While individual patients can certainly elect this approach autonomously, when understood in the context of tort law — in which the actions of “most women” and “most doctors” can become the standard of care itself — this framework is deeply concerning.

This fetal-focused decision-making framework perpetuates an illusion of autonomy because doctors can apply the framework independently. This decision-making model problematically resurrects the ghost of Roe v. Wade’s medical model in which doctors effectuate decision-making autonomy for women. Understood in a tort lens, while this illusion of autonomy might not seem problematic to the individual women who elect this framework, it risks imputing a distorted standard of care to all obstetric cases by creating a primacy that always prioritizes fetal risks over maternal risks, a primacy that explicitly contravenes existing tort standards. Tort law ordinarily governs “unreasonable risks,” whereas this framework elevates any fetal risk to an unreasonable risk and reduces any maternal risk short of death to reasonable. It risks imputing to all women a standard requiring the complete acceptance of medical guidance.

This article concludes that tort law standards should explicitly govern not just the “what” of childbirth outcomes, but the “how” of childbirth decision-making by using decision-making aids to ensure that women’s autonomy is actual and not illusory. Incorporating decision-making aids in the standard of care would remedy the illusion of autonomy by ensuring that “most women’s” decision-making frameworks are not presumptively applied to all women so as to distort tort law and undermine patient autonomy.

Keywords: childbirth, tort law, health, women, reproductive, autonomy, Roe v. Wade

JEL Classification: K13, K32

Suggested Citation

Abrams, Jamie R., The Illusion of Autonomy in Women's Medical Decision-Making (January 5, 2015). Florida State University Law Review, Vol. 42, No. 1, 2015, University of Louisville School of Law Legal Studies Research Paper Series No. 2015-05, Available at SSRN: https://ssrn.com/abstract=2545422

Jamie R. Abrams (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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