A Woman Allegedly Refuses a C-Section...

This is a partial transcript from "The O'Reilly Factor," March 12, 2004 that has been edited for clarity.

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BILL O'REILLY, HOST:  Now for the top story tonight, another view on this.  Joining us  from Philadelphia, Professor Arthur Caplan (search), the Director of Bioethics at the University of Pennsylvania (search).

So where am I going wrong here, professor?

ARTHUR CAPLAN, PHD, UNIV. OF PENN. BIOETHICS DIRECTOR:  Oh, I want to go with you down this road, Bill, but I can't quite get there because the core principle here is the right of people to refuse treatment for good reasons or bad reasons.  If you looked at our history with respect to Jehovah's Witness who say no blood transfusion, Christian Scientists who say no healthcare, people who actually, I don't know, worship the god Bog and wait for intervention from above, all of these reasons have been held legitimate that we don't sort out why competent people say no to medical care.  We just can't intervene if they say don't treat us.

O'REILLY:  OK, that's a whole different issue because there  was no religion issue cited here.  It was purely a vanity issue.  And...

CAPLAN:  Well, the...

O'REILLY:  ...the depraved indifference, according to the prosecutor, was shown.

CAPLAN:  You know, if -- I've had people come in.  I've had models that I know of  -- I shouldn't say come in, but I'm aware of, who said no C-section for my  baby. It'll ruin my career. I yell at them. I berate them. I think it's unethical, but I can't do a procedure on someone without their permission. I come back again to this idea, you don't really want the state to say, look, if you refuse the blood transfusions to a Jehovah's Witness, you're got 10 kids out there. You're going to leave them all orphaned.

Or if you say I believe in macrobiotic healing...

O'REILLY:  But you're arguing on parallel - look, you're arguing theory and I'm arguing reality.  And I want you to come over to the  reality side here.

You've got a woman here who's not claiming a religious exemption.  She's claiming that you can't force her to save her child.

Now the prosecutor says he's going to make the analogy.  And listen closely if you would, professor, to this argument.  I think it's very powerful, that if you were in a heated car and somebody came up to you and said, please let me in, and you could, you had room, all right, or I'm going to die of hypothermia out here, and you did not let that person in the car, OK, you could be charged with murdering that  person under the depraved indifference part of the homicide act.

And that's what the prosecutor's going to say that this woman knew that she could save the baby, wouldn't do it because of a scar.  And then 11  days later actually did have the C-section, all right.  So I   believe that this woman's going to be convicted in Utah court.  I don't think there's any question about that, but  it's the appeal that's going to be interesting.

CAPLAN:  Yes, I bet - I doubt she's going to be convicted.  Remember, you've got to prove a couple of other things. First, that she really had the intent to kill the baby. I assume she's going to say no, I didn't, I just didn't want the C-section.

O'REILLY:  No, you don't have to prove that, professor.  You have to prove depraved indifference on whether the baby was going to die.

CAPLAN:  Well, she even say I'm not -- it's not whether I'm indifferent or loved him or whatever.  I just don't want C-sections.  We've had people come in and say...

O'REILLY:  And you think you can do this?

CAPLAN:  ...I'm terrified of them, I'm horrified about them, whatever they want to say about them.  It's very tough.  Put it this way.  If you're going to go out there and give the courts the authority to compel treatment when you see a woman smoking, when you see  somebody drinking, glue sniffing, using drugs...

O'REILLY:  No, this is direct cause and effect, though.  This isn't -- it could happen, it might happen.  This is at least three doctors, probably five will come in and testify, told her directly in three different hospitals that she had to do this or the baby will die.  And you know the technology now, professor, can pinpoint in the womb exactly the condition of the baby.

There's no hypothetical here at all.  This woman was told in writing the baby would die if she didn't do it.  You can't tell me it's not  depraved indifference.  You can't tell me that.

CAPLAN:  Well, let's assume that's right.  Although again I'm not going to say even if they'd done the C-section they would have been able to  save the baby.

O'REILLY:  The doctor said that it would - they have.

CAPLAN:  Right...

O'REILLY:  Every doctor that examined said it.  And then in the autopsy, it said the baby died two days before, which was on the 11th of January.

CAPLAN:  Let me say this, though...

O'REILLY:  The woman waited 11 days.  The baby -- she had nine days to save the baby.

CAPLAN:  If you get a doctor -- there are plenty of women who have been told C-section or dead baby. No dead baby... healthy baby. It's a tough thing to prove. Trust me on this.


CAPLAN:  Even if all the doctors agree. Tough thing to prove.

O'REILLY:  Maybe...

CAPLAN:  If you're going to try and go in there again, though, and say legally - I'm not talking ethically, because I'm with you on the ethics, having an argument about scars or whatever seems to me almost nutty, to put it bluntly. But legally, the power of the state, coming in and saying we're going to force that treatment upon you, it's going to open a Pandora's box (search) if you really go in that direction.

O'REILLY:  Well, I don't know of what box it opens.  If the doctors can say -- you know, the argument against partial-birth abortion which of course is illegal in this country now, thank God, all right...

CAPLAN:  Wait...

O'REILLY:  ...The mother's health but there wasn't any problem  with the mother's health here.

CAPLAN:  Well, I'll make one for you.  I -- let's say I am that  Jehovah's Witness and I have the eight  kids.  And I'm going to leave them orphaned.

O'REILLY:  No, but your hypothetical.  You're into the religion thing here.  And that doesn't bear on this case.

CAPLAN:  Well, whatever.  I say -- forget religion.  Say I don't  want treatment because I just don't like doctors.  And I'm not going to have my cancer treated.  I'm not going to take my diabetes medicine.  I hate doctors, never liked them.  I got a whole family here that's  going to wind up without me.  And I'm the sole source of support.

O'REILLY:  All right, but there was just a conviction in Massachusetts of two religious nuts who let their children die and they got convicted, again on depraved indifference. You can't - you know, I'm willing to bet you -- I don't know what you have down at the University of Pennsylvania that I want...

CAPLAN:  Hoagies, hoagies, hoagies.

O'REILLY:  All right.  That you're wrong.  And -- but believe me, if this - if she's not convicted and mothers can allow their babies to  die in the womb because they don't want scars, this nation's in big trouble.  I'll give you the last word.

CAPLAN:  Well, let me try one other angle on this.  I think a different question  should be put.  These doctors see this lady.  She's babbling on about scars but anybody who has seen a picture of her knows, this is not a lady that's all together.  And she's had a psychiatric history.

O'REILLY:  Yes, they could have got -- I would have done that.  I absolutely would have done what you're suggesting.  I would have got a court order and said she's nutty.

CAPLAN:  Exactly.

O'REILLY:  We got to go...

CAPLAN:  I don't know why they didn't...

O'REILLY:  Because they're cowards, professor.  A lot of doctors are cowards.  They don't want to get involved.

CAPLAN:  Listen, if it's up to me...

O'REILLY:  That's right.

CAPLAN:  ...you go in there and you say, look, this lady is bonkers.  What are we doing here?

O'REILLY:  All right, but you're going to lose on this debate, I bet you.

CAPLAN:  All right, we'll see, we'll see.

O'REILLY:  This woman is going to get convicted.  Well, you see.  Professor, thanks very much.  We appreciate it.

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