Pubdate: Sat, 09 Sep 2000 Source: New York Times (NY) Copyright: 2000 The New York Times Company Contact: 229 West 43rd Street, New York, NY 10036 Fax: (212) 556-3622 Website: http://www.nytimes.com/ Forum: http://forums.nytimes.com/comment/ Author: Linda Greenhouse, Associated Press SHOULD A FETUS'S WELL-BEING OVERRIDE A MOTHER'S RIGHTS? Rebecca Corneau, whose sect rejects conventional medical care as blasphemy, going to court in Attleboro, Mass., where she was placed in state custody to protect theher unborn child. The war on drugs arrived with a vengeance in the obstetrics department of the Medical University of South Carolina in the fall of 1989. Distressed by evidence of increasing cocaine use by women receiving prenatal care at the university's public hospital in Charleston, and fearing for the fate of abandoned or impaired crack babies, the staff began testing the urine of patients who aroused their suspicions. Positive test results were turned over to the local prosecutor and the police, and women were arrested on the spot, sometimes at the hospital just after giving birth. The acute concerns that led to such a punitive approach have eased since then, as cocaine use has dwindled and the worst fears for a generation of crack babies have proved unfounded. Challenged in court and criticized by medical organizations for criminalizing a public health problem, the policy evolved into a statewide program that emphasizes treatment rather than punishment for pregnant drug abusers. But the issues raised by the Charleston experience reverberate still - and far beyond the confines of a Supreme Court case, to be argued on Oct. 4, on whether the warrantless drug tests amounted to unconstitutional searches. The case, Ferguson v. City of Charleston, is one of the most closely watched of the court's new term. But however the justices rule, the Fourth Amendment, with its prohibition against unreasonable searches, cannot provide an answer to the deeper questions raised by what happened in Charleston and what is happening in various contexts across the country. When does a pregnant woman - or even a potentially pregnant woman, given increasing medical knowledge about reproductive health - cross the line between autonomy and obligation? In an age of reproductive freedom, when no woman has to carry a pregnancy to term, when if ever should society intervene to protect the future interests of a child whom a woman has chosen to bear? If fetal health is the issue, what about a pregnant woman who smokes two packs of cigarettes a day, or who abuses alcohol, given that the American Medical Association has identified fetal alcohol syndrome as "the leading cause of mental retardation in the western world"? And fundamentally, whose interest is it, anyway? Some 200 women in 30 states have been prosecuted on various legal theories of "fetal abuse." A woman in Georgia was charged last year with capital murder for the death, moments after birth, of one of a pair of premature twins; the mother, who tested positive for cocaine and methamphetamine, had received no prenatal care. Her lawyers are seeking dismissal of the charges. The troubling scenarios are extremely diverse, extending far beyond criminal law. Women have been forced to undergo Caesarean sections when doctors have convinced judges or hospital committees that the patient's refusal of surgical intervention was ill advised, and medical ethicists are debating the implications of fetal surgery that can correct some serious problems before birth but that some women are likely to reject. Last week a state juvenile court judge in Massachusetts ordered a pregnant member of a fundamentalist sect to be taken into custody and held until she gives birth several weeks from now. The sect rejects modern medical care, and a baby born to the woman last year died five minutes after birth. A decade ago, declaring that women "may not be forced to choose between having a child and having a job," the Supreme Court invalidated the "fetal protection" policies that employers were using to bar pregnant or potentially pregnant women from workplaces with toxins or other known hazards to fetal development. The decision, one of the court's more important sex discrimination rulings of the 1990's, settled the legal question. But it could hardly resolve the personal dilemma facing a woman whose need to earn a living may risk the health of the child she hopes to have. Dawn Johnsen, a law professor at Indiana University who formerly served as legal director of the National Abortion Rights Action League, said that those cases needed to be seen in the "broader context of women's equality and liberty rights." "Whenever the law uses the fact that a woman is pregnant to treat her differently, it's important to be suspicious," she said, given the history of using women's fertility as a reason for excluding them from economic and civic life. While the language of rights in conflict - "maternal rights" versus "fetal rights" - pervades much of the discussion, this, in the view of many people, is a misleading way to frame the question. It is a misperceived conflict and a "false dichotomy," said Rachel Roth, a political scientist at Washington University in St. Louis and the author of "Making Women Pay: The Hidden Costs of Fetal Rights." The book argues that a result of emphasizing the ways in which women fail their fetuses has been to take society off the hook for providing better medical care, drug treatment and safer workplaces, and to "privatize responsibility for the next generation." The focus on the fetus, Ms. Roth maintains in her book, "reduces women to incubators" who are seen not as "full-fledged human beings, but merely better or worse vessels for fetuses," their bodies no longer seen as nurturing sanctuaries but "as a form of solitary confinement for the fetus." In an interview, Ms. Roth said that the Charleston experience was an example of "the personification of the fetus at women's expense." She said that while the policy "was supposed to be for the fetus's benefit, arresting the woman after delivery doesn't improve life for the baby or the woman." Any emphasis on the fetus as a focus of public policy makes supporters of abortion rights nervous. Yet the question of harmful behavior during pregnancy is logically quite separate from the abortion debate, according to John Robertson, a professor of law and bioethics at the University of Texas. While it is clear from the Supreme Court's precedents that "fetuses don't have rights as such to be born," Mr. Robertson said in an interview, that is hardly the end of the discussion. The "real party in interest," he said, is neither the woman nor the fetus, but "the child who will be born" and who will be affected, after birth, by the prenatal behavior. "A pregnant woman, if she chooses not to end the pregnancy, takes on a moral and perhaps a legal obligation to refrain from clearly harmful prenatal conduct," he said. But even someone whose ethical stance favors intervention sees no clear answers when it comes to applying principle to policy. Charleston "went overboard" in its original, punitive approach, Mr. Robertson said: "As a matter of principle, I don't see why the state should be prevented from taking action. As a policy judgment, it might be another matter." - --- MAP posted-by: Don Beck