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
Author: Linda Greenhouse, Associated Press


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

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

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."
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