Source: CNN
Pubdate: Mon, 30 Oct 2000
Author: Jeffrey P. Kahn, Ph.D., M.P.H.
Note: The author is Director of the Center for Bioethics University of


The trend toward punishing pregnant women for unhealthy behavior has
been steadily on the increase for the last few years. Women have been
prosecuted in a number of states for either child abuse or delivering
drugs to a minor because they used illicit drugs during pregnancy. In
a recent Massachusetts case, a pregnant woman was jailed when she
refused a prenatal medical exam on religious grounds.

The U.S. Supreme Court will soon decide a case that represents a
showdown over the question of whether preventing harm to future
children can trump pregnant womens decision making and even their
freedom. The Court heard oral arguments in early October in the case
of Ferguson v. City of Charleston, in which pregnant women sued a
hospital for releasing results of drug tests to police. The policy and
practice at a hospital in Charleston, South Carolina, was to perform a
drug test on pregnant women who fit certain criteria. Those who tested
positive for cocaine use were reported to the police and offered the
option of immediate admission to inpatient drug treatment or arrest
and possible jail time.

What's your opinion?

Is it acceptable for pregnant women who test positive for illicit drug
use to be faced with the choice of inpatient drug treatment or going
to jail? How far can the state go in attempting to prevent harm to
fetuses and the children they may become? What will be the effects of
policies that either punish or force treatment on pregnant women who
need help with drug abuse?

How far are we prepared to go to prevent harm to fetuses?

Defense of the policy rests on the idea that protecting fetuses from
harm justifies forcing pregnant women to accept treatment or be locked
up. But this argument requires two things. First, there must be proof
that using drugs actually harms the fetus and the child it will
become; and second, the state must recognize the fetus as a person in
the eyes of the law.

Contrary to media depictions, the evidence is far from clear about how
harmful illegal drugs like cocaine are on birth outcomes, especially
as compared to the known harmful effects of legal behaviors such as
smoking and alcohol consumption. While no such behaviors are
advisable, if protecting the fetus is the goal, does it make sense to
single out drug use that affects far fewer fetuses than does use of
either tobacco or alcohol?

Who is the law trying to protect?

Since the state of South Carolina effectively recognizes fetuses as
citizens, the door is thrown open for criminalizing and prosecuting
any behavior that threatens to harm fetuses; including everything from
unhealthy behaviors -- smoking, drinking alcohol, poor diet, and lack
of prenatal care -- to abortion. In fact, analysts have suggested that
the trend could bring abortion under the states homicide statute,
subjecting both women and physicians to criminal charges of murder.

But the same kind of argument could be applied to the fertility drugs
that can lead to high multiple birth pregnancies. Such pregnancies are
very risky for the fetuses and the children they may become, and are
arguably more harmful than any illicit drug use. Are we prepared to
endorse laws that could criminalize the medical efforts that lead to
the very existence of the children the laws hope to protect?

Coercing medical care

It seems that the ultimate question is not so much whether the state
can punish pregnant women for the harms they may cause to their fetus,
but what states can do to prevent the harm from occurring. In the
South Carolina case, the hospital tried to compel the women to accept
drug treatment. And while that may work for the women who get into the
health care system, there is evidence that the tactic will drive many
more women away from needed prenatal care for fear of retribution. If
the goal of such policies is to protect the health of future children,
we must seriously question policies that drive underground women who
need and may want treatment, and criminalize those brave enough to
seek it.
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