Pubdate: Wed, 14 Jun 2000
Source: MoJo Wire (US Web)
Copyright: 2000 Foundation for National Progress
Contact:  731 Market Street, Suite 600, San Francisco, CA 94103
Fax: (415) 665-6696
Author: Vince Beiser


A growing number of women are being criminally prosecuted or having their
children taken from them for doing drugs while pregnant. After years of
hibernation, the legal concept of 'fetal rights' is apparently making a
comeback -- to the alarm of women's rights advocates and health-care

Sally DeJesus knew right away she'd made a mistake.

After years of heavy cocaine use, she had been clean and sober for 11
months, and pregnant for nine, when she ran into one of her old crack
dealers in a convenience store near Flat Rock, N.C. She was feeling lousy.
Anxious to keep her system clean while her baby was growing inside her, the
28-year-old mother of two had months ago quit taking her anti-depressant
medications; partly as a result, she says, she had been terribly depressed.
"I'd hide in the bedroom crying," she says. "I wouldn't eat. I didn't shower
for weeks at a time." To make matters worse, she and her husband had gotten
into a bitter fight that morning.

So when the dealer offered to take her for a ride and get her high, DeJesus
said yes.

"As soon as I did the first hit, I knew I'd screwed up," she says. "But when
you're an addict, sometimes your judgment just goes right out the window."

The next day, DeJesus confessed to her midwife what had happened. "I told
her I needed help," she says. "I was afraid for my baby." That night,
DeJesus went into labor, and in short order gave birth to her daughter
Emily -- who, despite her mother's prenatal relapse, came out perfectly

DeJesus' problems, however, were only beginning. Her midwife, it seems, had
told the hospital where DeJesus was having her baby about her drug use. The
doctors then tested newborn Emily for drug traces; when the tests came up
positive, hospital staff called the police.

As DeJesus lay recuperating in her hospital room, Henderson County sheriffs
marched in to interrogate her. By taking a drug that could have harmed her
unborn child, they said, DeJesus had committed felonious child abuse. She is
now awaiting a trial that could end with her sentenced to more than three
years behind bars.

The concept behind DeJesus' prosecution is often referred to as "fetal
rights": the notion that unborn babies deserve the same legal protections as
children. After hibernating for several years, the issue is creeping back
into view across the country, with a rash of women being charged criminally,
or having their babies taken away from them, because they took drugs while

The trend is deeply alarming to women's rights advocates and health-care
workers, who warn that such a heavy-handed approach will only deter
drug-addicted mothers-to-be from seeking out prenatal care. Moreover, many
warn, such tactics may be paving the way for abortion -- the ultimate
violation of "fetal rights" -- to legally be declared murder.

"These cases represent the intersection of the war on drugs and the war on
abortion," says Lynn Paltrow, director of National Advocates for Pregnant
Women, who has successfully helped argue against dozens of similar
prosecutions in the last decade. "There may have been a temporary lull, but
the issue has not gone away."

In the late 1980s and early 1990s, spurred by hyperventilating news stories
warning of a coming deluge of "crack babies," prosecutors in more than 30
states sought to stem the anticipated flood by charging scores of drug-using
pregnant women with everything from child abuse to manslaughter. In nearly
all cases, however, judges eventually threw out those prosecutions, in part
because the Supreme Court's landmark Roe v. Wade decision had firmly
established that a fetus is not a person in the eyes of the law.

But in the last year, a fresh crop of fetal-rights cases have sprung up. In
April, a 26-year-old Texas woman was indicted for child endangerment after
her newborn tested positive for cocaine. The same month, a Pennsylvania
judge ruled that prosecutors could charge an addicted mother with child
endangerment for using heroin while pregnant -- even if her baby was born
healthy. This spring, the Oklahoma state legislature nearly passed a bill
making it a misdemeanor for pregnant drug abusers to fail to get
substance-abuse treatment. And in Georgia, 21-year-old Shannon Moss is
facing murder charges for allegedly killing her fetus by taking cocaine and
amphetamines while pregnant.

Moreover, in recent years at least 17 states have enacted civil laws making
it possible for authorities to take away the children of pregnant women who
test positive for drugs. The Ohio Supreme Court may take up the issue soon.
So far, hundreds, and perhaps thousands, of children have been taken from
their mothers as the result of a single positive drug test, according to the
Center for Reproductive Law and Policy.

The most bitter battleground, however, is South Carolina, the only state so
far to have explicitly extended criminal child-abuse laws to cover fetuses.
Despite directly contrary rulings in numerous other states, South Carolina's
Supreme Court declared in 1997 that drug-using pregnant women can be
prosecuted criminally -- and sentenced to as much as 10 years in prison.

Dozens of women have since been charged. Just last March, one woman was
sentenced to three years in prison for violating her probation by "abusing"
her unborn child with cocaine, and another drew a five-year suspended
sentence for smoking marijuana while pregnant.

Such prosecutions were pioneered 11 years ago with the help of the Medical
University of South Carolina in Charleston, where zealous hospital officials
started a program of testing pregnant women for drug use, and turning over
their findings to police. The US Supreme Court will rule later this year on
whether that practice violated the women's Fourth Amendment right of
protection against unreasonable searches.

Those who prosecute pregnant drug users say they have everyone's best
interests at heart. "I just want the babies to be safe," says Tommy Pope,
chief prosecutor for South Carolina's York and Union Counties, where the two
women convicted in March live. "We try to use prosecutions as a last resort.
But you run into situations where a woman has had five kids, and they've all
tested positive for crack. Where do you draw the line?"

"Unless addicts are forced to stop, they won't," seconds Bobby Hood, the
attorney representing the city of Charleston in the Supreme Court case. The
threat of prison, he maintains, "has a very good deterrent effect."

But in fact, according to a broad range of women's rights and major health
care organizations, the threat of prison is more likely to hurt, not help,
the unborn babies of drug users, by frightening drug-using mothers-to-be
away from seeking prenatal care. The American Medical Association, the
American Academy of Pediatrics, and many other groups formally oppose
criminal prosecutions of mothers of drug-exposed babies.

Even Daniel Kennedy , an Illinois lawyer who recently founded the incipient
Fetal Rights Institute, doesn't think criminal prosecutions are the way to
go. "Fetuses are definitely children," says Kennedy. "But jailing moms for
hurting their kids prenatally doesn't help. It will only encourage women to
seek abortions, or avoid treatment."

At least three drug treatment programs in South Carolina reported a drop in
the number of pregnant women admitted in the months following the court
decision.  Brenda Dawkins, associate director of South Carolina's Keystone
Substance Abuse Services Center, which treats many pregnant drug addicts,
doesn't doubt the connection. "When the (state Supreme Court) decision came
down, we were afraid women would not seek prenatal care, or would go over to
North Carolina and continue using drugs, or would have their baby at home,"
says Dawkins. "All this has happened."

If fetal health were really the only issue involved, women's advocates point
out, then prosecutors should also be going after expectant mothers who
ingest other popular toxins. After all, according to the most recent
national survey of pregnant woman, only a little over one percent used
cocaine -- while nearly 20 percent smoked cigarettes, which are linked to a
range of infant health problems, including as many as 7,000 deaths every
year. Not to mention alcohol, the leading cause of preventable mental
retardation in babies.

While there have been a handful of attempts to prosecute women for damaging
their babies with heavy drinking, the vast majority of such cases have
involved illegal drugs. Why? "Alcohol isn't illegal, cocaine is," explains
Henderson County sheriff Carol Coss, who arrested Sally DeJesus. Yes, but
the charge against DeJesus was child abuse, defined here as ingesting a
substance that could have harmed her unborn baby; would Coss, then, arrest a
woman for drinking a martini while pregnant? "Well," sighs Coss,
"technically you could say it's abuse if you drink while pregnant. But no
one's ever filed a report charging a woman with that."

Such prosecutions unfairly discriminate in other ways, women's advocates
charge. South Carolina, where the attorney general has similarly stated that
he will only prosecute pregnant women who use illegal drugs, suffers a
chronic shortage of drug-treatment facilities for pregnant women -- meaning
many pregnant addicts can't get professional help to quit even if they want
to. Many other regions suffer a similar lack of services. New York City, for
instance, ran 31 comprehensive drug-abuse and child-care clinics to deal
specifically with drug-addicted mothers from 1990 to 1995 -- but almost half
of these clinics have since been shut down.  New York state, meanwhile, is
currently considering a bill that would take away from mothers any newborn
testing positive for drugs.

"There's a big misunderstanding that these women don't care about their
babies," says Wyndi Anderson, executive director of South Carolina Advocates
for Pregnant Women. "There just aren't the resources available for them to
be able to take care of their babies. Lots of us grew up with parents who
were alcoholics or drug addicts, but we have money to buffer us and keep the
Department of Social Services from knocking on our doors."

A positive drug test -- even a recognizable drug habit -- does not
necessarily predict someone's parenting ability, as any suburban weekend
toker can attest. Studies and several major health-care and legal groups
concur. As the American Bar Association's official position puts it, "[M]any
people in our society suffer from drug or alcohol dependence yet remain fit
to care for a child."

None of that, however, stopped authorities in Houston, Texas, from taking
away Rita Veitenheimer's four children last fall, after her newborn tested
positive for marijuana -- even though, according to the Times Record News of
Wichita Falls, Texas, the baby was healthy and the older kids star students.

If criminal prosecutions against drug-using pregnant women continue to take
root, Anderson and others predict the consequences for abortion rights will
be dire. "If you're going to treat a fetus as a separate entity from the
mother, why wouldn't you call abortion child abuse?" asks Anderson. That's a
particularly relevant question in light of a bill recently passed by the
House of Representatives that makes harming a fetus while attacking a woman
an additional crime. Several states have passed similar laws.

All of that is academic to Sally DeJesus. For the time being, she's in a
residential drug rehab center with baby Emily, just hoping to get clean for
good, and to avoid jail. But no matter how her court case turns out, her
life has been shattered. Her other kids are taunted in school because of her
indictment, and her husband of 11 years is planning to divorce her, she

"What I did was wrong. I'm not trying to justify it," says DeJesus. "But I
feel like I'm being punished for reaching out for help. I need this program
now, not jail."
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