Pubdate: Sun, 21 Jan 2001
Source: Omaha World-Herald (NE)
Copyright: 2001 Omaha World-Herald Company
Contact:  World Herald Square, Omaha, Ne., 68102
Author: Dave Morantz
Bookmark: (Ferguson v. City of Charleston)


In late October, a 31-year-old Omaha woman with a history of drug use
and prostitution gave birth to her fifth child.

The newborn girl tested positive for crack/cocaine, just like all her
siblings except the oldest. And like the four other children, Nebraska
Health and Human Services took custody of the child.

But the mother still roams Omaha's streets - her children scattered
across the country and struggling with the lingering effects of their
mother's addiction. One son still has difficulty breathing and acts up
in school. Another drifts in and out of sleep at night, unable to stop
rocking in his crib. Relatives are raising the four oldest children,
and the baby remains in the state's custody.

Authorities and her family have been powerless to stop the woman,
despite the harm her crack habit caused her children. Her case
illustrates the dilemma authorities face in trying to balance a
fetus's health with a mother's right to privacy as well as fears that
punishing such women might prevent them from seeking medical
treatment. It also illustrates the legal tangle lawmakers enter if
they try to criminalize harming fetuses, as the Nebraska Legislature
has debated.

The contentious issue is now before the U.S. Supreme

Estimates of the number of crack babies born each year range from
50,000 to 375,000. Doctors link the drugs to a range of possible birth

"Unborn children don't have any rights, but they're the ones that are
getting all the problems," said the children's grandmother, who has
adopted two of them. "Unless these girls are stopped, the problem's
going to get worse and worse."

To protect the identities of the children, neither the mother's name
nor the grandmother's is used in this story. Attempts to reach the
mother were unsuccessful. But police and court records leave a
detailed account of her life on the streets.

The mother's problems began in 1984, at age 15 when she had her first
child. Shortly after that, the grandmother said, the teen-ager left
the baby with her and moved to Texas to live with a sister and make a
new start. But she hung around the wrong crowd, the grandmother said.
She soon moved back to Omaha, used drugs, stole and lived on the
streets. Somewhere along the way, she began to use crack, favored for
its cheap high.

In 1991, she had her second child, a boy who now lives in Colorado
with an aunt. He tested positive for crack/cocaine at birth and
continues to have behavioral problems and sinus trouble symptomatic of
a crack baby.

The mother's first prostitution arrest came in 1993 at age 23,
followed shortly by an arrest for crack possession.

In October 1996, about to give birth to her third child, she was
arrested for a second prostitution offense. Nine days later, she gave
birth to her second daughter. That baby also tested positive for
crack/cocaine and was born premature, weighing about 5 pounds. She had
heart problems, which the grandmother thinks were crack related.

But the child is in better care now than the mother provided shortly
after her birth.

When the infant was less than 2 months old, the mother left the baby
with someone she had known less than an hour. That person didn't know
how to meet the baby's medical needs and didn't know how to contact
the mother.

According to police records, that was the only time authorities were
able to punish the mother for endangering her children. The mother
pleaded guilty to negligent child abuse and spent 30 days in jail.

About a year later, the mother had her fourth child, another son. He
lives in Atlanta with another aunt and suffers from asthma, possibly
caused by crack, the grandmother said. He must still use a breathing
monitor and wakes the house with his incessant rocking. He even rocks
while he sleeps.

Another prostitution arrest and various crimes later, the mother gave
birth on Oct. 26 to her fifth child. That daughter is now in the
custody of the State of Nebraska.

The mother continues to run into trouble with the law. A little more
than a week ago, she was arrested on drug paraphernalia charges. She
was released from jail for a work program but was ticketed again
Tuesday on a drug paraphernalia charge.

"Everybody's tried to help her," the grandmother said of her daughter.
"I've even tried to get her committed, but they told me she wasn't
mentally ill. I said, 'She has to be mental to do the things she's
doing to her kids and herself.'"

Unfortunately, cases such as this mother's are not uncommon in Omaha,
said Kersten Borer, a therapist with the Salvation Army's Wellspring
program, which tries to help men and women leave prostitution. Out of
161 children born to women in the program, half were exposed to crack
while in the womb, according to an analysis of Wellspring records.

Four crack-positive children born to one mother is unusual, though,
Borer said.

To some, the mother's case might beg for prosecution. But doing so can
open a legal can of worms - how far should authorities go in
prosecuting women who harm their unborn children? Should they charge
an expectant mother addicted to crack? How about one who smokes? Or
one who has an occasional glass of wine with dinner? What about a
mother who doesn't follow her doctor's orders to get plenty of rest?

Three years ago, the Nebraska Legislature wrestled with a related
issue when it debated a bill commonly called "Zachary's Law," after
the name a pregnant woman had planned to give her unborn son. Both
died from a 1996 wreck caused by a drunk driver.

The bill would have made a person who is responsible for killing a
fetus subject to prosecution, establishing legal status for the fetus.
"Zachary's Law" has come up in subsequent legislative sessions but
never passed. Debates have focused on when life begins and often
echoed the national abortion debate.

In Iowa, state law makes it illegal to intentionally harm a fetus but
provides an exception for abortion. Pottawattamie County Attorney Rick
Crowl said his office has not prosecuted anyone under the law. The
Iowa Attorney General's Office said any such prosecutions are rare,
although it does not keep those statistics.

Although no state has passed a law that specifically criminalizes
conduct during pregnancy, prosecutors across the nation have charged
women for harmful activities such as drug use, according to the Center
for Reproductive Law and Policy, an abortion-rights group. The center
estimates that at least 200 women in more than 30 states have been
arrested and charged for drug use or other actions that could have
harmed their pregnancies. That number includes a Florida woman charged
with delivering drugs to a minor - through her umbilical cord.

In 21 of the 22 states in which women have challenged their charges,
courts have thrown out charges or reversed penalties, according to the

But in South Carolina, the State Supreme Court found that a Charleston
public hospital could test the urine of selected maternity patients
and turn evidence of their cocaine use over to police - without
obtaining a search warrant. Thirty women were arrested, some taken
from their hospital beds in handcuffs after giving birth.

That case is now being decided by the U.S. Supreme Court. Arguments
before the court in October pitted the arrested women's Fourth
Amendment right to privacy against the "special needs" of law
enforcement to protect the health of the fetus. The court has set
precedents for "special needs." For example, it permits drug testing
of transit workers for the public's safety.

The South Carolina case, Ferguson vs. City of Charleston, prompted
dozens of medical, public health and civil rights groups to file or
join court briefs in support of the women's appeal. Not one
friend-of-the-court brief was filed supporting the city.

Among those supporting the women is the American Medical Association,
which says testing pregnant women for drugs will likely discourage
them from seeking medical care or telling doctors of their drug use.

Beth Conover, a genetic counselor at the University of Nebraska
Medical Center, said she and other nurses need expectant mothers to
tell them about any substance abuse for their babies' health.

"If you interfere with that relationship, you interfere with our
ability to help," said Conover.

Although alcohol causes more neonatal problems than crack/cocaine, the
latter provides a nice target because it is illegal and easier to
detect, she said.

"What you get is people concerned over an illegal drug that's
detectable, while the big problems are coming from legal drugs -
alcohol and tobacco," Conover said.

Prosecutors are watching the Supreme Court for possible direction in
cases involving drug use during pregnancy.

"I am waiting with anticipation to see what the U.S. Supreme Court
says in that case," said Deputy Douglas County Attorney Vernon
Daniels, supervisor of the juvenile division. "Right now our hands are
very much tied."

Prosecuting these cases could help, at least in getting some women off
the street, said Borer, the Wellspring therapist. A drug-addicted,
pregnant woman in jail should have a better chance of giving birth to
a healthy child than one on the streets.

The Omaha grandmother who has adopted two of her four grandchildren
born addicted to crack said she would like to see her daughter
charged. The mother was in jail six months for drug possession during
the most recent pregnancy. The grandmother hopes that kept her
daughter off crack long enough to prevent this latest infant from
developing the medical troubles her older siblings have faced.

Why, the grandmother wonders, can't her daughter stop? Why haven't
authorities already locked up her daughter or punished her?

"You bring these poor children into the world, and then they don't do
anything to you," the grandmother said. "What does it take to shock
her into getting her life together?" 
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