Pubdate: Mon, 26 Mar 2001
Source: State Journal-Register (IL)
Copyright: 2001 The State Journal-Register
Contact:  P.O. Box 219, Springfield, IL 62705-0219
Fax: (217) 788-1551
Author: Ellen Goodman


WITHIN HOURS, the lawyers had broken out the champagne. It's come to that. 
A decision by this Supreme Court that a pregnant women is entitled to the 
same medical privacy as any other patient is enough to bring on the bubbly.

I am willing to take victories where I get them. But a verdict that a 
hospital is not a police station? Is this what qualifies these days for 
high fives?

Back in 1989 we were at the height of the ''crack baby'' furor. With little 
drug treatment for pregnant women, there was lots of punitive treatment.

That year the hospital of the Medical University of South Carolina offered 
to cut a deal with the police that virtually deputized doctors and nurses. 
The hospital tested the urine of patients who fit a certain police 
''profile'' and turned over the results of those who tested positive.

Over a few years, women with the same ''profile'' - all but one of them 
African-American and all of them poor - came for maternity care and ended 
up in police custody. Eventually the hospital added drug treatment as an 
alternative, but some 30 women were jailed during pregnancy or were 
shackled in the delivery room or arrested in recovery.

In many ways this was a story of bad law meets bad medicine. When Ferguson 
v. the City of Charleston arrived at the Supreme Court, 75 medical 
associations argued that when doctors doubled as cops, they violated the 
patient-doctor relationship. More to the point, the policy didn't help the 
woman or her fetus: It scared her straight out of medical care.

Now a 6-3 majority of the justices has ruled that a hospital can't secretly 
test a pregnant patient for evidence. Without a warrant, without consent, 
the drug test amounted to an unconstitutional search. In short, as 
Priscilla Smith of the Center for Reproductive Law and Policy said before 
popping the champagne cork, ''Women don't lose their rights even if they 
are pregnant.''

But before anyone goes whoopee, may I suggest that they read the dissent - 
excuse me - the concurrence, the very reluctant concurrence, of Justice 
Anthony Kennedy.

Kennedy, who holds one of the swing votes on this dicey court, agreed that 
this particular cozy hospital-police policy was unconstitutional. But he 
added a warning:

''There should be no doubt that South Carolina can impose punishment upon 
an expectant mother who has so little regard for her own unborn that she 
risks causing him or her lifelong damage and suffering.''

In fact, South Carolina today can still impose punishment. It's the one 
state that applies the laws against child abuse to viable fetuses. A 
pregnant woman in the Palmetto State may be liable for ''child abuse'' for 
any number of offenses.

Of course, many of us share Justice Kennedy's tone of outrage. The first 
public sign of pregnancy these days is when a friend stubs out her 
cigarette and passes up wine.

Most women who have decided to have children feel a deep responsibility for 
their health. We expect the same of others.

But the problem is when the moral responsibility becomes legal 
responsibility and the expectation becomes prosecution. How do you enforce 
it? At what cost?

More than 200 women in 30 states have been prosecuted on some theory of 
''fetal rights.'' Where does it end?

We are not just talking about a skirmish in the drug wars. The danger to 
''crack babies,'' for example, was somewhat exaggerated. But the danger 
from alcohol and tobacco may be understated. Do we arrest women for smoking 
or drinking? If so, how much?

And since the most damage can be done at the earliest stage of pregnancy, 
is every fertile woman held hostage to the possibility of pregnancy?

The hot words now are fetal rights and women's rights. But the medical 
briefs filed in the Ferguson case underscored the futility of dealing with 
a woman and her fetus as if they were two separate and opposing patients. 
Never mind two separate and opposing clients.

The Supreme Court has said that women have the right to a doctor who isn't 
doubling as a cop. That's modest cause for celebration. But Kennedy's 
opinion talked approvingly of other legal punishment. As even the lawyer 
Smith acknowledges, it's ''a message to state legislatures to go ahead and 
criminalize behavior during pregnancy.''

If that happens, the champagne is going to taste very flat.
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MAP posted-by: Larry Stevens