To Protect Fetuses, Can We Lock Up Mothers? Court to Decide

By separating mothers from their unborn children, fetal protection laws are used in contravention of a woman's privacy.
By @FrederickReese |
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    (Photo/Dominika Chylkowska Barwik via Flickr)

    (Photo/Dominika Chylkowska Barwik via Flickr)

    In Wisconsin, the state’s fetal protection laws are slated to face their first constitutionality test in federal court. The case — in which a 12-weeks pregnant woman was handcuffed, placed in government custody and forced to submit to a drug withdrawal program for a drug all medical testing showed she was clear of — threatens to challenge the controversial laws that many pro-choice advocates argue are a covert attempt to establish fetal “personage” under the law — a perceived first step in establishing the illegality of abortions.

    Alicia Beltran’s story started simply enough: Beltran, a 28-year-old pregnant woman, went to a prenatal examination at West Bend, Wis.’s Saint Joseph’s Hospital on July 2. Beltran was formerly addicted to Percocet, a powerful prescription painkiller and Schedule II opioid that is addictive when used over long periods of time. The drug also presents a Category C pregnancy risk, in which the Food and Drug Administration feels there is a potential for harm to the fetus, but where the medication’s benefits outweigh its risks.

    Beltran was uninsured and could not afford a Suboxone prescription to wean herself off Percocet. As a result, she did something that is wholly unadvised, but common in an era of rising drug prices and in the presence of wide-sweeping uninsurance: She used her friend’s prescription and self-administered the drug to herself in decreasing doses. A few days prior to the prenatal visit, she took her last dose.

    When Beltran admitted this to her attending physician’s assistant, the PA recommended a renewal of Suboxone. Her rationale was simple: if Beltran ended her withdrawal regime only a few days ago, it was unclear if Beltran was completely clear of her dependency. When Beltran declined, a drug test was ordered. Beltran was cleared of all substances except Suboxone.

    Two weeks later, Beltran declined a social worker’s request that she continued Suboxone treatment under a physician’s care and two days following this, Beltran was handcuffed and arrested by police officers at her home. According to the police report, Beltran was taken to undertake a doctor’s examination, where her pregnancy was found to be healthy and normal. Hours later, handcuffed and shackled at the ankles, Beltran was ordered by a county judge to spend 90 days in a drug treatment center. Beltran was denied access to an attorney for the hearing, in violation of her Miranda Rights, but an advocate for her unborn child was appointed and present.

    “Alicia had no idea she was giving information to the physician’s assistant that would ultimately be used against her in a court of law,” said Linda Vanden Heuvel, one of Beltran’s attorneys. “She should not have to fear losing her liberty because she was pregnant and she was honest with her doctor.”

    “It’s wrong that an unborn child gets an attorney but Alicia Beltran, the mother of that unborn child did not.”

    Separating mother and child

    At the core of this dispute is a 1997 Wisconsin law which states, “The court has exclusive original jurisdiction over an unborn child [. . .] whose expectant mother habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born.”

    Fundamentally, this case seeks to address the legal ambiguity that goes behind fetal protection. In practical terms, the unborn child is an integral component of the carrying mother. However, fetal protection laws attempt to separate the fetus and the mother on legal terms. This creates a situation in which offering legal protection to the fetus may and can defy the mother’s civil and physical liberties and rights to privacy.

    Opponents of fetal protection laws believe that the ambiguity of these protections actually empower the state to take excessive measures against women in the name of protecting children. “Some proponents of these efforts are motivated by the misguided belief that they are promoting fetal health and protecting children,” said a paper released by the Center for Reproductive Rights in 2000. “Others hope to gain legal recognition of ‘fetal rights’ — the premise that a fetus has separate interests that are equal to or greater than those of a pregnant woman. Creation of such rights would require women to subordinate their lives and health — including decisions about reproduction, medical care, and employment — to the fetus. In fact, doctors and hospital officials have already relied on this theory to seek court orders to force pregnant women to undergo cesarean sections or other medical procedures for the alleged benefit of the fetus.

    “Some advocates of fetal rights have argued that children should be able to sue their mother for ‘prenatal injuries.’ In some industries, employers have adopted ‘fetal protection’ policies, which barred fertile women of childbearing age from certain high-paying, unionized jobs.”

    Protection or discrimination?

    The discrimination case quoted above is the 1991 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc., where the United States Court of Appeals for the Seventh Circuit affirmed that Johnson Controls — a battery manufacturer that has established a non-production rule against fertile female workers of childbearing age in an attempt to prevent blood lead toxicity from growing in excess of levels thought to be detrimental to healthy pregnancies — had the right to make the exclusion. The Pregnancy Discrimination Act now makes it clear that discrimination on the basis of a woman’s pregnancy alone is now illegal. Proponents for the union argued that the policy — which banned all women except those that can medically prove to be infertile — effectively and legally kept women from the highest-paying jobs in the plant.

    In another example of fetal protection being used outside of its design, Regina McKnight, a 21-year-old African-American South Carolina resident, was arrested for having a stillbirth. Even though it would later be proven that the stillbirth resulted from an infection beyond McKnight’s control or influence, McKnight was charged with homicide by child abuse after just fifteen minutes of jury deliberation. In 2008, the South Carolina Supreme Court unanimously overturned her conviction, “concluding that she had received ineffective assistance of counsel at her trial. The court described the research that the state had relied on as ‘outdated’ and found that McKnight’s trial counsel had failed to call experts who would have testified about ‘recent studies showing that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor.’” McKnight was ultimately convinced to plead guilty to manslaughter to avoid further prison time — she had already served eight years.

    In a case that mirrors Beltran’s, Rachel Lowe, a 20-year-old Wisconsin woman, voluntarily admitted herself to Waukesha Memorial Hospital for help with her Oxycontin addiction. Under the same law Beltran was arrested under, Lowe was arrested and placed under psychiatric care at an area hospital against her will, where she received no prenatal care and was denied access to counsel for 12 days. In a subsequent hearing — at the first hearing, the state offered no information on the state of Lowe’s addiction or the health of her fetus — an attending doctor finally testified that Lowe placed her fetus at no significant risk. Lowe was ordered released by the court, but the state delayed her release for several days and maintained state supervision for the remaining term of her pregnancy, in violation of the court’s order. Lowe lost her job as a result of the ordeal, with her husband being forced to take a leave of absence.

    According to the National Advocates for Pregnant Women, from 1973 to 2005, 413 women in 44 states were arrested or forced into treatment in the name of fetal protection. Since 2005, more than 300 additional cases have been added, although, this may be a severe undercounting, as most arrests of this type are not publicly reported.

    “The Wisconsin law takes away from a pregnant woman virtually every right associated with constitutional personhood — from the most basic right to physical liberty to the right to refuse bad medical advice,” said Lynn Paltrow, executive director of National Advocates for Pregnant Women and a co-counsel to Beltran, according an article on care2.com. “This kind of dangerous, authoritarian state-action, is exactly what happens when laws give police officers and other state actors the authority to treat fertilized eggs, embryos, and fetuses as if they are already completely separate from the pregnant woman.” Wisconsin, Minnesota, Oklahoma and South Dakota are the only states that specifically have the power to arrest women on the perceived exposure of the fetus to drugs. Other states have used creative combinations of civil confinement, child protection and other laws to challenge pregnant women that abuse drugs or alcohol.

    Thirty-eight states currently have fetal homicide laws on the books, with 23 of them extending protections to the earliest stages of pregnancy, including post-fertilization.

    The Centers for Disease Control and Prevention rates Fetal Alcohol Spectrum Disorders at between 0.5 to 2.0 cases per 1,000 live births. There are at least three times as many FASD cases in the United States as Fetal Alcohol Syndrome cases. As for drug use among pregnant women, “Among pregnant women aged 15 to 44, 5.9 percent were current illicit drug users based on data averaged across 2011 and 2012. This was lower than the rate among women in this age group who were not pregnant (10.7 percent). Among pregnant women aged 15 to 44, the average rate of current illicit drug use in 2011-2012 (5.9 percent) was not significantly different from the rate averaged across 2009-2010 (4.4 percent).”

    While this presents a public health threat, the question of the need to act against civil liberties of mothers must be weighed against any potential gain. Amy Allina, director of public policy for the National Women’s Health Network, wrote, “We need to be concerned both with protecting the autonomy of women and with providing pregnant drug users with the full range of services that they need. This means collaborating with service providers, policymakers and others at the state and local level to ensure that pregnant women have access to safe and appropriate drug treatment, prenatal care, and other health and social services.”

    Allina continued, “A comprehensive approach will help women both overcome their substance abuse problems and achieve healthy outcomes for themselves and their children.” Ultimately, when considering how to protect pregnancies, political considerations — such as fetal “personage” — must be put aside. It must be remembered that there are two lives at stake, and both deserve equal consideration.

     

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