A while back, a friend of mine claimed that every increase in fetal rights is necessarily accompanied by an accompanying loss in women’s rights. I agreed with the principle, but the word “autonomy” has been so often repeated, and so often debased, that it now holds little power without a stark example to illustrate its meaning. Such a stark and powerful example is now available, and the subject of massive media attention, a federal lawsuit, and national outrage, as reported recently by the New York Times.

The basic facts of the case: early into her second trimester, Wisconsin native Alicia Beltran disclosed a former pill addiction at a prenatal checkup, an addiction she had overcome on her own prior to becoming pregnant. Her doctor did not believe her, despite a urine sample negative for the drug taken the same day, and two weeks later a social worker arrived at her home and insisted she voluntarily restart Suboxone treatment to wean herself from the drug or face court-ordered treatment. (She admits she shut the door in the social worker’s face after saying “Maybe I should just get an abortion.”) Two days after that encounter, sheriffs arrived and escorted Ms. Beltran to a hearing where her fetus had been appointed a lawyer, but she had not. On the written advice of Dr. Angela Breckenridge, obstetrician at a subsidiary clinic of St. Joseph’s Hospital, in which she noted “[The patient] exhibits lack of self-control and refuses …. treatment” and recommended “mandatory inpatient drug treatment …. or incarceration,” Beltran was given the choice between imprisonment and a treatment program. She chose the latter, and was held there for 78 days, during which time she lost her job.

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Unfortunately, while this case reaches national attention and is now the subject of a federal suit asserting the unconstitutionality of the law, it is not an isolated incident. Rather, a growing number of cases reflect the results of similar laws that grant fetuses rights as individuals, which for women has meant hundreds of cases of forced treatment (including surgery), detainment, and criminal charges during pregnancy or following birth.

National Advocates for Pregnant Women (NAPW) published “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005,” a comprehensive review of cases in which pregnant women were deprived of their physical liberties in some manner in the name of fetal rights or health. It reported 413 cases, which the authors considered to be a strong underestimation of the true number, as searching public databases for certain kinds of cases (eg unpublished Native American tribal court decisions or hospital detentions that did not merit media coverage) was virtually impossible. If you take away nothing else from this article, I suggest you give that paper (below) a read. It is harrowing.

Pro-life groups have rallied behind such laws, as they represent a small precedent in the legal war to recognize the fetus as a full person. As is somewhat common for such groups, they paint it as a step towards improving the health of both mother and fetus. The legislative director of Wisconsin Right to Life described the intent of the law that detained Beltran for over two months as “help [for] both the woman and her baby.”

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That is not the case.

To view these kinds of cases in their proper context, we must look to both medical ethics and the scientific literature. As far as medical ethics quandaries go, cases like Beltran’s bring up two principles: 1) patient privacy, and when physician disclosure of patient information is warranted, and 2) right to refuse treatment.

First, patient privacy is a very central tenet of medical practice, holding not only ethical weight but legal weight as well. Typically, the only exceptions that justify disclosure of private patient information are reasonable suspicion of imminent harm to others (normally this applies only to psychiatrists with disclosures of intent to commit violence), health defects that render potential harm to others (such as epilepsy in the case of professional drivers), certain reportable sexually transmitted diseases, abuse, and gunshot or knife wounds. Laws vary slightly from place to place.

However, the vast majority of states do not hold potential harm to a fetus to be a concern strong enough to override patient privacy, for very good reasons. The logic is supported not only by legal reasons (with very few exceptions, legal precedent holds that a fetus is not entitled to the legal rights of a full person on par with the mother), but practical ones as well.  The American College of Obstetricians and Gynecologist’s Committee Opinion report “Substance Abuse Reporting and Pregnancy” states that “Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse … [in part because] Substance abuse reporting during pregnancy may dissuade women from seeking prenatal care.” For the tiny minority of states that enforce such laws, the report recommends that physicians “work with state legislators to retract [such] legislation.”

The report also notes that punitive treatment of substance abuse inappropriately treats addiction or suicide attempts as moral failings rather than addressing underlying issues or attempting to treat them appropriately. Lastly, it assumes that women have not already sought treatment (drug treatment programs specifically tailored for or preferential for pregnant patients are uncommon in the US).

In an amicus brief opposing the South Carolina Supreme Court’s decision (Whitner v South Carolina) to extend child abuse and neglect laws to viable fetuses, the South Carolina Association of Alcoholism and Drug Abuse Counselors (SCAADAC) noted that enrollment by pregnant women in drug and alcohol treatment programs in the state dropped by 80% in the year following Whitner’s highly publicized prosecution and leading up to the court’s decision to uphold it. This suggests that pregnant addicts are not only deterred from seeking prenatal care out of fear that their physicians would report their drug abuse (as physicians would legally be required to do following the ruling) but also from seeking drug addiction therapy independently.

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 Moreover, the punitive treatment of pregnant women may be even more counterproductive than as a deterrent to care, if its stated goal is the protection of the fetus. NAPW’s review describes the arrest of Martina Greywind 12 weeks into her pregnancy for “reckless endangerment” following the inhalation of paint fumes; after two weeks in the County Jail, she received a release for a medical appointment, at which time she received an abortion so that the charges could be dropped (which they were). When a law passed ostensibly to protect fetuses coerces women into obtaining an abortion to avoid criminal charges, “counterproductive” may be an understatement.

The second medical ethics principle at stake in this discussion is right to refuse treatment. This right is basic to patient autonomy, basic to respect for patient decision-making, and typically upheld for all patients with mental capacity even when the decision will inevitably result in their death. (The main, and in most places, only exception is the life-saving treatment of patients following suicide attempts, even over their objections.) In most states, the right of a pregnant woman to refuse treatment indicated for the fetus has been strongly affirmed, even at later time-points in the pregnancy.

While it is harrowing to imagine that a refusal to undergo a Caesarian section to save a viable fetus would result in the infant’s death, the alternative of court-ordered forced surgery in an emergent situation deprives a woman of her due process rights as well as her physical liberty. Moreover, court orders to force treatments on pregnant women who have refused them are often made based on dubious evidence and/or for risks that do not materialize.

NAPW’s review describes the case of a woman in Florida, who was in labor at her home when her doctors sought a court order to force her to undergo a C-section, as they felt a vaginal birth might pose a risk to the fetus (due to a prior C-section). A sheriff arrived at Pemberton’s home, strapped her legs together, took her into custody, and forcibly transported her to the hospital, where lawyers argued on behalf of the fetus in an emergency hearing. Pemberton and her husband were not appointed a lawyer or represented in the hearing, violating her due process rights in an example even more extreme than Beltran’s case. The state forced her to undergo the procedure, and when she sued afterwards, a federal district court ruled that her 1st, 4th, and 14th amendment rights were all outweighed by the state’s interest in the preservation of the fetus’ life. It should be noted that she successfully gave birth vaginally to three more healthy children following the surgery ostensibly so necessary to saving the fetus due to the dangers of a vaginal birth.

Lastly, criminal action against pregnant women or new mothers is often based on faulty or non-existent evidence of a causal link between the woman’s action (or inaction) and the supposed harm it is claimed to have caused. Two thirds of the cases reported on in NAPW’s review did not even result in an adverse pregnancy outcome. (In fact, it’s worth noting that the South Carolina Supreme Court’s Whitman ruling does not even require evidence of actual harm to prosecute, but can be applied to the mother of even a healthy newborn if it tests positive for drugs, since she “risked” a poor pregnancy outcome with drug use.) The majority of the cases studied in the review reflected criminal prosecution of women who had purportedly used cocaine during their pregnancies, and indeed the legislation in Wisconsin is popularly known as the “cocaine mom” law.

However, despite studies showing that cocaine is linked to short term negative effects such as low birth-weight and preterm birth, longer-term studies have actually indicated little to no significant evidence of more permanent effects on children (contrary to popular belief). A review of 32 articles concerning long-term effects of prenatal cocaine exposure revealed that it is not significantly correlated with defects in “physical growth, developmental test scores, or language outcomes.” Ironically, prenatal care—which criminal liability laws act as a deterrent for pregnant women to seek—has been shown to minimize the impact of drug use on perinatal outcomes.

So how are so many women being affected by prosecution in such cases, when little evidence actually supports the claims made against them? It is best explained by the fact that poor women are disproportionately affected by such laws. 71% of the women in NAPW’s review “qualified for indigent defense,” and a 2010 article published by the National Association of Criminal Defense Lawyers indicates that arrests of pregnant women are too often supported by “medical misinformation,” and that the public defenders of such women are guilty of ineffective counsel when they fail to counter scientific misinformation or allow trials to proceed without any expert testimony whatsoever.

And that’s if the mother is appointed a lawyer at all. Cases of emergent forced medical interventions like Pemberton’s, in which the fetus is appointed counsel and the mother is not, are harrowing in their implications. The federal court’s decision not to uphold Pemberton’s claim that her constitutional rights had been violated because they had been superseded by those of her fetus affirm—frighteningly—that pregnant women are not party to the same constitutional rights as virtually everyone else in the US population.

In sum, it is starkly clear that laws used to prosecute pregnant women or new mothers for substance abuse or to detain or force treatments on women who refuse advised medical treatments have very disturbing implications for the constitutional and medical rights of pregnant women. Cases such as these illustrate very clearly why fetal personhood measures not only harm women, but are counter-productive in that they may encourage poor fetal outcomes when women avoid prenatal care or drug treatment, or even seek abortions, for fear of criminal prosecution.

 

For more:

1) NAPW’s review, “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Legal Status and Public Health” http://jhppl.dukejournals.org/content/38/2/299.full.pdf+html?sid=b0811f36-d4e4-4b51-a830-e175e6eee40c 

2) The NY Times article on Alicia Beltran: http://www.nytimes.com/2013/10/24/us/case-explores-rights-of-fetus-versus-mother.html?pagewanted=1&_r=0

3) Another NY Times article on the trend of criminalizing pregnant women or new mothers for drug abuse: http://www.nytimes.com/2012/04/29/magazine/the-criminalization-of-bad-mothers.html?pagewanted=1&_r=0

4) ACOG’s Committee Opinion, “Substance Abuse Reporting and Pregnancy: The Role of the Obstetriction-Gynecologist” http://www.acog.org/Resources_And_Publications/Committee_Opinions/Committee_on_Health_Care_for_Underserved_Women/Substance_Abuse_Reporting_and_Pregnancy_The_Role_of_the_Obstetrician_Gynecologist

5) The National Association of Alcoholism and Drug Abuse Counselors’ Amici Curiae brief on the Whitner v South Carolina case: http://www.drugpolicy.org/docUploads/Whitner_NAADAC_Amicus.pdf

6) An article on perinatal effects of gestational cocaine use: http://www.ncbi.nlm.nih.gov/pubmed/21257143

7) A review of long-term effects of prenatal cocaine exposure: http://pediatrics.aappublications.org/content/125/3/554.full.pdf

8) An article on the effects of prenatal care for drug-abusing women on perinatal outcomes:  http://www.ncbi.nlm.nih.gov/pubmed/12847528

9) An article on poor representation and legal prosecution of pregnant women: http://www.hivlawandpolicy.org/sites/www.hivlawandpolicy.org/files/Pregnant%20women%20junk%20science%20and%20zealous%20defense.pdf