Are the pregnancy police concerned citizens or invaders of privacy? It’s an emotionally charged national debate that pits the rights of the fetus against the rights of the mother and poses difficult questions about where to draw the line.
A generation ago women smoked cigarettes and drank alcohol throughout their pregnancies and nobody looked twice. But these days, with health alerts about everything from caffeine to aspirin, pregnancy has never seemed more hazardous. At the same time publicity about fetal alcohol syndrome and crack babies has prompted law enforcement officials and ordinary citizens alike to intervene in what was once considered the most private realm of a woman’s life. Since 1987, there have been about 60 criminal cases in 19 states against pregnant addicts; the charges have included child abuse, assault and manslaughter. Last year Floridian Jennifer Johnson became the first mother convicted on a drug-delivery charge involving an infant.
The courts have begun to set limits on the pregnancy police and, so far, the law is siding with a mother’s privacy. Last month the Supreme Court struck down a mandatory fetalprotection policy at a Wisconsin battery plant that used lead–a potential cause of birth defects–in its manufacturing process. Under the policy, women of childbearing age could either prove that they were sterile or switch to less hazardous, and usually lower-paying, jobs within the company. Earlier this month the Michigan Court of Appeals ruled that Kimberly Hardy, a 24-year-old factory worker, should not stand trial on child-abuse charges for using crack hours before her son’s birth because the statutes did not apply to fetuses.
Regardless of what the courts say, the pregnancy police seem to be gaining public support. A 1988 Gallup poll found 48 percent of those responding agreed that a woman who smokes or drinks during pregnancy should be liable for damage to her infant. Many pregnant women say they get dirty looks or nasty comments if’ they smoke or drink in public-even though doctors say there’s no definitive evidence that one drink during a pregnancy is harmful (obstetricians do tell women to avoid alcohol). Regular smoking, on the other hand, has been linked with low birth weight and prematurity.
The issues are clearer with pregnant addicts. There’s no question that drug use during pregnancy is dangerous, and doctors say that getting the woman off drugs will almost certainly help the baby to some degree. “If a pregnant woman stops taking drugs in the last trimester, there’s a chance the child won’t be born addicted,” says Dr. Ira Chasnoff, president of the National Association for Perinatal Addiction Research and Education.
But while there’s widespread agreement on the benefits of treatment if the woman asks for help, getting her into a program without her consent is controversial and can require legal ingenuity. LeeAnn Moore, a convicted prostitute, is spending the last month of her pregnancy in a court ordered stay at a Rockford, Ill., drug-treatment center. The prosecutor who put her there, Paul Logli, was moved by a letter from Moore’s boyfriend asking the state to intervene because of her alleged cocaine addiction. Logli looked for a loophole-and found it. Under state law, he couldn’t lock her up if she were just a pregnant addict; instead, he got her for violating parole in an earlier prostitution arrest. “I’m willing to work with the mother if the mother stays in treatment,” Logli says. “If not, I’ll take other actions when it’s in the best interest of the child.”
But opponents of intervention say that when the law comes down on one pregnant addict, others are scared away from doctors because they fear criminal charges. “Prosecuting someone for taking drugs during pregnancy is really counterproductive,” says Nadine Taub, a Rutgers University Law School professor who specializes in reproductive issues. “You lock a woman up because she’s pregnant and you’re sending a signal that if you want to stay out of’ trouble, don’t go for prenatal care. Hide instead.” And even the best-intentioned pregnancy police may be acting too late. Doctors say a fetus is most vulnerable in the first trimester, when most women don’t appear pregnant.
Women’s rights advocates argue that the most effective long-term solution would be to make good prenatal care available to all women-without penalty for addiction. “The health-care system in this country is totally inadequate,” says Lynn Paltrow, director of the American Civil Liberties Union’s reproductive-freedom project, “but we would rather blame individual mothers for misbehaving or taking drugs … It’s not a crime to do something that could potentially harm the fetus, whatever it may be–whether it’s changing your Kitty Litter or getting too much exercise or staying up too late at night or taking illegal drugs. If that were true, then every pregnant woman would be a criminal suspect from the moment she conceived.”
While no one disputes that drug and alcohol are real threats to maternal and fetal health, the pregnancy police sometimes intervene in far less serious cases. A few weeks ago Seattle bus driver Mary Dunn was ordered out of a fitness-center hot tub by an employee who insisted that the facility requires written permission from physicians before pregnant women can soak their aching bones. Dunn, then 33 weeks pregnant, had a verbal OK from her doctor-as long as the temperature wasn’t too hot and she didn’t stay in for more than 10 minutes-but that wasn’t good enough. Her obstetrician, Dr. Peter Hohn, thinks his patient was the victim of good intentions gone awry. Says Hohn: “Some pregnant women have become the targets of some silly interference.”
Civil libertarians say intervention is indeed a slippery slope. For example, many doctors advise women to avoid sex near the end of their pregnancies. “I suppose that the next step is that somehow we’ll start policing pregnant women’s sex lives,” says Paul Denenfeld, legal director of the Michigan chapter of the ACLU. After that, he suggests, “grocery stores are going to stop selling potato chips to women because they may be taking those potato chips home and eating them … It is a line that I think we cannot cross in this country.”
While the debate continues, there have been some happy endings. Kimberly Hardy entered a drug-treatment program after her son was born in 1989. As her case went through the courts, she turned her life around. Now she says she has been clean for more than a year; her son and her two other children have come back home from foster care. And Hardy says she’s thinking about starting a new career-as a drug counselor.
