Last week the Missouri Court of Appeals in Kansas City ruled that a pregnant woman cannot be prosecuted for causing indirect harm to her fetus under a state law that allows criminal and civil action against a person who harms a woman or her fetus, the St. Louis Post-Dispatch reports.
In this case, Janet Wade and her newborn infant, tested positive for marijuana and methamphetamine use. The state law says that the life of a human being begins at conception and that fetuses have "protectable interests in life, health and well-being." This law, enacted in 1986, has been used successfully in murder, manslaughter and wrongful death lawsuits against people who have caused a fetus' termination. Here, the court dismissed the charges against Wade because of a clause in the legislation stating, "Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care."
As can be imagined, this case brings out some longstanding points on contention about fetal rights and women's health. I'd like to take this opportunity to challenge those who make this into a debate about women versus their fetuses. This false dichotomizing has continued for far too long, and it's time to set the record straight about some of the myths spread by conservative activists who masquerade their contempt for women as concern for fetal rights.
St. Charles County Prosecutor Jack Banas found the MO court's decision devastating. "The way this is decided, essentially, it opens the door for a person who is pregnant to kill the child up until the moment of birth by just literally consuming too much alcohol or too many different types of drugs," Banas said.
This type of assessment of the situation leaves out a very significant component of the debate. Many of the women who Banas would like to charge with murder or manslaughter are not women who want to terminate their pregnancies. They are drug or alcohol addicted and they need treatment, not prosecution. I recently spoke with Lynn Paltrow, executive director of National Advocates for Pregnant Women (NAPW), who said, "Pregnant women have no more power to end their addictions than Rush Limbaugh does his."
This approach of prosecution and not treatment has the inevitable effect of preventing women from seeking the treatment they want and need, in order to have healthy babies. The medical community is in overwhelming consensus on this point, as are advocates working for just drug polices.
"Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician's knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment." – Report of American Medical Association Board of Trustees, Legal Interventions During Pregnancy, 264 JAMA 2663, 267 (1990).
"Pregnant women should not be punished for adverse perinatal outcomes. The relationship between maternal behavior and perinatal outcome is not fully understood, and punitive approaches threaten to dissuade pregnant women from seeking health care and ultimately undermine the health of pregnant women and their fetuses." – American College of Obstetricians and Gynecologists Committee Opinion 321 (Nov. 2005).
In fact, many of the claims about fetal health and protection are made on the basis of faulty science. The phenomena of crack babies and meth babies are, according to much scientific investigation, fabrications. This is something that many find hard to believe, proving yet again the success of conservative posturing. This posturing effectively sidesteps the dangers to pregnant women by environmental and workplace hazards, not to mention cigarettes and alcohol, to reserve its harshest punishment for women addicted to crack and methamphetamines – drugs found in low income communities and communities of color.
"Throughout almost 20 years of research, none of us has identified a recognizable condition, syndrome or disorder that should be termed ‘crack baby'… We are deeply disappointed that American and international media continues to use a term that not only lacks any scientific basis but endangers and disenfranchises the children to whom it is applied." – From an open letter to the media from the nation's leading medical doctors and scientists. See the entire letter here. See a similar letter regarding "meth babies" here.
With all this scientific consensus, why to conservative lawmakers continue to push for the criminalization of drug addicted pregnant women? These cases are not rare, and despite recent victories, are not going away. Paltrow brings this analysis home, "The fetal rights arguments are made not to advance child health, but to control pregnant women… The idea that illegal drugs are uniquely dangerous is [an argument] based on junk science. It perpetuates a cycle of state power over poor people through the criminal justice system. These cases reflect the power of the state to say, ‘upon becoming pregnant you lose your civil rights.' "
Challenging the abuse of this system amounts to reclaiming both civil rights AND the culture of life. To do this, however, we must adamantly refuse to make this a debate between women's rights and fetal rights. The facts show that these are, medically and socially, the same thing.
For more analysis see:
Punishment and Prejudice: Punishing Drug-Addicted Pregnant Women, By Lynn Paltrow
Women and the War on Drugs by The Drug Policy Alliance
The Constitutional Rights of Pregnant Women, by Jill Morrison of the National Women's Law Center for Feministing.com
Criminalizing Motherhood by Silja J.A. Talvi for The Nation