Fetal abuse and drug abuse

What rights should a fetus have

Should women who abuse drugs while they are pregnant be charged with delivery of drugs to a minor and child abuse after their baby is born? There is an increasing movement among prosecutors and conservative politicians to do exactly that, leading to growing numbers of women who are charged and convicted of child abuse which occurred before their child was even a part of society. South Carolina seems to be at the forefront of this movement, but other states like Arizona are following suit. As far back as 1996, the South Carolina Supreme Court upheld the conviction of a woman who had used crack cocaine during the third trimester of her pregnancy. The defendant in South Carolina v. Whitner had argued that her fetus did not meet the definition of "child" under the law, but the Court found that because the fetus was viable, it qualified. In another case (Ferguson v. Charleston, South Carolina), a public hospital in South Carolina had been testing women for drug use without their knowledge and turning the women over to the police if the blood work came back positive. Many were convicted of child abuse, but in 2001, the U.S. Supreme Court ruled against the state and the hospital. These cases reflect an interesting intersection between the conservative War on Drugs and the conservative effort to restrict reproductive freedoms. With the former, punishment is preferred over treatment while with the latter, a fetus is thought to merit the same moral and legal status as a newborn. The images of drug-addicted babies with profound birth defects, assuming that they are born alive at all, may readily incline us to agree with such prosecutions of women who abuse drugs during pregnancy. There is no question that these infants are suffering for no good reason and that their mothers have done something horribly wrong in exposing their fetuses to harmful drugs. But does this mean that prosecution for child abuse is warranted? We should set aside for a moment the most extreme cases and consider the implications for more likely situations. For example, in the case of Crawley v. Catoe a woman was charged and convicted of child endangerment because of drug use during pregnancy, even though she gave birth to a perfectly healthy baby. Should she really be punished, even though her baby experienced no harm? If such prosecutions are based upon valid principles, why should the government stop with the abuse of drugs? Why not treat any actions of a pregnant woman exactly as if they were done by a mother? For example, a woman who drinks alcohol or smokes at any time during pregnancy could be prosecuted just as if she had given alcohol or cigarettes to a child. Why not? After all, the harm experienced by fetuses from drugs like cocaine have been found to be speculative, overstated, and in general simply pale in comparison to the harms from nicotine and alcohol.

Because such actions often do not result in any obvious or even actual harm, if the government wishes to prevent them it will have to engage in more active monitoring of pregnant women. Perhaps hospitals should be required to perform blood tests on all pregnant women and give the results to the authorities. Of course, even women who do not yet know that they are pregnant can still harm their fetuses, so perhaps the government should monitor #all women of child bearing age. Then again, perhaps it would be more cost efficient to simply force all women to use a contraceptive like Norplant and thus only test those who have been given permission to be fertile. If this sounds paranoid, it's not - a number of judges across the country have given women who have abused drugs during pregnancy a choice between Norplant and jail, all in the name of protecting the interests of their theoretical and un-conceived children.

One obvious result of such draconian measures would be that more and more women will stay away from healthcare providers, especially if they know they are pregnant, out of fear of what could happen. This is already a consequence for women who abuse drugs - and they are the last people who should be going without proper prenatal care! This could also encourage women to have unsafe, late-term abortions rather than risk the pregnancy coming to term, an ironic situation considering that those who support these prosecutions also generally oppose legal abortion as well. As we can see, there are a number of moral problems with prosecuting any women who abuse drugs during pregnancy. From a utilitarian perspective, it results in a number of consequences which can have the opposite effect intended - when women avoid doctors out of fear of jail, both they and their babies will be in greater danger from a wide range of medical problems. There is also a serious problem with the prospect of women losing the ability to trust their healthcare providers as doctors are forced to move from treatment to punishment as a solution to addiction. Drug addiction is a complicated social issue. Women who use drugs during pregnancy do not do so out of an active desire to harm their fetus. Punishment through prosecution and jail, especially with the aid of doctors and nurses, seems an unlikely means to effectively combat either problem, and it certainly doesn't appear to have a sound moral basis.