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The trend toward punishing pregnant women for unhealthy behavior has been steadily on the increase for the last few years. Women have been prosecuted in a number of states for either child abuse or delivering drugs to a minor because they used illicit drugs during pregnancy. In a recent Massachusetts case, a pregnant woman was jailed when she refused a prenatal medical exam on religious grounds.
The U.S. Supreme Court will soon decide a case that represents a showdown over the question of whether preventing harm to future children can trump pregnant womens decision making and even their freedom. The Court heard oral arguments in early October in the case of Ferguson v. City of Charleston, in which pregnant women sued a hospital for releasing results of drug tests to police. The policy and practice at a hospital in Charleston, South Carolina, was to perform a drug test on pregnant women who fit certain criteria. Those who tested positive for cocaine use were reported to the police and offered the option of immediate admission to inpatient drug treatment or arrest and possible jail time.
Is it acceptable for pregnant women who test positive for illicit drug use to be faced with the choice of inpatient drug treatment or going to jail? How far can the state go in attempting to prevent harm to fetuses and the children they may become? What will be the effects of policies that either punish or force treatment on pregnant women who need help with drug abuse?
How far are we prepared to go to prevent harm to fetuses?
Defense of the policy rests on the idea that protecting fetuses from harm justifies forcing pregnant women to accept treatment or be locked up. But this argument requires two things. First, there must be proof that using drugs actually harms the fetus and the child it will become; and second, the state must recognize the fetus as a person in the eyes of the law.
Contrary to media depictions, the evidence is far from clear about how harmful illegal drugs like cocaine are on birth outcomes, especially as compared to the known harmful effects of legal behaviors such as smoking and alcohol consumption. While no such behaviors are advisable, if protecting the fetus is the goal, does it make sense to single out drug use that affects far fewer fetuses than does use of either tobacco or alcohol?
Who is the law trying to protect?
Since the state of South Carolina effectively recognizes fetuses as citizens, the door is thrown open for criminalizing and prosecuting any behavior that threatens to harm fetuses; including everything from unhealthy behaviors -- smoking, drinking alcohol, poor diet, and lack of prenatal care -- to abortion. In fact, analysts have suggested that the trend could bring abortion under the states homicide statute, subjecting both women and physicians to criminal charges of murder.
But the same kind of argument could be applied to the fertility drugs that can lead to high multiple birth pregnancies. Such pregnancies are very risky for the fetuses and the children they may become, and are arguably more harmful than any illicit drug use. Are we prepared to endorse laws that could criminalize the medical efforts that lead to the very existence of the children the laws hope to protect?
Coercing medical care
It seems that the ultimate question is not so much whether the state can punish pregnant women for the harms they may cause to their fetus, but what states can do to prevent the harm from occurring. In the South Carolina case, the hospital tried to compel the women to accept drug treatment. And while that may work for the women who get into the health care system, there is evidence that the tactic will drive many more women away from needed prenatal care for fear of retribution. If the goal of such policies is to protect the health of future children, we must seriously question policies that drive underground women who need and may want treatment, and criminalize those brave enough to seek it.
"Ethics Matters" Archive
where you'll find other columns from Jeffrey Kahn
on a wide range of bioethics topics.
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