Fetal Abuse

A growing number of women are being criminally prosecuted or having their children taken from them for doing drugs while pregnant. After years of hibernation, the legal concept of 'fetal rights' is apparently making a comeback -- to the alarm of women's rights advocates and health-care professionals.

| Wed Jun. 14, 2000 3:00 AM EDT

Sally DeJesus knew right away she'd made a mistake.

After years of heavy cocaine use, she had been clean and sober for 11 months, and pregnant for nine, when she ran into one of her old crack dealers in a convenience store near Flat Rock, N.C. She was feeling lousy. Anxious to keep her system clean while her baby was growing inside her, the 28-year-old mother of two had months ago quit taking her anti-depressant medications; partly as a result, she says, she had been terribly depressed. "I'd hide in the bedroom crying," she says. "I wouldn't eat. I didn't shower for weeks at a time." To make matters worse, she and her husband had gotten into a bitter fight that morning.

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So when the dealer offered to take her for a ride and get her high, DeJesus said yes.

"As soon as I did the first hit, I knew I'd screwed up," she says. "But when you're an addict, sometimes your judgment just goes right out the window."

The next day, DeJesus confessed to her midwife what had happened. "I told her I needed help," she says. "I was afraid for my baby." That night, DeJesus went into labor, and in short order gave birth to her daughter Emily -- who, despite her mother's prenatal relapse, came out perfectly healthy.

DeJesus' problems, however, were only beginning. Her midwife, it seems, had told the hospital where DeJesus was having her baby about her drug use. The doctors then tested newborn Emily for drug traces; when the tests came up positive, hospital staff called the police.

As DeJesus lay recuperating in her hospital room, Henderson County sheriffs marched in to interrogate her. By taking a drug that could have harmed her unborn child, they said, DeJesus had committed felonious child abuse. She is now awaiting a trial that could end with her sentenced to more than three years behind bars.

The concept behind DeJesus' prosecution is often referred to as "fetal rights": the notion that unborn babies deserve the same legal protections as children. After hibernating for several years, the issue is creeping back into view across the country, with a rash of women being charged criminally, or having their babies taken away from them, because they took drugs while pregnant.

The trend is deeply alarming to women's rights advocates and health-care workers, who warn that such a heavy-handed approach will only deter drug-addicted mothers-to-be from seeking out prenatal care. Moreover, many warn, such tactics may be paving the way for abortion -- the ultimate violation of "fetal rights" -- to legally be declared murder.

"These cases represent the intersection of the war on drugs and the war on abortion," says Lynn Paltrow, director of National Advocates for Pregnant Women, who has successfully helped argue against dozens of similar prosecutions in the last decade. "There may have been a temporary lull, but the issue has not gone away."

In the late 1980s and early 1990s, spurred by hyperventilating news stories warning of a coming deluge of "crack babies," prosecutors in more than 30 states sought to stem the anticipated flood by charging scores of drug-using pregnant women with everything from child abuse to manslaughter. In nearly all cases, however, judges eventually threw out those prosecutions, in part because the Supreme Court's landmark Roe v. Wade decision had firmly established that a fetus is not a person in the eyes of the law.

But in the last year, a fresh crop of fetal-rights cases have sprung up. In April, a 26-year-old Texas woman was indicted for child endangerment after her newborn tested positive for cocaine. The same month, a Pennsylvania judge ruled that prosecutors could charge an addicted mother with child endangerment for using heroin while pregnant -- even if her baby was born healthy. This spring, the Oklahoma state legislature nearly passed a bill making it a misdemeanor for pregnant drug abusers to fail to get substance-abuse treatment. And in Georgia, 21-year-old Shannon Moss is facing murder charges for allegedly killing her fetus by taking cocaine and amphetamines while pregnant.

Moreover, in recent years at least 17 states have enacted civil laws making it possible for authorities to take away the children of pregnant women who test positive for drugs. The Ohio Supreme Court may take up the issue soon. So far, hundreds, and perhaps thousands, of children have been taken from their mothers as the result of a single positive drug test, according to the Center for Reproductive Law and Policy.

The most bitter battleground, however, is South Carolina, the only state so far to have explicitly extended criminal child-abuse laws to cover fetuses. Despite directly contrary rulings in numerous other states, South Carolina's Supreme Court declared in 1997 that drug-using pregnant women can be prosecuted criminally -- and sentenced to as much as 10 years in prison.

Dozens of women have since been charged. Just last March, one woman was sentenced to three years in prison for violating her probation by "abusing" her unborn child with cocaine, and another drew a five-year suspended sentence for smoking marijuana while pregnant.

Such prosecutions were pioneered 11 years ago with the help of the Medical University of South Carolina in Charleston, where zealous hospital officials started a program of testing pregnant women for drug use, and turning over their findings to police. The US Supreme Court will rule later this year on whether that practice violated the women's Fourth Amendment right of protection against unreasonable searches.

Those who prosecute pregnant drug users say they have everyone's best interests at heart. "I just want the babies to be safe," says Tommy Pope, chief prosecutor for South Carolina's York and Union Counties, where the two women convicted in March live. "We try to use prosecutions as a last resort. But you run into situations where a woman has had five kids, and they've all tested positive for crack. Where do you draw the line?"

"Unless addicts are forced to stop, they won't," seconds Bobby Hood, the attorney representing the city of Charleston in the Supreme Court case. The threat of prison, he maintains, "has a very good deterrent effect."

But in fact, according to a broad range of women's rights and major health care organizations, the threat of prison is more likely to hurt, not help, the unborn babies of drug users, by frightening drug-using mothers-to-be away from seeking prenatal care. The American Medical Association, the American Academy of Pediatrics, and many other groups formally oppose criminal prosecutions of mothers of drug-exposed babies.

Even Daniel Kennedy , an Illinois lawyer who recently founded the incipient Fetal Rights Institute, doesn't think criminal prosecutions are the way to go. "Fetuses are definitely children," says Kennedy. "But jailing moms for hurting their kids prenatally doesn't help. It will only encourage women to seek abortions, or avoid treatment."

At least three drug treatment programs in South Carolina reported a drop in the number of pregnant women admitted in the months following the court decision. Brenda Dawkins, associate director of South Carolina's Keystone Substance Abuse Services Center, which treats many pregnant drug addicts, doesn't doubt the connection. "When the (state Supreme Court) decision came down, we were afraid women would not seek prenatal care, or would go over to North Carolina and continue using drugs, or would have their baby at home," says Dawkins. "All this has happened."

If fetal health were really the only issue involved, women's advocates point out, then prosecutors should also be going after expectant mothers who ingest other popular toxins. After all, according to the most recent national survey of pregnant woman, only a little over one percent used cocaine -- while nearly 20 percent smoked cigarettes, which are linked to a range of infant health problems, including as many as 7,000 deaths every year. Not to mention alcohol, the leading cause of preventable mental retardation in babies.

While there have been a handful of attempts to prosecute women for damaging their babies with heavy drinking, the vast majority of such cases have involved illegal drugs. Why? "Alcohol isn't illegal, cocaine is," explains Henderson County sheriff Carol Coss, who arrested Sally DeJesus. Yes, but the charge against DeJesus was child abuse, defined here as ingesting a substance that could have harmed her unborn baby; would Coss, then, arrest a woman for drinking a martini while pregnant? "Well," sighs Coss, "technically you could say it's abuse if you drink while pregnant. But no one's ever filed a report charging a woman with that."

Such prosecutions unfairly discriminate in other ways, women's advocates charge. South Carolina, where the attorney general has similarly stated that he will only prosecute pregnant women who use illegal drugs, suffers a chronic shortage of drug-treatment facilities for pregnant women -- meaning many pregnant addicts can't get professional help to quit even if they want to. Many other regions suffer a similar lack of services. New York City, for instance, ran 31 comprehensive drug-abuse and child-care clinics to deal specifically with drug-addicted mothers from 1990 to 1995 -- but almost half of these clinics have since been shut down. New York state, meanwhile, is currently considering a bill that would take away from mothers any newborn testing positive for drugs.

"There's a big misunderstanding that these women don't care about their babies," says Wyndi Anderson, executive director of South Carolina Advocates for Pregnant Women. "There just aren't the resources available for them to be able to take care of their babies. Lots of us grew up with parents who were alcoholics or drug addicts, but we have money to buffer us and keep the Department of Social Services from knocking on our doors."

A positive drug test -- even a recognizable drug habit -- does not necessarily predict someone's parenting ability, as any suburban weekend toker can attest. Studies and several major health-care and legal groups concur. As the American Bar Association's official position puts it, "[M]any people in our society suffer from drug or alcohol dependence yet remain fit to care for a child."

None of that, however, stopped authorities in Houston, Texas, from taking away Rita Veitenheimer's four children last fall, after her newborn tested positive for marijuana -- even though, according to the Times Record News of Wichita Falls, Texas, the baby was healthy and the older kids star students.

If criminal prosecutions against drug-using pregnant women continue to take root, Anderson and others predict the consequences for abortion rights will be dire. "If you're going to treat a fetus as a separate entity from the mother, why wouldn't you call abortion child abuse?" asks Anderson. That's a particularly relevant question in light of a bill recently passed by the House of Representatives that makes harming a fetus while attacking a woman an additional crime. Several states have passed similar laws.

All of that is academic to Sally DeJesus. For the time being, she's in a residential drug rehab center with baby Emily, just hoping to get clean for good, and to avoid jail. But no matter how her court case turns out, her life has been shattered. Her other kids are taunted in school because of her indictment, and her husband of 11 years is planning to divorce her, she says.

"What I did was wrong. I'm not trying to justify it," says DeJesus. "But I feel like I'm being punished for reaching out for help. I need this program now, not jail."

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