Protecting the Unborn

How far can police go to prevent a mother from harming her fetus? The Supreme Court will decide

Generally, combatants fight the abortion wars by rallying behind one of two sides--women who want to make their own choices without government interference, or fetuses, who can not make choices and need government interference. But what, if anything, should the government do about pregnant women who are not seeking an abortion but do things that could harm their unborn children--smoke crack, say, or drink bourbon or climb trees? Just as the arrival of RU 486 may shift the focus of the abortion debate to the earliest term of pregnancy, still another battle is growing over "fetal rights"--whether a woman can be forced to change her behavior to safeguard the health of her fetus.

This week the U.S. Supreme Court will hear arguments in one such case, Ferguson v. Charleston, S.C. It was brought by 10 women who claim a hospital there violated their Fourth Amendment protection against unreasonable searches by testing their urine when they were pregnant to find out whether they were using drugs. After all of them tested positive, nine were arrested and two were jailed--one of them, according to her lawyer, not long after a hospital staff member noted in a chart that she was passing blood clots and weeping in pain.

The Medical University of South Carolina worked with the local prosecutor in 1989 to start the unprecedented screening program, which did not require explicit consent from those being tested. Though the policy sounds harsh in hindsight, it was started at the height of the crack epidemic, which begat the "crack babies" scare, causing great alarm back then. Though studies later showed that cocaine use during pregnancy probably doesn't cause long-term, debilitating health problems for babies, the hospital staff was seeing plenty of short-term symptoms in crack-addicted newborns--withdrawal, difficulty eating, cardiovascular dysfunction. And yet the addicted moms routinely refused to get drug treatment, maternity-ward staff members later told the Los Angeles Times.

The testing program began after two worried hospital officials, who thought the public hospital could be legally responsible for preventing the babies' health problems, brought their concerns to the Charleston prosecutor Charles Condon. He happened to be a conservative young attorney, and quickly instituted the drug-testing policy, then warned pregnant drug users in early-'90s TV spots, "Not only will you live with guilt, you could be arrested." The ads helped build his scrappy, controversial reputation and led Condon to the state attorney general's office, which he still holds.

It was in this context that Patricia Williams went to the Medical University in 1992. She was pregnant and addicted to cocaine, she told TIME last week, and wanted help in both areas. But she claims she was only scolded for her addiction. After she tested positive for coke on the day she delivered, she says, "I was in my room screaming with pain, and they walked past like I didn't exist." Two days later, she was taken to jail, though she spent only a few hours there. (No one at the hospital would comment.)

Abortion-rights advocates heard such horror stories and in 1993 filed a lawsuit, arguing that because the women didn't consent to the searches and police had no warrants for them, they were unconstitutional. In January 1994 the advocates also filed a complaint with the National Institutes of Health, contending that because researchers published a paper on the results of the secret drug screens, the hospital had conducted improper human research. Later, NIH largely concurred, but the complaint had a more immediate effect. Officials at the U.S. Department of Health and Human Services launched a civil rights investigation based on the fact that nearly all those arrested were African American. The hospital soon reached an agreement with the department's Office for Civil Rights to stop telling law enforcers when pregnant women test positive. But the high court still must decide the constitutional question: Does the purported damage being done to unborn children--and the cost to the public of caring for addicted babies--outweigh the requirement that officials obtain warrants for searches?

As startling as the Charleston case is, it is only one of hundreds in the past few years pitting women's rights against the putative rights of fetuses. These cases first flourished in the '80s, and have made a resurgence as abortion-rights foes look for new battles at a time when politicians of both major parties say little about abortion. For instance, conservatives have helped pass laws in 19 states that automatically invalidate a "right-to-die" living will for a woman if she gets pregnant; 11 other states invalidate such a document if birth is possible, according to Rachel Roth, author of Making Women Pay: The Hidden Costs of Fetal Rights.

On the local level, D.A.s have prosecuted at least 200 women across the U.S. on various theories of fetal abuse, according to the Center for Reproductive Law and Policy, which represents many of the women. The center is currently helping defend Shannon Moss, a Georgia woman who gave birth to twins last year, one of whom died five minutes after being born. Authorities charged Moss with murder after she tested positive for methamphetamine, though an autopsy later found no traces of drugs in the child. Her case has been stalled for a year.

Some of the most dramatic cases have nothing to do with drugs. Last month in Attleboro, Mass., a judge ordered Rebecca Corneau to be sent to a center for pregnant inmates until she gives birth, which will be any day. Last year Corneau gave birth to a son, who died soon afterward. Prosecutors say he would have lived had he undergone a routine procedure to clear his fragile lungs, but Corneau belongs to a religious sect that rejects modern medicine. She also rejects the authority of the government, and so has declined to hire a lawyer. The A.C.L.U. has asked the state's high court to step in anyway, since there's no evidence that this fetus is in imminent danger. The court has declined.

The cases may seem morally tricky, but in most states they are legally straightforward. The prosecutions almost never hold up because courts rule that when the relevant laws were passed, they were not intended to apply to fetuses. In 21 of the 22 states where women have challenged fetal-abuse charges, courts have rejected the charges, according to the reproductive-law center. The most recent decision came last year, when a Wisconsin court dismissed charges of attempted murder against Deborah Zimmerman. She drank heavily during her ninth month of pregnancy, even got drunk, prosecutors allege, on the day she was to deliver her child, who, born sickly, is now apparently healthy.

Should authorities ever intervene between a woman and her fetus? Lynn Paltrow, who directs National Advocates for Pregnant Women, says no. "Women have a right to make decisions regarding their own bodily integrity, [and] that does not stop when they become pregnant," she argues. But what about cases like that of a Utah woman who snorted so much methamphetamine that her fetus was stillborn? "Who are we protecting?" asks Robert Hood, the Charleston lawyer defending South Carolina and its drug-testing policy. "The woman, so she can kill her baby? Or is society going to step up to the plate and protect that baby?" Those are questions that even judges have trouble answering.

--With reporting by Paul Cuadros/Charleston