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
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