Posted: September 13th, 2017

Kaebnick textbook, "Should a Pregnant Woman Be Punished for Exposing Her Fetus to Risk?"

Kaebnick textbook, “Should a Pregnant Woman Be Punished for Exposing Her Fetus

to Risk?”

Read Issue 9 from Unit 3 in the Kaebnick textbook, “Should a Pregnant Woman Be

Punished for Exposing Her Fetus to Risk?” Assume that you are a healthcare

administrator, and you find yourself dealing with this exact issue regarding a

patient giving birth in your facility. Prepare a 500-word paper, double-spaced

and in APA style or another approved DeVry-Keller format or style, that presents

the most important legal and ethical issues relevant to this topic from both

perspectives. And then state your position on this issue and describe how you

will handle it in your hospital. It is important to present this information in

an objective and factual manner. You may use research other than the Kaebnick

text to support your analysis and summary paper.

Written Assignment
Read Issue 9 from Unit 3 in the Kaebnick textbook, “Should a Pregnant Woman Be

Punished for Exposing Her Fetus to Risk?” Assume that you are a healthcare

administrator, and you find yourself dealing with this exact issue regarding a

patient giving birth in your facility. Prepare a 500-word paper, double-spaced

and in APA style or another approved DeVry-Keller format or style, that presents

the most important legal and ethical issues relevant to this topic from both

perspectives. And then state your position on this issue and describe how you

will handle it in your hospital. It is important to present this information in

an objective and factual manner. You may use research other than the Kaebnick

text to support your analysis and summary paper.

ISSUE 9: Should a Pregnant Woman Be Punished for Exposing Her Fetus to Risk?
•    YES: Liles Burke, from Hope Elisabeth Ankrom v. State of Alabama (May

26, 2011)
•    NO: Lynn M. Paltrow, from “Punishment and Prejudice: Judging Drug-Using

Pregnant Women,” in Julia A. Hanigsberg and Sara Ruddick, eds., Mother Troubles:

Rethinking Contemporary Maternal Dilemmas (Beacon Press, 1999)
Learning Outcomes
After reading this issue, you should be able to:
•    • Discuss the implications of maternal responsibility during pregnancy.
•    • Discuss how environmental factors may affect a person’s well-being and

a person’s responsibility for their behavior.
•    • Discuss how the debate about abortion is affecting public policy on

other issues, including substance abuse and child welfare.
WORK CITED
Kaebnick, Gregory. Taking Sides: Clashing Views on Bioethical Issues, 15th

Edition. McGraw-Hill Learning Solutions, 41. VitalBook file.

Reading:
ISSUE SUMMARY
•    YES: Liles Burke sets out the majority opinion of the Alabama Court of

Criminal Appeals in a case involving a pregnant woman who was found to have used

cocaine while pregnant. Burke argues that Alabama law that forbids adults from

exposing children to controlled substances applies in cases involving pregnant

women and their fetuses.
•    NO: Attorney Lynn M. Paltrow argues that treating drug-using pregnant

women as criminals targets poor, African American women while ignoring other

drug usage and fails to provide the resources to assist them in recovery.
198199
In 1989, fueled by the specter of an epidemic of drug use resulting in the birth

of thousands of “crack babies,” the Medical University of South Carolina

established a program that required drug-using pregnant women to seek treatment

and prenatal care or face criminal prosecution. This program applied only to

patients attending the university’s obstetric clinic, primarily poor black

women, and not to private patients. Patients enrolled in the clinic saw a video

and were given written information about the harmful effects of substance abuse

during pregnancy. The information warned that the police, the court system, and

child protective services in Charleston, South Carolina, might become involved

if illegal drug use were detected.
Women who met certain criteria were required to undergo periodic urine screening

for drugs. A patient who had a positive urine test or who failed to keep

scheduled appointments for therapy or prenatal care could be arrested and placed

in custody. If a woman delivered a baby who tested positive for drugs, she would

be arrested immediately after her medical release and her newborn taken into

protective custody. If the drug use was detected within the first 27 weeks of

gestation, the patient was charged with possession of an illegal substance;

after that date, the charge was possession and distribution of an illegal

substance to a minor. If the drug use were detected during delivery, the woman

would be charged with unlawful neglect of a child.
This stringent policy was developed as a result of clinicians’ concern about the

harmful effects of drug use on fetal development and prosecutors’ desires to

take a strong public stand condemning drug use. The Supreme Court of South

Carolina upheld the law in a 1997 decision involving a woman, Cornelia Whitner,

who admitted to using cocaine during pregnancy and whose baby was born with

cocaine metabolites in his system. The court wrote that, “The abuse or neglect

of a child at any time during childhood can exact a profound toll on the child

herself as well as on society as a whole. However, the consequences of abuse or

neglect that takes place after birth often pale in comparison to those resulting

from abuse suffered by the viable fetus before birth.”
Critics argued, however, that the law punished women without helping them

correct their behavior. Although the law’s stated goal was to get women into

treatment, there were few places that women could receive treatment and the

necessary support, such as transportation and child care. At the time, there was

no women-only residential treatment center for substance-abusing pregnant women

anywhere in the state.
The program was discontinued in September 1994 as the result of a settlement

with the Civil Rights Division of the federal Department of Health and Human

Services. By then, 42 pregnant women had been arrested. In recent years,

however, similar cases have been tried in other states. In Alabama, prosecutors

began filing charges against women under the state’s 2006 chemical endangerment

law, whose explicit goal was to prevent adults from bringing children to

methamphetamine laboratories and other places where illegal substances are

produced or distributed. Prosecutors argued that the law also applied to fetuses

exposed to drugs while in the uterus. A long list of medical, legal, and public

organizations filed legal briefs arguing against 199200their interpretation of

the law, but their prosecutors’ position has been upheld by the Alabama Court of

Criminal Appeals. Over 60 women have now been charged under the law.
In Hope Elisabeth Ankrom v. State of Alabama, Justice Liles Burke explains why a

majority of the court’s justices found that the state’s chemical endangerment

law includes a fetus within its definition of “child.” Lynn Paltrow argues,

however, that criminalization of drug use is a punitive response that rejects

the humanity of the women who are denied treatment and support for recovering

from their addiction.
YES: Hope Elisabeth Ankrom v. State of Alabama
Liles Burke
Hope Elisabeth Ankrom pleaded guilty to chemical endangerment of a child, a

violation of [Section 26-15-3.2 of the Code of Alabama]…. The trial court

sentenced Ankrom to three years in prison, but the court suspended that sentence

and placed her on one year of supervised probation. Ankrom appealed her

conviction. We affirm.
Facts and Procedural History
At the guilty-plea hearing, the parties stipulated to the following facts:
“On January 31, 2009, the defendant, Hope Ankrom, gave birth to a son, [B.W.],

at Medical Center Enterprise. Medical records showed that the defendant tested

positive for cocaine prior to giving birth and that the child tested positive

for cocaine after birth.
“Department of Human Resources worker Ashley Arnold became involved and

developed a plan for the care of the child. During the investigation the

defendant admitted to Ashley that she had used marijuana while she was pregnant

but denied using cocaine.
“Medical records from her doctor show that he documented a substance abuse

problem several times during her pregnancy and she had tested positive for

cocaine and marijuana on more than one occasion during her pregnancy.”
On February 18, 2009, Ankrom was arrested and charged with chemical endangerment

of a child. On August 25, 2009, the grand jury indicted Ankrom. The indictment

stated that Ankrom “did knowingly, recklessly, or intentionally cause or permit

a child … to be exposed to, to ingest or inhale, or to have contact with a

controlled substance, chemical substance, or drug paraphernalia as defined in

Section 13A–12–260 of the Code of Alabama….
Circuit Court of Coffee County, 2011
Discussion
Ankrom alleges that based on the facts of this case, she cannot be convicted of

violating § 26–15–3.2(a)(1), Ala.Code 1975…. [T]he issue before this Court is

whether a mother who ingested a controlled substance during her pregnancy, may

be prosecuted under § 26–15–3.2(a)(1), Ala.Code 1975, if at birth 201202the

infant tests positive for the controlled substance. We answer that legal

question in the affirmative, and we conclude that based on the facts of this

case, Ankrom’s conviction was proper…
Turning to the merits of the present case, § 26–15–3.2(a)(1), Ala.Code 1975,

provides:
•    “(a) A responsible person commits the crime of chemical endangerment of

exposing a child to an environment in which he or she does any of the following:
o    “(1) Knowingly, recklessly, or intentionally causes or permits a child

to be exposed to, to ingest or inhale, or to have contact with a controlled

substance, chemical substance, or drug paraphernalia as defined in Section 13A–

12–260. A violation under this subdivision is a Class C felony.”
Page G
Ankrom alleges that the term “child” in § 26–15–3.2, Ala.Code 1975, does not

include a viable fetus. The State responds that the plain meaning of the term

“child,” as used in the statute, includes an unborn child.
… The legislature has stated that “[t]he public policy of the State of Alabama

is to protect life, born, and unborn. This is particularly true concerning

unborn life that is capable of living outside the womb.” … Chapter 15 of Title

26, Ala.Code 1975, does not define the term “child.” However, Chapters 14 and 16

of Title 26, Ala.Code 1975, define a “child” as a “person” under the age of 18

years….
Also, the Alabama Supreme Court has interpreted the term “minor child” in

Alabama’s wrongful-death-of-minor statute to include a viable fetus that

received prenatal injuries causing death before a live birth…. Specifically, the

Court held that “the parents of an eight and one-half month old stillborn fetus

[are] entitled to maintain an action for the wrongful death of the child”; thus,

the Court explicitly recognized the viable fetus as a “child.” Eich, 293 Ala. at

100, 300 So. 2d at 358.
Furthermore, the dictionary definition of a word provides the meaning ordinary

people would give the word…. According to Merriam–Webster’s Collegiate

Dictionary 214 (11th ed.2003), the word “child” is defined as “an unborn or

recently born person.” The word “child” is defined in Black’s Law Dictionary 254

(8th ed.2004), as “[a] baby or fetus.”…
… [W]e do not see any reason to hold that a viable fetus is not included in the

term “child,” as that term is used in § 26–15–3.2, Ala.Code 1975. Not only have

the courts of this State interpreted the term “child” to include a viable fetus

in other contexts, the dictionary definition of the term “child” explicitly

includes an unborn person or a fetus. In everyday usage, there is nothing

extraordinary about using the term “child” to include a viable fetus. For

example, it is not uncommon for someone to state that a mother is pregnant with

her first “child.” Unless the legislature specifically states otherwise, the

term “child” is simply a more general term that encompasses the more specific

term “viable fetus.” If the legislature desires to proscribe conduct against

only a “viable fetus,” it is necessary to use that specific term. However, if

the legislature desires to proscribe conduct against a viable fetus and all

other persons under a certain 202203age, the term “child” is sufficient to

convey that meaning. In fact, proscribing conduct against a “child” and a

“viable fetus” would be redundant.
The term “child” in § 26–15–3.2, Ala.Code 1975, is unambiguous; thus, this Court

must interpret the plain language of the statute to mean exactly what it says

and not engage in judicial construction of the language in the statute. Also,

because the statute is unambiguous, the rule of lenity does not apply. We do not

see any rational basis for concluding that the plain and ordinary meaning of the

term “child” does not include a viable fetus.
Ankrom advances three main arguments against interpreting the term “child” in §

26–15–3.2, Ala.Code 1975, to include a viable fetus: (1) The legislature has

specifically included the term “fetus” or “unborn child” in other statutes when

the legislature’s intent was for the statute to apply to a fetus; (2) most

courts from other jurisdictions have held that mothers could not be criminally

prosecuted for prenatal substance abuse on the statutory theories of child

abuse/endangerment or drug distribution; and (3) the legislature has declined to

amend § 26–15–3.2, Ala.Code 1975, to explicitly include an unborn child in the

definition of the term “child.” We will address each argument in turn.
Contrary to Ankrom’s argument, the fact that the legislature has included the

term “fetus” or “unborn child” in other statutes does not mean that the term

“child” in § 26–15–3.2, Ala.Code 1975, does not include a viable fetus. Ankrom

specifically points to § 26–23–3, Ala.Code 1975, as an example to support her

argument. Section 26–23–3, Ala.Code 1975, provides: “Any physician who knowingly

performs a partial-birth abortion within this state and thereby kills a human

fetus shall be guilty of a Class C felony and upon conviction thereof shall be

punished as prescribed by law.” Ankrom states that “[t]here is no doubt in the

plain meaning of that statute of which class it is designed to protect: human

fetuses.” … Ankrom then reasons that “[i]f the legislature had intended for §

26–15–3.2(a) to apply to a fetus, then the legislature would have specifically

included that language as it has in other statutes.” … However, the flaw in

Ankrom’s reasoning is that she misses the distinction between the use of the

more specific term “human fetus” and the more general term “child.” As stated

earlier, the general term “child” encompasses the more specific term “fetus.”

Statutes such as § 26–23–3 can only apply to a fetus or unborn child because it

is impossible to perform an abortion after a live birth has been completed, so

using the more general term “child” in such a statute would be nonsensical. On

the other hand, statutes such as § 26–15–3.2 may proscribe conduct against born

and unborn children; thus, the more general term “child” is necessary.

Therefore, Ankrom’s first argument is without merit.
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Next, we acknowledge the many decisions from appellate courts in other states

holding that a mother cannot be criminally prosecuted for prenatal substance

abuse under those states’ child abuse/endangerment or drug-distribution

statutes…. However, we find that those cases are either distinguishable from the

present case or unpersuasive.
Some of the cases from other jurisdictions involved prosecutions under statutes

forbidding delivery of a controlled substance and, unlike the present case,

depended on statutory construction of the term “deliver.” … In other

203204cases, the courts noted that their states’ homicide statutes did not apply

to a fetus, unlike Alabama’s homicide statute, which does apply to unborn

children….
In Collins, the Texas Court of Appeals held that, divergent from Alabama, “the

[Texas] Penal Code does not proscribe any conduct with respect to a fetus, and

the Legislature, by its definitions of ‘child,’ ‘person,’ and ‘individual,’ has

specifically limited the application of our penal laws to conduct committed

against a human being who has been born and is alive.” … Similarly, in Dunn, the

Washington Court of Appeals held that “[n]o Washington criminal case has ever

included ‘unborn child’ or fetus in its definition of person.” …
In Gray, unlike the present case, the mother was prosecuted under a statute that

stated, in relevant part: “No person, who is the parent of a child under

eighteen years of age shall create a substantial risk to the health of safety of

the child, by violating a duty of care, protection, or support.” … Noting that

criminal statutes must be strictly construed, the Ohio Supreme Court interpreted

that statute by defining the terms “parent” and “child” to apply only to the

relationship between mothers and fathers and their born infants….
Other courts have worried about the implications of holding a mother criminally

liable under a child-endangerment statute for conduct harmful to her fetus.

Specifically, other courts have worried that holding a mother liable under such

statutes would open the proverbial floodgates to prosecution of pregnant women

who ingest legal toxins, such as alcohol or nicotine, or engage in any behavior

that could conceivably injure the fetus… . In Wade, the Missouri Court of

Appeals stated that the logic of allowing prosecutions to protect the interest

of the fetus “would be extended to cases involving smoking, alcohol ingestion,

the failure to wear seatbelts, and any other conduct that might cause harm to a

mother’s unborn child. It is a difficult line to draw and, as such, our

legislature has chosen to handle the problems of pregnant mothers through social

service programs instead of the court system.” … However, in the present case,

we need not worry about such unlimited extensions because we are not dealing

with a general endangerment statute. Section 26–15–3.2(a) (1), Ala.Code 1975,

the only statute we are asked to construe, concerns only conduct involving

controlled substances or drug paraphernalia. It does not concern conduct

involving smoking, alcohol ingestion, failure to wear seatbelts, or any other

potentially harmful conduct that does not involve controlled substances.
Other courts have examined policy issues, legislative history, or other

extrinsic materials to reach their conclusions that a mother cannot be

criminally prosecuted for prenatal substance abuse under those states’ child-

abuse/endangerment statutes… . However, we are not at liberty to engage in such

a review because we hold that § 26–15–3.2(a)(1), Ala.Code 1975, is unambiguous

on its face. See Pinigis v. Regions Bank, 977 So.2d 446, 451 (Ala.2007) (holding

that “courts may examine extrinsic materials, including legislative history, to

determine [legislative] intent” only “[i]f the statutory language is

ambiguous”).
Again, we find the cases from other states holding that a mother cannot be

criminally prosecuted for prenatal substance abuse under those states’ child-

abuse/endangerment or drug-distribution statutes to be distinguishable

204205from the present case. To the extent that they are not distinguishable, we

find that their reasoning is unpersuasive.
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Ankrom’s final argument against interpreting the term “child” in § 26–15–3.2,

Ala.Code 1975, to include a viable fetus alleges that we should not interpret

the term “child” to include a viable fetus because the legislature recently

attempted to amend § 26–15–3.2, Ala.Code 1975, to explicitly state that the term

“child” includes a child in utero at any stage of development, but the amendment

failed. However, “ ‘failed legislative proposals’ are “a particularly dangerous

ground on which to rest an interpretation of a prior statute.” ’ ” ’ Baney v.

State, 42 So.3d 170, 174 (Ala.Crim.App.2009) … In the present case, we do not

need to speculate as to why the proposed amendment failed. Again, we hold that §

26–15–3.2, Ala.Code 1975, is unambiguous on its face; thus, we must construe the

statute to mean exactly what it says….
Finally, Ankrom argues that § 26–15–3.2, Ala.Code 1975, as applied in the

present case, is void for vagueness because, she says, the statute did not give

her adequate notice that her conduct was proscribed. See Vaughn v. State, 880

So.2d 1178, 1195 (Ala.Crim.App.2003) (holding that “the void-for-vagueness

doctrine requires that a penal statute define the criminal offense with

sufficient definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and discriminatory

enforcement,” but “[t]his prohibition against excessive vagueness does not

invalidate every statute which a reviewing court believes could have been

drafted with greater precision” because “[m]any statutes will have some inherent

vagueness, for [i]n most English words and phrases there lurk uncertainties”).

Specifically, Ankrom alleges that “[t]he plain language of the statute does not

give notice that its criminal sanctions apply to fetuses exposed to controlled

substances, and for that reason, Ms. Ankrom is being deprived of her due process

right to fair notice of what conduct is impermissible.” … However, as we held

above, the plain meaning of the term “child,” as found in § 26–15–3.2, Ala.Code

1975, includes a viable fetus. Therefore, Ankrom had adequate notice that her

conduct was proscribed; thus, her constitutional argument is without merit.
205206
NO: Punishment and Prejudice: Judging Drug-Using Pregnant Women
Lynn M. Paltrow
The Villain Cocaine
In the late 1980s and into the 1990s newspapers, magazines, and television were

full of stories documenting the devastating effects of cocaine and predicting a

lost generation irredeemably damaged by the effects of their mothers’ cocaine

use. For example, in 1991 Time magazine ran a cover story on the subject.1 Bold

yellow letters read “Crack Kids” followed by the headline: “Their mothers used

drugs, and now it’s the children who suffer.” The face of a tearful child filled

the page beneath the words….
The same year the New York Times ran a front page story entitled “Born on Crack

and Coping with Kindergarten.”2 The story is accompanied by a photograph of a

school teacher surrounded by young children. Underneath the caption reads: “I

can’t say for sure it’s crack, said Ina R. Weisberg, a kindergarten teacher at

P.S. 48 in the Bronx, but I can say that in all my years of teaching I’ve never

seen so many functioning at low levels.”
Throughout these years medical and popular journals, public school teachers and

judges alike were willing to assume that if a child had a health or emotional

problem and he or she had been exposed prenatally to cocaine, then cocaine and

cocaine alone was the cause of the perceived medical or emotional problem.

Rather than wait for careful research and evaluation of the drug’s effect there

was, as several researchers later criticized, a “rush to judgment” that blamed

cocaine for a host of problems that the research simply has not borne out.3
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From Mother Troubles: Rethinking Contemporary Maternal Dilemmas, Julia E.

Hanigsberg and Sara Ruddick, eds. (Beacon Press, 1999). Copyright © 1999 by Lynn

M. Paltrow. Reprinted by permission of the author.
Indeed, an article in the medical journal Lancet in 1989 found that scientific

studies that concluded that exposure to cocaine prenatally had adverse effects

on the fetus had a significantly higher chance of being published than more

careful research finding no adverse effects.4 The published articles,

delineating the harmful effects on infants prenatally exposed to cocaine,

reported brain damage, genito-urinary malformations, and fetal demise as just a

few of the dire results of a pregnant woman’s cocaine use. Infants that survived

the exposure were described as inconsolable, unable to make eye contact,

emitting a strange high-pitched piercing wail, rigid and jittery. These early

studies, however, had numerous methodologic flaws that made generalization from

them completely inappropriate. For example, these studies were based on

individual case reports or on very small samples of women who used more than one

drug. Researchers 206207often failed to control for the other drugs and problems

the mother might have, and/or failed to follow up on the child’s health.5 The

articles describing these studies were nevertheless relied upon to show that

cocaine alone was the cause of an array of severe and costly health problems.
Like alcohol and cigarettes, using cocaine during pregnancy can pose risks to

the woman and the fetus. More carefully controlled studies, however, are finding

that cocaine is not uniquely or even inevitably harmful. For example, unlike the

devastating and permanent effects of fetal alcohol syndrome, which causes

permanent mental retardation, cocaine seems to act more like cigarettes and

marijuana, increasing certain risks like low birth weight but only as one

contributing factor and only in some pregnancies.6 Epidemiological studies find

that statistically speaking many more children are at risk of harm from prenatal

exposure to cigarettes and alcohol. In fact, one recent publication on women and

substance abuse has created the label “Fetal Tobacco Syndrome” to draw attention

to the extraordinarily high miscarriage and morbidity rates associated with

prenatal exposure to cigarette smoke.7
By the late 1980s it was already becoming clear to researchers in the field that

the labels “crack babies” and “crack kids” were dangerous and

counterproductive.8 If one read far enough in the Time article—past the pictures

of premature infants and deranged children—the story reported that
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[a]n increasing number of medical experts, however, vehemently challenge the

notion that most crack kids are doomed. In fact, they detest the term crack

kids, charging that it unfairly brands the children and puts them all into a

single dismal category. From this point of view, crack has become a convenient

explanation for problems that are mainly caused by a bad environment. When a

kindergartner from a broken home in the impoverished neighborhood misbehaves or

seems slow, teachers may wrongly assume that crack is the chief reason, when

other factors, like poor nutrition, are far more important.
Even the New York Times article about crack-exposed children in kindergarten

eventually revealed that researchers “after extensive interviews [found] the

problems in many cases were traced not to drug exposure but to some other

traumatic event, death in the family, homelessness, or abuse, for example.”9 And

despite the fact that school administrators “rarely know who the children are

who have been exposed to crack … and the effects of crack are difficult to

diagnose because they may mirror and be mixed up with symptoms of malnutrition,

low birth-weight, lead poisoning, child abuse and many other ills that

frequently afflict poor children,” the article resorts to crack as the only

reasonable explanation for an otherwise seemingly inexplicable phenomenon….
The Public Responds
The public response to the media and medical journal reports was largely one of

outrage. The harshest reaction was the call for the arrest of the pregnant women

and new mothers who used drugs. Numerous states considered 207208legislation to

make it a crime for a woman to be pregnant and addicted.10 Although not a single

state legislature passed a new law creating the crime of fetal abuse, individual

prosecutors in more than thirty states arrested women whose infants tested

positive for cocaine, heroin, or alcohol. Many of these women were arrested for

child abuse, newly interpreted as “fetal” abuse. Others, like Jennifer Johnson

in Florida, were charged with delivery of drugs to a minor.11 In that case, the

prosecutor argued that the drug delivery occurred through the umbilical cord

after the baby was born but before the umbilical cord was cut. Still other women

were charged with assault with a deadly weapon (the weapon being cocaine), or

feticide (if the woman suffered a miscarriage), or homicide (if the infant, once

born, died). Some women were charged with contributing to the delinquency of a

minor.
While arrests were almost always the result of the action of an individual

prosecutor, in the state of South Carolina there was unprecedented coordination

between health care providers, the prosecutor’s office, and the police.
In 1989, the city of Charleston, South Carolina, established a collaborative

effort among the police department, the prosecutor’s office, and a state

hospital, the Medical University of South Carolina (MUSC), to punish pregnant

women and new mothers who tested positive for cocaine. Under the policy, the

hospital tested certain pregnant women for the presence of cocaine. Women were

tested for the presence of cocaine to further criminal investigations, but the

women never consented to these searches and search warrants were never obtained.
While the hospital refused to create a drug treatment program designed to meet

the needs of pregnant addicts, or to put even a single trained drug counselor on

its obstetrics staff, it did create a program for drug-testing certain patients,

their in-hospital arrest, and removal to jail (where there was neither drug

treatment nor prenatal care); the ongoing provision of medical information to

the police and prosecutor’s office; and tracking for purposes of ensuring their

arrest. Some women were taken to jail while still bleeding from having given

birth. They were handcuffed and shackled while hospital staff watched with

approval. All but one of the women arrested were African American. The program

itself had been designed by and entrusted to a white nurse who admitted that she

believed that the “mixing of races was against God’s will.”12She noted in the

medical records of the one white woman arrested that she lived “with her

boyfriend who is a Negro.”13 …
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Who Are These Mothers?
As a report from the Southern Regional Project on Infant Mortality observed:
Newspaper reports in the 1980s sensationalized the use of crack cocaine and

created a new picture of the “typical” female addict; young, poor, black, urban,

on welfare, the mother of many children and addicted to crack. In interviewing

nearly 200 women for this study, a very different picture of the “typical”

chemically dependent woman emerges. She is most likely white, divorced or never

married, age 31, a high school graduate, on public assistance, the mother of two

or three children, and 208209addicted to alcohol and one other drug. It is clear

from the women we interviewed that substance abuse among women is not a problem

confined to those who are poor, black, or urban, but crosses racial, class,

economic and geographic boundaries.14
African American women have been disproportionately targeted for arrest and

punishment, not because they use more drugs or are worse mothers, but because,

as Dorothy Roberts explains, “[t]hey are the least likely to obtain adequate

prenatal care, the most vulnerable to government monitoring, and the least able

to conform to the white middle-class standard of motherhood. They are therefore

the primary targets of government control.”15
Beyond the stock images and prejudicial stereotypes, the media has given the

public little opportunity to meet or get to know the pregnant women on drugs. If

we never learn who they are it is inevitable that their drug use will seem

inexplicably selfish and irresponsible. Yet, if we could meet them and learn

their history, we might be able to begin to understand them and the problems

that need to be addressed.
Let me give an example. In the popular television show NYPD Blue we get to know

the irascible Detective Sipowicz. While he is neither handsome nor charming, we

come to care for him. We learn that he is an alcoholic who is able to stop

drinking and improve his life. When he has a massive relapse and behaves

outrageously, effectively abandoning his new wife and their newborn son,

committing crimes of violence and countless violations of his responsibilities

as a police officer, we nevertheless want to forgive him and give him another

chance.
We are able to sympathize, at least in part because we have been given the

information about why he has relapsed. His first son, whom he has finally

reconnected with, is murdered, and Sipowicz, who can’t handle it emotionally,

turns back to the numbing, relief-giving effects of alcohol.
Sipowicz, in the end, is supported by his police colleagues who cover up for him

and give him yet another chance. By contrast, when the same program did an

episode involving a heroin-addicted pregnant woman, whose drug habit leads her

two older sons to a life of crime, we never get to know why she has turned to

drugs. We do not know as we did with Sipowicz what could have driven her to this

behavior. The viewer can only assume that her drug use is purely selfish,

stemming from a thoughtless hedonism. Thus, she is not entitled to

understanding, sympathy, or the many second chances Sipowicz’s character

routinely gets.
But like Sipowicz, pregnant women who use drugs also have histories and complex

lives that affect their behavior and their chances of recovery. We know that

substance abuse in pregnancy is highly correlated with a history of violent

sexual abuse.16 In one study 70 percent of the pregnant addicted women were

found to be in violent battering relationships. A hugely disproportionate

number, compared to a control group, were raped as children. Drugs appear to be

used as a means to numb the pain of a violent childhood and adulthood. Like

Vietnam veterans who self-medicated with drugs for their post-traumatic stress

disorders, at least some pregnant women also use drugs to numb the pain of

violent and traumatic life experiences.17
209210
Are their difficult childhoods or their experiences with violence an excuse for

drug use? No. But the information begins to provide some idea of root causes

that might need to be taken into consideration when trying to imagine the

appropriate societal reaction. Will the threat of jail remove the trauma and

pain that in many instances prompted the drug use and stands in the way of

recovery? It is not that a woman who uses drugs is not responsible, but rather

that we have to hold her responsible in a context that takes into account the

obstacles, internal and external, that stand in the way of recovery….
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All pregnant women, not just poor ones, are routinely denied access to the

limited drug treatment that exists in this country. In a landmark study in 1990,

Dr. Wendy Chavkin surveyed drug treatment programs in New York City. She found

that 54 percent flat out refused to take pregnant women.18 Sixty-seven percent

refused to take women who relied on Medicaid for payment, and 84 percent refused

to take crack-addicted pregnant women.
One hospital in New York was sued for excluding women from drug treatment. The

program argued that its exclusion of all women was justified and no different

from its medical judgment to exclude all psychotics.19 While New York State

courts found that such exclusion violated state law, this did not automatically

increase needed services….
Other barriers also exist. [In the case of Jennifer Johnson, a pregnant Florida

woman,] Judge Eaton ruled that “the defendant also made a choice to become

pregnant and to allow those pregnancies to come to term.” The prosecutor argued

that “[w]hen she delivered that baby she broke the law.” By saying this, the

judge makes clear that it was having a child that was against the law. If Ms.

Johnson had had an abortion she would not have been arrested—even for possessing

drugs.20 But this statement not only reveals a willingness to punish certain

women for becoming mothers, it also reflects a host of widely held beliefs and

assumptions about access to reproductive health services for women.
For example, implicit in this statement is the assumption that Ms. Johnson had

sex and became pregnant voluntarily. Given the pervasiveness of rape in our

society, assuming voluntary sexual relations may not be justified. Perhaps,

though, the judge, like many others, simply thought that addicts have no

business becoming pregnant in the first place. A South Carolina judge put it

bluntly: “I’m sick and tired of these girls having these bastard babies on crack

cocaine.” Apparently concerned about his candor, he later explained: “They say

you’re not supposed to call them that but that’s what they are … when I was a

little boy, that’s what they called them.”21
On call-in radio talk shows someone inevitably asks why these mothers can’t just

be sterilized or injected with Depo Provera until they can overcome their drug

problems and, while they are at it, their low socioeconomic status. The

consistency of this view should not be surprising given our country’s history of

eugenics and sterilization abuse. Indeed, the U.S. Supreme Court has declared

sterilization of men unconstitutional, but has never overturned its decision

upholding the sterilization of women perceived to be a threat to society.22
The suggestion of sterilization, however, is particularly attractive if there is

no explanation about why a pregnant woman with a drug problem would 210211want

to become pregnant or to have a child in the first place. But drug-using

pregnant women become pregnant and carry to term for the same range of reasons

all women do. Because contraception failed. Because they fell in love again and

hoped this time they could make their family work. Because they are “prolife”

and would never have an abortion. Because when they found out the beloved father

of the baby was really already married, they thought it was too late to get a

legal abortion. Because they do not know what their options might be. Because

they have been abused and battered for so long they no longer believe they can

really control any aspect of their lives including their reproductive lives.

Because they wanted a child. Because their neighbors and friends, despite their

drug use, had healthy babies and they believed theirs would be healthy too.
The threat of sterilization is just another punitive response that denies the

humanity of the women themselves. Although Judge Eaton did not propose

sterilization as part of the sentence he imposed on Ms. Johnson, as some judges

in related cases have,23 he undoubtedly assumed that Ms. Johnson could decide,

once pregnant, whether or not to continue that pregnancy to term. Since 1976,

however, the United States government has refused to pay for poor women’s

abortions and few states have picked up the costs.24 In Florida, like most other

states, the “choice” Judge Eaton spoke of does not exist for low-income women….
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Lack of access to abortion services is only one of the many barriers that exist

for a drug-addicted pregnant woman who attempts to make responsible “choices.”

There are many other barriers that make it extremely difficult for pregnant

women on drugs to get the kind of help and support they need. Access to services

for drug-addicted women who are physically abused is also limited. For example,

many battered women’s shelters are set up to deal with women who have

experienced violence, but are not equipped to support a woman who has become

addicted to drugs as a way to numb the pain of the abuse.25 Other barriers

include lack of housing, employment, and access to prenatal care. As one of the

few news stories to discuss these women’s dilemmas explains:
Soon after she learned she was pregnant, [Kimberly] Hardy [who was eventually

prosecuted for delivery of drugs to a minor], convinced she had to get away from

her crowd of crack users as well as her crumbling relationship with her

[boyfriend] Ronald, took the kids home to Mississippi for the duration of her

pregnancy. But by moving, she lost her welfare benefits, including Medicaid.

Unable to pay for clinic visits, she had to go without prenatal care.26
And what about the men in their lives? Their contributions to the problem,

physiologically and socially, are ignored or deliberately erased. Rarely in the

media do we know what has happened to the potential fathers. Their drug use,

abandonment, and battering somehow miraculously disappear from view.
Nevertheless, men often do play a significant role. For example, in California

Pamela Rae Stewart was arrested after her newborn died. One of her 211212alleged

crimes contributing to the child’s ultimate demise was having sex with her

husband on the morning of the day of the delivery. Her husband, with whom she

had had intercourse, was never arrested for fetal abuse. Indeed, the

prosecutor’s court papers argued that Ms. Stewart had “subjected herself to the

rigors of intercourse,” thereby totally nullifying the man’s involvement or

culpability.27
Prosecutors in South Carolina have also managed to ignore male culpability, even

when it is the father who is supplying the pregnant woman with cocaine or other

potentially harmful substances. Many women arrested in this state were not

identified as substance addicted until after they had given birth, a point at

which their drug use could not even arguably have a biological impact on the

baby. Prosecutors argued that arrest was still justified because evidence of a

woman’s drug use during pregnancy is predictive of an inability to parent

effectively. But fathers identified as drug users are not automatically presumed

to be incapable of parenting. Indeed, when a man who happens to be a father is

arrested for drunk driving, a crime that entails a serious lack of judgment and

the use of a drug, he is not automatically presumed to be incapable of parenting

and reported to the child welfare authorities. Prosecutors nevertheless rely on

biological differences between mothers and fathers, arguing that a man’s drug

use could not have hurt the developing baby in the first place. However, studies

indicate that male drug use can affect birth outcome: Studies on male alcohol

use have demonstrated a relationship between male drinking and low birth weight

in their children and a study of cocaine and men suggests that male drug use can

also affect birth outcome.28
We continue to live in a society with double standards and extremely different

expectations for men and women. Drug use by men is still glorified, while drug

use by women is shameful, and by pregnant women a crime. This could not have

been better demonstrated than by an advertising campaign by Absolut vodka. On

Father’s Day, as a promotional gimmick, Absolut sent 250,000 free ties to

recipients of the New York Times Sunday edition. Scores of little sperm in the

shape of Absolut vodka bottles swim happily on the tie’s blue background. So

while many call for arrest when a pregnant woman uses drugs or alcohol, fathers

who drink are celebrated and, in effect, urged to “tie one on.”
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Of course, none of these arguments is made to suggest that women are not

responsible for their actions or that they are unable to make choices that

reflect free will. Rather, it is to say that popular expectations of what acting

responsibly looks like and notions of “choice” have to be modified by an

understanding of addiction as a chronic relapsing disease, of the degree to

which our country has abandoned programs for poor women and children, and of the

time, strength, and courage it takes for a drug-addicted woman to confront her

history of drug use, violence, and abandonment. Compassion and significantly

more access to coordinated and appropriate services will not guarantee that all

of our mothers and children are healthy. But medical experts and both children’s

and women’s rights advocates agree that such an approach is far more likely to

improve health than are punishment and blame….
212213
The problem with treating the fetus as a person is that women will not simply

continue to be less than equal, they will become nonpersons under the law. [To

oppose the recognition of fetal personhood as a matter of law is not to deny the

value and importance of potential life as a matter of religious belief,

emotional conviction, or personal experience. Rather, by opposing such a new

legal construct, we can avoid devastating consequences to women’s health,

prenatal health care, and women’s hope for legal equality.—L.P.] No matter how

much value we place on a fetus’s potential life, it is still inside the woman’s

body. To pretend that the pregnant woman is separate is to reduce her to nothing

more than, as one radio talk show host asserted, a “delivery system” for drugs

to the fetus.
PAGE 213

WORK CITED
Kaebnick, Gregory. Taking Sides: Clashing Views on Bioethical Issues, 15th

Edition. McGraw-Hill Learning Solutions, 41. VitalBook file.

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