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For Women Only

New York Times
February 4, 2002


They tried to camouflage the action. Bush administration officials presented it as an altruistic attempt to bring badly needed health care benefits to low-income pregnant women. It was actually a guerrilla attack on abortion rights.

Alarm bells automatically go off when this administration claims to be helping the financially disadvantaged. So you knew something had to be up when the Department of Health and Human Services announced last week that it had figured out a way to provide prenatal care to low-income women who might not otherwise be eligible.

This would be done, officials said, by broadening the definition of a "child" eligible for coverage under the Children's Health Insurance Program. The meaning of "child" would be clarified, the officials said. Under the new rules, childhood would begin not at birth, but at conception.

Adorned with the new definition of "child," the fetuses would become eligible for the health coverage.

The health and human services secretary, Tommy G. Thompson, said this would be a boon for poor women.  He said it "would help poor mothers be able to take care of their unborn children and gets the medical care they absolutely, vitally need." 

He chose his words carefully. "Unborn children." Get it?

Abortion opponents have been trying for the longest time to get embryos and fetuses defined as persons under the law. They believe it would be much easier to criminalize all abortions if embryos and fetuses were established in law as children.

So while Mr. Thompson was crowing about what a boon this was for poor women, it was the anti-abortion crowd that was celebrating. Douglas Johnson of the National Right to Life Committee said, "We applaud this Bush administration proposal to recognize the existence of an unborn child in order to allow the baby, and the mother as well, to receive adequate prenatal care - a concept to which only the most extreme pro-abortion ideologues will object."

The truth is the decision had little to do with the health care of women. It was a political move, pure and simple. It was the Bush administration's way of sending a message to the right- wingers of the Republican Party: Don't give up hope. We're committed to undermining abortion rights.

You don't have to torture the definition of the word child to give health benefits to low-income women. For example, coverage under the Children's Health Insurance Program could be extended to pregnant women via a simple legislative change, or by waivers to existing rules. That would be the common-sense way to go if the real goal were meaningful prenatal care.

Harmful and in some cases bizarre conflicts can develop when embryos and fetuses are designated legally as persons. Kate Michelman, president of the National Abortion and Reproductive Rights Action League, noted that pregnant women could end up in tragic conflict with their fetuses if the fetuses had the legal rights of people. For example, what rights would prevail if a pregnant woman had cancer and needed radiation or chemotherapy treatment that would be destructive to the fetus?

"This is not about health care for women," said Ms. Michelman. "It's all about politics. It's about undermining a woman's right to choose, disguised as health policy."

Lynn Paltrow, director of a group called National Advocates for Pregnant Women, believes much more than the threat to abortion rights is at stake. She described the Health and Human Services proposal as "cynical," and said it helps divert attention from the administration's failure to support a wide range of initiatives to improve the delivery of health care to women and children.

She added, "This maneuver to create insurance for unborn children both personifies the fetus and accentuates the fact that women themselves are neither full persons under the law, nor valued enough to be funded themselves."

This rules change by Health and Human Services, which does not need Congressional approval, is both devious and dangerous. It exemplifies the administration's right-wing allegiance, and its contempt for the poor.

There are more than 40 million Americans walking around without health insurance. About 11 million are children. If the administration wanted to do something about extending health benefits, it could start with some of them.

Source: Chicago Tribune,
Date: November 23, 2003
Author: Kirsten Scharnberg
Tribune National Correspondent

NEW YORK -- Stacey Gilligan is accused of drinking so much vodka during her eighth month of pregnancy that her baby was born drunk.

Tayshea Aiwohi is charged with consuming such huge amounts of crystal meth while she was pregnant that her son died of methamphetamine poisoning two days after his birth.

Regina McKnight was convicted of using so much cocaine during her pregnancy that her baby was stillborn.

Across the country, prosecutors increasingly are leveling criminal charges against women who abuse drugs or alcohol while pregnant. The charges range from misdemeanor counts of endangering the welfare of a child to criminal homicide. At least two women who were convicted were sentenced to life in prison.

The prosecutions are rousing intense passion on every side of the issue. Abortion rights supporters are furious about the prosecutions, charging that a fetus is not a constitutionally protected person. Substance abuse counselors claim that an unintended side effect of the prosecutions has been to make drug-addicted pregnant women reluctant to seek treatment. Family and child advocates counter that prosecuting these women is the only way to send a message that America values its children.

"This is certainly a complicated one," said Dr. Mary Ellen Rimsza, chairwoman of Arizona's Child Fatality Review Board and a member of a governor-appointed commission studying whether positive drug tests on newborns should be grounds for the state to accuse a mother of child abuse.

South Carolina, where more than 70 such cases have been heard in the courts since 1989, has led the charge on these prosecutions. But despite being one of the earliest and most aggressive states in bringing charges against drug-abusing mothers, South Carolina now has plenty of company: Texas, New York, Arizona, Hawaii, Utah and California.

In recent years, Illinois has backed off from prosecuting women who use drugs during pregnancy. However, in 1989, Illinois became the first state to charge a woman with manslaughter after her baby was stillborn, allegedly from toxic levels of cocaine. A Rockford grand jury refused to indict, and prosecutors have since been reluctant to bring such charges.

Law-enforcement officials in Riverside County, Calif., known as the nation's methamphetamine capital, have declared these prosecutions "a top priority."

"Sometimes the cases and the effects of drug abuse on children and infants are so egregious that I believe we are left with no other option but to prosecute," said Riverside County District Atty. Grover Trask.

Plenty of people disagree, vehemently.

The Addiction

Lynn Paltrow, director of National Advocates for Pregnant Women, is passionate about the issue, and she gets so animated when discussing it that she can scarcely decide where to start her criticisms of such prosecutions. To begin with, she says, criminal charges do not address the root of the problem: the woman's addiction.

"People don't become addicts because they want to do harm to their own bodies or, if they are pregnant, to harm the fetus in their body," Paltrow said.

Just as worrisome, she said, is what may be a chilling, inadvertent consequence of the highly publicized prosecutions: that other drug-addicted pregnant women will not seek treatment--or even prenatal care--because they are terrified they will wind up in jail or lose other children they may already have. About 50 public heath organizations, including the American Public Health Association and the American Academy of Addiction Psychiatry, have denounced the prosecutions for the same reason.

The experience of at least one state that has pursued these prosecutions indicates Paltrow's fear may be well-founded.

In Utah, where in the late 1990s there were several high-profile prosecutions of women for substance abuse during pregnancy, state officials saw coinciding drops in the requests for treatment and help from drug-addicted women. The Pregnancy Risk Line, a toll-free service operated by the state's public health department, typically took at least four calls a month from a pregnant woman seeking drug counseling before the prosecutions began. But after news of the prosecutions hit the newspapers and television shows, those calls dropped to almost zero per month.

`A Double Whammy'

"Women were showing up at hospitals in droves to deliver babies having had no prenatal care and no substance abuse treatment," said Lynn Martinez, director of the hot line and of the state's birth defects and genetics program. "When asked why they hadn't sought help, their answers were almost universal: They were worried they would either lose their children or be prosecuted. So suddenly you had a double whammy: babies exposed to drugs and babies not getting prenatal care."

Just as worrisome to Paltrow--and to many who oppose such prosecutions--is whom prosecutors will target most often.

"This has become a general assault on poor people, and disproportionately on minorities," said Richard Wexler, director of the National Coalition for Child Protection Reform. "Take a guess which pregnant women are most likely to be screened for drug abuse when they walk through the doors of a hospital. It isn't some upper- or middle-class woman who can afford the best of everything. But those women often are just as likely to be using substances during pregnancy that put their child at risk."

Statistics seem to support that. Rimsza, the Arizona pediatrician, said studies indicate that about 3 percent of women use illicit substances during pregnancy, while about 54 percent of women use legal substances that could be harmful to a fetus, including alcohol and tobacco.

In California, where prosecutors are aggressively prosecuting women who use drugs while pregnant and have vowed to step up punitive measures, the statistics are even more grim. Statewide surveys have put the number of women who take illegal drugs during pregnancy at about 11 percent, and the drug being used most often seems to be methamphetamine.

"It's hit epidemic proportions," said Trask, the Riverside County district attorney.

Just last month in Riverside, a mother of four was sentenced to life in prison for the second-degree murder of her 3-month-old son, Jacob. Amy Leanne Prien, 31, was charged with killing her infant by feeding him high doses of methamphetamine either through her breast milk or through tainted plastic bottle liners that she had been using to package the drug in her home.

During Prien's trial, the prosecution said she had not only risked her son's life by exposing him to a drug as toxic as methamphetamine, but when Jacob was found unresponsive, she delayed calling paramedics until she had hidden all her drugs.

"It's amazing to me that so much of the debate is over what is best for the mother, what is fair to her," Trask said. "I think it's long overdue that we focus on the effects addictive drugs like methamphetamine are having on the children. We have to send the message that, hey, if you don't care about yourself, that's one thing. But people need to understand that we expect them to care about the innocent children they are bringing into the world."

Trask disputed the criticism that pregnant women who seek treatment for their addictions will be prosecuted upon entering a hospital or treatment facility.

"Of course we don't do that," he said. "If they are in programs, we won't prosecute them."

But that isn't how it often works, critics insist. In South Carolina, for example, Paltrow said several pregnant women went looking for treatment at a hospital only to leave the facility hours later in handcuffs.

When Life Begins

In Prien's case, because the child died well after he was born, the hot-button legal and emotional issue of "when does life begin?" didn't come into play. But sometimes that is not as clear, as in the cases of Tayshea Aiwohi in Hawaii and Stacey Gilligan in New York. Aiwohi was charged with manslaughter after her baby died of methamphetamine poisoning two days after his birth; Gilligan was charged with child endangerment when her baby was born with a blood alcohol content of .18, more than twice the legal limit for an adult in New York.

In those cases, still working their way through the courts, defense attorneys have said the charges are not valid because the women are accused of doing something to a "child." The lawyers say the women never gave illegal substances to a child, but rather to a fetus, and that state laws in Hawaii and New York do not protect fetuses.

On Thursday, Warren County District Atty. Kate Hogan, who is prosecuting Gilligan, stood outside a courtroom, preparing to fight a defense petition to dismiss all charges in the case."Any pregnant woman can drink, and we can't charge her," Hogan said. "But when that child draws its first breath, it is protected under the law. In this case, when that child drew its first breath, its blood alcohol content made it legally drunk. At that point, the mother can be charged. That's what I'm arguing."

The judge is expected to rule on whether the Gilligan case can go forward in the next couple of weeks.

For all the talk and debate about women who use illegal drugs during pregnancy, Gilligan's case highlights one point many experts wish was discussed more: that alcohol is the most damaging to a fetus in utero and to children in the long run. While many babies born with addictions to drugs such as methamphetamine or cocaine will experience painful withdrawal symptoms during their first weeks and months of life, those exposed to alcohol often will suffer lifelong effects. Rimsza estimated that the average IQ of a child with fetal alcohol syndrome is 68, and she added that studies indicate one drink of alcohol a week translates into an increased risk for delinquent, hyperactive and aggressive behaviors for the exposed child.

"While the public seems to be most concerned about the baby who has been exposed to illicit drugs such as cocaine, far more babies in this country are damaged by alcohol," she wrote in a letter to Arizona legislators studying the issue.

But Rimsza also emphasizes that she thinks good policy should focus less on public law and more on public health. She fears a slippery slope when states begin prosecuting women for drug abuse during pregnancy--first, prosecutions for illegal drugs such as cocaine and methamphetamine, then for legal substances such as alcohol and tobacco, then for potentially risky behavior such as not taking prenatal vitamins and not eating properly.

"There is no evidence that prosecutions will do any good in terms of prevention of these behaviors." she said, "and it doesn't do any good for the baby who's already died."

Lynn M. Paltrow is the executive director of National Advocates For Women. 

An arrest in Utah last week of a 28-year-old woman who allegedly committed murder by refusing to undergo a C-section represents a shocking abuse of state authority and a dangerous disregard for medical ethics.

In this case prosecutors claim that Melissa Rowland"a woman pregnant with twins"rejected the advice of her physicians to have a caesarean section, allegedly resulting in the stillbirth of one of the twins.  According to the law, however, pregnant women"like other Americans"have the right to decide whether or not to undergo surgery. The American Medical Association and the American College of Obstetricians and Gynecologists (ACOG) as well as other leading medical groups similarly conclude that the final decision must be the woman's:

 Once a patient has been informed of the material risks and benefits involved with a  treatment,  test or procedure, that patient has the right to exercise full autonomy  in  deciding whether to undergo the treatment, test, or procedure or whether to make a choice among a variety of treatments, tests, or procedures. In the exercise of that autonomy, the informed patient also has the right to refuse to undergo any of these treatments, tests, or procedures. . Performing an operative procedure on a patient without the patient's permission can constitute 'battery' under common law. In most circumstances this is a criminal act. . . . Such a refusal [of consent] may be based on religious beliefs, personal preference, or comfort." ACOG. Informed refusal. Committee Opinion No 237, June 2000.

These legal and medical ethical principles make sense for both women and children. Doctors are not infallible and their advice is just that, advice. In addition to the con-sensus of medical organizations, courts, too, have long recognized a patient's right to make health care decisions free from governmental intrusion. However, in the case of a pregnant woman refusing potentially beneficial medical treatment for the fetus, the principle has been too easily set aside, and for dubious reasons.

Not An Isolated Case

For example, earlier this year a woman in Pennsylvania went to a hospital ready to deliver her seventh child. For reasons that remain far from clear, the hospital decided she needed a C-section and when she refused they went to court. They asked for and won an order giving the hospital custody of the fetus before, during and after delivery and the right to take custody of the pregnant woman and force her to undergo the surgery. She and her husband fled the hospital and delivered a perfectly health baby without surgery.

Similar cases abound. In one Georgia case, doctors got a court order claiming that without a C-section a baby had a 99 percent chance of dying and the woman a 50 percent chance of dying. The court granted the order, the woman fled and delivered a healthy baby vaginally. Neither women nor children are protected by a system that makes women flee from hospitals or subjects them to unnecessary surgery.

Angela Carder was not as lucky. This case occurred in the early 1990s and garnered national attention. After the 25-weeks pregnant Carder became critically ill with cancer, she, her family and attending physicians agreed to focus on prolonging her young life for as long as possible. The hospital however sought a court order forcing her to have a C-section. Despite testimony that the surgery could kill her, the court concluded that the fetus had a right to life and ordered her to be cut open against her will. The surgery was performed: the fetus died within two hours and Angela died within two days with the C-section listed as a contributing factor. No one suggested arresting the doctor or hospital officials for murder. The life and death of Angela Carder focused national attention on the propriety of using courts to determine medical treatment for pregnant patients and inspired a chorus of diverse voices to condemn coercive medical treatment.

Ayesha Madyun survived. She was forced to have a C-section based on the claim that she had been in labor too long and that her baby was at risk of dying from an infection. Her request to be allowed to wait longer before having the surgery so she could try natural delivery was portrayed to the court as an irrational religious objection to surgery. The court granted the order and after Madyun had been forcibly cut open they found that there was in fact no infection.

The ability to get a court order or threaten pregnant women with arrest has many negative consequences beyond denying pregnant women rights and performing unnecessary surgery that poses health risks to both the pregnant woman and fetus. In an Illinois case, doctors sought a court order for a forced C-section claiming the pregnant woman and her husband held irrational religious beliefs opposing all surgery. Instead of spending time with the patient, the doctors ran to the court. The court refused the order, the baby was delivered naturally, and it turned out that if the doctors had spent the time communicating with the patient and her family rather than judging them and rushing to court, they would have learned that it was misunderstanding not an absolute objection to surgery that made it appear that this couple was refusing a recommended (but unnecessary) C-section.

Strategy Of Distraction

Responding to a chorus of opposition to the arrest, the press and the prosecution are now depicting Melissa Rowland as irrational because they claim she suffered from mental illness, and immoral because she used drugs. In addition to the serious questions these comments raise about violations of patient's rights to medical privacy, it is clear that all adults"even those with mental disabilities"have a right to informed consent. If mental illness had truly been an issue, resorting to civil competency procedures not the criminal law was the proper thing to do. As for the allegations of drug use, Utah has as a matter of statutory law chosen to deal with issue of pregnancy and drug use through the public health and child welfare systems, not the criminal law. This decision comports with 48 other states and the unanimous recommendations of leading medical and child advocacy groups.

Today both the law and medicine agree that coerced medical interventions on pregnant women are an abuse of medical and state authority and that while pregnant women do not always make the right decision, in America, it is the person on whom the surgery is to be performed who gets to decide. In spite of this, Utah prosecutors apparently think that a pregnant woman who exercises her constitutional and common-law right to refuse medical advice can be arrested for murder. This is not only a clear misuse of the law, it is dangerous to children and fundamentally dehumanizing to pregnant women and their families.

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