Should a Pregnant Woman Be Punished for Exposing Her Fetus to Risk?

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 prosecu-tion. 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 sched-uled 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 ille-gal substance to a minor. If the drug use were detected dur-ing delivery, the woman would be charged with unlawful neglect of a child.

This stringent policy was developed as a result of cli-nicians' 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 involv-ing 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 child-hood 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 transporta-tion and child care. At the time, there was no women-only residential treatment center for substance-abusing preg-nant 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 endanger-ment law, whose explicit goal was to prevent adults from bringing children to methamphetamine laboratories and other places where illegal substances are produced or dis-tributed. 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 their 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 jus-tices found that the state's chemical endangerment law includes a fetus within its definition of "child." Lynn Pal-trow 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.

Assume that you are a healthcare administrator, and you find yourself dealing with this exact issue regarding a patient giving birth in your facility.

Explain what 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.