Would the Fundie Nut-Jobs Please Just Stop?

The NewStandard reports that, "Last week, a Texas appeals court overturned the convictions of two women who had used illegal drugs while pregnant, invalidating the prosecution’s controversial reading of a state law protecting the unborn. The decision, which skirted the constitutional issues at the center of the national abortion debate, drew support from a diverse host of both pro- and anti-abortion-rights groups." It goes on to note that, "The Act, primarily intended to protect pregnant women and their fetuses from violent crime and domestic abuse, explicitly exempts "conduct committed by the mother of the unborn child," as well as medical procedures to terminate pregnancies.

However, the district attorney’s office has consistently argued that the Controlled Substances Act, which bars the "delivery" or "transfer" of an illegal drug to a person under 18 years old, applied to the women under the Prenatal Protection Act’s definition of fetuses as "individuals." That law carries a penalty of up to 20 years in prison.

In 2003, then-District Attorney Rebecca King issued a letter to healthcare providers advising personnel to report drug use by pregnant women to law enforcement. She stated that most of the women would "qualify for probation, which will allow [authorities] to legally mandate medical services" to treat the mother and child.

Many health professionals argue that intervention by law enforcement will simply instill women with the fear that those they turn to for help will end up turning them in. Before leaving office in early 2005, King charged eighteen women with delivering drugs to their fetuses.

But last January, after Ward and Smith had already pleaded guilty, Texas Attorney General Greg Abbott issued an official opinion declaring that the Prenatal Protection Act’s exemption for pregnant women also shields them from the Controlled Substances Act. The prosecutors in the case nonetheless stood by the original charges throughout the appeals process.

Unlike litigation in other states that has challenged fetal-rights policies on constitutional grounds, the Texas appeals court ruled instead on a technical basis, avoiding the heavier issues.

According to the organization Center for Reproductive Rights, in the first half of 2005, Colorado, Arizona, Nevada and Louisiana all enacted fetal-rights legislation expanding child-abuse or neglect statutes to cover newborns testing positive for drugs. On the federal level, the Unborn Victims of Violence Act, enacted in 2004 amid intense political controversy, holds that a fetus that is criminally harmed or injured is a separate victim in addition to the mother, though the law does not address conduct by pregnant women themselves.

While generally acknowledging the dangers of drug addiction during pregnancy, many public-health professionals argue that intervention by law enforcement will simply instill women with the fear that those they turn to for help will end up turning them in.

In a statement accompanying National Advocates for Pregnant Women’s friend-of-the-court brief, David Schneider, Chair of the Public Health Commission of the American Academy of Family Physicians, predicted: "When patients know that physicians are required to report patient behavior to the authorities... women will stop seeking necessary medical care, including drug treatment. We will have more drug-addicted babies, babies born with lower birth weights, and stillbirths."

Critics also say fetal-rights prosecutions have a discriminatory impact on minority women. In 1989, for instance, law enforcement authorities began targeting a hospital in a poor, mostly black community in Charleston, South Carolina, to root out women testing positive for drug use during pregnancy. The Supreme Court ruled in 2001 that the intrusive testing, which had led to a spate of arrests and detentions of pregnant and post-partum women, had violated the women’s civil rights."