Coercive and Punitive Governmental Responses to Women's Conduct During Pregnancy
Arresting the Pregnancy Police
A decade ago, we saw a rash of cases in which government officials zealously embraced a misguided mission to protect fetuses by attempting to control the conduct of pregnant women. Some women were forced to accept unwanted medical treatment; others were punished for their conduct during pregnancy. Inevitably, such actions backfire: women who fear the government's "pregnancy police" will avoid prenatal care altogether, and both they and their fetuses will suffer as a result.
The ACLU, drawing upon the expertise of both its Reproductive Freedom and Women's Rights Projects, defended many of the women who were subject to coercive or punitive state actions. We won case after case, and attempts to bully and punish pregnant women eventually diminished.
Recently, however, we have seen this dangerous trend revive. A look at selected cases will highlight the important issues at stake.
Coerced Medical Treatment
Doctors and hospitals caring for pregnant women sometimes develop a skewed perspective and determinedly pursue a course they believe best for the fetus even when the woman carrying the fetus is unwilling to consent to the proposed treatment. To address this problem, the American Medical Association has advised its members that in the unusual instances when they encounter pregnant women who refuse a suggested treatment, they should respect their patients' wishes, without recourse to a court. Legal intervention will only result in scaring women away from prenatal care: "While the health of a few infants may be preserved by overriding a pregnant woman's decision, the health of a great many more may be sacrificed."
Forced Cesarean Section
In the most notorious incident, in 1987 administrators of George Washington University Hospital went to court to force Angela Carder, a pregnant woman ill with cancer, to undergo a cesarean section. When both she and her critically premature baby died shortly after the surgery, the c-section was listed as a contributing cause of her death.
At the age of 27, Carder had already survived two previous bouts of cancer by undergoing aggressive treatments of chemotherapy, radiation, and surgery. With her cancer in remission and optimistic about her prognosis, she married and became pregnant.
When Carder was 26 weeks pregnant, doctors discovered that her cancer had returned and metastasized. Carder, her parents, her husband, and the hospital's obstetrical staff agreed on a course of treatment aimed at keeping her alive for at least another two weeks, at which point intervention to save the fetus might be possible. According to Carder's mother, her daughter "wanted to live long enough to hold that baby." But, as Carder's condition rapidly deteriorated, hospital administrators feared she would not live that long. They rushed to court and obtained an order authorizing the hospital to perform an immediate c-section. They did so without first contacting Carder's longtime cancer specialist, who later stated that he would have testified that the operation at that point in time was "medically inadvisable both for Angela Carder and for the fetus." Fearing that neither Angela nor the fetus would survive the surgery, Carder's husband, parents, and obstetricians all opposed the c-section at 26 and a half weeks gestation; when Carder herself learned of the court order, she said repeatedly, "I don't want it done."
As Carder was wheeled into surgery, her attorney, in consultation with the ACLU Reproductive Freedom Project (RFP), tried to get the District of Columbia Court of Appeals to block the order. A three-judge panel of the court refused to do so and later issued an opinion upholding the order.
After Carder and her baby died, her family, with RFP's help, asked the entire D.C. Court of Appeals to vacate the court order and the dangerous legal precedent it had set. We argued that the court order had violated Carder's right to informed consent and her constitutional rights of privacy and bodily integrity. The American Medical Association, the American College of Obstetricians and Gynecologists, and 118 other organizations, including medical groups, women's groups, religious and civil rights groups, disability rights organizations, and leading bioethicists supported us by filing friend-of-the-court briefs.
RFP won a moral and legal victory for Carder's family by persuading the court to issue the opinion In re A.C., which vacated the earlier decisions. It was the first appellate court opinion to take a stand against forced c-sections. When an attorney for the hospital argued that it was appropriate to sacrifice a dying woman for her fetus, one judge replied incredulously, "Are you urging this court to find that you can handcuff a woman to a bed and force her to give birth?" Instead, the court resoundingly concluded that in virtually all circumstances a woman -- not doctors or a judge -- should make medical decisions on behalf of herself and her fetus. The opinion emphasized an argument made in the American Public Health Association's friend-of-the court brief, that court-ordered intervention "drives women at high risk of complications during pregnancy and childbirth out of the health care system to avoid coerced treatment."
A related RFP case, Stoners v. George Washington University Hospital, also made a landmark contribution. Angela Carder's parents, Daniel and Nettie Stoner, sued the hospital for deprivation of human rights, discrimination, wrongful death, malpractice, and other claims arising out of its mistreatment of their daughter and granddaughter. This case was the first malpractice suit resulting from a forced c-section. The parties reached a settlement designed to protect future patients like Angela Carder. RFP attorneys worked with the hospital to develop a new policy protecting the rights of pregnant patients to make autonomous decisions. The policy declared support for "maintaining decision-making within the physician-patient relationship rather than having outsiders (e.g. courts) impose health care decisions on unwilling patients." RFP widely promoted this policy and urged its adoption by hospitals around the country.
"T.B.," an Illinois woman, ran into similar difficulties in 1993 when she resisted a c-section because of religious objections. A hospital took her to court to force her to have an immediate c-section because it feared that her fetus was not getting sufficient oxygen. Although the juvenile court refused to grant an order compelling the surgery, it appointed the Public Guardian of Cook County to represent the fetus. He brought In re Baby Doe to a panel of the Illinois Appellate Court. Portraying the fetus as "a real life being kept prisoner in its mother's womb and tied to an oxygen source that is not working," he pursued the quest for the court order.
The ACLU of Illinois, in consultation with RFP, represented the woman and persuaded the appellate court to uphold the lower court's decision denying an order. The court recognized "T.B.'s" rights to privacy, bodily autonomy, and religious liberty. Efforts by the Public Guardian to involve the Illinois Supreme Court and the United States Supreme Court failed. "T.B." was doubly vindicated: the law upheld her rights and she vaginally delivered a healthy baby boy.
Court-ordered c-sections are a particularly egregious abuse of state authority because this surgery tends to be carried out on society's most vulnerable, powerless women. In 1987 the New England Journal of Medicine published a study of court-ordered c-sections that revealed that 81 percent of the patients were low-income women of color.
Compelled Blood Transfusion
In 1995, St. Mary's Hospital in Florida filed In re Harrell to make Tina Harrell, then 24 weeks pregnant, submit to a blood transfusion. A Jehovah's Witness, Harrell opposed the transfusion for religious reasons. A circuit court judge authorized her doctors to perform a blood transfusion if they believed it necessary to save Harrell's fetus. Ultimately, however, Harrell went into premature labor before any transfusion was administered. Her critically premature baby died shortly after birth.
When a bereaved Harrell appealed the order authorizing the transfusion, RFP and the ACLU of Florida filed a friend-of-the-court brief arguing that the order had violated Harrell's right to bodily integrity. The state interest in protecting a fetus cannot, we argued, justify forcing a competent adult to submit to medical treatment abhorrent to her. At the state's request, the court held the case moot because the order authorizing the transfusion could no longer affect anyone's rights. But the court also indicated that had the case not been moot, it would have reversed the lower court's decision on the ground that the hospital lacked authority to get a court to override a patient's wishes.
The forced c-section and blood-transfusion cases show why courts must not attempt to "balance" the interests of pregnant women and those of their fetuses. Neither the law nor medical ethics compel a person to permit a significant intrusion upon his or her bodily integrity -- for example, a donation of bone marrow or an organ -- for the benefit of another person's health. Since a sick child cannot claim the right to such assistance from a parent, it stands to reason that a fetus cannot have more rights than a person already born. When courts compel pregnant women to accept unwanted medical treatment, they can actually harm -- rather than help -- fetuses by giving women cause to shun medical care altogether.
Punitive Treatment of Pregnant Women
Many experts in medicine, public health, social welfare, and law have spoken out to condemn punitive measures against women for their conduct during pregnancy. Expressing sentiments shared by numerous other groups, the Center for the Future of Children recommended in 1991:
We believe that the most effective intervention for pregnant women is educating them about the dangers of drug use and other risk factors during pregnancy and providing them with prenatal care and any necessary drug treatment programs. We disagree with efforts to prosecute these women, based on alleged harm to their fetuses, or to make them subject to special civil commitment laws.
The ACLU was in the forefront in raising public awareness that punishment of pregnant women for conduct alleged to harm the fetus is both unconstitutional and counterproductive. We have helped many women defend themselves against punitive state actions.
Prosecutions for Drug or Alcohol Use
In the late 1980s, as the use of crack cocaine grew and the media fanned the flames of the scare over so-called "crack babies," prosecutors around the country focused on an easy target -- pregnant women believed to have used illegal drugs. They made these women scapegoats for deep and complex social problems. The prosecutors charged the women with harming their fetuses, but they based their charges on laws that were never intended to apply to fetuses: statutes prohibiting delivery of a controlled substance to a minor or statutes establishing penalties for child abuse and neglect. Women unfairly served time in jail, and some lost their children to state agencies.
One such case handled by RFP and the ACLU of Florida was Johnson v. State. In 1989, Jennifer Johnson became the first woman to be convicted under a drug trafficking statute for delivering drugs to an infant through the umbilical cord. When Johnson was pregnant, she voluntarily disclosed to medical personnel that she had used cocaine. This admission led to toxicology testing of Johnson and her newborn. Although the newborn, like Johnson's older child, tested positive at birth, doctors found both children to be healthy. Nonetheless, Johnson's admission of cocaine use set in motion civil proceedings to remove her children from her custody and a criminal prosecution for alleged drug-related harms to both children. Johnson's candor, prompted by concern for her children, brought her immediate punishment.
The trial court dismissed a charge of child abuse given the absence of any evidence of harm or injury to the children. Nevertheless, it convicted Johnson of two counts of delivery of a controlled substance to a minor and sentenced her to one year in the treatment program she had voluntarily started, fourteen years of probation, and 200 hours of community service. It ordered that she must undergo court-supervised prenatal care if she were to become pregnant again and forbade her to use drugs or alcohol, go to bars, or associate with people who use drugs or alcohol.
RFP helped Johnson appeal her conviction first to an appellate court and then to the Florida Supreme Court. We argued that the state could not constitutionally apply its drug trafficking statute to the facts of the Johnson case because doing so forces a pregnant addict to choose between terminating her pregnancy and facing prosecution. During questioning, the state had to concede that the legal premises under which it had charged Johnson would apply equally to smoking and drinking during pregnancy, as it is illegal to give cigarettes or alcohol to a minor. This prospect troubled the judges.
We marshalled support for Johnson's and all women's right to determine their own conduct during pregnancy from the American Medical Association, the American Public Health Association, the National Black Women's Health Project, the National Association for Perinatal Research and Education, and numerous other public health and women's organizations. Finally, in 1992 the Supreme Court of Florida issued a decision overturning Johnson's conviction. Convinced by our arguments, the high court delivered an emphatic warning:
Prosecuting women for using drugs and "delivering" them to their newborns appears to be the least effective response to this crisis. Rather than face the possibility of prosecution, pregnant women who are substance abusers may simply avoid prenatal or medical care for fear of being detected.
In cases like Johnson v. State, we developed a model for helping women who were unjustly charged with crimes when, instead, they should have been offered medical and social services on a voluntary basis.
Attorneys across the nation requested and received our briefs to use in helping them defend other women similarly charged. In the overwhelming majority of cases in which a woman and her lawyer vigorously challenged a prosecution, all or most of the charges were dismissed.
These consistent dismissals caused the explosion of prosecutions to subside for a while. Now, however, they are cropping up again. Earlier this year, the ACLU of New Jersey, in consultation with RFP, persuaded a court to dismiss manslaughter and child endangerment charges against Laurie Barker. The state charged her in the belief that "acute drug reaction to cocaine" had caused her 24-week-old fetus to die less than two days after birth. Our friend-of-the-court brief argued that manslaughter and child endangerment charges cannot constitutionally apply to a woman's prenatal conduct. To hold otherwise would infringe on the fundamental right of privacy by punishing women for carrying to term and subjecting all prenatal conduct to state scrutiny. The court agreed, holding that New Jersey law does not permit criminal charges against women for injuries to their children resulting from prenatal conduct.
As with forced c-sections, the pregnant women most likely to be reported and prosecuted for drug use are, like Jennifer Johnson, women of color and low-income women. In a 1990 study in the New England Journal of Medicine, researchers found that about 15 percent of both white and African-American women used drugs during pregnancy. The African-American women, however, were 10 times as likely as the white women to be reported to the authorities. Poor women were more likely to be reported than middle-class women. The ACLU's own tracking of prosecutions of pregnant women confirms this disparity.
The reporting and prosecutions are especially unjust given that, as the American Medical Association has concluded, drug or alcohol treatment is often "not an available option" for a pregnant woman. Surveys have shown that most treatment programs either will not accept pregnant women or are inadequate for their needs. In a 1993 case, Elaine W. v. North General Hospital, the ACLU Women's Rights Project won a victory that is a crucial step toward addressing this problem. The first challenge of its kind, Elaine W. was a class action lawsuit against two private alcohol and drug treatment programs in New York City that excluded pregnant women, in violation of the state's public accommodations law which prohibits discrimination because of pregnancy in private facilities open to the general public.
About 30 states in all have attempted prosecutions of women for conduct during their pregnancies. Because of determined opposition by the ACLU and others, these efforts have failed nearly everywhere. But studies indicate that the prosecutions did have the unfortunate effect of scaring some women away from prenatal care. As the American Public Health Association has warned, "Flight from the health care system has a dramatic and detrimental impact on the health of women and their children." Because studies have shown that prenatal care substantially improves birth outcomes even for pregnant women who continue to use drugs during their pregnancies, it is extremely important that we put a stop to state actions that discourage pregnant drug users from seeking medical care.
Civil Commitment and Detention to Preclude Drug Use
Two other precedent-setting ACLU cases also dealt with these sensitive issues. The first of these was In the Matter of the Retention of Tanya P., a 1995 case in which the New York Civil Liberties Union successfully challenged a hospital's efforts to commit a mentally ill, pregnant woman to prevent her from using cocaine and possibly endangering her fetus. The court found that the hospital had failed to show convincingly that the woman was dangerous to herself or others and therefore ordered her release. Three weeks after being released, the woman gave birth to a healthy, drug-free baby.
Six months after the woman's release, New York City's Health and Hospitals Corporation, which administered the hospital, adopted a policy prohibiting its psychiatric facilities from bringing civil commitment petitions based on fears of fetal endangerment as a result of a woman's alleged substance abuse during the third trimester of pregnancy. Once again, an ACLU case resulted in a model policy designed to safeguard the civil liberties of pregnant women.
Despite the city's argument that the case was mooted by the baby's birth and the new policy, the court proceeded to issue a decision on the merits because the case raised questions "of enormous importance" related to constitutionally protected liberty rights and the due process rights of persons suffering from mental illness. The court held that New York's Mental Hygiene Law in no way legitimated the commitment of a pregnant woman to protect her fetus. Far from being justified by the law, such commitment in fact violated a woman's rights and discriminated against her for being pregnant. As the opinion stated:
In addition to implicating the right to refuse medical treatment, involuntary commitment based on fetal endangerment infringes the right to privacy also protected by the Fourteenth Amendment by penalizing the woman for being pregnant. The retention petition and evidence presented by the hospital clearly indicated that if Tanya P. were not pregnant, it would not have sought her continued confinement.
The ACLU Women's Rights Project and the ACLU of Wisconsin recently won an important victory in State of Wisconsin ex rel. Angela M.W. v. Kruzicki, the first decision by a state high court on the civil detention of a pregnant woman for drug use. Based on a report from her doctor, officials asked a juvenile court to take Angela M.W.'s fetus into protective custody. The court authorized the sheriff's department to take the "unborn child" to a hospital for inpatient treatment, noting that "such detention will by necessity result in the detention of the unborn child's mother."
Ms. M.W. appealed the order to the state supreme court. The ACLU brief on her behalf argued that a fetus could not be considered a child under the Children's Code. The court agreed, concluding that the state had acted wrongfully in taking custody of a fetus still within the body of a pregnant woman. This victory buttresses our ongoing campaign to guarantee that pregnant women can obtain prenatal care and treatment for drug use without risking punishment.
Counterproductive State and Federal Legislation
In the mistaken belief that deterrents will stop pregnant women from using drugs, elected officials have tried to write punitive measures into law. A few states have statutes defining an infant with a positive toxicology as abused or neglected, and legislators elsewhere have introduced similar legislation or bills requiring punitive measures such as mandatory testing and reporting or involuntary commitment.
The ACLU is co-chairing a coalition to oppose one of the first federal bills of this nature, the Child Abuse and Neglect Enforcement Act (H.R. 1419), introduced in April 1997. This legislation would amend the Public Health Service Act by requiring that each newborn be tested for exposure to drugs or alcohol. The bill requires that a positive toxicology be reported to state or local child welfare agencies, but it does not specify what steps would be taken after such reporting.
H.R. 1419 is unsound public health policy. Mandatory testing is contrary to the medical ethics of informed consent and doctor-patient confidentiality. It would erode pregnant women's trust in medical services; fearing punishment, they would refrain from seeking treatment for substance abuse, prenatal care, and even childbirth in hospitals. Moreover, it is a misallocation of resources to require testing of all newborns when the majority of newborns will test negative. The resources would be better spent providing prenatal and postnatal care that would include counseling, voluntary testing, and access to appropriate drug or alcohol treatment for pregnant women.
Beyond its potentially deleterious effects on public health, H.R. 1419 also carries the risk of infringing constitutional rights. The mandatory testing and unregulated use of test results could give rise to illegal searches and seizures, due process violations, and discriminatory enforcement patterns.
The Implications for Reproductive Rights in General
Coercive and punitive treatment of pregnant women violates the civil liberties of individual women and fosters distrust of health care providers. State actions to "police" pregnancy ultimately endanger the health of both women and fetuses.
An influential 1988 Illinois Supreme Court decision, Stallman v. Youngquist, warned courts not to make "mother and child . . . legal adversaries from the moment of conception until birth." Rejecting a child's claim of damages from its mother, the court wrote:
Holding a mother liable for the unintentional infliction of prenatal injuries subjects to State scrutiny all the decisions a woman must make in attempting to carry a pregnancy to term, and infringes on her right to privacy and bodily autonomy.
Although we may not always approve of a woman's conduct during pregnancy, we must insist that women be offered educational, social, and medical services that can persuade them to make the wisest and healthiest choices. Coercion is both a counterproductive and an illegal alternative.