Wednesday, October 07, 2015

As American As Motherhood And Apple Pie?

How about criminal charges for pregnant women or for women who after delivery test positive for some banned substance?  Indeed, take the idea of fetal endangerment a step further, and tests for nicotine, alcohol and so on might also become a routine part of delivery, with all sorts of ominous consequences for the women with positive traces of those substances. And if we could devise a test which could tell if the fetus had had proper access to classical music and Einstein's relativity theorem, one day pregnant women could be tested for possibly endangering a fetus by starving its intellectual environment!

That's argumentum ad absurdum, sure, but before you judge me too harshly, read this story about the state of Alabama possibly secretly testing women in maternity wards for illegal drugs.  Then read this story about Amanda Kimbrough's actual prison sentence, caused by what seems to have been a stillbirth.

These events are troubling, and their roots are in the "fetal personhood" concept:

Kimbrough’s prosecution has not only had devastating consequences for her personally, it has also set a precedent that will affect countless other women following her. Two years ago, her case rose all the way to the supreme court of Alabama, the highest judicial panel in the state.
The judges ruled that the word “child” in the chemical endangerment law could be applied equally to unborn fetuses. To the astonishment of experts in reproductive health, the court went further and said that the law did not have to be restricted to viable fetuses – the standard set for abortion in Roe v Wade – but could in effect be used to prosecute pregnant women from the moment of conception.
Brian White, Kimbrough’s attorney, said that in his view her prosecution was a “backdoor way to promote the ‘personhood’ agenda – the idea that at any time after conception the fetus should be considered a person with full legal rights”.
Lynn Paltrow said that the impact of such a “personhood” approach was that an entire system of separate and unequal laws had been created for pregnant women.
“They say this protects unborn fertilized eggs, embryos and fetuses which have as much right to state protection as children. But there is no way to recognize the separate rights for fetuses without removing women from the protection of the federal constitution.”
She went on: “It creates a burden on all fertile women – because once there is a fertilized egg something they did yesterday that wasn’t a crime could be a crime today. So if they are taking painkillers for a painful back, they are now guilty of a crime.”

Bolds are mine.

The "fetal personhood" view means that all fertile women are treated like those Russian dolls, the ones which always have a yet smaller doll inside them, or could have such a doll.  And the smaller real or imaginary dolls are viewed as having the same rights as the largest outside doll!

Except that this is impossible.  For the "fetal personhood" people the outside doll doesn't get to have the same rights as solid dolls, dolls without that hollow (read: uterus) inside them. 

The no-hollow dolls can get addicted to drugs without being sent to prison for it, the no-hollow dolls can drink alcohol or smoke cigarettes and mostly there are no legal consequences.  The no-hollow dolls can even try to commit suicide and fail without being sued for trying to kill the doll inside them (because there isn't one, not even potentially).

So the more human rights fetuses are given, the fewer human rights pregnant women will have.  Indeed, our usual empathy when it comes to the demons of addiction is missing there.  It's as if people can somehow become non-addicted the minute they are pregnant, as if an addict can simply say no at the very point of conception, as if ordinary human frailties no longer apply.  And no, good medical help is not what seems to be needed but prison time! 

Here are the consequences in Alabama:

Under Alabama law, drug abuse in pregnancy is considered a form of child abuse, and medical providers are “mandatory reporters,” meaning they are required to report positive test results to child welfare authorities, who then must report them to law enforcement. At least 15 other states also treat prenatal drug use as child abuse, but only three — Alabama, South Carolina, and Tennessee — explicitly allow mothers to be criminally prosecuted
The potential penalties under Alabama law are especially stiff: one to 10 years in prison if a baby is exposed but suffers no ill effects; 10 to 20 years if a baby shows signs of exposure or harm; and 10 to 99 years if a baby dies.
And what are the consequences of all this for the babies who are born to addicted women, assuming that they are born at all, given that the Alabama laws offer a fairly good reason for abortions (should abortions still be available there)?

Let's think about that.  Hmm.  Perhaps those women would try to avoid prenatal care?  Even avoid hospital delivery?  Stay completely outside the official health care sector, if at all feasible?  And what does that mean for the safety of the children they will deliver?

In Alabama the answer to those questions looks to be staying vewy vewy quiet about the fact that women are tested for illegal drugs:

Rosemary Blackmon, executive vice president of the Alabama Hospital Association, spoke on behalf of three hospitals that declined to answer the questionnaire. She said hospitals fear that discussing their drug testing policies could keep pregnant women from seeking medical care.
“I think there’s just sort of a general hesitancy that the more they talk about the drug screening and reporting, the greater the likelihood the mother will avoid delivering at a hospital,” Blackmon said.
But drug policy experts, medical groups, and civil libertarians say it’s the threat of losing their children and ending up behind bars that creates an atmosphere of fear.

Bolds are mine.  It is the criminalization of addiction during pregnancy that is the real problem here, not the drug testing in itself. That could be used to improve the care for both the pregnant woman and later for her infant, and it could obviously be used for trying to curtail the ravages of the addiction.  But once something like addicted-while-pregnant is a crime, all pregnancies and miscarriages become potential criminal fields of investigation.