Why the autonomy of pregnant women really matters: the alternative could be incarceration


In case you thought yesterday’s discussion of maternal autonomy vs. “the best interests of the child” was just an arcane academic discussion, today comes word of a pregnant woman forced into a drug treatment program (even though she was not taking drugs) because her doctor thought it would be in the best interests of the child.

The New York Times reports reports on the case of Alicia Beltran, a case that practically defies belief:

Alicia Beltran cried with fear and disbelief when county sheriffs surrounded her home on July 18 and took her in handcuffs to a holding cell.

She was 14 weeks pregnant and thought she had done the right thing when, at a prenatal checkup, she described a pill addiction the previous year and said she had ended it on her own — something later verified by a urine test. But now an apparently skeptical doctor and a social worker accused her of endangering her unborn child because she had refused to accept their order to start on an anti-addiction drug.

Ms. Beltran, 28, was taken in shackles before a family court commissioner who, she says, brushed aside her pleas for a lawyer. To her astonishment, the court had already appointed a legal guardian for the fetus.

Think about that for a minute: a grown woman was shackled and taken into custody because her doctor disapproved of what she (erroneously) thought she was doing. It could never have happened but for the fact that Beltran was pregnant. Apparently, she lost her autonomy the moment the egg met the sperm.

Why did this happen at all?

Under a Wisconsin law known as the “cocaine mom” act when it was adopted in 1998, child-welfare authorities can forcibly confine a pregnant woman who uses illegal drugs or alcohol “to a severe degree,” and who refuses to accept treatment.

Now, with Ms. Beltran’s detention as Exhibit A, that law is being challenged as unconstitutional in a federal suit filed this month, the first in federal court to challenge this kind of fetal protection law. Its opponents are hoping to set an important precedent in the continuing tug of war over the rights of pregnant women and legal status of the unborn.

Why does this law exist? It’s certainly not because it is effective in protecting children:

In 2011, the American College of Obstetricians and Gynecologists said that “incarceration and threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse” and that mandated testing and reporting lead women to avoid prenatal care that “greatly reduces the negative effects of substance abuse during pregnancy.”

Dr. Cresta W. Jones, an obstetrician and a fetal medicine specialist at the Medical College of Wisconsin who sees many women with histories of drug or alcohol abuse, said that even sporadic detentions had sowed fear.

“The women are scared to come in if they have dependency problems,” she said. “When you allow them to be honest you get better outcomes in their pregnancies.”

This law and laws like it are almost surely unconstitutional and violate the basic principles of medical ethics. They exist not because anyone wants to promote the best interests of an individual child, but as a shot across the bow in the effort restrict legal abortions; these laws substitute religious principles for both medical ethics and the law, and award personhood to embryos and fetuses. Indeed, this law went so far as to appoint a lawyer for the fetus, while not providing one for its mother.

Placing the purported best interests of the child above maternal autonomy, whether in the realm of drug use or the realm of homebirth poses more than a theoretical threat to the rights of pregnant women. Homebirth may be unsafe (as a variety of legal choices like smoking may be unsafe), but women, even pregnant women, have the right to make unsafe choices. The alternative is incarcerating women against their will when they make decisions with which their doctors disagree. This alternative is both ineffective and harmful, as well as unethical and unconstitutional.