Can the irresponsible actions of a pregnant woman that threaten the health or life of her unborn child ever justify the state in restricting her conduct? Can it justify the state putting her into custody to protect her unborn child? Or does her adult autonomy trump the states interest in protecting the unborn child?
The situation arose this month in Wisconsin where a state law provides that if an “adult expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered," the state may incarcerate her to protect the child.
A pregnant Wisconsin woman sought medical treatment for depression and other concerns. The test results confirmed that she was pregnant and that she had illegal drugs in her system. When she refused to undergo mandatory inpatient drug treatment, she was incarcerated for 18 days until she agreed to submit to urinalysis throughout the duration of her pregnancy. She filed suit challenging the state ‘cocaine mom’ law and this week a federal judge in Wisconsin invalidated the law, finding it “void for vagueness.”
The label “void for vagueness” is a very subjective label. Often it is used as a “catch-all” reason for invalidating a law that a judge personally dislikes but which is not invalid under other legal or constitutional principles.
If the endangered child were a toddler or even a newborn infant the ability of the state to forbid and punish adult endangering behavior would be crystal clear. Adult autonomy ends when it endangers another living (born) person, regardless of the age of the person endangered. Every state enforces laws forbidding child abuse and neglect. The Wisconsin case might be viewed as a child abuse case.
But unborn children, children in utero, do not have the same legal status as born, living children have. Unborn children are not entitled to the same legal protections. As Justice Blackmun famously (or infamously) declared in Roe v. Wade, 410 U.S. 113 (1973), the unborn child is “not a person in the whole sense.”
Of course, Blackman’s canard has been discredited. The legal status of the unborn child (as well as the legal status of born persons) has reflected variations in biological and medical knowledge, as well as social perceptions and historical biases over time. But no amount of winking and nudging can make us forget that the unborn child is alive and human and vulnerable.
Still, in Roe v. Wade the Supreme Court ruled that the government may not prohibit abortion before the third trimester of pregnancy, and that only minimal health and safety regulations apply (e.g., requirement that only doctors can perform abortions, and that they must adhere to normal sanitation and safety standards). The Supreme Court has invalidated nearly all abortion regulations that it has reviewed since 1973.
But abortion is unique, sui generis. While the Supreme Court has struck down scores of abortion regulations in the fifty abortion cases it has decided in the past forty-four years, the Court has not extended the abortion doctrine to other parent-child contexts.
The abortion cases are predicated on the woman’s right to terminate a burdensome, undesired personal pregnancy. The fact that a pregnant woman legally and constitutionally may kill (abort) her unborn child does not mean that she may abuse the unborn child, starve it, torture it, or deliberately maim and injure it (him or her). She is not immune from liability for severe negligence or intentional misbehavior that harms the child.
When a woman becomes pregnant and while she carries the unborn child, there is another human life in being in whom the state has an interest and for whom it has a duty of protection. The parens patriae authority of the state exists to protect those who are unable to protect themselves – including unborn children.
The state also has a right (and duty) to promote an ethic of care. Thus, laws forbid spouse abuse, punish child abuse, and prohibit deliberately endangering a living-but-preborn human child.
If the pregnant woman had been run over by a drunk driver and the unborn child had been killed, she could have sued for the wrongful death of the unborn child in most states (at least 40 states). If the child had suffered a prenatal injury due to the negligence of a third party, the negligent actor would be liable for damages in most states.
Do those normal principles of accountability for irresponsible behavior that harms an unborn child not apply to the mother of the child whose intentional acts (substance abuse) cause or are likely to cause the child to be born with fetal alcohol (or drug) syndrome?
Federal Judge James Paterson’s ruling invalidating the Wisconsin ‘cocaine mom’ law may be celebrated by radical feminists. But as a matter of community responsibility, child welfare, and sound legal principles it is unfortunately myopic.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.