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Tuesday, June 26, 2012

Should A Pregnant Woman Be Charged For Drug Use That Harms Her Fetus?

(Flickr/harinaivoteza)

In Alabama, pregnant women who use drugs that harm their fetus can be prosecuted under the state’s new chemical endangerment law.

The law was originally created to protect children from the dangers of meth labs, but it is now being used to prosecute new mothers — There have been around 60 chemical-endangerment prosecutions of new mothers since the law was enacted in 2006, according to the New York Times.

Criminal convictions of women for their newborns’ positive drug tests are rare in other states, lawyers familiar with these cases say. In most places, maternal drug use is considered a matter for child protective services, not for law enforcement… Last summer, the Alabama Court of Criminal Appeals upheld this expanded interpretation of the chemical-endangerment law, ruling that the dictionary definition of “child” includes “unborn child.”

That interpretation is currently being examined by the state’s supreme court.

Anti-Abortion Rights Movement Pushing For Laws

The anti-abortion rights movement is pushing for these laws, in an attempt to give full personhood rights to fetuses and embryos– which they hope will eventually bring about the destruction of Roe v. Wade.

But a consortium of abortion rights advocates, doctors and the ACLU say prosecuting new moms for chemical endangerment of their fetuses could create a society where women are relegated to second class citizens, enslaved as child bearers, like those depicted in Margaret Atwood’s “A Handmaid’s Tale.”

Bioethicist Art Caplan told Here & Now‘s Robin Young that charging a new mom for drug use that harmed her fetus could lead to a wide range of other prosecutions.

“There are lots of other ways in which people can harm a fetus that don’t involve drugs,” he said. “Let’s say a woman decides to enter a marathon and somehow she loses the baby. Let’s say people decide that they’re going to eat a poor diet. Are we going to punish every obese woman? There is a slippery slope here.”

Caplan also says that many women may not know they are pregnant in the early stages, and one could have a drink that causes harm — which he does not think should be a seen by the law as a crime.

How The Law Handles A ‘Potential Person’

Caplan also says that the anti-abortion rights advocates who are pushing to have embryos considered full people from the moment of conception are not supported by science.

“We know scientifically that a huge proportion of embryos, probably as many as 40 to 50 percent don’t become fetuses, much less babies,” he said. “So what you’re talking about is potential people. And the question then becomes, does the law want to treat the destruction of a potential person with the same vigor that it does murdering a real person.”

Guest:

  • Art Caplan, head of the division of medical ethics at NYU’s Langone Medical Center

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Robin and Jeremy

Robin Young and Jeremy Hobson host Here & Now, a live two-hour production of NPR and WBUR Boston.

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