TIME: Almanac 1993/TIME Almanac 1993.iso/time/110890/1108102.000

Text File | 1992-08-28 | 8.4 KB | 161 lines

                                                                                NATION, Page 22

Do the Unborn Have Rights?


The law is looking into the womb. And expectant mothers who
drink or use drugs may be held liable for damage to their
fetuses

By RICHARD LACAYO -- Reported by Barbara Cornell/New York


    That Lynn Bremer is an attorney with a good job was not
enough to keep her from developing a cocaine habit. The fact
that she was pregnant was not enough to make her drop it. So
when her daughter tested positive at birth for the presence of
drugs in her urine, health officials in Muskegon County, Mich.,
took the child into temporary custody. But, to Bremer's
astonishment, there was more. The county prosecutor stepped in
to charge her with a felony: delivery of drugs to her newborn
child. The means of delivery? Her umbilical cord.

    After Bremer completed a drug treatment program, she
regained her daughter, who is apparently healthy. But the
criminal charges remain. "I could lose her," says Bremer. "I
could go to prison, and she could grow up with who knows who."
Prosecutor Tony Tague is unmoved. He says the threat of prison
is sometimes the only way to get pregnant addicts to seek
treatment: "Someone must stand up for the rights of the
children."

    Similar cases involving prenatal drug delivery have cropped
up in nine states across the country. Like the abortion issue,
they raise serious questions about a woman's right to privacy
and the obligations of the state and the individual toward the
unborn. At the center of these cases lies a controversial legal
concept: fetal rights. This notion also underlies one of the
most important cases before the Supreme Court during its current
term. At issue are "fetal-protection policies" used by many
companies to forbid fertile female employees from taking jobs
that might expose them to substances that could harm an unborn
child. Fetal-rights advocates say such policies are needed to
protect the unborn. Critics say they are an intrusion into the
lives of women and a false comfort for a society that fails to
offer adequate prenatal care for all women or workplace safety
for all workers.

    Courts in the U.S. have recognized that third parties -- for
instance, a drunk driver who injures a pregnant woman -- can be
sued for doing harm to a fetus. More recent is the notion that
expectant mothers can be held criminally responsible for
problems suffered by their fetuses. Even pregnant women who are
resigned to the legalisms pervading American life might wince
to learn that the child forming inside them is also a budding
legal entity, possessing rights that may put it at odds with its
mother even before it emerges into the world. But the idea has
gathered support with the growing spectacle of drug-damaged
newborns. Maternity wards around the country ring with the
high-pitched "cat cries" of crack babies, who may face lifelong
handicaps as a result of their mothers' drug use.

    With some researchers estimating that each year as many as
375,000 newborns in the U.S. could suffer harm from their
mothers' prenatal abuse of illegal drugs, district attorneys are
tempted by what looks like the quick fix of pregnancy
prosecution. "You have the right to an abortion. You have the
right to have a baby," says Charles Molony Condon, prosecutor
for the Charleston, N.C., area. "You don't have the right to
have a baby deformed by cocaine." Courts have given a mostly
skeptical reception to the attempt to apply existing drug laws
in such a novel fashion, but eight states and Congress are
considering legislation that would explicitly criminalize drug
use and alcohol abuse by pregnant women that results in harm to
the child.

    Critics of such measures say that a true effort on behalf
of unborn children would focus on the needs of expectant mothers
rather than punishing bad behavior after the fact. Few drug
treatment programs, for instance, accept pregnant addicts. A
study of New York City drug-abuse programs found that 87% turned
away pregnant crack users. Says Sidney Schnoll, a psychiatrist
at the Medical College of Virginia: "We seem more willing to
place the kid in a neonatal intensive-care unit for $1,500 or
$2,000 a day, rather than put $1,500 into better prenatal care."

    Some legal experts also warn that prenatal drug-use
prosecutions could open the way to punishing women for many
other kinds of behavior during pregnancy. What about drinking?
Smoking? Taking prescription drugs? Or working too hard? "Are
we going to be policing people's wine closets?" asks Stanford
University law-school professor Deborah Rhode. Other legal
scholars insist that such "slippery slope" arguments are
exaggerated; laws commonly distinguish between reckless
behavior and acceptable risk.

    Still, the efforts to protect the rights of the fetus have
far-reaching implications, and not just for pregnant women. The
UAW, et al. v. Johnson Controls case, now facing the Supreme
Court, provides a dramatic example. In 1982 Johnson Controls,
a Milwaukee-based company that is one of the nation's largest
car-battery manufacturers, decided to forbid its fertile women
employees to hold jobs that would expose them to lead levels
potentially damaging to a fetus. High doses of lead -- higher
than any permitted by law in the workplace -- have been linked
to miscarriages and fetal death. Even lower levels, however, can
result in learning problems and diminished growth for exposed
babies. "This decision was not taken lightly," says Denise
Zutz, director of corporate communications for Johnson Controls.
"We were concerned about the risks to children." The company was
also seeking to avoid later lawsuits by any children who might
be harmed in the womb.

    That was not much comfort to Shirley Jean Mackey, who worked
at one of the company's plants in Atlanta. A mother of one who
had no immediate plans to get pregnant, she was forced to move
from a job she liked, bundling lead plates, to another she
hated, punching holes in hundreds of battery containers. "Each
hole I punched, it was somebody's head," says Mackey. "That's
just the way I felt." Along with the United Auto Workers, which
represents many of Johnson Controls' employees, she is one of
eight workers bringing suit against the company. They charge
that its policy violates the 1964 Civil Rights Act, which bars
employment discrimination on the basis of sex, pregnancy or
related medical conditions unless the practice in question
directly relates to the worker's ability to do the job.

    So far, two lower federal courts have ruled in favor of the
company. But a California court went the other way, calling the
policy "blatant" discrimination and adding, "A woman is not
required to be a Victorian broodmare." If the Supreme Court
rules for Johnson Controls, then by some estimates up to 20
million jobs, many of them well paid, could eventually be closed
to women. Gulf Oil, B.F. Goodrich, Du Pont and Eastman Kodak are
just some of the companies that have instituted fetal-protection
policies since a federal court upheld such measures in 1984.
Johnson Controls estimates that more than half its production
jobs are barred to fertile women.

    To some people, fetal-protection policies are merely a way
to avoid making the workplace safe for men and women equally.
Feminists also dismiss them as discrimination masquerading as
compassion, a disguised way of keeping women out of more
lucrative men's jobs. Critics of the fetal-protection policies
also point out that toxic substances in the workplace may damage
genes in male sperm. "A man or woman working in a plant should
be told the dangers and make up their own minds," says Molly
Yard, president of the National Organization for Women.

    Ironically, it was the Supreme Court's decision creating a
right to abortion in Roe v. Wade that also provided some of the
legal underpinning for fetal rights. The same ruling recognized
a government interest in protecting the fetus during the last
trimester of pregnancy. But while judges had a hand in creating
fetal rights, courts will never be able to ensure real
protection to an unborn child. That will have to come from
mothers who take responsibility for the lives they carry within
them -- and a nation willing to provide the fetus with real
prenatal care. For now, it seems more willing to provide a
lawyer.