The following appeared in Volume 98, Number 1 (Fall, 1998) of the APA Newsletters

On June 16, 1998, Wisconsin Governor Tommy Thompson approved a fundamental revision of that state’s child protection laws.¹ Under Wisconsin’s new child abuse provisions, judges may confine pregnant women who chronically abuse drugs and alcohol for the duration of their pregnancies. South Dakota enacted similar legislation almost simultaneously. Many other state and federal legislators have tried and failed to establish fetal protection laws aimed at women who use and abuse drugs and alcohol during pregnancy. Consequently, the actions by these two states represent important, perhaps bellwether, changes in attempts by government to protect the tragic plight of newborns injured in utero by maternal substance abuse.

The state has a genuine interest in protecting the interests of its future citizens. Children who have been injured by prenatal substance abuse suffer temporary or permanent disabilities, and lost opportunities. They also represent a significant burden on society’s medical, educational and social services. For example, costs for the treatments of cocaine addicted babies were ten times that of a control group matched in all other respects.² Moreover, it has been estimated that children with Fetal Alcohol Syndrome (FAS) require an additional cost of one half million dollars to a million and a half for their care.³

Unfortunately, there is little evidence that they will be helped by legislation of the sort passed by the Wisconsin and South Dakota lawmakers. There is, however, a genuine possibility that this class of legislation unjustifiably threatens some of this culture’s most revered civil liberties. In evaluating how society should respond when pregnant women use recreational and addictive drugs, we assume that the most morally defensible social policies are those that are the least restrictive and necessary to achievethe desired effect, in this case healthy children. We argue that voluntary and non-punitive policies should be tried first because they may be more effective, they are less restrictive and they represent less of a threat to our liberties.⁴ After summarizing the Wisconsin law, we focus on a part of this complicated issue: what sort of evidence exists to support a states’ intrusion on pregnant women’s liberty interests in the ways that this legislation permits. We argue that in general the use of these policies fail to meet the burden of justification required when the state restricts an individual’s liberty.

The new Wisconsin fetal protection legislation significantly revises the state’s child abuse law. The purpose of the Wisconsin bill, according to its framers, is "to provide a just and humane program of services to children and unborn children and the expectant mothers of those unborn children." The statute defines "unborn child" as a "human being from the time of fertilization to the time of birth," and stresses that provisions of the law are intended to "apply throughout an expectant mother’s pregnancy" (48.02). The statute declares that "unborn children have certain basic needs" including the need to "develop physically to their potential and the need to be free from physical harm." To protect these basic needs, when "an expectant mother of an unborn child suffers from a habitual lack of self-control" in the use of alcoholic beverages or controlled substances "to a severe degree," a court may "determine that it is in the best interests of the unborn child for the expectant mother to be ordered to receive treatment, including in-patient treatment for that habitual lack of self control" (48.01). This treatment may include, but is not limited to, medical, psychological or psychiatric treatment, and services to treat alcohol or other forms of drug abuse whichthe court finds to be necessary and appropriate (48.02). In construing and implementing the legislation, "the best interests of the child or unborn child shall always be a paramount consideration," and the law should be "liberally construed to effectuate" the expressed legislative purposes (48.01).

The statute also suspends the physician-patient/counselor-client privilege, allowing health professionals, social workers, counselors, teachers, and a variety of other professionals "having reason to suspect that an unborn child has been abused or reasons to believe that an unborn child is at substantial risk of abuse" to report such suspicions to the child welfare agency or local law enforcement officials (48.981 (2)(3)).

Upon receiving a report of suspected prenatal abuse, the relevant child welfare agency or law enforcement officials shall investigate to determine whether the unborn child is in immediate danger and "take any necessary action," including confinement of the pregnant woman to protect the unborn child (48.981). Without a hearing, an "expectant mother" can be taken into custody for 48 hours by a law enforcement officer who "believes on reasonable grounds" that there is a substantial risk to the unborn child (48.193). At the hearing in front of a judge, or jury if requested, the woman will be represented by legal counsel and a guardian ad litem for the fetus will serve as an advocate for "the best interest of the unborn child" (48.213; 48.235).

At the full hearing, the court will review adversarial evidence, including the social history of the pregnant woman, the gestational age of the unborn child and dispositional recommendations from the child welfare agency. The court must order the "least restrictive treatment" option that is consistent with the well-being of the unborn child (48.355). A court can order mandatory commitment and treatment for a pregnant woman who lacks self-control toward drugs and alcohol "habitually" and to a severedegree, when there is a "substantial risk that the physical health of the unborn child, and the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment" (48.133; 48.19; 48.193). A court may order a woman placed in custody for involuntary treatment only if she has refused voluntary treatment or has not made a good faith effort to participate in such programs (48.345; 48.347). She may be held in custody as long as necessary to protect the unborn child in the home of an adult relative or friend, a private or public residential substance abuse treatment facility, or a hospital (48.207). Alternatively, the court can release the woman, order counseling or some other form of outpatient supervision (48.347[1-6]), "impose reasonable restrictions" on her travel, restrict "association with other persons or places of abode," or conduct "which may be necessary to ensure the safety of the unborn child and of the child when born" (48.213).

Detention of a pregnant woman who is using substances restricts the most respected and protected rights in Anglo-American culture--the right to be free from bodily restraint. Although the most disconcerting aspect of the Wisconsin legislation involves its potential burdens on pregnant women’s freedom of movement, other commonly recognized liberties are endangered too. For example, a woman may be forced or coerced into medical treatment against her desires if a judge or jury decides that her unborn child is at risk of injury. A woman’s right to make reproductive decisions for herself, without undue interference from the state, may also be implicated.

Given the structure of Wisconsin’s new fetal protection law, these observations are especially relevant. Specific features of the Wisconsin law increase the probability that individual women may be confined without sufficiently strong evidence that the fetus will likely suffer serious harm. Under this statute any person, including neighbors, health care professionals, social workers and counselors may report a woman if they have "reason to suspect" or "reasons to believe" that an unborn child is at a substantial risk of abuse. A physician may report a pregnant woman who tests positive for drugs or alcohol, but no such test results, or series of tests results, is required to trigger child abuse and confinement proceedings (146.0255). Upon receiving a report of suspected abuse, a law enforcement or child protection agency official may confine the pregnant woman if there are "reasonable grounds" to believe that the woman’s "habitual and severe" use of substances substantially endangers the health of the unborn child. At the woman’s full adversarial hearing, social history evidence and hearsay evidence may be introduced (48.299), and the judge is empowered to confine the woman for treatment if her "habitual and severe" substance use constitutes a "substantial risk" that the unborn child’s health is seriously threatened.

These statutory provisions represent relatively low evidentiary standards and insufficient procedural safeguards given the nature of the potential deprivation of liberty faced by the pregnant women who are targets of this legislation. Women may be reported on "suspicions" of substance abuse and confined by law enforcement officials who have "reasons to believe" that the abuse has been "habitual and severe." Interestingly, while hearsay evidence is admissible, no medical testimony is specifically required. Judges must merely believe that a woman’s "habitual and severe" substance use creates a substantial risk that the "unborn child" will be injured before they canorder a woman confined or into treatment against her will. Health professionals are given no guidance as to what constitutes a legitimate "suspicion" sufficient to report. "Habitual and severe" substance use is never defined and could clearly mean substantially different things to different potential informants. It is never clear on what grounds a judge is to determine whether the woman’s actions create a substantial risk to the unborn child.

Women who use and abuse alcohol and drugs during pregnancy clearly put their fetuses at risk of injury. In this section, we consider the scientific evidence and argue that it justifies both counseling women against substance use and abuse and providing treatment services to pregnant women who wish to forego those substances. Given current available data regarding substance abuse and fetal harm, however, we argue that the risk of fetal injury will rarely be sufficient to meet the "clear and convincing" evidence standard that is usually required when the state wishes to deprive an individual of his or her liberty, or when it intervenes to provide protective services for an abused or neglected child.

Recreational or addictive drugs that might harm the fetus include heroin, methadone, amphetamines, prescription and over-the-counter drugs, tobacco, marijuana, cocaine, and alcohol. While there are legitimate grounds for concern of the health of infants who have been exposed to drugs in utero, the data on their potential to cause temporary or permanent harm varies from weak to persuasive.⁵ A considerable amount of attention has focused upon the use of cocaine during pregnancy and "cocaine babies," yet the nature of the risk, and when or whether it causes permanent injury isuncertain. There is growing evidence, however, that the long-term risks have been exaggerated by a society that disapproves of anyone using cocaine and crack, especially pregnant women.^2,5 In contrast, a good deal is known about FAS and the damaging effects of taking alcohol during pregnancy. It causes an increase in spontaneous abortion, fetal growth retardation, premature delivery, abruption placentae and breech presentations. When alcohol is used moderately during pregnancy, it causes increased distractibility, excitability and disciplinary problems, as well as autism, learning disabilities, and lowered intellectual capabilities. When used heavily, it causes a variety of congenital defects, including mental retardation, growth retardation and neuro-behavioral disturbances.^3,5

While a good deal is known about the harmful effects of maternal use of alcohol, in many cases it is hard to collect good information about the risks to the fetus of the mother’s use of substances during pregnancy. First, risks seem to be a function of precisely when the drug is taken and in what amounts. For example, some of the worst damage is done in the earliest weeks of pregnancy before the woman even knows she is pregnant. Moreover, it is often difficult to obtain reliable information about what substance has been ingested and in what amounts with sufficient precision to make reliable generalizations, or predictions in specific cases. Further obstacles arise when more than one substance is used, since it may be difficult to assess what drug or combination of substances is responsible for the injury manifested in the newborn. Other confounding variables including poverty, poor prenatal care, and biological variations complicating the accurate study of suspected toxins.^2,5

Finally, it is difficult to conduct careful prospective research. Animal studies are oflimited use since there are disanalogies regarding human and animal pregnancies, and it would be unethical to conduct controlled and perspective studies with humans. That is, one should not test a potential or proven teratogen systematically with pregnant women as subjects. (Conducting such tests on the to-be-aborted fetus are controversial and generally do not gain approval.) Despite incomplete or unreliable data with respect to many recreational or addictive drugs, physicians, prosecuting attorneys, judges, and legislatures have employed a wide range of interventions that may intrude on the pregnant woman’s rights in a variety of ways, including physical liberty, treatment preferences and lifestyle choices.⁴

Treating equals equally is a formal condition of justice, and equality before the law is a fundamental political and constitutional principle in democratic societies. As a result, the public, policy makers, enforcement agents and physicians should be inherently skeptical of any approach that reserves restrictive and punitive measures for one segment of society while neglecting analogous wrongs perpetrated by another segment of society. In this section, we wish to consider evidence of possible discrimination in the letter or use of such policies.

By their very nature, statutes must grant some discretion to those individuals who are responsible for implementing them. When statutory ambiguity allows discretion that is likely to be exercised broadly and in decisions that threaten individual liberty, however, additional and more substantial safeguards are warranted. Nowhere is this more evident than in the statute’s provision allowing confinement of a woman if her actions represent a "substantial risk" to the unborn child. Given that scientific evidenceregarding substance use and pregnancy is unclear and that its use in such decisions is optional, judges (or juries) are left with a potentially perilous degree of discretion. Risk, especially medical risk, is a profoundly complex notion subject to a broad range of definitions and perspectives.

Risk perception varies, shaped not only by available evidence, but also by personal values and experiences, institutional roles, professional training, and cultural biases.⁶ It is possible, even likely, that decision makers will base their conceptions of "substantial" and "risk" not on the complicated and equivocal medical and scientific evidence regarding material substance use, but rather on their view of what constitutes appropriate behavior about the use of addictive and recreational drugs, especially when used by an "expectant mother"-- the statute’s terminology for a pregnant woman. We have suggested that there may be a substantial disparity between the public image of substance abusing women and the scientific evidence currently available regarding fetal injury. In light of this possible discrepancy, it is reasonable to be concerned that decision makers using this policy may simply rely on their intuitive views of how expectant mothers should behave during pregnancy, rather than relying on clear, convincing and competent scientific evidence when limiting the liberty of a competent adult individual.

The low evidentiary standards, the statutory ambiguity, and the discretion granted to decision makers in the Wisconsin law, may open the door to racially or economically discriminatory applications. We base this concern on analogies with past fetal protection policies, which, when implemented, have often disproportionatelyconcentrated on poor women, especially those of color. The rate of alcohol and/or drug use among both white and African-American pregnant women is comparable -- or according to some studies, somewhat higher for whites.² Yet women of color were singled out for prosecution. For example, one study reports that African-American women who used alcohol or illegal drugs during pregnancies were ten times as likely to be reported to child protection services and law enforcement agencies than were white women who used such substances during pregnancy.⁷ In addition, virtually all the women arrested for child abuse under South Carolina’s maternal drug prevention program were African American.⁸ Other studies reveal similar ethnic and race-based disparities.⁹

An obvious explanation for these findings is that discrimination occurred through selective reporting and enforcement of fetal protection policies. For example, consider the potential bias introduced simply by the choice of sites to investigate. Fetal protection programs and policies have typically focused on public clinics and prenatal cocaine use, especially crack. Since poor women of color are more likely to use such clinics, they are most likely to get caught in the net of reporting and enforcement. Upper and middle class women are more likely to receive their prenatal care from a private physician than from a clinic. We do not, therefore, seem to have a good track record of informed and impartial enforcement of fetal protection policies. Once again, the absence of clear data on substance abuse and pregnancy may allow some decision makers to exercise their state-conferred discretion in illegitimate ways, unintentionally or not.

Although the literature or fetal damage associated with male substance abuse is not as fully developed as that regarding substance abuse and pregnant women (this is one of the few areas where more medical research has been geared to women), there is preliminary evidence that suggests that male abuse of alcohol, tobacco, and illegal drugs may damage the sperm in ways that might lead to fetal abnormalities. Similarly, exposure to toxic materials in the workplace can damage the sperm prior to fertilization.¹⁰ Yet, little societal concern and virtually no official action is directed at the potential impact of male substance abuse on the health of future children. Part of the explanation for this may be based upon probability of the harm to a child who will be born. While the man may damage sperm that might impact on a possible fetus, the woman is potentially damaging an existing fetus. Damage to sperm, however, may injure a future child just as much as an injury to a fetus. In this respect, the actions of both male and female could lead to the birth of an injured or afflicted child.¹⁰

There is growing evidence, statistical and anecdotal, moreover, that pregnant women are at a greater risk for physical abuse than are other women, and domestic violence remains a highly under-reported and under-prosecuted phenomenon. Physical assaults, of course, pose a danger not only to the female victim, but also to the future child. Future fathers, too, have a duties to safeguard the interests of the child to be born. The often cited case of Pamela Rae Stewart is instructive. Stewart was charged with child neglect after she reportedly, and against the advice of physicians, eschewed bed-rest and prescribed medication, engaged in sexual intercourse, used marijuana and amphetamines, and did not contact her physician when she began bleeding. It is often overlooked that Stewart’s husband also had a duty to their future child and also heardthe physician’s advice. He reportedly used drugs with her, had sex with her, assaulted her, and failed to call the physician when she began bleeding. Yet, unlike his wife, he was never charged with child neglect.¹¹ Fathers and other males may play a central role in encouraging drug or alcohol use by pregnant women and are arguably also culpable in any damage caused to future children. In addition, secondhand crack, marijuana, and tobacco smoke may present at least marginal potential dangers to pregnant women and their future children.¹¹

Despite the variety of ways in which male actions during pregnancy can wrong the child-who-will-be-born, public scrutiny remains centered on the pregnant woman. It is true that her actions frequently pose a greater immediate risk of harm, but that is not always true, especially in the case of a partner’s physical assault. Perhaps the fetal protection focus on women is the result of a culture that still views childbearing and childrearing as largely female responsibilities.^{10, 11} Even if these cultural expectations underlie current fetal protection efforts, they represent insufficient justification in a society that aspires to equal treatment equal treatment of all citizens before the law.

We have tried to frame our concerns independently of the abortion debate. Describing the fetus as an "unborn child" and as a "human being from the time of fertilization to the time of birth" (as does the Wisconsin statute) supports a key premise of those who oppose legal abortion. Yet pro-life as well as pro-choice advocates should be alarmed by the Wisconsin law. Given the current abortion rights laws, it seems unlikely that the woman could be prevented from pursuing an abortion if her pregnancyhas not reached the statutorily defined cutoff point in the state. Women who are otherwise disposed to continue their pregnancies, may seek abortions to avoid coercive or punitive measures that limit their freedom of movement and association, as well as their rights to privacy and to choose or refuse medical treatment. Fear of confinement may play an important role in the decision of a woman to terminate her pregnancy since she knows that if she agrees to an abortion, she will be free to move about as she pleases, meet whom she wants, and so on. If she chooses to continue her pregnancy, she remains under the authority of the court and its restrictions. Under such scenarios, Wisconsin’s policy may place a considerable burden on the woman’s right to reproduce in a way that should disturb both pro-choice and pro-life advocates.

The Wisconsin bill contains a variety of safeguards that, if used scrupulously, may mitigate its practical impact on the liberties of pregnant women. Judges are required toselect the least restrictive alternative possible to protect the unborn child when choosing among the various available statutory remedies. The statute specifically states that inpatient detention may only be used when a woman has refused voluntary substance abuse treatment or has failed to make a good faith effort to participate in such treatment. In implementing the statute, law enforcement and child protection officials and judges may focus their attention on only the isolated, worst-case examples of maternal substance abuse. But that result is not guaranteed.

Given the level of public outrage on this issue, the spare safeguards, the ambiguous language and the overall latitude granted decision makers by the policy, it is equally likely that the statute may be applied inconsistently, independently of evidence, and in ways that threaten the liberty interests of pregnant women. Coercive state intervention to prevent maternal substance abuse raises profoundly complicated issues. Instead of approaching a multifaceted issue warily, the legislation takes the impetuous step of extending traditional child abuse protection not only to viable fetuses, but to conception. It is unclear if the statute will withstand the legal and constitutional challenges that will inevitably follow. In the meantime, pregnant women in Wisconsin will remain at the mercy of the vagaries of an ill-conceived and ambiguous statute and the decision makers that apply it.

To address the problems of the use of recreational and addictive drugs, we should first explore voluntary and non-punitive programs. Expanded voluntary education, counseling and treatment services avoid the tangle of problems arising from inconclusive and incomplete data about the harmful effects of both legal and illegal substances as well as the problem of social bias. Finally, voluntary and nonpunitive programs are less restrictive and represent fewer threats to our liberties. In addition, this approach seemsmore likely to gain the cooperation of those who participate and minimize their all too reasonable fears of prejudicial treatment.

1. "Child abuse and neglect and child abuse services," 1997 Wisconsin Act 292 (1997 Assembly Bill 463), signed by the governor and enacted June 16, 1998, took effect on July 1, 1998.

2. Plessinger MA, Woods JR: "Cocaine in Pregnancy: Recent data on Maternal and Fetal Risks," Obstetrics and Gynecology Clinics of North America, 1998; 25(1): 99-113.

3. Coleman FS, Kay J: "Biology of Addiction," Obstetrics and Gynecology Clinics of North America, 1998; 25(1): 1-19.

4. De Ville KA, Kopelman LM: "Moral and Social Issues Regarding Pregnant Women Who Use and Abuse Drugs," Obstetrics and Gynecology Clinics of North America, 1998; 25(1): 237-254.

5. Bell Gl, Lau K: "Perinatal and neonatal issues of substance abuse," Pediatric Clinics of North America, 1995; 42: 261-81.

6. Handwerker L: "Medical risk: implicating poor, pregnant women," Social Science Medicine, 1994; 38(5): 665-675.

7. Chasnoff IF, Landress HJ, Barrett ME: "The prevalence of illicit-drug use and alcohol use during pregnancy and discrepancies in mandatory reporting in Pinellas County, Florida," N Engl J Med 1990; 322: 1202-1206.

8. Jos PH, Marshall MF, Perlmutter M. "The Charleston Policy on cocain use during pregnancy: a cautionary tale," J Law Med & Ethics, 1995; 23 (2): 120-8.

9. Johnson De: "Maternal-fetal relationship: Legal and Regulatory Issues," In Reich WT (ed): Encyclopedia of Bioethics (N.Y.NY.: Simon & Schuster Macmillan, 1995), 1413-1418.

10. Schroedel JR, Pretz P: "A gender analysis of policy formation: the case of fetal abuse," J Health Politics Policy & Law, 1994; 19: 335-360.