GENDER OCTOBER 29, 2013
The case against Alicia Beltran, a 28-year-old pregnant woman who was arrested this summer when she told doctors about a former drug problem (which she had dealt with on her own at least six months before conceiving), was dropped Monday, according to a memorandum that her Wisconsin county's human services department filed in a federal court. "Ms. Beltran is under no current orders or restrictions," it reads. But Beltran is still mounting a constitutional challenge to the state law that forced her into a treatment program against her will, causing her to lose her job. The memorandum argues that by dropping the case against Beltran, the state has rendered her federal challenge moot, but one of her representatives, Sarah Burns of the NYU Reproductive Justice Clinic, says she and her client disagree. "Our petitioner's position is that the statute and its implementation is unconstitutional on numerous grounds," she said. "And Ms. Beltran could easily face the same issues again tomorrow."
That state law has been known since its passage as the “cocaine mom” law. The name seems to echo the paranoia about pregnant drug users and “crack babies” that horrified the country in the 1980s. “The inner-class crack epidemic is now giving birth to the newest horror: a bio-underclass, a generation of physically damaged cocaine babies whose biological inferiority is stamped at birth,” Washington Post columnist Charles Krauthammer wrote with baleful absurdity in 1989.
But the Wisconsin law—which is one of four in the country that specifically concern the arrest of pregnant drug users—was ushered through legislatures in 1997 by anti-abortion lobbyists, not drug crusaders. It missed the war on cocaine by almost a decade, and was written after the idea that drug abuse was uniquely damaging to fetuses had been roundly debunked. (Although using drugs while pregnant can be dangerous, in utero exposure to meth and cocaine does not impact IQ, as is commonly believed, and is often indistinguishable from the health impacts that come with poverty, malnourishment, and lack of prenatal care in general.) Rather, the law Beltran is challenging—along with others of its kind—was a sidelong way of codifying the argument that a fetus is a person with rights separate from its mother’s. And that’s exactly what happened in Beltran’s case: The New York Times reported that Wisconsin appointed a legal guardian for her fetus when it called her to court—but not for Beltran. “I didn’t know unborn children had lawyers,” she said recently.
Beltran is not the only woman who has been arrested in the name of her unborn fetus. In fact, one advocacy group providing Beltran’s legal counsel, National Advocates for Pregnant Women, has documented hundreds of them. “Cocaine mom” laws were the precursor to the fetal homicide laws that have enabled most of those arrests. I’ve written in the past about how those statutes have multiplied in the past decade—they now exist in 38 states—thanks to efforts by the anti-abortion movement. Ostensibly written to punish pregnant women’s attackers, fetal homicide laws are often turned on women themselves when they interfere with their own pregnancies, accidentally or intentionally (by, for example, attempting suicide—or simply falling down the stairs). The National Right to Life Committee has called fetal homicide and fetal harm laws a way to “change the hearts and minds of the public on abortion.”
And the rights of drug addicts, usually impoverished people at the bottom of society, are already precarious. During the crack baby scare, “Pregnant women all over the country, mostly if they were poor and showed up in public hospitals, had their blood tested,” says sociologist Craig Reinarman. “If they tested positive for cocaine, there were federal prosecutors waiting. It was a new angle of attack on overwhelmingly poor women of color.”
Sure enough, the rights of the unborn first trumped the rights of women in a series of cases involving crack cocaine addicts in South Carolina in 1997. In 1998, South Dakota and Wisconsin enacted laws that supported the imprisonment of pregnant women for endangering the unborn with drugs or alcohol. “These moves to curb potentially harmful behavior among pregnant women are part of a significant trend toward state laws that give fetuses legal rights—often beginning with the moment of conception,” the National Journal reported at the time. In addition to the fetal abuse laws passed in South Carolina, South Dakota, and Wisconsin that year, “Alaska, California, Delaware, Georgia, Indiana, Maryland, Massachusetts, Minnesota, Tennessee and Virginia ... have all had such bills introduced in 1998,” it added.
A similar law passed in Oklahoma in 2000. In the fourth state with this kind of provision, Minnesota, the story is slightly more complicated: Legislators had included “pregnant women” as a category of “chemically dependant person” at the height of the crack scare, in 1989, but the law was amended to hew closer to the philosophy of fetal personhood in 2007. The added language framed the woman’s behavior in terms of her fetus’s interests: “A chemically dependent person for purposes of this section is a woman who has during pregnancy engaged in excessive use, for a nonmedical purpose, of controlled substances … that will pose a substantial risk of damage to the brain or physical development of the fetus.”
In the Wisconsin law that Beltran is challenging, the assertion of fetal personhood is even more explicit. It was written when the state's Supreme Court ruled that officials could not leverage the existing child abuse law to confine a pregnant woman who had tested positive for cocaine. Legislators filled the loophole by simply adding the category “unborn child” to the definition of a child in the existing law, and declaring that a court could “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”—and therefore be confined in said treatment against her will. In Beltran’s case, this occurred even though she had already kicked her drug use.
Writing in 1999, bioethicists Kenneth De Ville and Loretta Kopelman worried, “When the state takes custody of an abused child, it interferes with the parental right to raise one’s child as one chooses. But when the state takes custody of an ‘unborn child’ by confining the mother for mandatory substance abuse treatment, it abrogates the mother’s right to bodily autonomy, to mobility, to freedom of association, to individual liberty.” A member of the Wisconsin Right to Life Committee saw the legislation differently. She foresaw the coming sea change in reproductive politics when she proudly called the Wisconsin bill “a national model.”
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