Conflict Between Fetal Protection and Abortion Regulation

by Sherry F. Colb

In my column for this week on Verdict, I discuss a federal lawsuit in Wisconsin that challenges a statute, informally known as the "cocaine mom" act, which provides for the incarceration of women abusing drugs and refusing to undergo treatment.  In the column, I suggest some ways in which fetal protection laws, like the Wisconsin one, resemble anti-abortion legislation, along with some important ways in which the two types of legislation differ.  In this post, I want to suggest that fetal protection policies may actually serve to undermine the objectives of the anti-abortion movement.

When a state passes a law to protect fetuses and embryos from maternal use of alcohol and other substances, the ostensible purpose is to prevent the ingestion of the prohibited substances and to compel the pregnant woman to take better care of her pregnancy.  In the case the law might have contemplated, a pregnant woman goes to her doctor, and the doctor discovers that the woman is addicted to heroin.  The doctor, then, gauges whether the woman is willing to undergo drug rehabilitation and, if she is not, he contacts the authorities who place the woman in custody and compel her to undergo such treatment.  Once treated, the woman is better able to take the rest of her pregnancy to term without inducing either drug withdrawal or drug toxicity in her child.

In reality, however, pregnant women planning to visit the doctor may become aware of the fetal protection policy in place, particularly if authorities have enforced it with the sort of regularity necessary to make a substantial impact on troubled pregnancies.  A pregnant woman contemplating a doctor visit and knowing of the policy would likely cancel her visit (or not schedule it in the first place), in the event that she either is using drugs on an ongoing basis (and intends to continue using them) or is trying to withdraw from the drugs without participating in a formal drug rehabilitation or treatment program.  She presumably knows that her doctor will take urine and blood samples on a visit and might, upon discovering her drug use, threaten her with official intervention if she refuses to cooperate.  Like a suspect considering whether to turn himself in to police, the prospect of incarceration is unlikely to prove very inviting to the pregnant woman using alcohol or drugs.

If women avoid the doctor as a reaction to fetal protection policies, then these policies themselves will have failed.  After all, the last thing that a supporter of such policies wants is for the women at whom it is aimed to avoid going to the doctor altogether.  There is another possibility, however, one that might -- on some readings -- be more consistent with the goals of fetal protection policies.

A pregnant woman using drugs or alcohol and worried about being discovered, either through a visit to the doctor or otherwise, may decide to terminate her pregnancy and thereby eliminate the problem.  In other words, rather than trying to hide that she is doing something that could subject her to incarceration, she can simply have an abortion and remove herself from the category of people subject to the fetal protection policy.  I say that this may be consistent with the aims of fetal protection legislation, because a major goal of such legislation is -- on my reading of them -- less about protecting the embryo or fetus itself than it is about preventing the birth of children who have been harmed or damaged by exposure to alcohol, drugs, or other toxic substances.  An abortion prevents such a birth as effectively as does the choice to refrain from drugs or alcohol (or seek treatment to end an addiction).

Those who champion fetal protection policies, however, typically  oppose abortion and may even regard fetal protection as a means of giving the unborn greater legal status.  For these advocates, an abortion would certainly not be a desirable way of preventing the birth of children exposed to drugs or alcohol.  On the contrary, it would be comparable to people avoiding getting into trouble for child abuse by taking the abuse to the next level and murdering the child in question.  From the anti-abortion, perspective, if fetal protection policies served to motivate women to terminate their pregnancies, then such policies would be utterly counterproductive.

Perhaps for this reason, I have encountered people who identify strongly with the pro-life movement and who simultaneously oppose fetal protection policies.  One such person in particular told me that he thinks it is a terrible mistake when doctors seek court orders to compel pregnant women to undergo a C-section, even when the doctors sincerely believe that a C-section is necessary to save the baby's life.  This person views prohibitions on abortion as similar to other prohibitions against violence, while he views forced C-sections (and forced drug treatment) as coercive violence against the woman.  He also believes that unlike a woman seeking an abortion, a woman who is conflicted about her medical situation should be supported and cared for, so she can make the best choice for her child, rather than coerced and punished so that she runs the other way.  And this person may also worry, as I have suggested above, that the right to terminate a pregnancy coupled with fetal protection policies may together make abortion an appealing option for women who would otherwise opt for remaining pregnant.

In that sense, fetal protection policies may not only be against the interests of women's equality.  They may ultimately prove to be against the interests of the fetuses and embryos they would appear to protect.  For that reason, people who oppose abortion and advocate fetal protection laws, such as Wisconsin's, may want to reconsider their support.  Making pregnancy more difficult and threatening to women could easily generate a desire to flee pregnancy and pursue abortion as a perverse form of "fetal protection."