Pregnant Addicts : Drug Babies Push Issue of Fetal Rights

Laura Moute, a pregnant prostitute, snorted three to five lines of cocaine one day last November and went into premature labor the next morning.

But Moute waited more than 24 hours, until her contractions stopped, before going to the hospital. When doctors detected a faint fetal heartbeat and urged a Cesarean section to save the baby’s life, Moute tried to leave.

“No, I want it to die,” she allegedly told emergency room workers, who then called police.

Moute stayed, but only after being told that because of the baby’s breech position, she also would die without surgery, according to Kelly MacEachern, Orange County deputy district attorney. Moute’s daughter, born on Nov. 13, five to seven weeks early, with underdeveloped lungs and cocaine in her bloodstream, was hospitalized for six weeks and is now in a foster home.

Mother Never Charged

“I would have liked to have charged (Moute) with attempted homicide,” MacEachern said. “Real life is sometimes more shocking than anything you can make up.”

Newport Beach police took temporary custody of the baby at Hoag Memorial Hospital Presbyterian and sought child endangerment charges against Moute. The 30-year-old Santa Ana woman was never charged, however, because California’s child abuse laws make no provisions for what some call fetal abuse.

“The fetus is not legally recognized as a person,” MacEachern said. “Technically, a mother can do whatever she wants to that child before it is born.”

Adds MacEachern’s boss, Bill Evans, supervising deputy of the sexual assault and child abuse unit: “If someone other than the mother brings about the death of a fetus, that is a homicide. The law exempts the mother--she can’t be charged.”

But the womb, increasingly, is a battleground. As the number of babies born addicted to drugs increases--to an estimated 375,000 nationwide in 1988--so does public concern.

The resulting debate pits the rights of women against the interests of their unborn children. It is an emotional issue confronted in courtrooms, where pregnant drug users have been jailed through back-door means; in hospitals, where addicted infants are born criti cally ill; and in legislative chambers, where efforts to criminalize prenatal drug use are gaining momentum.

Inevitably, the dilemma of pregnant drug users becomes part of the national abortion argument, with pro-choice forces contending that recognition of fetal rights diminishes women’s rights, and anti-abortionists insisting that the unborn child deserves protection.

Medical studies have shown that women who use narcotics, especially cocaine, are more likely to give birth prematurely. Their infants suffer varying degrees of withdrawal, in addition to respiratory and developmental problems often associated with prematurity. Even if drug babies are carried to full term, they suffer substantially greater risk of physical and neurological defects and are more vulnerable to sudden infant death syndrome.

The problem is pervasive. A 1988 survey of 36 hospitals across the country concluded that if hospitals conducted drug screens on every woman admitted in labor, at least 11% would turn up positive. The study, by the National Assn. for Perinatal Addiction Research and Education, included UC Davis Hospital, where about 25% of all new mothers tested positive for illicit drugs.

There are no reliable figures on drug-exposed infants in California, but in counties where officials maintain a tally, the numbers have soared in recent years. Petitions filed by child welfare authorities to seek custody of drug babies jumped in Los Angeles County from 132 in 1981 to 1,619 in 1987, according to the Department of Children’s Services. In Orange County, 130 such dependency petitions for drug-exposed newborns were filed from June to August, 1988, up from 62 during the same period the previous year.

“Everywhere we turn, there seems to be a drug baby,” said Mary Harris, program analyst for the Orange County Social Services Agency. “And when we review the records of other children that we take into custody because of abuse or neglect, we find that many of them were drug babies, too.”

The increase in drug-addicted babies and the high cost of their care has prompted lawmakers to introduce a handful of measures in the Legislature.

A bill by Sen. John Seymour (R-Anaheim) last month would require manslaughter charges and imprisonment for women whose illicit drug use causes the deaths of infants who are born alive. The measure also would guarantee an “amnesty” from drug charges for women who seek prenatal care and give birth to drug-free babies.

“If a baby dies because the mother used drugs, that is criminal and should be treated that way,” Seymour said. “We are using the carrot and the prod, and the prod is, (if) you give birth to a drug-addicted baby that dies, you would be up for manslaughter.”

Assemblywoman Jackie Speier (D-South San Francisco), however, rejects penalties against mothers in a bill that would establish drug treatment services and expand prenatal care for pregnant addicts.

But Speier has included no enforcement provisions in her bill, leaving unanswered the question of how to get women into treatment if they won’t go voluntarily.

“We recognize that there is a crisis,” said Elise Thurau, an aide to Speier. “The answer is treatment and services for these women, not punishment. We’re just not sure yet how far to go.”

A bill that would have included protection for fetuses under California child abuse statutes died in committee last year. Opponents, including the California Medical Assn., the California Welfare Directors Assn. and the Orange County Sexual Assault Network, argued that the legislation could prompt such Draconian enforcement measures as taking custody of unborn children by detaining their mothers.

Sen. Ed Royce (R-Anaheim), author of the fetal abuse bill that failed last year, has reintroduced the measure. Another bill, introduced by Assemblyman Chris Chandler (R-Yuba City), would require reporting to state or county child welfare authorities all infants who test positive for drugs or alcohol at birth.

In the absence of fetal abuse laws, judges in many states are finding ways to jail pregnant drug users.

Last summer, a District of Columbia judge ordered a pregnant woman to serve 180 days in jail after she pleaded guilty to forging checks worth $700. The judge rejected a recommendation by prosecutors that Brenda Vaughan be placed on probation, and instead imposed a sentence intended to ensure her child would be born drug-free, in prison.

“Obviously you want to protect society from a dangerous armed robber who is going to rob again. Is not an unborn baby equally entitled to protection from a mother who cannot stay away from cocaine?” asked Judge Peter H. Wolf.

“I concluded that we taxpayers are going to pay for that baby anyway if it is born addicted or neurologically damaged. So, yes, it is a valid consideration in imposing sentence. I also recognized that the damage to that baby may already have been done. I may have locked her up . . . too late.”

Freed on Due-Date

Wolf did not count on early release provisions that allowed Vaughan to go free on Sept. 14, her due-date. She gave birth to a son a short time later and, Wolf said facetiously, “All I have heard is that he is not named Peter.”

Jeffrey Lewis, Vaughan’s court-appointed attorney, said he was unable to appeal the sentence because District of Columbia law allows challenges only when sentences exceed the maximum for a crime, which was not the case for Vaughan. However, he contended that Wolf’s action “smacks more of theology than jurisprudence.”

“I can understand the impulse to lock the mother up,” Lewis said. “It is a reflection of the frustration that people feel. They just don’t know what to do--nothing else works. But hell, no, it’s not right.”

The Vaughan case, which has drawn widespread protest from the American Civil Liberties Union, medical and women’s rights groups, may be the first time a judge announced his rationale for ordering the imprisonment of a pregnant drug user. But it is certainly not the first such case, Wolf said.

“It happens all the time,” he said. “A lot of my colleagues on the bench said to me, ‘Why didn’t you just lock her up and keep your mouth shut?’ I don’t think that’s intellectually honest. I would do it again, and I have done it since.”

Philip E. Cox, presiding judge of the Orange County Superior Court, said many Southern California jurists hold the same beliefs, although they may not be as vocal.

“It’s a natural instinct for all of us to protect children,” Cox said. “If a judge stated on the record, ‘Ordinarily I wouldn’t put you in jail, but you’re pregnant so I’m putting you in jail,’ people would be out there protesting with placards.

“I wouldn’t doubt it has happened here,” he added, “but I don’t believe that a judge would announce that as his reason.”

In a prominent San Diego County case, prosecutors charged a woman who used street drugs in the death of her infant son.

Doctor’s Advice Ignored

Pamela Rae Stewart, 27, developed contractions during the eighth month of her pregnancy in 1986 and was ordered by her doctor to stop using illicit drugs and having intercourse. A few days later, according to court testimony, she used methamphetamines and had sex with her husband, which caused heavy bleeding and labor. The baby was born with severe brain damage and died six weeks later.

The San Diego County district attorney’s office charged Stewart with failing to provide support and medical care for the unborn child, a misdemeanor charge fashioned from an abuse law that is usually used to force delinquent fathers to pay child support. The argument was rejected by a San Diego County Municipal Court judge who ruled that the statute was too broad to be constitutional as applied to fetuses. Stewart, therefore, had committed no crime.

Harry Elias, the deputy district attorney in the Stewart case, said criminal charges should be a last resort, filed only in cases where a child is born alive to a mother who knows the potential harm of narcotics during pregnancy and gets high anyway. If such a heinous case arose again, he said he would attempt to prosecute under a different California statute.

“The only option is murder,” Elias said. “That is a pretty harsh road to go.”

In Butte County, about 80 miles north of Sacramento, prosecutors plan to use “testimony” from drug babies against their mothers. If illicit drugs are detected in hospital blood tests of newborns, the medical evidence will be used to support substance abuse charges against women, Dist. Atty. Michael Ramsey said. No women have been charged since Ramsey initiated the policy last October, but one woman whose child was born addicted to heroin took advantage of an escape route by enrolling in drug treatment.

“It was a brainstorm,” Ramsey said. “We are not prosecuting women for being mothers, or for giving birth to addicted babies, but for using a controlled substance. Given a choice, I believe the vast majority will get treatment and the next child will be born drug-free.”

And in Santa Cruz County, the district attorney’s office wants to include all pregnant women convicted of drug-related crimes in an intensive probation program that requires frequent urine tests for drug use.

“There is some fear about opening a Pandora’s Box,” acknowledged Jon Hopkins, chief deputy district attorney. “The issue becomes, ‘Do we use the probation condition to protect the baby by potentially incarcerating the woman?’ That may be the best answer.”

The cumulative effect of these actions is an erosion of the rights of women in favor of their unborn children, according to legal experts including Lynn Paltrow, staff counsel of the ACLU’s Reproductive Freedom Project. It is a concept that ultimately could threaten a woman’s choice to have an abortion, she said.

“The claim of fetal rights (is) being used increasingly to justify penalties against women. We know that malnutrition harms fetuses. We know that for some women, standing on their feet or having sex can harm the fetus. Does that mean the state has a right to step in and control the woman and say she is trying to hurt something inside of her?”

Judicial actions such as the jailing of Vaughan may not be constitutional, but the question has never been decided by a federal court because pregnancy is a temporary condition.

“In death penalty cases, you get a chance to defend yourself,” Paltrow said. “These women never do because there is no time. The greater risk is not the drug itself, but the lack of prenatal care. And these women are afraid to get help because they fear that what happened to Brenda Vaughan or Pamela Rae Stewart will happen to them--that they will end up in jail.”

State actions against pregnant women are dangerous, she said, “because once you open that door, there is no limit.”

Lewis, the attorney in the Vaughan case, agreed. “If you say, ‘The fetus has a right to be protected, so I’m going to lock up its mother,’ you’re creating a right that could lead very easily to appointing a lawyer to represent the fetus every time a woman wants an abortion.”

But anti-abortion forces say such warnings are not warranted.

Right to Abortion

“The people who raise the abortion issue . . . are concerned that, if the law ever recognizes any protectable interest in unborn life . . . before you know it the right to abortion is going to go by the wayside. That is not necessarily so,” said James Bopp Jr., general counsel for the National Right to Life Committee.

Fetal rights already have been established in civil law, which allows unborn children to inherit, and in some criminal laws, which allow charges against assailants who injure a pregnant woman, thereby harming her fetus. If outsiders can be held accountable for the death of an unborn child, shouldn’t their mothers also be accountable? Bopp asked.

“When you have knowing and intentional behavior by the pregnant woman which leads to the likelihood of substantial harm to the child, then you have the kind of situation where the state can act,” he said. “I don’t see that as inconsistent with the right to abortion.”

Such reasoning supports criminalization of prenatal drug use, a growing trend with broad public support, said Walter B. Connolly Jr., a Detroit lawyer who presented a study on the legal, medical and ethical implications at a national medical conference in Los Angeles last year.

“If a mother breast-feeds her child after doing cocaine, that child could be very ill. The baby could be removed from the home because that would be tantamount to child abuse,” Connolly said. “But if the same mother did something like that while pregnant, which would have the same effect on the fetus, in most states nothing could happen to her. That is a distinction without a difference.”

Because Roe v. Wade, the Supreme Court ruling that legalized abortion, allows state regulation of abortions after the first trimester of pregnancy, legal constraints imposed after that period could be judged constitutional, he said.

“I predict that within five years, there will be state statutes drafted that will be narrowly drawn to look at drug use in the third trimester,” Connolly said. “Such laws could provide for criminalization or require drug treatment.”

Connolly, like others who argue the criminalization question, is unsure about how to solve the underlying problem.

“I can come up with answers for how states should draft legislation and how hospitals should treat drug-abusing women and their babies,” he said. “But I can’t come up with the answer to prevent these women from using drugs and harming their unborn children.”