Drawing the Line on Prenatal Rights : When a Pregnant Woman Abuses Her Health, Should the State Intervene on Behalf of Baby?

There is a dangerous implication in some pro-choice arguments that may frighten the Supreme Court into restricting or even overruling Roe vs. Wade, the 1973 decision that established women’s right to abortion. The implication is that the right to abortion also precludes the state from requiring women to take any degree of prenatal care after they make the decision not to abort.

Syndicated columnist Ellen Goodman recently suggested this in criticizing the Bush Administration’s efforts to overrule Roe vs. Wade. She wrote: “There are suggestions among those who talk of fetal rights that the government could constrain a pregnant woman’s diet and physical activities, stamp out her cigarettes, empty her wine glass . . . or else.” Goodman also invoked the specter of mandatory testing and treatment for the fetus.

Now, I am not a “fetal-rights” advocate. I favor Roe vs. Wade. I believe that a pregnant woman should have the right to choose between giving birth or having an abortion. But I am a human-rights advocate, and I believe that no woman who has chosen to give birth should have the right to neglect or injure that child by abusing their collective body during pregnancy.

Once a woman has made the decision to bear a child, the rights of that child should be taken into consideration. What happens to the child in the womb may have significant impact on his or her entire life. One example is the woman who drank half a bottle of whiskey a day while pregnant and gave birth to a mentally retarded child. She is now suing the whiskey company for not warning her about the relationship between heavy drinking during pregnancy and birth defects. Anyone who has spoken to an inner-city obstetrician is aware of the near epidemic of birth defects among babies born to heavy drug users.

This is not to argue for intrusive governmental rules on occasional drinking or smoking. But at the extremes, there is a compelling argument in favor of some protection for the future child against maternal excesses that threaten to cause enduring damage. Once a woman decides to give birth, a balance must be struck between her rights during the nine months of pregnancy and the equally real rights of her child during its life span. I believe that the balance should generally be struck in favor of the woman’s privacy and against the power of state compulsion. But a balance, nonetheless, must be struck.

My colleague, Prof. Laurence Tribe, agrees with Goodman and argues as follows: “There’s no principled way to say that the government can use women’s bodies against their will to nurture the unborn without accepting the other serious and totalitarian implications about privacy.” With respect, I disagree.

There is a principled distinction between totalitarian intrusions into the way a woman treats her body, and civil-libertarian concerns for the way a woman treats the body of the child she has decided to bear. That principled distinction goes back to the philosophy of John Stuart Mill and is reflected in the creed that “your right to swing your fist ends at the tip of my nose.” In the context of a pregnant woman’s rights and responsibilities in relation to the child she has decided to bear, the expression might be: “Your right to abuse your own body stops at the border of your womb.”

Of course, any recognition that a future child may have rights--even limited ones--in relation to its mother, may be grist for the “right to life” mill. Anti-abortionists will argue that if a future child has the right not to be damaged during pregnancy, then it follows that the fetus has the even more important right not to be killed--i.e., aborted.

But the second conclusion does not necessarily follow from the first. Under Roe vs. Wade, a fertilized egg, or even a biologically more advanced fetus, has no right to be born unless the mother chooses to give birth. But it does not follow, as a matter of constitutionality, principle or common sense, that a woman has the right to inflict a lifetime of suffering on her future child, simply in order to satisfy a momentary whim for a quick fix.

A principled person can fully support a woman’s right to choose between abortion or birth, without supporting the very different view that the state should have no power to protect the health of a future child. The state should begin by making prenatal care available to every pregnant woman. But we need not be frightened, by the specter of totalitarianism, from considering reasonable regulations designed to reduce the serious long-term problems caused by pregnant women who abuse their future children.

Proponents of a woman’s right to abortion should not weaken their powerful argument in favor of a woman’s right to control her body.

And, in the eyes of many who support choice, they do weaken it when they link it to the far weaker argument denying the state the power to protect babies who are to be born.