Drug Use Spurs Court Test of Fetal Custody

In the next few months, the Wisconsin Supreme Court is expected to decide whether county officials in this Milwaukee suburb acted legally when they took custody of an unborn child a month before its due date.

The mother-to-be was using cocaine, drugging the developing baby within. The local social services agency asked a Juvenile Court judge to place the fetus in Waukesha Memorial Hospital. The judge issued a detention order to the Waukesha County sheriff.

The 24-year-old cocaine user had no say in the matter. She was not under arrest, nor charged with any crime. Yet she was confined.

What happened to Angela M.W. in September 1995, is a logical extension of the famous case of Roe vs. Wade, maintains the county’s attorney, Assistant Corporation Counsel William J. Domina.

His position, affirmed by the state Appeals Court, has heartened some youth-justice experts. At the same time, it has appalled the American Civil Liberties Union, as well as some women’s law specialists and public health advocates who contend that it would result in juvenile courts acting as pregnancy police, overseeing an expectant mother’s way of life.

Twenty-four years ago, the U.S. Supreme Court decided in Roe vs. Wade that a woman had a right to choose whether to have an abortion or carry her pregnancy to term.

But as the fetus grows, the court ruled, the state’s interest--its right to intervene and regulate--grows as well.

It is “a very important statement about choice and the consequences of choice,” Domina said. “If an individual chooses to carry a pregnancy to term, what does that mean?”

“Choice entails responsibility,” said Margaret M. Zimmer, another assistant corporation counsel on the case. “That’s been given too little attention.”

Plenty of attention is being paid now.

The National Assn. of Counsel for Children and the prosecutor in neighboring Milwaukee County weighed in with legal briefs in support of recognizing the Juvenile Court’s authority over babies-to-be. Eleven health, women’s and children’s organizations banded together to argue against seizing fetuses and depriving pregnant women of their liberty. They say the Roe vs. Wade decision applies only to the power to restrict abortion.

“This is heady stuff,” said Deborah Mathieu, a University of Arizona political scientist and author of a recent book about prenatal protection.

She predicts that the state Supreme Court justices will not uphold the lower-court decisions.

“But if they do, it puts pregnant women in Wisconsin on notice,” she said. “They’re liable to be snatched.”

Indeed, a second case has cropped up well to the north, in the town of Ashland on Lake Superior’s shore. Last spring, a juvenile judge there ordered police to take a fetus--and, of course, the woman carrying it--to the hospital because a physician had misgivings about the small-boned mother’s plan to deliver the baby at home with the help of a midwife.

The woman was released after promising to return to the hospital upon going into labor. She later delivered a healthy baby--at home.

“It’s a slippery slope,” said that woman’s attorney, Robin Goree.

Robin Shellow, the lawyer for Angela M.W., sees a “huge right-to-life conspiracy” behind the legal initiatives. “There’s clearly an agenda which is being foisted upon the courts at this point,” she said.

At least one antiabortion activist, however, expressed qualms about imposing so much government control in the name of the fetus.

“We’ve got to look at this very carefully,” said Susan Armacost, legislative director of Wisconsin Right to Life. “It could be an incentive for women to have abortions.”

Attempts at prosecuting as criminals pregnant women who endanger their fetuses have brought mixed results during the past 15 years, with many cases dropped and most lower-court convictions overturned on appeal. In July, however, the South Carolina Supreme Court let stand the manslaughter conviction of a woman who shot herself in the abdomen when she was more than 20 weeks’ pregnant, killing the fetus.

And in Wisconsin, a judge recently cleared the way for the trial of a Racine woman on charges of attempted murder. She allegedly drank alcohol in a bar while pregnant, saying she didn’t care if the baby died because she didn’t want it.

To Domina, Waukesha County’s approach to fetal health is more humane. “Our system is about child protection, not punishment,” he said. Angela M.W. “didn’t go to jail. We were working toward reunification of the family as soon as she could be a safe parent.”

Still, in a matter this complicated, Mathieu said, “there’s nothing you can do that’s good that’s not going to be, for someone involved, harmful and wrong.”

Angela M.W.’s confinement, Mathieu said, “is better than jail.” But, she wondered, “what if the woman has other children to care for? What if she has a job? Or a mortgage to pay?”

In addition, said Sara Mandelbaum, an ACLU lawyer handling Angela M.W.’s state Supreme Court appeal, the threat of losing her liberty could keep a pregnant woman from seeking prenatal care--seen as essential so that problems can be detected and treated early. Which is a greater danger to a fetus, Mandelbaum wondered, a cocaine addict who sees her doctor regularly or one who avoids physicians out of fear of detention?

It is not uncommon for pregnant women to engage in behavior that could hurt their fetuses. A pediatrics journal estimated in 1992 that 11% of infants in the nation are exposed to illegal drugs in the uterus.

In Wisconsin, a Legislature task force found that one in 10 pregnant women in the state uses illegal drugs, one in four smokes cigarettes, and one in four drinks alcohol.

Exposure to any of those poses risks, although the amounts involved and the long-term effects are still not clearly defined. The dangers can range from low birth weight to sudden infant death syndrome, from central nervous system defects to behavioral problems.

“If the lower court’s . . . misinterpretation of Roe vs. Wade is upheld, pregnant women who smoke, or live with a smoker, or maintain a poor diet, or fail to take medications could be subjected to an order of protective custody to ensure that they change their behavior and provide ‘a safe environment in the womb’ for their fetus,” wrote attorneys representing 11 groups, ranging from the American Public Health Assn. to the NOW Legal Defense and Education Fund.

Domina disagreed. “It’s not going to open the floodgates,” he said. “You have to have proof.”

Angela M.W.’s doctor had proof. Matthew Meyer is a popular obstetrician in Waukesha--he had, in fact, delivered babies for Domina, the Juvenile Court judge in the Angela M.W. case and the attorney appointed to represent the fetus.

He wondered about this patient’s erratic behavior, however.

According to his affidavit, Angela admitted to him that she had started using cocaine in April 1995.

He screened her blood, drawn at prenatal visits. She tested positive twice. When she missed an appointment, Meyer reported the fetus as a child in need of protection.

The legal machinery kicked into play, with a social worker petitioning for hospital placement for the “child of 16 weeks gestation.” Circuit Judge Kathryn Foster granted the request, acknowledging “such detention will by necessity result in the detention of the unborn child’s mother, Angela W.”

Angela was not notified of the hearing.

Later, the judge granted Angela M.W.’s request for transfer to the Lawrence Center, a nearby drug treatment program. If the mother left the treatment center, the judge ordered, the deputies should take her to the hospital.

She stayed for three weeks until giving birth to her third child, a boy. To the courts, he is known as Bobby L.W.

Cocaine was present in the baby’s meconium--the first solid waste--but not in his bloodstream, Domina said. Bobby L.W. appeared healthy. He and his siblings are now in foster care.