The New York
Times highlights
the case of Alicia Beltran, a pregnant Wisconsin woman who was
locked up because she admitted to a physician’s assistant that she
had had been hooked on Percocet (oxycodone). Beltran had stopped
using Percocet with help from a substitute opiate, Suboxone
(buprenorphine), and she was no longer using either drug. The
physician’s assistant nevertheless recommended that she start
taking Suboxone again. After Beltran declined, social workers and
cops got involved, the upshot being a court order sending her to
Casa Clare, a drug treatment center in Appleton, where she was
confined until October 4. Beltran, who is currently about 29 weeks
into her pregnancy, also faces a charge of negligence that could
theaten her parental rights after her baby is born.
All this was authorized by a 1997 Wisconsin law
that allows detention and forced treatment of any pregnant woman
who “habitually lacks self-control in the use of alcohol beverages,
controlled substances or controlled substance analogs, exhibited to
a severe degree, to the extent that there is a substantial risk
that the physical health of the unborn child, and of the child when
born, will be seriously affected or endangered unless the expectant
mother receives prompt and adequate treatment for that habitual
lack of self-control.” In Beltran’s case, the expectant mother was
abstinent, a fact confirmed by urine tests, so it is hard to see in
what sense she was experiencing a “habitual lack of self-control.”
Furthermore, the drug that the government wanted her to take,
buprenorphine, seems to pose a greater hazard to fetuses than
oxycodone, the drug to which she had been addicted.
The FDA has assigned buprenorphine
to pregnancy category C, meaning
“animal reproduction studies have shown an adverse effect on the
fetus and there are no adequate and well-controlled studies in
humans, but potential benefits may warrant use of the drug in
pregnant women despite potential risks.” Oxycodone, by
contrast, is in pregancy category B, meaning
“animal reproduction studies have failed to demonstrate a risk to
the fetus and there are no adequate and well-controlled studies in
pregnant women OR animal studies have shown an adverse effect, but
adequate and well-controlled studies in pregnant women have failed
to demonstrate a risk to the fetus in any trimester.” So even if
Beltran had not stopped taking Percocet, the existence of “a
substantial risk” is highly questionable.
In an
application for a writ of habeas corpus that they filed last
month, Beltran’s lawyers argue that Wisconsin’s fetus-protection
statute is unconstitutionally vague, inviting just this sort of
arbitrary enforcement. They also argue that Beltran’s detention
violated her rights under the the Fourth, Fifth, Sixth, Eighth, and
14th Amendments. One of Beltran’s lawyers, Lynne Paltrow, executive
director of National Advocates for
Pregnant Women (NAPW), tells the
Times, ”This is what happens when laws give officials
the authority to treat fertilized eggs, embryos and fetuses as if
they are already completely separate from the pregnant woman.” At
the hearing that led to Beltran’s confinement, she had no lawyer,
but the fetus inside of her did. “I didn’t know
unborn children had lawyers,” she says. “I said, ‘Where’s my
lawyer?’”
Although Beltran has been released, Paltrow and
their colleagues are seeking a federal injunction blocking
enforcement of the law under which she was detained.
NAPW says this
is the first federal challenge to statutes like Wisconsin’s.
According to the Times, “Wisconsin is one of four states,
along with Minnesota, Oklahoma and South Dakota, with laws
specifically granting authorities the power to confine pregnant
women for substance abuse. But many other states use
civil-confinement, child-protection or assorted criminal laws to
force women into treatment programs or punish them for taking
drugs.” In an article
published last January by the Journal of Health Politics,
Policy and Law, Paltrow and Jeanne Flavin, president of NAPW’s
board, report that their organization has identified more than 400
cases between 1975 and 2005 where pregnancy was a critical factor
leading to civil or criminal consequences such as arrest,
detention, involuntary treatment, and enhanced jail or prison
sentences. Such interventions are not only unjust but probably
counterproductive, increasing risks to unborn children by scaring
drug users away from prenatal care.
Some state courts have rejected aspects of the crackdown on
women who use drugs during pregnancy. In 2008, for example, the
South Carolina Supreme Court unanimously overturned the
homicide conviction of a cocaine user whose baby was
stillborn. Last February the New Jersey Supreme Court
unanimously
ruled that using illegal drugs during pregnancy does not by
itself amount to child abuse or neglect under state law. By
contrast, the Alabama Supreme Court has
ruled that child endangerment laws can be applied at any point
after conception.