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Tex. Court Overturns Convictions Under ‘Fetal Rightsâ€TM Law

by Michelle Chen

Drawing an unlikely consensus between opposing sides of the abortion debate, a Texas court has ruled that the state cannot criminalize a woman for drug-use that impacts her fetus.

Apr. 4, 2006 – Physiologically, little comes between a pregnant woman and her developing fetus, but some officials have tried to expand the state’s power to intervene in the name of protecting prenatal life.

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Last week, a Texas appeals court overturned the convictions of two women who had used illegal drugs while pregnant, invalidating the prosecution’s controversial reading of a state law protecting the unborn. The decision, which skirted the constitutional issues at the center of the national abortion debate, drew support from a diverse host of both pro- and anti-abortion-rights groups.

The state had prosecuted the women under the state’s Prenatal Protection Act of 2003, which allows civil and criminal penalties against conduct leading to prenatal injury or death. The statute redefines "individual" in the Texas criminal code to include "an unborn child at every stage of gestation from fertilization until birth."

Tracy Yolanda Ward admitted to using crack cocaine while pregnant, after her newborn son tested positive for cocaine in 2003. Rhonda Tulane Smith, whose daughter was tainted with methamphetamine at birth, confessed to drug use while pregnant that same year. Both were sentenced to five years probation in 2004 for transferring drugs to their fetuses.

Prosecutors in Amarillo charged the women under Texas’s Controlled Substances Act, accusing them of "delivering" drugs to their unborn children, essentially indicting them for a kind of in-utero drug dealing. The appeals court, however, unanimously struck down the convictions last week on the grounds that the prosecutor had overreached in charging the women with passing drugs to their fetuses through the umbilical cord.

The court ruling, which skirted the constitutional issues underlying the national abortion debate, drew support from both pro- and anti-abortion-rights groups.

A coalition of progressive groups, including the American Civil Liberties Union, the Harm Reduction Coalition and National Advocates for Pregnant Women, celebrated the ruling as a push back against "fetal rights" laws that many states have enacted. Abortion-rights groups say such legislation threatens the Fourth Amendment right to privacy – the same provision that guided the Supreme Court’s decision in Roe v. Wade establishing abortion rights nationwide.

"Inherently personal decisions relating to individual autonomy are constitutionally protected," the ACLU had written in its friend-of-the-court brief, "and women do not lose the right to privacy when they become pregnant."

In the prosecution’s brief, District Attorney Randall Sims had argued, "Prosecuting these appellants impinges on their choice about reproductive matters no more than prosecuting them for theft, welfare fraud, sexual assault or any other criminal offense."

But Lynn Paltrow, executive director of National Advocates for Pregnant Women, said that the court’s decision affirmed that "problems women face during pregnancy should never be addressed through the criminal justice system." She added, "There should be broad consensus, regardless of people’s positions on the abortion issue, that threatening pregnant women [who have] health problems with arrest is not an effective way of protecting either pregnant women or their children."

Prosecutors charged the women with “delivering” drugs to their unborn children--a kind of in utero drug-dealing.

Those at the forefront of the anti-abortion-rights movement have also supported the overturning of the convictions. Adding a political nuance to the "fetal rights" debate, the group Texas Right to Life says that while the unborn deserve protection as individuals, pregnant women should receive treatment rather than punishment for drug abuse.

"We don’t want an unborn child to be harmed in any way," said Stacey Emick, legislative director for Texas Right to Life, which pushed for the Prenatal Protection Act’s passage in 2003. "So the preference," she continued, "is for healthcare providers to intervene and to support a woman in keeping her child."

If a drug-addicted woman faces criminal penalties for her treatment of her fetus, she told The NewStandard, "then she may have an abortion. So, we would rather her not even think of that."

The Act, primarily intended to protect pregnant women and their fetuses from violent crime and domestic abuse, explicitly exempts "conduct committed by the mother of the unborn child," as well as medical procedures to terminate pregnancies.

However, the district attorney’s office has consistently argued that the Controlled Substances Act, which bars the "delivery" or "transfer" of an illegal drug to a person under 18 years old, applied to the women under the Prenatal Protection Act’s definition of fetuses as "individuals." That law carries a penalty of up to 20 years in prison.

Many health professionals argue that intervention by law enforcement will simply instill women with the fear that those they turn to for help will end up turning them in.

In 2003, then-District Attorney Rebecca King issued a letter to healthcare providers advising personnel to report drug use by pregnant women to law enforcement. She stated that most of the women would "qualify for probation, which will allow [authorities] to legally mandate medical services" to treat the mother and child.

Before leaving office in early 2005, King charged eighteen women with delivering drugs to their fetuses.

But last January, after Ward and Smith had already pleaded guilty, Texas Attorney General Greg Abbott issued an official opinion declaring that the Prenatal Protection Act’s exemption for pregnant women also shields them from the Controlled Substances Act. The prosecutors in the case nonetheless stood by the original charges throughout the appeals process.

Unlike litigation in other states that has challenged fetal-rights policies on constitutional grounds, the Texas appeals court ruled instead on a technical basis, avoiding the heavier issues.

According to the organization Center for Reproductive Rights, in the first half of 2005, Colorado, Arizona, Nevada and Louisiana all enacted fetal-rights legislation expanding child-abuse or neglect statutes to cover newborns testing positive for drugs. On the federal level, the Unborn Victims of Violence Act, enacted in 2004 amid intense political controversy, holds that a fetus that is criminally harmed or injured is a separate victim in addition to the mother, though the law does not address conduct by pregnant women themselves.

While generally acknowledging the dangers of drug addiction during pregnancy, many public-health professionals argue that intervention by law enforcement will simply instill women with the fear that those they turn to for help will end up turning them in.

In a statement accompanying National Advocates for Pregnant Women’s friend-of-the-court brief, David Schneider, Chair of the Public Health Commission of the American Academy of Family Physicians, predicted: "When patients know that physicians are required to report patient behavior to the authorities... women will stop seeking necessary medical care, including drug treatment. We will have more drug-addicted babies, babies born with lower birth weights, and stillbirths."

Critics also say fetal-rights prosecutions have a discriminatory impact on minority women. In 1989, for instance, law enforcement authorities began targeting a hospital in a poor, mostly black community in Charleston, South Carolina, to root out women testing positive for drug use during pregnancy. The Supreme Court ruled in 2001 that the intrusive testing, which had led to a spate of arrests and detentions of pregnant and post-partum women, had violated the women’s civil rights.

Pointing to a stark imbalance between punitive measures and health resources, Paltrow of National Advocates for Pregnant Women said that pregnant women with substance-abuse problems too often lack access to appropriate treatment facilities in their communities. Prosecutions based on fetal-rights laws, she said, "create the illusion that there is treatment… when in all sorts of healthcare areas, patients of all kinds, and particularly ones… who have drug problems, are completely abandoned."

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The NewStandard ceased publishing on April 27, 2007.

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This News Article originally appeared in the April 4, 2006 edition of The NewStandard.
Michelle Chen is a staff journalist.

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