Here Come the Pregnancy Police

By Andrea Sachs

Bianca Green was born in February suffering from severe oxygen deprivation, and died two days later. Hospital authorities in Rockford, Ill., soon found signs of what they believed was the cause of death: cocaine in the baby's urine, as well as in the bloodstream of her 24-year-old mother Melanie. Last week local law-enforcement officials arrested Melanie Green and charged her with involuntary manslaughter and supplying drugs to a minor.

Such actions are becoming increasingly common in the U.S. With the rising number of babies exposed to drugs before birth, prosecutors around the country are seeking to punish women who harm their fetuses by taking illegal substances. Examples:

-- When Casandra Gethers of Hollywood, Fla., gave birth to her second cocaine- addicted infant, she was arrested in February and charged with child abuse. Her baby was placed in foster care.

-- Arrested for forging $800 worth of checks last year, Brenda Vaughan of Washington was given a drug test that revealed cocaine use. Since she was a first-time offender and a mother-to-be, a lenient prosecutor merely recommended probation. Instead, the judge sent Vaughan to jail for nearly four months in order to protect the fetus. The baby was born healthy.

-- Pamela Rae Stewart spent a week in a San Diego jail in 1986 on charges that she had failed to provide for her baby by defying her doctor's advice to stop using street drugs during pregnancy. Stewart's child was born brain damaged and died six weeks later. The charges were eventually dropped.

Advocates of legal intervention point to the tragic consequences of drug taking during pregnancy. Experts estimate that 375,000 newborns a year have been exposed to illegal drugs, frequently cocaine. Cocaine babies, as they are called, are more likely to be born prematurely or to die before birth. They tend to be abnormally small and face an increased risk of deformities or crib death. Moreover, there are strong indications that all these babies suffer some form of neurological damage. Says Darron Castiglione, supervisor of the child-abuse division of the Hollywood, Fla., police department: "These infants don't have a chance in life. They will never be right, never be whole people, through no fault of their own. These babies can only blame the mother."

That approach, however, has raised the ire of many legal experts and women's rights groups. "These cases are attacks on women," says Lynn Paltrow of the A.C.L.U.'s Reproductive Freedom Project. "If states pass laws that make maternal behavior a crime against the fetus, and if the state can create prenatal police patrols for cocaine use, then where would they draw the line?" Opponents note that alcohol use, smoking and other kinds of maternal conduct have also been shown to damage fetuses. Says Paltrow: "For some women, standing on their feet all day is harmful. Will they arrest them too?"

There is an additional concern among foes of legal intervention. They fear that the real goal in these cases may be an unspoken one: an end run around the U.S. Supreme Court's landmark abortion case, Roe v. Wade. That 1973 decision found that the rights of the mother, rather than the fetus, are primary. Says Leslie Harris of the A.C.L.U.: "Those who want to rush in and criminalize the behavior of women are pushing a different agenda than prenatal care. If they can persuade the courts that a woman who chooses to carry a child to term has obvious legal obligations, how could she at the same time have the right to abort the fetus?"

One fact that is not in dispute is the desperate lack of medical facilities to help pregnant women with drug problems. In California, for example, there are only five full-time drug-treatment programs that accept pregnant women, and waiting lists are up to six months long. Some doctors are concerned that by threatening to prosecute pregnant drug users, officials will end up driving away even those women who could be assisted. "This sends a clear message to the women most in need of prenatal health, that it is dangerous for them to get help," says Dr. Ira Chasnoff, president of the National Association for Perinatal Addiction Research and Education. "It's a punitive approach that is being taken out of frustration by the legal and medical communities."

Nonetheless, there seems to be substantial public support for the notion that a woman should be held accountable for her actions during pregnancy. A Gallup poll conducted for Hippocrates magazine last year found that 48% of those who responded agreed that a woman who smokes or drinks during pregnancy should be legally liable for damage to her infant.

With no end in sight for the current epidemic of drug use, it appears that pregnant women will increasingly be held accountable for behavior that jeopardizes their babies' health. "These cases are really mounting," says Harvard law professor Kathleen Sullivan, "and prosecutors are going to go wild until the courts stop them." Despite criticism of his actions, Winnebago County state's attorney Paul Logli, who is prosecuting the manslaughter and drug charges against Green, stands by his policy. Says he: "This is not a fetal-rights case or a pro-choice case or a pro-life case. We're dealing with a child who was born and lived two days."

With reporting by Frank Feldinger/Los Angeles and Georgia Pabst/Milwaukee