Gender, Justice

Pregnant Women Are More Like People, Less Like Incubators With Mouthparts

But are we sure that parents are people?

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mother stealing or running away with baby childAt what point does a parent stop being a “person” and become little more than a sentient wet wipe? Don’t reflexively say “never.” We have child abuse laws in part because we understand that parents have a responsibility to take care of their children beyond their duties to take care of themselves. You wouldn’t, for instance, jail an adult for not feeding or bathing himself. But you would and should jail parents for not feeding and bathing their child.

While for many people, the moment of “birth” is a pretty bright-line distinction for when to hold parents to a higher standard, in 1997 Wisconsin started the clock a little earlier. The state passed the Unborn Child Protection Act. The law — called the “cocaine mom” law — allowed the state to treat unborn fetuses as children entitled to protective services. It gave the state the power to force expectant mothers into drug treatment (if they had a history of abuse) or jail if they refused treatment.

On the one hand, it seems patently horrible for the state to step in and jail pregnant mothers, based on its own definitions of “life” and “duty of care.” On the other hand, if you gave crack to a one-month-old, the state has a compelling interest to take that child away from you. Arguing that the state has the same interest in protecting an eight-month-old fetus isn’t the most ridiculous thing to say.

Last week, U.S. District Judge James Peterson struck down Wisconsin’s controversial law as unconstitutionally vague. He said the law rested on the concepts of “substantial risk to the physical health” of the fetus, and “‘habitual lack of self-control” on the part of the mother. He found both standards lacking. From Courthouse News:

“The state’s dictionary-definition approach is a festival of circularity, in which the statutory terms are simply replaced with synonyms that add no real meaning,” the 40-page opinion states.

The law was challenged by Tamara Loertscher. Loertscher was 29 when she became pregnant. She had used methamphetamines and marijuana. She was 14 weeks pregnant when she went to the hospital for medication for her thyroid condition, and a pregnancy test. Taylor County, Wisconsin appointed a guardian ad litem for the unborn child. The county commissioner wanted her transferred to an inpatient facility, but her doctors released her from the hospital. Later, Loertscher was arrested and jailed for 18 days.

Basically, the Tamara Loertscher story is why we can’t have nice things. Loertscher was a grown woman, not a talking incubator. You can’t ignore her rights as a person just because she happens to be pregnant; the state cannot literally take away her freedom when ever her doctors believe that she should be allowed to go home.

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You cannot have laws that reduce women to second-class status because they are pregnant. You certainly can’t have those laws in a regime where men have no legal expectations to take care of unborn children, but women can go to jail if they don’t meet some kind of enhanced standard of care.

And yet, it would be nice to live in a world where parents, men and women, who choose to bring pregnancies to term were held to a standard of prenatal care. It should be required of the government to provide that care, and provide the education and resources to parents who need help meeting that standard.

“People” do become “parents,” and it is entirely reasonable to hold parents accountable for the well-being of their children. The Wisconsin law was unconstitutionally vague, because it’s impossible to define precisely when a person’s rights should be sublimated to those of their children.

Some parents say “conception,” others say “birth,” still others say “never.” This is one issue where I’m more interested in what the medical system can do in terms of care than I am in what the legal system can do in terms of punishment.

Judge strikes down Wisconsin ‘cocaine mom’ law aimed at protecting fetuses [Milwaukee Journal Sentinel]
Judge Shreds Wisconsin Law on Unborn Child Abuse [Courthouse News Service]

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Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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