What to Expect When You’re Expecting: Fetal Protection Laws that Strip Away the Constitutional Rights of Pregnant Women

Abstract: Many states have enacted fetal protection laws as a way of promoting fetal health and combatting the problem of in utero fetal drug abuse. These laws, however, unduly compromise the constitutional rights of pregnant women, implicating a woman's rights to privacy, due process, and equal protection under the laws. Additionally, such laws compromise both maternal health and fetal health by discouraging at-risk pregnant women from seeking medical attention. Requiring procedural protections before the enforcement of fetal protection laws may mitigate the laws' extensive constitutional problems. Additionally, enacting programs that provide pregnant women with positive incentives to promote fetal health throughout their pregnancies would be more effective in promoting fetal health than fetal protection laws.INTRODUCTIONOn July 2, 2013, twenty-eight-year-old Alicia Beltran went to a clinic at St. Joseph's Hospital in Wisconsin for her first prenatal visit.1 Then fourteen weeks pregnant, Alicia divulged a prior addiction to the painkiller Percocet when describing her medical history to the physician's assistant.2 Alicia explained how she had become addicted the year before her pregnancy, but "willed herself" to stop using Percocet in November 2012.3 Because she could not afford Suboxone, a prescription drug widely used to treat drug addictions, she acquired some from a friend and weaned herself off of the Suboxone three days before her scheduled prenatal visit.4 The skeptical physician's assistant offered to write Alicia a Suboxone prescription, suggesting that she resume taking the medicine.5 Alicia declined because she had already ceased her Sub* oxone use and "[didn't] want to go back on it."6 A urine test conducted that day confirmed what Alicia had told the physician's assistant, finding traces of Suboxone in her system but no signs of any other drugs.7Two weeks later, a social worker arrived unannounced at Alicia's home, telling Alicia that if she still refused to resume taking Suboxone, a court would order her to do so.8 Upset, Alicia again refused to take the unnecessary medication.9 On July 18, 2013, Alicia was transported in handcuffs to St. Joseph's Hospital where she was forced to submit to a medical examination.10 She was then taken to a holding cell, and brought before a family court commissioner in shackles.11 Alicia's requests for a lawyer were denied, despite the fact that the court had appointed her fetus a legal guardian.12 A Wisconsin law, colloquially referred to as the "cocaine mom" act13 gives the state the authority to forcibly confine pregnant women that use illegal substances or alcohol "to a severe degree" when there is "a substantial risk" of endangering the health of the fetus while in utero and after birth.14 Despite multiple urine tests confirming that Alicia had stopped using Percocet, she was confined to a drug treatment center for seventy-eight days under the threat of jail time if she refused to comply with their treatment directives.15Bolstering the state's case against Alicia was the statement of an obstetrician at the clinic Alicia visited, stating that Alicia "openly admitted" to taking opiates while pregnant, and that she "exhibits lack of self-control . . . " adding that "[t]he child's life depends on action in this case."16 The obstetrician writing this statement, however, never personally met with or examined Alicia.17 The doctor who did examine Alicia immediately following her arrest declared both Alicia and her pregnancy healthy, declined to conduct a drug test, and stated, "that he considered in-patient treatment to be unnecessary in this case."18After her court-ordered stay at a drug treatment center, Alicia was allowed to return home.19 Then six months pregnant, she spent the last portion of her pregnancy in fear that government officials would return once her baby was born and intervene in her relationship with her child.20 In addition, as a result of her confinement, Alicia lost her job, forcing her to spend her third trimester looking for temporary work rather than enjoying what she believed was "supposed to be the happiest part of [her] pregnancy[. …