The use of incarceration and forced detention as a method of fetal protection for substance-abusing pregnant women

In May 1989, a Rockford, Illinois, woman was found guilty of prenatal child abuse and neglect for abusing cocaine during her pregnancy. In 1993, an Arizona woman was indicted on child abuse charges because of heroin ingestion during her pregnancy. In 1995, a Wisconsin state court ruled that a drug-abusing pregnant woman’s “viable fetus was in need of protection” because of the potential endangerment to its health and issued a protective custody order. In 1996, the Supreme Court of South Carolina affirmed the conviction of a woman of child abuse who tested positive for cocaine during a prenatal visit. The infant was born unharmed but with cocaine metabolites in its system. She was sentenced to 8 years in prison. Wisconsin and South Dakota have recently passed a fetal protection law that would allow forced incarceration to substance-abusing pregnant women. These laws, charges, and convictions are made in an attempt to prevent harm to a fetus by punishing those women who abuse drugs during their pregnancy. Although the effects are not consistent, substance abuse, ie, cocaine, alcohol, and even tobacco, by pregnant women has been shown to have detrimental effects on the fetus. These effects include increased physical abnormalities, spontaneous abortion, increased perinatal mortality, and impaired intellectual function. No doubt exists that measures need to be taken to prevent this harm to the fetus. However, would laws such as those proposed actually protect the fetus? Although substance abuse is not to be condoned, legal interventions, such as incarceration and forced detention, to protect the fetus from the effects of substance abuse by the pregnant woman are not only ineffective, but also increase harm to the fetus. The implementation of laws mandating physicians to report substance abuse with subsequent forced detention to pregnant women is not the best approach at protecting the fetus. In fact, these laws would likely cause more harm than good to both mother and fetus. Likewise, forced detention or incarceration is counterproductive. These sanctions would require the physician to report suspected substance abuse to the proper authorities. This practice would likely deter many substance-abusing women from seeking prenatal care for fear of possible imprisonment or detention. The patient consequently will not receive any prenatal care, during which the physician would be able to educate, treat, and counsel the patient effectively on the effects of her substance abuse. This method of education and good prenatal care is more effective than are incarceration and detention at protecting the fetus and is the treatment of choice of many health care workers. However, even if the physician is unable to convince the woman to abstain from drugs or if she is physically unable to stop her substance abuse, “prenatal care alone, in the presence of continued drug abuse, can improve perinatal outcome for the drug-exposed fetus.” The prenatal visits would also prepare the physician for the birth of a child with potential complications. Because the developing fetus is so vulnerable to the teratogenic effects of some of these substances, it is absolutely vital that the pregnant woman not be deterred from seeking prenatal care. Therefore, as the Connecticut court ruled in 1992, because these laws could prevent prenatal treatment, this would “lead to more, rather than fewer babies being born without adequate prenatal care or damaged by prenatal drug abuse.” These sanctions would prevent these drug-exposed newborns who are the “most fragile and sick, and in the most need of hospital neonatal care” from receiving that exact type of care as stated by the Florida court in 1992. In addition, the number of women who would actually be convicted of potential harm through the courts would be much fewer than those who would avoid care. We would consequently be sacrificing the possible health of many for a few. Therefore, because these laws may prevent many from seeking the proper care needed, greater, instead of less, harm would actually be done to the fetus. If a pregnant woman decides to seek prenatal care, these laws will still increase risk to the unborn child because of their detrimental effects on the patient–physician relationship. The foundation of the patient–physician relationship relies on the establishment of trust between the 2 individuals. These legal Correspondence: Inquiries to Andrea J. Evenski, MS III, Department of Medical Humanities (2S-17), Brody School of Medicine, East Carolina University, 600 Moye Blvd., Greenville, NC 27834; fax: (252) 816-2319; e-mail: aje1027@mail.ecu.edu.