The New York Times highlights the case of Alicia Beltran, a pregnant Wisconsin woman who was locked up because she admitted to a physician's assistant that she had had been hooked on Percocet (oxycodone). Beltran had stopped using Percocet with help from a substitute opiate, Suboxone (buprenorphine), and she was no longer using either drug. The physician's assistant nevertheless recommended that she start taking Suboxone again. After Beltran declined, social workers and cops got involved, the upshot being a court order sending her to Casa Clare, a drug treatment center in Appleton, where she was confined until October 4. Beltran, who is currently about 29 weeks into her pregnancy, also faces a charge of negligence that could theaten her parental rights after her baby is born.
All this was authorized by a 1997 Wisconsin law that allows detention and forced treatment of any pregnant woman who "habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control." In Beltran's case, the expectant mother was abstinent, a fact confirmed by urine tests, so it is hard to see in what sense she was experiencing a "habitual lack of self-control." Furthermore, the drug that the government wanted her to take, buprenorphine, seems to pose a greater hazard to fetuses than oxycodone, the drug to which she had been addicted.
The FDA has assigned buprenorphine to pregnancy category C, meaning "animal reproduction studies have shown an adverse effect on the fetus and there are no adequate and well-controlled studies in humans, but potential benefits may warrant use of the drug in pregnant women despite potential risks." Oxycodone, by contrast, is in pregancy category B, meaning "animal reproduction studies have failed to demonstrate a risk to the fetus and there are no adequate and well-controlled studies in pregnant women OR animal studies have shown an adverse effect, but adequate and well-controlled studies in pregnant women have failed to demonstrate a risk to the fetus in any trimester." So even if Beltran had not stopped taking Percocet, the existence of "a substantial risk" is highly questionable.
In an application for a writ of habeas corpus that they filed last month, Beltran's lawyers argue that Wisconsin's fetus-protection statute is unconstitutionally vague, inviting just this sort of arbitrary enforcement. They also argue that Beltran's detention violated her rights under the the Fourth, Fifth, Sixth, Eighth, and 14th Amendments. One of Beltran's lawyers, Lynne Paltrow, executive director of National Advocates for Pregnant Women (NAPW), tells the Times, "This is what happens when laws give officials the authority to treat fertilized eggs, embryos and fetuses as if they are already completely separate from the pregnant woman." At the hearing that led to Beltran's confinement, she had no lawyer, but the fetus inside of her did. "I didn't know unborn children had lawyers," she says. "I said, 'Where's my lawyer?'"
Although Beltran has been released, Paltrow and their colleagues are seeking a federal injunction blocking enforcement of the law under which she was detained. NAPW says this is the first federal challenge to statutes like Wisconsin's. According to the Times, "Wisconsin is one of four states, along with Minnesota, Oklahoma and South Dakota, with laws specifically granting authorities the power to confine pregnant women for substance abuse. But many other states use civil-confinement, child-protection or assorted criminal laws to force women into treatment programs or punish them for taking drugs." In an article published last January by the Journal of Health Politics, Policy and Law, Paltrow and Jeanne Flavin, president of NAPW's board, report that their organization has identified more than 400 cases between 1975 and 2005 where pregnancy was a critical factor leading to civil or criminal consequences such as arrest, detention, involuntary treatment, and enhanced jail or prison sentences. Such interventions are not only unjust but probably counterproductive, increasing risks to unborn children by scaring drug users away from prenatal care.
Some state courts have rejected aspects of the crackdown on women who use drugs during pregnancy. In 2008, for example, the South Carolina Supreme Court unanimously overturned the homicide conviction of a cocaine user whose baby was stillborn. Last February the New Jersey Supreme Court unanimously ruled that using illegal drugs during pregnancy does not by itself amount to child abuse or neglect under state law. By contrast, the Alabama Supreme Court has ruled that child endangerment laws can be applied at any point after conception.