British Pregnancy Advisory Service logo

25 October 2013

USA: Concern over ‘fetal protection’ laws

Daniella Silva reports for NBC News on the shocking case of a Wisconsin women who 'went to a prenatal visit - and ended up in handcuffs'.

Silva writes:

When Alicia Beltran was 12 weeks pregnant, she took herself to a health clinic about a mile from her home in Jackson, Wis., for a prenatal checkup. But what started as a routine visit ended with Beltran eventually handcuffed and shackled in government custody – and at the center of a first-of-its-kind federal lawsuit challenging the constitutionality of a state’s fetal protection law.

On July 2, Beltran, 28, met with a physician’s assistant at West Bend Clinic at Saint Joseph’s Hospital in West Bend, Wis., for her prenatal visit. When asked to detail her medical history, Beltran admitted a past struggle with the painkiller Percocet. But that was all behind her, Beltran said: She had been taking Suboxone, a drug used to treat Percocet dependency. Lacking health insurance and unable to afford the medication, Beltran had used an acquaintance’s prescription and self-administered the drug in decreasing doses. She had taken her last dose a few days before her prenatal visit.

According to Beltran, the physician’s assistant recommended she renew her use of Suboxone under a doctor’s supervision. After Beltran declined, she said she was asked to take a drug test, which was negative for all substances except Suboxone.

Two weeks later, a social worker visited Beltran at home and told her that she needed to continue Suboxone treatment under the care of a physician, said Beltran, who again declined. Two days later, Beltran found police officers at her home, who arrested and handcuffed her.

According to the police report, the officers took Beltran to a hospital, where she underwent a doctor’s exam. Her pregnancy was found to be healthy and normal, her lawyers say. Police then took her to Washington County Jail to await a hearing – hours later, she was led into a courtroom, handcuffed and shackled at the ankles, where a county judge ordered her to spend 90 days in a drug treatment center.

“Alicia had no idea she was giving information to the physician’s assistant that would ultimately be used against her in a court of law,” said Linda Vanden Heuvel of Germantown, Wis., one of Beltran’s attorneys. “She should not have to fear losing her liberty because she was pregnant and she was honest with her doctor”...

Later in the article, Silva addresses the broader context of this case, in relation to ‘fetal personhood’ laws and the increasingly prevalent notion that ‘substance abuse’ in pregnancy should be treated as a form of ‘child abuse’:

In a petition filed in U.S. District Court in Milwaukee - the first federal challenge of an arrest of a pregnant woman under such a statute - her lawyers claim that Beltran’s constitutional rights were violated in numerous ways. The language of the Wisconsin statute is vague and lacking in medical terminology, they argue, leaving too much room for speculation. Further, they say the statute fails to guarantee due process, as well as violates other rights, including privacy and physical liberty.

In cases like Beltran’s, “the woman loses pretty much every constitutional right we associate with personhood,” said Lynn Paltrow, executive director of the National Advocates for Pregnant Women and a co-counsel in Beltran’s case.

Experts say that criminal prosecutions of pregnant women, as well as forced drug or psychiatric treatment, have been on the rise in recent years in cases of suspected substance abuse, especially as some states adopt laws granting rights, or “personhood,” to fetuses.

National Advocates for Pregnant Women released a study this year showing that from 1973-2005, 413 pregnant women in 44 states were arrested or forced into treatment. Since 2005, there were an additional 300 cases. But these statistics are likely a substantial undercount, Paltrow said, since many of the proceedings happen behind closed doors.

As of this year, 17 states consider substance abuse during pregnancy to be child abuse under child-welfare statutes, according to a report by the Guttmacher Institute. Three of those states, Wisconsin, Minnesota, and South Dakota, allow pregnant women to be forced into mental health or substance abuse treatment facilities.

Other states have applied criminal charges such as delivery of drugs to a minor or fetal homicide under the same circumstances. And at least 38 states have “feticide” laws on the books, which define fetuses as persons in homicide or manslaughter cases. While these laws are often applied to cases involving violence against pregnant women, they have also been used to prosecute expectant mothers accused of killing a viable fetus.

Supporters of these laws say they are intended to protect unborn children. “Child abuse is child abuse, whether it’s in the womb or out of it,” said Jennifer Mason, communication director for Personhood USA, a non-profit organization seeking personhood status for fetuses. Advocates of fetal personhood claimed a victory in January when the Alabama Supreme Court upheld the inclusion of unborn children in that state’s child endangerment statute…

Read the full article here:

Shackled and pregnant: Wis. case challenges ‘fetal protection’ law. By Daniella Silva, NBC News. 24 October 2013