FETAL PROTECTION

WILLIAMS: You're listening to TALK OF THE NATION from NPR News. Let's
go to Alan, who's in Fremont, California. Alan, you're on TALK OF THE
NATION with Bert von Herrmann and Lynn Paltrow.

ALAN (Caller): Yes. First, I want to say I like you, Juan, and I like
your show.

WILLIAMS: Thank you, sir.

ALAN: I have a comment and then several questions, so I'll try and be
brief. The woman, Lynn, on your show seems to blamed McKnight's
actions on some male in her past. I heard that. She said, 'Oh, well,
she must have been raped and there must have been some reason other
than her for her actions, whether they were good or bad.' But that was
just a comment. I have a question now.

WILLIAMS: OK.

ALAN: The doctor on your show was saying that doctors don't--or excuse
me, your other guest was saying that doctors don't want to report
things to police and get involved, but right now they, under law, go
to the police if they see or suspect spousal abuse or child abuse, and
if they test a person for drugs they might go to the police.
Employers might go to the police if they test you for drugs. And I'll
take your question...

WILLIAMS: No, no, Alan, stay with us, 'cause I think Lynn Paltrow will
want to, you know, hear your response. Lynn, go right ahead.

Ms. PALTROW: Well, what we're talking about is a medical problem.
There are lots of women who are pregnant and have problems. Some of
them become pregnant while they have diabetes. Some of them become
pregnant while they're addicted. And what is being said here is that
if a woman can't overcome her addiction instantly when she discovers
she's pregnant, that she should go to jail. That's not how it works.
Addiction is a complicated disease that requires treatment and help.
And all we're talking about is...

ALAN: Yeah. May I...

Ms. PALTROW: ...let's figure out how--why is it that a pregnant woman
would be taking drugs? What my opponent...

WILLIAMS: Well, let's give Alan a chance here, Lynn.

ALAN: As far as the entire drug issue, I generally agree with
everything she said about that. I wouldn't want to put any person in
jail for an addiction. That's a separate subject. What I was
responding to in my comment was that she started talking about--she
had been raped as a child or something like this. I mean, I don't
understand why she has to blame this woman's actions on a man.

WILLIAMS: Huh.

Ms. PALTROW: No one's trying to blame anything on a man. What I'm
saying is, why would anybody be using drugs? And why do some people
become addicted? And we know that it has something to do with
traumatic experiences. All of the studies of drug-using pregnant
women come up with very scary statistics, that 70 to 80 to 90 percent
of them were raped as little girls or sexually abused or were battered
or experienced some other severe trauma, which is not saying that,
then, everybody's excuse for everything they do--that's not at all
what I'm saying. But it is if it's about trauma, if it's about
numbing out nightmares and bad experiences, then we know what kinds of
treatment can work.

But I have to respond to something said earlier. I guess I should be
flattered that Mr. von Herrmann is comparing Lynn Paltrow and National
Advocates for Pregnant Women and saying we're as rich as the state of
South Carolina. It's not Lynn Paltrow who's saying there's not enough
treatment. It's the attorney general, who says a wide array of
treatment services are desperately needed in every community in this
state. Regina McKnight was not offered amnesty. Brenda Peppers was
not offered amnesty. There is simply not treatment for these women,
and all there is is jail.

And if the response is, 'Look, it's too expensive to provide
treatment, and besides that, we don't care about these women and they
don't deserve it,' let me just say the money's there, and the money is
being spent on imprisoning people who were never offered treatment.
We looked for a written amnesty program out of Horry County; there
isn't one. There is a statewide protocol that says there must be
treatment offered before embarking upon criminal prosecutions. That
has not been done.

WILLIAMS: We're talking about a law being used in South Carolina and
which is being considered elsewhere that allows women to be prosecuted
for child abuse if they take drugs during their pregnancy. You can
continue this discussion online. Go to npr.org, click on the
Discussion section, then scroll down to TALK OF THE NATION.

I'm Juan Williams. It's TALK OF THE NATION from NPR
News.

(Announcements)

WILLIAMS: It's TALK OF THE NATION. I'm Juan Williams.

Today we're talking about drug use among pregnant women and whether
the harm to the unborn fetus should be treated as a criminal offense.
Our guests are: Lynn Paltrow, executive director of the National
Advocates for Pregnant Women; and Bert von Herrmann, assistant
solicitor for the Horry County Solicitor's Office in South Carolina.
Both join us today from member station WLTR in Columbia, South
Carolina. Of course, you're invited to join the conversation: (800)
989-TALK; the e-mail address, totn@npr.org.

Lamar in San Marcos, Texas, you're on TALK OF THE NATION.
Welcome.

LAMAR (Caller): Yes, thank you. I have a little different
perspective. While I agree with Lynn Paltrow about the war on drugs, I
was appointed about four and a half years ago to represent a child who
had just been born who was addicted to cocaine. The child went
through withdrawal and had to have special hospitalization in order to
get through that. The mother was--a motion was then filed by Child
Protective Services in Texas for child abuse against the mother, and
the mother's parental rights were later terminated. And I supported
that termination, considering all the facts and circumstances, but
there was no evidence that the mother was an addict at all, just that
she was a recreational user of cocaine. And I don't think it's
necessary to go to one extreme or the other when you look at it from
the child's perspective. I think that that child has a better life
today because he is no longer with that birth mother.

WILLIAMS: Well, hang on a second now. Clarify this case for me. You
were asked to represent the child by the courts, after the courts had
determined that the mother was an addict?

LAMAR: No, the child was taken from the mother by Child Protective
Services while the child was still in the hospital, because the child
was showing symptoms of addiction to cocaine immediately after birth.
The child was, in fact, hospitalized for those symptoms of withdrawal
that the child did experience. And I was appointed as soon as what we
call in Texas Child Protective Services took that child into custody.
I was appointed to represent the interest of the child, and that was
my only concern. I wasn't concerned with the mother; I wasn't
concerned with any subsequent prosecution of the mother. I was only
concerned with what I thought was in the best interest of that child,
and what the law establishes in Texas as being in the best interest of
the child.

WILLIAMS: And in your opinion, the best interest of that child was to
be separated from that mother.

LAMAR: Under all the facts and circumstances of the case, the mother
was extraordinarily negligent in allowing and using cocaine. Even
though the mother never admitted she used cocaine, there was no other
way for the child to be born addicted to cocaine, you know, except for
that.

WILLIAMS: So, Lamar, what's your point of difference with Ms.
Paltrow?

LAMAR: Well, I mean, I don't focus on the mother. I mean, you know,
if she wants to get the mother to treatment and that sort of thing,
that's fine. I have no quarrel with that. But that doesn't mean that
this child should have to suffer any more than it already suffered. I
think the child should have been taken away from its mother, as it
was, and went on to be adopted by another family.

WILLIAMS: Let me ask Lynn to respond.

Ms. PALTROW: Well, there's certainly the issue of protecting children
from any parent who can't parent for whatever reason, and that's an
important state action. I think what makes me sad is the nature of
this whole conversation. We've just had a massive meta-analysis of
every bit of research done about cocaine exposure prenatally in the
leading journal in the United States of America, and the conclusion
was that cocaine, fortunately, is far less damaging than anybody
thought. It's less damaging than alcohol; it may be even less
damaging than cigarettes. And whatever happened to the child this
lawyer represented I'm sure was real. But children, medically
speaking, are not born crack-addicted. They don't go through
withdrawal. Those are all medical concepts that simply don't even
apply.

So what we have is such a great deal of misinformation and prejudice
that seems to be fueling the conversation. Instead of saying, 'Why
are we in the middle of a drug war?'--where, for example, we know
methadone is a terrific treatment for all drug addicts, including
pregnant women, and we choose to make available only enough methadone
for 15 percent of the people who need it. We...

WILLIAMS: Well, hang on a second, Ms. Paltrow. You said something
that caught my ear and maybe Lamar's, too. You don't believe that a
child who's born to, let's say, a mother who's a crack addict goes
through withdrawal?

Ms. PALTROW: It's not my belief. That's a medical--that's the--you
can get on the phone, call Dr. Deborah Frank, call any expert. That's
an improper phrase to be applied There are children who test positive,
and there are children who are born addicted to heroin who must be
withdrawn. But it simply is medically inaccurate. And what disturbs
me is on a national program like this, maybe it needs to be that the
next show has the medical experts, because we throw out highly
stigmatizing words like 'addicted' and 'withdrawal' and 'suffering,'
and you know what? The biggest problem in this country is not
pregnant women who are using drugs. It's pregnant women who are poor.
It's pregnant women who are using alcohol. Alcohol causes, if taken
in high enough doses, permanent mental retardation. Why aren't we
talking about those issues?

WILLIAMS: OK. Well, that's a good point, but I'm curious about what
you just said. So let me ask Lamar, who represented this
child--Lamar, did you think that the child went through some
suffering, withdrawal, as a result of the mother's use of cocaine?

Ms. PALTROW: I'm not saying it didn't. I just want to be clear, this
child obviously went through something. I think there's a medical
misdiagnosis if it was blamed on cocaine.

WILLIAMS: OK. Lamar?

LAMAR: Well, that may be true, but the child was taken to a special
children's hospital in Austin, Texas, for, I believe, two weeks or so.
And they reported that the child went through withdrawal, a withdrawal
process, from the cocaine. That's all I'm reporting.

WILLIAMS: All right. Well, thanks for your call, Lamar. Let me go to
Tara, who's in Barrington, New Hampshire. Tara, you're on TALK OF THE
NATION. Welcome.

TARA (Caller): Hi. Thanks a lot. Actually, it's good timing on this
one. I'm a labor and delivery nurse, and I'm calling partly just
because I was concerned about some of the sloppy terminology I hear
floating around here, also. In terms of withdrawal and addiction, it
has been found, as Ms. Paltrow said, that the long-term consequences
of cocaine use are not nearly what they were thought to be in the
1980s when all of these crack-addicted--or crack baby stories were
going around. Obviously, drug use is terrible during pregnancy, but I
think that we got ourselves into a bit of a fit there.

The question I had was that--from my practice, what I've seen is, you
know, a lot of times stillbirths will occur because of something like
placental abruption, which can result from cocaine use, but can result
from a lot of other things, too.

WILLIAMS: Wait a second. What did you say, something
interruption?

TARA: Placental abruption, when the placenta shears away from the
uterus's wall before the baby is born.

WILLIAMS: OK.

TARA: That can lead to a stillbirth.

WILLIAMS: And that can be caused by cocaine usage?

TARA: It can be caused by cocaine use, but it can be caused by a lot
of other things, too. And then problems in babies of drug-addicted
moms can be caused by drugs, but they can be caused by a lot of other
social issues in the mom's life. So I guess what I'm wondering is, in
the prosecution of these laws, who is making the determination that
some kind of harm has occurred? And how are they linking it to drugs?

WILLIAMS: Well, let's ask Mr. von Herrmann. He's right here with us.
Mr. von Herrmann?

Mr. VON HERRMANN: Yeah, Mr. Williams. If I could just clear up one
thing: First of all, we don't prosecute people for being addicted to
drugs. In fact, that'd be contrary to South Carolina law. We
prosecute people for what they do while they're addicted to drugs. If
I had to dismiss--you know, Ms. Paltrow calls it an addiction problem.
Well, if I had to dismiss every case that I had simply because there
was an addiction involved, well, then, we would be getting rid of
armed robberies, murders, just a variety of violent crimes that really
affect people's lives. And this is no different. This is the killing
of a child.

Ms. PALTROW: But can I ask a question? Sorry.

Mr. VON HERRMANN: As soon as I finish, yes, you can. To answer her
question is, the studies, the recent studies, albeit have not been
real good because they haven't had enough subjects, because you can
understand the difficulty with researching these, because you don't
have known people that you know how much drugs they do and things of
that nature. But what they have found in the few studies they've done
is that there is long-term effects. The problem is if the child dies,
like Regina McKnight's child died, there is no long-term effect. We
know that one dose of crack cocaine or cocaine can kill a full-grown
athletic person, such as the Lenny Bias case, the basketball player, I
believe, in Maryland who, by all reports, did cocaine one time and
died. And he was a fit, full-grown man, excellent health, and
absolutely no problems.

So we know that that can be done. As to how we prove it, how we
proved it in the Regina McKnight case, we sent the pathology report.
And the pathologist that originally did it, did the autopsy, stated
that the individual did not have placental abruption, that cocaine
was--or benzoylecgonine, which is a derivative of cocaine, a
metabolite, was present in high levels in both the mother and the
child, and that there was no other reason for the child to have become
stillborn at that age, 34 to 36 weeks.

We then took that, to make sure that he was right, and took it to
another pediatric pathologist who would have a better expertise, and
said, 'You look at it. Don't talk to the other guy. And you tell us
what you think it is.' He came back and said the crack cocaine
ingestion by the mother killed this child. Now I will point out...

WILLIAMS: Now that person was--what was that person's
title?

Mr. VON HERRMANN: That person was a pediatric pathologist from an
Anderson area medical center.

WILLIAMS: So it was a doctor.

Mr. VON HERRMANN: He's a pathologist, exactly--a medical doctor that
is a pathologist. Interestingly enough, the--Ms. Paltrow, who's
been--and her organization helped Horry west(ph) throughout this
case--try it--they could not find one pathologist to come in there and
say, 'Absolutely not. The cocaine didn't kill the child. This is what
killed the child.'

WILLIAMS: All right. Let's give Ms. Paltrow a chance to respond to
this.

Ms. PALTROW: Well, there was testimony from Dr. Kanrati(ph), the
medical examiner from Charleston, who, I can assure you, is not
sympathetic to the plight of women with drug problems, and said,
'There's no way you can say to a medical certainty that cocaine caused
it.' And, in fact, some of the state witnesses in the first trial
testified that they could not say to a medical certainty it was
cocaine. And suddenly...

Mr. VON HERRMANN: Absolutely not.

Ms. PALTROW: And suddenly, a few weeks later at the retrial, they
suddenly can say it's to a certainty. It doesn't matter. There is no
way, in fact, and I think we'll prove this on appeal, of tying this
particular stillbirth to cocaine, and we shouldn't even be talking
about it. The state of South Carolina's going to spend something like
$ 200,000 to imprison one woman in a state that spends less than any
other state on drug treatment, that is closing down the few programs
that exist in the prisons for drug-using men, for example, who are
imprisoned. We are talking about a country that has abandoned people
with one particular health problem. We're...

WILLIAMS: Well, I get your point. You're listening to TALK OF THE
NATION from NPR News. Let's take a call from Lynn in Salt Lake City.
Lynn, you're on TALK OF THE NATION. Welcome.

LYNN (Caller): Hello. I'm happy that you're taking my call and I
appreciate the time to be on the air. I wanted to correct something
that was stated earlier that was--and stated regularly, not just by
NPR but by media in general, that this case in South Carolina
represents the first time that a woman has been prosecuted and
convicted of child abuse/homicide for drug abuse during pregnancy.
Here in Utah we had a case in 1998 in which a woman who was addicted
to methamphetamine, who was living on the street in a southern Utah
town, was convicted of child abuse/homicide and is serving time at the
Utah State Prison.

WILLIAMS: She was convicted of child abuse/homicide?

LYNN: Homicide.

WILLIAMS: And that was for her actions against the fetus, not a child
that had already been born?

LYNN: The baby was stillborn.

WILLIAMS: Was stillborn.

LYNN: So premature baby that was stillborn.

WILLIAMS: And do you know what the law that was used in that case
was?

LYNN: The law was--I'm not sure.

WILLIAMS: OK.

LYNN: The county prosecutor used the child abuse statutes, and there
was question about whether the state law talked about fetal viability
or viability beyond a certain point.

WILLIAMS: So, Lynn, did you think that was the right thing to
do?

LYNN: Well, what I know...

WILLIAMS: And do you agree with what's going on in South
Carolina?

LYNN: What I know now, three years later, is we've seen a significant
decrease in women seeking substance abuse treatment if they're
pregnant. They report to programs at the Health Department, for which
I work, that they are afraid of going in for substance abuse
treatment, fear of losing the baby that they're carrying when they're
pregnant, or fear also of losing other children in their care. They
know that if they go into substance abuse treatment, if it's inpatient
treatment--which if they are in late pregnancy and still abusing
drugs, they need significant treatment, and usually inpatient treatment.

WILLIAMS: Well, Lynn, let me get Mr. von Herrmann to respond to this
point. It's one we've heard before. Mr. von Herrmann, are your
actions leading pregnant women who might have a drug problem to avoid
prenatal care?

Mr. VON HERRMANN: Well, first and foremost, I think that the amnesty
program, in essence, takes care of that. And the social service--and
I don't know if the caller's particular state--I'm unaware of that
case--has an amnesty program. We do. It was in the newspaper two or
three days ago. Just to reiterate to people, come forward.
Absolutely, we want them to come forward, get prenatal care. We want
these people to get drug treatment. You know, there's nothing that
makes our job easier than people that quit doing drugs, because most
of them didn't quit committing the crimes. I do not believe that the
majority of the people that are addicted to crack cocaine or other
drugs come forward for prenatal care.

WILLIAMS: All right. Ms. Paltrow, 10 seconds. Where do we go from
here with this kind of action?

Ms. PALTROW: We shouldn't turn pregnancy into a crime. What a woman
does to her own body shouldn't be criminal. We shouldn't make women
less than citizens, and we can help both pregnant women and children
by providing confidential treatment without the fear of arrest.

WILLIAMS: Thank you so much, Lynn Paltrow. Thank you, sir, Bert von
Herrmann.