PROSECUTING PREGNANT WOMEN: COURT VICTORY MAY BE SHORTLIVED

BOSTON - Within hours, the lawyers had broken out the champagne. It's come
to that. A decision by this Supreme Court that a pregnant women is entitled
to the same medical privacy as any other patient is enough to bring on the
bubbly.

I am willing to take victories where I get them. But a verdict that a
hospital is not a police station? Is this what qualifies these days for
high-fives?

Back in 1989, we were at the height of the "crack baby" furor. With little
drug treatment for pregnant women, there was lots of punitive treatment.

That year, the hospital of the Medical University of South Carolina offered
to cut a deal with the police that virtually deputized doctors and nurses.
The hospital tested the urine of patients who fit a certain police
"profile" and turned over the results of those who tested positive.

Over a few years, women with the same "profile" - all but one of them
African-American and all poor - came for maternity care and ended up in
police custody. Eventually, the hospital added drug treatment as an
alternative but some 30 women were jailed during pregnancy, or were
shackled in the delivery room or arrested in recovery.

In many ways, this was a story of bad law meets bad medicine. When Ferguson
vs. the City of Charleston arrived at the Supreme Court, 75 medical
associations argued that when doctors doubled as cops, they violated the
patient-doctor relationship. More to the point, the policy didn't help the
woman or her fetus: it scared her straight out of medical care.

Now a 6-3 majority of the justices has ruled that a hospital can't secretly
test a pregnant patient for evidence. Without a warrant, without consent,
the drug test amounted to an unconstitutional search. In short, as
Priscilla Smith of the Center for Reproductive Law and Policy said before
popping the champagne cork, "Women don't lose their rights even if they are
pregnant."

But before anyone goes whoopee, may I suggest that they read the dissent -
excuse me -the concurrence, the very reluctant concurrence, of Justice
Anthony Kennedy. Kennedy, who holds one of the swing votes on this dicey
court, agreed that this particular cozy hospital-police policy was
unconstitutional. But he added a warning:

"There should be no doubt that South Carolina can impose punishment upon an
expectant mother who has so little regard for her own unborn that she risks
causing him or her lifelong damage and suffering."

In fact, South Carolina today can still impose punishment. It's the one
state that applies the laws against child abuse to viable fetuses. A
pregnant woman in the Palmetto State may be liable for "child abuse" for
any number of offenses.

Of course, many of us share Justice Kennedy's tone of outrage. The first
public sign of pregnancy these days is when a friend stubs out her
cigarette and passes up wine. Most women who have decided to have children
feel a deep responsibility for their health. We expect the same of others.

But the problem is when the moral responsibility becomes legal
responsibility and the expectation becomes prosecution. How do you enforce
it? At what cost?

More than 200 women in 30 states have been prosecuted on some theory of
"fetal rights." Where does it end?

We are not just talking about a skirmish in the drug wars. The danger to
"crack babies," for example, was somewhat exaggerated. But the danger from
alcohol and tobacco may be understated. Do we arrest women for smoking or
drinking? How much?

And since the most damage may be done at the earliest stage of pregnancy,
is every fertile woman held hostage to the possibility of pregnancy?

The hot words now are fetal rights and women's rights. But the medical
briefs filed in the Ferguson case underscored the futility of dealing with
a woman and her fetus as if they were two separate and opposing patients.
Never mind two separate and opposing clients.

The Supreme Court has said that women have the right to a doctor who isn't
doubling as a cop. That's modest cause for celebration. But Kennedy's
opinion talked approvingly of other legal punishment. As even the lawyer
Smith acknowledges, it's "a message to state legislatures to go ahead and
criminalize behavior during pregnancy."

If that happens, the champagne is going to taste very flat.