DEFINING THE RIGHTS OF UNBORN CHILDREN

Fans of the television drama "ER" might remember the episode in which nurse
Carol Hathaway reported her pregnant and drug-addicted patient to the
police in order to protect the woman's near-term fetus from further
exposure to drugs. Next week, when the US Supreme Court begins its
2000-2001 term, the court will consider a difficult Fourth Amendment case
that brings to life nurse Hathaway's fictional dilemma.

At issue in the case, Ferguson v. City of Charleston, is whether a public
hospital may constitutionally test pregnant patients for illegal drugs and
report positive test results to law enforcement.

In the late 1980s, nurse Shirley Brown, a case manager in the obstetrics
department of the Medical University of South Carolina, became alarmed at
the dramatic rise in cocaine use among pregnant women. Brown's concern for
the health of the developing babies ultimately led to the adoption of the
drug-testing policy now before the Supreme Court.

Under the policy, the hospital tested pregnant women suspected of cocaine
use. The threat of arrest was used to persuade women who tested positive to
seek treatment. Any patients arrested under the policy could have the
charges dropped by completing a drug treatment program. The petitioners -
10 women tested by the hospital, none of whom were prosecuted - argue that
the hospital violated their right to privacy and their right to be free
from unreasonable searches and seizures.

Lawyers for the City of Charleston contend that the policy is a legitimate
response to a public health crisis.

Significantly, the women are represented by the Center for Reproductive Law
& Policy. The National Abortion Rights Action League has filed a brief on
their behalf. These activists have taken up this cause not because of their
concern for the complicated criminal procedure issues presented but rather
because of the implications the case may have for the unfettered right to
abortion.

Radical abortion-rights activists view the Ferguson case (and the dilemma
of nurse Hathaways everywhere) as a clash of absolutes - a conflict between
the rights of pregnant women and the rights of their fetuses, in which
women's rights must always prevail.

Consider the lawsuit filed against the State of Connecticut challenging as
unconstitutional the state's baby AIDS law. That law requires Connecticut
hospitals to administer HIV tests to any woman admitted for childbirth who
has not been tested as part of her prenatal care. If the hospital does not
test the mother, it must test the newborn within 24 hours of delivery.

Although Connecticut law reflects the state's compelling public interest in
reducing the risk of HIV transmission to infants, abortion rights
extremists claim that it violates the mother's right to privacy. The
reality, however, is that supporters of abortion on demand object to
Connecticut's efforts to reduce the number of HIV-infected babies because
they fear that such efforts legitimize claims that the fetus is a human life.

Closer to home, the Ferguson case calls to mind the case of Rebecca
Corneau, the pregnant member of an Attleboro religious cult who has been
hospitalized against her will because, among other things, she may have
been complicit in the death of her last child. Ironically, proponents of
abortion, who are ordinarily hostile to religious persons, have sided with
Corneau. In the name of "reproductive freedom," they have turned Corneau
into a cause celebre.

The underlying question posed by all three of these controversies is this:
Is there any circumstance in which the pro-abortion lobby believes that
unborn life deserves protection?

It seems that to radical feminists any attempt to protect the unborn places
us on a slippery slope toward total prohibition of abortion; any
acknowledgment that a fetus is a life worth protecting represents a threat
to "a woman's right to choose." Of course, proponents of this view fail to
recognize that Ferguson, like the Connecticut baby AIDS case and the
Corneau case, is not about choice.

Indeed, in all three of these cases, the women have already made their
choices - they have chosen to carry their babies to term.

By portraying well-intentioned efforts to address complex social problems,
such as crack babies, AIDS, and child abuse, as threats to women's freedom,
these feminist groups fail to recognize that with rights come responsibilities.

This is not a zero-sum game in which either the pregnant woman or her fetus
must lose. It's time for the pro-abortion lobby to recognize that when
mothers deliver healthy babies, everybody wins.