Do The Unborn Have Rights?

By Richard Lacayo

That Lynn Bremer is an attorney with a good job was not enough to keep her from developing a cocaine habit. The fact that she was pregnant was not enough to make her drop it. So when her daughter tested positive at birth for the presence of drugs in her urine, health officials in Muskegon County, Mich., took the child into temporary custody. But, to Bremer's astonishment, there was more. The county prosecutor stepped in to charge her with a felony: delivery of drugs to her newborn child. The means of delivery? Her umbilical cord.

After Bremer completed a drug treatment program, she regained her daughter, who is apparently healthy. But the criminal charges remain. "I could lose her," says Bremer. "I could go to prison, and she could grow up with who knows who." Prosecutor Tony Tague is unmoved. He says the threat of prison is sometimes the only way to get pregnant addicts to seek treatment: "Someone must stand up for the rights of the children."

Similar cases involving prenatal drug delivery have cropped up in nine states across the country. Like the abortion issue, they raise serious questions about a woman's right to privacy and the obligations of the state and the individual toward the unborn. At the center of these cases lies a controversial legal concept: fetal rights. This notion also underlies one of the most important cases before the Supreme Court during its current term. At issue are "fetal-protection policies" used by many companies to forbid fertile female employees from taking jobs that might expose them to substances that could harm an unborn child. Fetal-rights advocates say such policies are needed to protect the unborn. Critics say they are an intrusion into the lives of women and a false comfort for a society that fails to offer adequate prenatal care for all women or workplace safety for all workers.

Courts in the U.S. have recognized that third parties -- for instance, a drunk driver who injures a pregnant woman -- can be sued for doing harm to a fetus. More recent is the notion that expectant mothers can be held criminally responsible for problems suffered by their fetuses. Even pregnant women who are resigned to the legalisms pervading American life might wince to learn that the child forming inside them is also a budding legal entity, possessing rights that may put it at odds with its mother even before it emerges into the world. But the idea has gathered support with the growing spectacle of drug- damaged newborns. Maternity wards around the country ring with the high- pitched "cat cries" of crack babies, who may face lifelong handicaps as a result of their mothers' drug use.

With some researchers estimating that each year as many as 375,000 newborns in the U.S. could suffer harm from their mothers' prenatal abuse of illegal drugs, district attorneys are tempted by what looks like the quick fix of pregnancy prosecution. "You have the right to an abortion. You have the right to have a baby," says Charles Molony Condon, prosecutor for the Charleston, N.C., area. "You don't have the right to have a baby deformed by cocaine." Courts have given a mostly skeptical reception to the attempt to apply existing drug laws in such a novel fashion, but eight states and Congress are considering legislation that would explicitly criminalize drug use and alcohol abuse by pregnant women that results in harm to the child.

Critics of such measures say that a true effort on behalf of unborn children would focus on the needs of expectant mothers rather than punishing bad behavior after the fact. Few drug treatment programs, for instance, accept pregnant addicts. A study of New York City drug-abuse programs found that 87% turned away pregnant crack users. Says Sidney Schnoll, a psychiatrist at the Medical College of Virginia: "We seem more willing to place the kid in a neonatal intensive-care unit for $1,500 or $2,000 a day, rather than put $1,500 into better prenatal care."

Some legal experts also warn that prenatal drug-use prosecutions could open the way to punishing women for many other kinds of behavior during pregnancy. What about drinking? Smoking? Taking prescription drugs? Or working too hard? "Are we going to be policing people's wine closets?" asks Stanford University law-school professor Deborah Rhode. Other legal scholars insist that such "slippery slope" arguments are exaggerated; laws commonly distinguish between reckless behavior and acceptable risk.

Still, the efforts to protect the rights of the fetus have far-reaching implications, and not just for pregnant women. The UAW, et al. v. Johnson Controls case, now facing the Supreme Court, provides a dramatic example. In 1982 Johnson Controls, a Milwaukee-based company that is one of the nation's largest car-battery manufacturers, decided to forbid its fertile women employees to hold jobs that would expose them to lead levels potentially damaging to a fetus. High doses of lead -- higher than any permitted by law in the workplace -- have been linked to miscarriages and fetal death. Even lower levels, however, can result in learning problems and diminished growth for exposed babies. "This decision was not taken lightly," says Denise Zutz, director of corporate communications for Johnson Controls. "We were concerned about the risks to children." The company was also seeking to avoid later lawsuits by any children who might be harmed in the womb.

That was not much comfort to Shirley Jean Mackey, who worked at one of the company's plants in Atlanta. A mother of one who had no immediate plans to get pregnant, she was forced to move from a job she liked, bundling lead plates, to another she hated, punching holes in hundreds of battery containers. "Each hole I punched, it was somebody's head," says Mackey. "That's just the way I felt." Along with the United Auto Workers, which represents many of Johnson Controls' employees, she is one of eight workers bringing suit against the company. They charge that its policy violates the 1964 Civil Rights Act, which bars employment discrimination on the basis of sex, pregnancy or related medical conditions unless the practice in question directly relates to the worker's ability to do the job.

So far, two lower federal courts have ruled in favor of the company. But a California court went the other way, calling the policy "blatant" discrimination and adding, "A woman is not required to be a Victorian broodmare." If the Supreme Court rules for Johnson Controls, then by some estimates up to 20 million jobs, many of them well paid, could eventually be closed to women. Gulf Oil, B.F. Goodrich, Du Pont and Eastman Kodak are just some of the companies that have instituted fetal-protection policies since a federal court upheld such measures in 1984. Johnson Controls estimates that more than half its production jobs are barred to fertile women.

To some people, fetal-protection policies are merely a way to avoid making the workplace safe for men and women equally. Feminists also dismiss them as discrimination masquerading as compassion, a disguised way of keeping women out of more lucrative men's jobs. Critics of the fetal-protection policies also point out that toxic substances in the workplace may damage genes in male sperm. "A man or woman working in a plant should be told the dangers and make up their own minds," says Molly Yard, president of the National Organization for Women.

Ironically, it was the Supreme Court's decision creating a right to abortion in Roe v. Wade that also provided some of the legal underpinning for fetal rights. The same ruling recognized a government interest in protecting the fetus during the last trimester of pregnancy. But while judges had a hand in creating fetal rights, courts will never be able to ensure real protection to an unborn child. That will have to come from mothers who take responsibility for the lives they carry within them -- and a nation willing to provide the fetus with real prenatal care. For now, it seems more willing to provide a lawyer.

With reporting by Barbara Cornell/New York