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Personhood In The Womb: A Constitutional Question.

A study released this year examined cases where law enforcement intervened in the lives of pregnant women who were believed to be endangering their fetuses. State laws are stepping in on behalf of the fetuses' constitutional rights — but what of the mothers' rights? Fresh Air looks at three perspectives in the debate.



November 21, 2013

Guests: Lynn Paltrow - Jennifer Mason - Dr. Barbara Levy

TERRY GROSS, HOST: This FRESH AIR. I'm Terry Gross. A study released earlier this year reported that pregnant women across the country are being subjected to arrest and incarceration, detentions in mental institutions and drug treatment programs, as well as forced medical interventions, including surgery, when medical professionals or law enforcement officials believe the pregnant woman might be endangering her fetus.

The study, conducted by the group National Advocates for Pregnant Women, found 413 criminal and civil cases where law enforcement intervened in the lives of pregnant women from the time abortion became legal in 1973 through 2005. We're going to hear from the group's executive director, Lynn Paltrow. She says the legal claims used to justify some of these actions rely on the same arguments that are made in support of personhood measures that would grant the fetus full constitutional rights independent of the pregnant woman.

We'll also hear from one of the leaders of the personhood movement, Jennifer Mason, and we'll talk about what is medically known about the effects of illegal drug use on the fetus with Dr. Barbara Levy, the American College of OB/GYN's vice president for health policy.

Let's start with Lynn Paltrow, executive director of National Advocates for Pregnant Women. Lynn Paltrow, welcome to FRESH AIR. When people think of reproductive rights, I think they tend to focus on the rights to birth control and abortion. A lot of your work is dealing with women who want to carry to term. What patterns are you seeing that you think are infringing on the rights of pregnant women?

LYNN PALTROW: Well, early on in my career, I started getting cases where anti-abortion arguments were being used to hurt women who had no intention of ending their pregnancies. One of those cases involved Angela Carter, a woman who at 27 years of age and 25 weeks of pregnancy became critically ill. And even though she and her doctors and her family were all in agreement that they should keep her alive for as long as possible, somebody decided that the fetus she was carrying was entitled to a right to life, went to the hospital's counsel, who called an emergency hearing to decide what rights the fetus had, and in the end ordered her to undergo Cesarean surgery, knowing that the procedure itself could kill Angela Carter.

And in the end the fetus was born alive but died within two hours, and Angela Carter died two days later with the Cesarean surgery listed as a contributing factor. And while we eventually got the court to say that pregnant women don't lose their rights to medical decision-making and due process, and despite the fact that no state has passed a law holding women criminally or legally accountable for the outcomes of their pregnancies, we continue to see a wide variety of cases in which women are being deprived of virtually every right we associate with constitutional personhood based on the claim that there ought to be completely separate legal rights for fertilized eggs, embryos and fetuses.

GROSS: One of the types of cases that you're seeing is a pregnant woman is arrested or detained and forced to undergo drug treatment because she's being accused of using drugs, illegal drugs that might damage the fetus. Give us an example of that. In fact you're working on a case right now. Why don't you use that as an example.

PALTROW: Yes, we are co-counsel representing a Wisconsin woman, Alicia Beltran, who when she found out she was pregnant, she went for early prenatal care, and she shared all the relevant health information she had, which included that before she got pregnant she had struggled with her use of Percocets, that she had stopped using them and that she was using a drug called Suboxone, which is used to help people treat their withdrawal from opiates.

She shared this - her information with her health care provider, and the result of being pregnant and honest was that she was arrested. Wisconsin in 1998 put into effect a law, amendments to its children code, that added unborn children, defined as existing from the moment of fertilization. They added that term over 400 times, if pretty much anyone, including a law enforcement official, decided that the woman habitually lacked self-control in the use of alcohol or a controlled substance to a severe degree that creates serious risks to a fetus or a child.

None of these terms are defined, and in Ms. Beltran's case, what happened was she confided in her doctor about her past drug use. By the time she started with a new OB/GYN, when she was approximately 12 weeks pregnant, she had stopped all use of any drugs, and yet the next thing she knew, five police officers, five law enforcement officials, were at her home.

They arrested her, they put her in handcuffs, they took her to an emergency room where she was examined, and that examination said she looks fine, the baby looks fine. Nevertheless they took her to jail. They put her in leg shackles. They took her to a courtroom where there was already a lawyer appointed for her 12-week fetus, and she was not herself entitled to a lawyer.

And the judge, the commissioner, ordered her into a residential treatment program for 90 days that did not even provide the treatment that people were saying she needed.

GROSS: How long was she kept in mandatory treatment for drug use, even though she said that she's already given up the drugs?

PALTROW: Alicia Beltran had given - had not - was not using drugs, and she was kept in a residential treatment program under a threat of arrest if she left for 78 days.

GROSS: So isn't anybody who's charged with a crime entitled to a lawyer? I mean, how could she not have had a lawyer?

PALTROW: Well, there are two things about that. People are entitled to a lawyer when they're arrested. The statute was written in such a way to say we're going to empower the state law enforcement, people untrained in addiction medicine, to deprive women of their physical liberty, but it is not an arrest.

GROSS: So the Wisconsin law that we've been discussing added unborn child to child abuse laws, right? So the child abuse laws now cover fetuses as well.

PALTROW: It's a - it's not the general child abuse law. It is a - it's in the civil children's code, and it permits depriving pregnant women who habitually lack self-control in the use of drugs or alcohol to be taken into immediate custody only on reasonable suspicion.

Many prosecutors in many states, however, have arrested women based on the claim that they were pregnant and used a criminalized drug, arguing that the state's child abuse law should be interpreted to apply to fertilized eggs, embryos and fetuses and give police officers and others authority over pregnant women.

And what our research shows is that they argue that the word child in these statutes ought to be interpreted as giving the state power over pregnant women from the moment they conceive, and what they rely on for that interpretation is very often post-Roe anti-abortion statutes that make declarations of separate rights for eggs, embryos and fetuses, state feticide laws that are passed, usually in the wake of extreme violence against pregnant women.

They're passed with saying that it will provide protection to pregnant women and their unborn children, and then it is turned around and used by prosecutors to justify the arrest of pregnant women themselves.

GROSS: So an example of that lesson that you describe, like if a law is passed to, say, protect a pregnant woman from having her fetus damaged by an angry - an abusive spouse or boyfriend, maybe an angry spouse or boyfriend who doesn't even want her to carry to term, would just as soon that the baby be aborted, and say they beat her, this kind of law you're describing is designed to protect her from that.

But you're saying that kind of law is being used against the pregnant woman herself.

PALTROW: I'm not sure these laws were designed to protect pregnant women, and certainly that was not true for Christine Taylor, who when she fell down a flight of stairs while she was pregnant and went to the hospital because she was so concerned about the health of her unborn child, she was essentially interrogated, I guess, by a nurse or some other staff member at the hospital.

She admitted that early in the pregnancy she had considered possibly having an abortion. She was planning to carry this pregnancy to term. She was very worried about what - having fallen down the stairs. They send her home. She's left her two little girls with a neighbor. And she on the way home from the hospital to go back to her children, she is picked up by police and arrested on charges of attempted feticide.

She's put in handcuffs. She's kept in jail for two days, until there is such a national outcry that they release her. But they release her saying, well, we released her because she was only in her second trimester, but if this had happened when she was in her third trimester, we would have been entitled to keep her in jail on this charge of attempted feticide.

And the question all of these cases pose, the question that the Personhood USA really raises is as a society, do we believe that there is a point in pregnancy when women lose their civil rights.

GROSS: This is one of your major points in your practice regarding pregnant women, that when an - you know, when a, quote, unborn child, when a fetus is given legal counsel or given full personhood, that the woman who is actually carrying the fetus in her body is deprived of her right.

PALTROW: Well, she's deprived of her personhood. I think that there is no way to add fertilized eggs, embryos and fetuses to state law as separate persons without subtracting pregnant women as full persons under the Constitution.

GROSS: How pervasive are laws like the one you're challenging in Wisconsin, where a woman can be charged with mistreating the fetus that she is carrying?

PALTROW: Only four states actually have laws that specifically permit depriving women who become pregnant of their physical liberty: Wisconsin through this children's code; South Dakota, Oklahoma and Minnesota through civil commitments laws that permit specifically depriving pregnant women of their physical liberty who use alcohol or drugs.

The only two states that have criminalized, have made it a crime for a woman to become pregnant and continue using one of the criminalized drugs, is South Carolina and most recently Alabama. And that's, again, not because the legislature passed such a law but because the judiciary engaged in judicial activism and reinterpreted the word child to include fertilized eggs, embryos and fetuses.

But we've seen cases of arrests, detentions, forced medical interventions and threats of those things in virtually every state. And they occur without a specific legal authority, but our research, finding over 400 cases between 1973 and 2005, found that what the prosecutors do is they say, oh, look at this abortion statute we have. Look at this feticide law we have, where they make claims that fertilized eggs, embryos and fetuses have separated rights, and allow us to use that to interpret the child endangerment law to arrest a pregnant woman who delays having Cesarean surgery. Or arrest a woman who suffers a miscarriage or a stillbirth under the feticide law.

GROSS: So in cases where a woman actually is behaving in such a way that could damage the baby that she is carrying, should there be any way of preventing her from doing that, or of, you know, trying to make sure that the baby is born healthy, born alive?

PALTROW: You bet, and the best way of doing that is for states to support the Affordable Care Act and make sure that every pregnant woman, every family in this country, has access to the health care that they need. And major influences on outcome of pregnancy that are largely ignored are toxins in the environment, lack of access to health care, lack of access to adequate nutrition.

In many of these cases where people have said, oh, we know that if she doesn't do X, Y or Z, or if she continues doing X, Y and Z, there's going to be harm, over and over again those claims have been proven wrong. So I think instead of having a framework in which we think about, well, isn't there some bad woman that we can do this to, is do we believe that other people can make those judgments and that there is a point in pregnancy when you can deprive women of their civil and human rights, including the right to make the best decisions they can under the circumstances that they live in.

GROSS: But what if, say, a woman is using illegal drugs that might or might not damage the baby that she's carrying? Or what if she's drinking to excess, and there's the risk of fetal alcohol syndrome?

PALTROW: Fifteen to 20 percent of all pregnancies end in miscarriage and stillbirths. Pregnancy is a possibility, not a promise. What we know based on carefully conducted, unbiased scientific research has not found that prenatal exposure to any of the illegal drugs causes unique or even inevitable harm.

So to target that issue and the women who sometimes use those drugs, and it's a teeny percentage of all pregnant women, far fewer than use alcohol, smoke cigarettes, experience obesity, that - those women are overwhelmingly giving birth to healthy children. None of the criminalized drugs are - have been found to cause pregnancy losses, to cause stillbirths or infant losses.

So we're targeting them based on a whole lot of junk science, a whole lot of misreporting and alarm about the various criminalized drugs when the real risks are poverty, lack of nutrition and lack of access to confidential health care.

GROSS: My guest is Lynn Paltrow, executive director of the group National Advocates for Pregnant Women. We'll talk more after a break. This is FRESH AIR.


GROSS: Let's get back to our interview about cases in which pregnant women are being legally punished for behavior deemed dangerous to the fetus. Our guest is Lynn Paltrow, executive director of National Advocates for Pregnant Women.

As a patient, you are supposed to have privacy with your doctor. That's supposed to be just understood. But now we have cases in which medical professionals are telling law enforcement authorities about things that they think pregnant women are doing that might have a harmful effect on the fetus. Why aren't women protected when they confide something about their health, even if it is drug use, to their doctor?

PALTROW: Well, in many states health care providers are - believe or are told that they are required to report evidence of drug use by a pregnant woman as a form of civil child abuse. That report is then very often used, shared immediately with law enforcement, and results in both punitive child welfare and criminal justice actions that every medical group says is bad for babies.

GROSS: Does any state have a law saying that doctors have to report if a woman, a pregnant woman, is using drugs?

PALTROW: There are approximately 12 states that specifically define civil child abuse to include evidence of the use of a criminalized drug. Some of those - all of those states have mandatory reporting laws. And in many states, even in New York, where child abuse, civil child abuse is defined by, for example, misuse of a controlled substance, not any use, a positive drug test can't tell you anything other than the fact that a person once used a drug.

It doesn't tell you if they're addicted, if they're dependent, if they love their children. And yet increasingly people believe, even when they're not mandated reporters, that they must report.

GROSS: You're seeing a range of cases in which women are being detained or prosecuted because their actions have been interpreted by law enforcement authorities as being harmful to the fetus that they're carrying. So this has included women who have used drugs, women who want to deliver vaginally, but their doctor believes no, no, no, they have to deliver with a Cesarean, and some women have been forced to have a Cesarean against their will.

You've given the example of a woman who fell down the stairs and then was accused of attempted murder of her fetus. Do you think that all of these different approaches relate to what's called the personhood movement?

PALTROW: Absolutely. The personhood movement is working to have fertilized eggs, embryos and fetuses recognized as completely separate constitutional persons under the law. It's both - it's not only that the particular organization Personhood USA, it's 40 years of efforts by a variety of organizations who seek to re-criminalize abortion in the country...

GROSS: And tell us what Personhood USA is.

PALTROW: Personhood USA is an organization that is - has launched campaigns in numerous states to try and get ballot measures in those states where people would vote to treat fertilized eggs, embryos and fetuses as if they are entirely separate constitutional persons under state constitutional law.

GROSS: How much progress do you think the personhood movement is making?

PALTROW: I don't know how to answer that. I think some of their other groups have disagreed with their strategy. The National Right to Life Committee, to the best of my knowledge, does not support them. The United Catholic Conference of Bishops does not support them. And I think the real reason they don't is because Personhood USA makes explicit what has been going on for the last 40 years sort of under the radar, that really the feticide laws that have passed, the anti-abortion measures that include declarations of separate rights for eggs, embryos and fetuses, are really doing the same thing but very gradually.

And what Personhood USA is doing is exposing what really is happening, which is if they succeed and fertilized eggs, embryos and fetuses are recognized as separate persons under the law, then what happened to Alicia Beltran in Wisconsin can happen theoretically to any pregnant woman. A guardian ad litem can be appointed for a fertilized egg.

So you would essentially have every pregnant woman subject to a person who is entitled to her medical records, who is entitled to require her to undergo whatever medical procedures they think is best for her, have her arrested if she doesn't obey. These are profound, profound - not just intrusions, but we have never in the history of the United States had a movement that proposes removing a group of people from the community of constitutional persons.

GROSS: Well, Lynn Paltrow, I want to thank you very much for talking with us.

PALTROW: Thank you for having me.

GROSS: Lynn Paltrow is the executive director of National Advocates for Pregnant Women. We'll talk with one of the leaders of the movement to grant constitutional rights to the fetus in the second half of the show. I'm Terry Gross, and this is FRESH AIR.


GROSS: This is FRESH AIR. I'm Terry Gross. In the first half of the show, we heard from Lynn Paltrow, executive director of National Advocates for Pregnant Women. She detailed several recent cases where a pregnant was arrested, put into drug treatment or forced to have an unnecessary surgery when state officials believed she might be harming her fetus.

Paltrow says the legal claims used to justify some of these actions rely on the same arguments made in support of personhood measures that would grant constitutional rights to the fetus. Our next guest, Jennifer Mason, is one of the leaders of the personhood movement. She and her husband, Keith Mason, cofounded Personhood USA in 2008.

They're working to get amendments added to state constitutions that would define the fetus as a person entitled to full constitutional rights independent of the pregnant woman. Personhood bills and ballot initiatives have been introduced in nine states, though none have passed. Jennifer Mason is the communications director for Personhood USA.

Jennifer Mason, welcome to FRESH AIR. What is Personhood U.S.A.?

JENNIFER MASON: Well, Personhood U.S.A. is a grassroots, pro-life organization that recognizes that human lives are valuable at every stage, and we seek to protect every human being by recognizing their personhood rights in the constitutions of various states across the country.

GROSS: So, what kind of rights would you like to see a fetus have?

MASON: Well, the basic rights to life, liberty and the pursuit of happiness. You know, the 14th Amendment requires equal protection under the law for everybody. And so we believe that every human being, regardless of their location, if they're in the womb or out of it, deserves those protections and those rights.

GROSS: Just curious: How can a fetus pursue liberty, let alone happiness when it is inside of the woman who is carrying it, and totally dependent on the woman who is carrying the fetus?

MASON: Well, the baby is denied the right to life, the right to liberty and the right to pursue happiness at any point when they are killed in the womb. So there is never any future choice for that baby, never any future at all. So those rights are specifically denied to babies in the womb when they are aborted. They are killed, and their rights are forever silenced.

GROSS: Now, you are working now on the state level, right, to try to get...

MASON: Yes, we are.

GROSS: ...the right of personhood for fetuses. So what are you emphasizing now? Is it mostly on the legislative level, or constitutional amendments? Are you working with the judiciary?

MASON: Well, we do both constitutional amendments through ballot access initiatives. Basically, someone in a state, any state - it just happened in New York - will contact us and say we would like to do a ballot to get personhood in front of the voters. And we help them to do that. The amendments are very short, often. They're usually just one statement that says every human being is a person. They're just common sense initiatives that go on the ballot.

But we also do work through the legislature. It depends on the - every state has different laws regarding where you can have ballot access and where something has to go through the legislature. So we do both.

GROSS: So, I know for states that would pass an initiative like that, it would mean that abortion would be murder?

MASON: Yes. Abortion would be recognized as murder.

GROSS: What other implications would it have for a pregnant woman? What else might be illegal, punishable for a woman to do while pregnant?

MASON: Well, the only thing that would be illegal or punishable would be for a woman to do - take a pill or seek out a service like abortion that would intentionally kill her child. They're - contrary to what is misreported by our opposition, it would not ban in vitro fertilization. It would not cause investigations for miscarriages. It would not ban contraception - none of those things. The only thing that the amendment could actually do would be to protect children in the womb and to show that if you intentionally kill your child, to go to an abortion clinic, the abortion provider would be at risk of punishment.

GROSS: When a woman is pregnant, if the fetus is considered a person, how do you weigh the constitutional rights of the fetus and the mother?

MASON: Well, that's a - it's kind of a complicated question, but the simple answer is that the baby's rights would never outweigh the mother's rights. The idea with personhood - and I think the pro-life community at large agrees with this - we need to love them both. We need to care for both as patients. And we often get the question, well, what if there were a medical emergency and you could only save one?

Well, doctors say that that doesn't happen, that there are not those cases where you're in the emergency room and there's only one doctor, and he has to choose which one to save. Obviously, he has to save the mother if it did happen, because if the mother dies, the baby dies by default. So we're not talking about elevating the baby's rights over his mother's rights. We're not doing that.

We're saying that the baby deserves equal rights. The baby deserves a chance to live. We have to save the mother when you're talking about a situation where a pregnant woman might be in danger or might need medical care. They're both patients, and they both should be treated as such. It is never necessary to kill the child to save the mother, and both should be treated as patients in medical cases.

GROSS: Let's take an example where a woman is using an addictive drug. What kind of legal intervention do you think would be appropriate in a situation like that?

MASON: Well, I believe that because a pregnant woman does not ever drink alone, nor does she do drugs alone, I think that it is appropriate to treat the case just like you would a case where a woman is giving drugs to a newborn in the home. Children that are addicted to drugs when they're born go through terrible withdrawals. The womb should be the safest place for babies, and should not be subject to poison just because they're located in the womb.

And this is a growing problem in the United States. The American Medical Association has said that cases of babies born addicted to drugs have tripled in the past 10 years. And it's a very serious problem, and of course, there should be penalties associated with that. I can't say - because I'm not an attorney - what exactly those penalties should be, but I don't think that pregnant woman should be given a pass when anyone else who injects drugs into a child would be prosecuted.

So I think that, you know, we have to consider that there should be repercussions and protections for women and children dealing with drug addictions.

GROSS: Do you think that the law should make it mandatory for doctors and other health care workers to report women if the health care worker feels that the woman is putting her fetus's health at risk?

MASON: Well, that's an interesting question. And I believe that if the woman were putting the baby's health at risk, she's also putting her own health at risk. And I don't think that putting yourself at risk in general is something that should be reported to the police, but we're talking about illegal drugs here. So I do believe that anybody using illegal drugs should be reported.

They should - there should be consequences for breaking the law. And I think to give pregnant women a pass just because they're pregnant, when anyone else injecting drugs into a child would be prosecuted, would be wrong.

GROSS: There's a case of Christine Taylor, who fell down a flight of stairs while she was pregnant. She went to a hospital, and then she was arrested on charges of attempted feticide. She was kept in jail for two days. What's your reaction to that?

MASON: I have studied that case, and it seems that it's, again, a murky situation where we don't really know. But if we could use that as an example, and say let's say a woman falls down the stairs, and should she be prosecuted for her miscarriage or even investigated for her miscarriage, and the answer is absolutely not. There's no historical precedent for investigating a woman for a miscarriage, even when abortion was illegal.

There's no reason to assume that with a personhood law or any law restricting abortions, that that would be the case again. I think, of course, sometimes you have overzealous attorneys. I think that in the particular case that you mentioned, it seemed there were some other details, and you don't really know what exactly has gone on or what was going through her mind, or anything like that.

But, you know, miscarriages are very different from intentionally killing a child, and that's what personhood addresses. I have suffered miscarriages, and it's a terrible thing. I would never want anybody else to have to go through it, but unfortunately, it's very common. But miscarriages are extremely different from intentionally killing someone else.

GROSS: You said that the personhood amendments that you're trying to pass are intended to prevent abortion. You're not intending to criminalize women's behavior during pregnancy. You're not intending the personhood amendment to hold women who've, you know, who've miscarried and investigate them as possibly being guilty of fetal homicide.

But nevertheless, if personhood amendments are passed in some states, is it possible that other people will interpret it in a way different than you, and that fetal homicide will be investigated, that women who miscarry under certain circumstances will be investigated? That the relationship between women and their doctors will become tainted because the doctors will be forced to report their patients if their patients have done certain actions that are interpreted as being illegal under the personhood amendment?

MASON: Well, that could happen now, without personhood. You know, sometimes there are cases that Social Services gets extremely concerned about, doctors are very concerned about that women are harming their children and harming themselves in their investigations. But with the passage of personhood, it's been explained to me that the way personhood would be applied would be across the board, because it would be a constitutional amendment.

So those constitutional rights would be applied to children in the womb, much as they were before Roe versus Wade, when it was assumed that the child in the womb should have a right. But those babies that are protected under personhood constitutionally, it would be a case where a prosecuting attorney would have to prove intent, an intent to harm, in order to prosecute anything.

GROSS: Well, Jennifer Mason, thank you very much for talking with us.

MASON: Yes. Thank you for having me.

GROSS: Jennifer Mason is the communications director for Personhood U.S.A. Coming up, we talk with Dr. Barbara Levy of the American College of Obstetricians and Gynecologists. This is FRESH AIR.


GROSS: This is FRESH AIR. We've been talking about the growing movement to legally punish pregnant women for behavior deemed to endanger the fetus, such as the use of addictive drugs. Some states require doctors to report such pregnant women to the authorities. We wanted to hear more about the medical perspective, so we invited Dr. Barbara Levy, the vice president for health policy at the American College of Obstetricians and Gynecologists.

The group publishes guidelines for obstetricians on many topics, including the best treatment for pregnant women addicted to drugs. Dr. Barbara Levy, welcome to FRESH AIR. What do we know about the medical effects on the fetus when a pregnant woman is taking addictive opioid drugs?

DR. BARBARA LEVY: Well, Terry, I think we need to separate out prescription addictive drugs versus the socio-cultural problems that women who are addicted to heroin may experience. Certainly, there are a lot of issues with respect to women that are addicted to street drugs that may affect the fetus, and they have a lot to do with lifestyle in general and not necessarily to do with the drug addiction itself.

So it's difficult to tease those things apart. But what we do know is that women who are chronically addicted to heroin and they're untreated, they tend to have babies that are small. So they have fetal growth restriction. They may have problems with the placenta, so that it may separate from the wall of the uterus, causing bleeding and perhaps early delivery.

It can cause fetal death, and certainly premature labor. Those are things that we see in the chronically heroin-addicted mom. That's different than what we might see in someone who is addicted to narcotics, but they're prescription narcotics. She's getting prenatal care. And when we see women who are enrolled in prenatal care, it obviates a lot of those negative effects that the drugs may or may not have, or it may be the social environment that's having those effects on the baby.

GROSS: So, in that second part there, you're referring to, for instance, prescription painkillers?

LEVY: Yes. Prescription painkillers, prescription anxiety medicines. We certainly know that there are effects of many, many drugs, and often, we have to balance the health of the mother with the health of the baby. For example, a mom who has epilepsy, for example. The medicines that we use to treat epilepsy may have effects on the fetus, but having a mom with uncontrolled seizures has much more negative effects than the effects of the drug.

So we're in a balancing act where we need to create the proper balance for the optimal health of both the mother and the fetus.

GROSS: Now, what about a situation where a pregnant woman is using prescription drugs but she's actually abusing them? She's not really using them for pain, she's using them to get high?

LEVY: Well, I think none of us would like to see that happen and what we would like to see is to enroll those women in treatment programs so that they are monitored and they are getting the optimal care both for themselves and for their baby.

GROSS: You mean as opposed to punishing the woman or forcing her into a drug treatment center?

LEVY: Correct. I mean, when we treat it punitively, what we're really saying is that the mother is a criminal as opposed to somebody with a medical condition, which is addiction. And we all recognize - as physicians we recognize addiction as a disease that needs treatment. When we treat it properly, we get the best possible outcomes for both the mother and the baby.

Because we enroll the mom in prenatal care, we are able to identify potential problems early and correct them. We're able to optimize nutrition and - like folic acid implementation, the kinds of things that result in the best possible outcomes for the baby.

GROSS: So if a pregnant woman is taking prescription opioids, prescription painkillers, whether she's getting them legally or not, if she's taking something beyond the dosage that was prescribed for her by her doctor, do we know for sure that that has damaging effects on the fetus?

LEVY: We do not. We actually have no evidence for that. We know that her fetus, you know, there's a syndrome called the Neonatal Abstinence Syndrome that's very common and short-lived, very treatable, that her baby will demonstrate some physical withdrawal to the exposure from the narcotic. But we know of no long-term consequences.

We have looked. There's been one long-term study looking at infants that were exposed to opioids, looking at their cognitive development, how their brains work and how they're functioning up to five years of age and have not seen any difference between those babies and unexposed children.

GROSS: Is it surprising that there isn't a greater and a more long-term problem for fetuses if the mother is using or abusing, I should say, opiate painkillers?

LEVY: No. I don't think so. Because remember the placenta filters a lot of this. So that the amount that gets to the baby is far less than what you're seeing in the mother's circulation. And so it's not surprising that chronic exposure to a very low amount of a medication wouldn't have a significant effect long-term.

I think it depends on what drug we're talking about, what organ systems might be affected, but for opioids they're actually pretty straightforward in terms of the effects they have on different systems in the body. And it's not particularly surprising that the babies would do well as children long-term.

GROSS: My guest is Dr. Barbara Levy of the American College of Obstetricians and Gynecologists. We'll talk more after a break. This is FRESH AIR.


GROSS: We've been talking about the movement to legally punish pregnant women for behavior deemed to endanger the fetus such as the use of addictive drugs. Let's get back to our final interview on the subject with Dr. Barbara Levy, the vice president for health policy at the American College of ObGyns. So correct me if I'm wrong here but I think South Carolina and Alabama have made it a crime for a woman to be pregnant and use a criminalized drug.

South Dakota, Oklahoma, and Minnesota have civil commitment laws that permit civil commitment or detention of a woman who's using a controlled substance during pregnancy. And Wisconsin and South Dakota authorize civil commitment of women who lack self-control in their use of alcohol. So what are your concerns about those civil commitment laws?

LEVY: Well, I think, first of all, from a medical standpoint abruptly discontinuing some of these medications, particularly opioids, but others, can result in very negative outcomes for the baby. They can result in premature labor. They can result in fetal distress, meaning that the baby's not getting adequate oxygen, and they can even result in fetal death.

So, you know, attributing the very best of intentions to folks that are developing these laws, the unintended consequences may be that the babies have more negative effects than if we allowed proper treatment for these women. That they got the right kind of prenatal care, that they got enrolled in treatment programs that enabled them to either sustain themselves on legal drugs that allow them to continue their pregnancy or are treated in a way that is the safest for both the mom and the baby.

I think the fundamental concern that I have is that we're criminalizing a medical problem that these women suffer from and that we don't do that to any other segment of our society. And I understand the concern about the unborn fetus but the very best way to manage that situation and the very best outcome for the unborn fetus, is to treat the mom and the baby as a unit and to get the best care for the mom.

And that means she has to be comfortable and free to seek care without concern that she will be placed in jail. Or what if she has other children at home? You don't want her taken away from the rest of her children that she has to care for. You don't want her taken away from her family.

GROSS: There are some states that mandate that health care workers report to the authorities women who are using addictive drugs. So if you are communicating with doctors in states that have those mandatory reporting laws, what advice do you give them?

LEVY: Well, we certainly encourage ObGyns to follow the law, number one. But we encourage them to work with their state legislators to retract the legislation because what we know is that putting pregnant women in jail or involuntarily committing them to mental health facilities or drug treatment facilities is counterproductive and it's been ineffective.

The studies that have been done demonstrate that this really doesn't get us the outcome we're really looking for, which is the optimal health of the fetus. So while we encourage ObGyns obviously to follow the law, we are strongly encouraging them to work with legislators, advocates, to retract this kind of legislation that punishes women for a medical condition. And punishes them for substance abuse which we know cannot be well treated by involuntary commitment.

GROSS: There is a personhood movement now that wants to grant full constitutional rights to the fetus and it hasn't passed in any state yet but it's going to be on the ballots in several states to add a personhood amendment to the state constitution. What are your concerns about the potential of a personhood amendment?

LEVY: Well, I'm not an expert in personhood amendments and I know they're crafted somewhat differently state to state. What I will say is that some of the unintended consequences of this would be, for example, a pregnancy that's non-viable, that you would be required - ObGyns would be required to allow a tubal pregnancy, for example, to rupture and potentially kill the mother because we were not permitted to intervene and interrupt a pregnancy in the wrong location.

GROSS: Is that the way these amendments have been written? To...

LEVY: Many have. Yes. So what's called an ectopic pregnancy, but a pregnancy that may have heartbeat and it may be out in the fallopian tube. Now, that will never become a viable pregnancy but it can certainly result in maternal death. Because the tube can't sustain the pregnancy, the tube will rupture at some point in time and women - as many as five, 10 years ago we were seeing considerable numbers of maternal deaths related to ectopic pregnancies in areas where there was no care.

So the personhood amendments have many problems. Again, I'm not a legal expert but attributing to an unborn fetus the status of a person with equal rights or greater rights than the woman I think is problematic on many, many fronts.

GROSS: What set of guidelines do you try to use to kind of ethically think through how to balance the health of the fetus and the health of the mother during those times when they seem to be in possible conflict?

LEVY: Well, what we try to do is optimize the outcome as best we can. That's not typically a decision that a single physician would make. And in fact, we typically will pull together a panel of people including an ethics committee, for example, at a hospital where everyone sits down together. We would include neonatalogists or, you know, people expert in premature babies.

We would include people who were experts in whatever the maternal condition is. We would include some lay folks. We all would sit down together and have conversations about what the very best possible compromise would be for both the mother and the baby. Clearly, the family has to be engaged in that conversation.

These are not easy decisions. This is the art of medicine. There's no science where we can plug numbers in here and say, well, absolutely this is the right answer.

GROSS: Dr. Levy, thank you so much for talking with us.

LEVY: My pleasure.

GROSS: Dr. Barbara Levy is the vice president for health policy at the American College of ObGyns. She also oversees the group's efforts in improving quality and safety in women's healthcare.

Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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