From the Library of Congress THOMAS database:
CHILD ABUSE DURING PREGNANCY PREVENTION ACT OF 1989 (Senate - August 01, 1989)
Mr. WILSON. Mr. President, in all the ugly drug lore of modern America, surely the most sordid and terrifying story is that of exploding child abuse through the umbilical cord. The tragedy of illegal substance abuse by pregnant women is metastasizing through our Nation.
Already it requires that we practice medical and fiscal triage. Unchecked, its exponential growth threatens costs that will drain health care and social services budgets and inflict inclaculably greater costs in human suffering.
Mr. President, the children produced by this maternal substance abuse are called boarder babies when they have been abandoned by their crack smoking mothers. They are the John Does, and Jane Does who increasingly are filling neonatal intensive care units of our Nation's hospitals.
In a recent editorial, Charles Krauthammer described them as `The newest horror: A bio-underclass, a generation of physically damaged cocaine babies whose biological inferiority is stamped at birth.'
He speaks of the estimated 400,000 babies who are born each year to mothers who use illegal substances during pregnancy--30,000 of whom are born in my home State alone.
Writhing with pain in their cribs at the hospital, emitting high pitched cries which veterans of the neonatal ward cannot silence, nor really abide, these fragile and innocent souls enter this world brain damaged, often disabled, permanently impaired.
They suffer literally the agony of the damned.
The Wall Street Journal in an article entitled, `Born to Lose,' wrote on July 18, 1989 of one infant at D.C. General which was born 15 weeks premature and weighed no more than 1 1/2 pounds at birth. Brain hemorrhages, respiratory problems, a belly bloated by liver failure `the size of a grapefruit atop his little legs and arms' marked his first and last days of life. The child died before his first birthday.
Some have written that he is the lucky one, Mr. President, because for those who survive their first agonizing months in this world, a life of dispair and hopelessness is sure to follow.
We are witnessing an explosion of crack addicted children who will grow up a burden to society, unable to make rational decisions, without capacity for sympathy or even respect for human life. So said Dr. Fuller, the director of public health for the city of Milwaukee, in testimony yesterday before the Government Affairs Committee.
The long-term effects of the epidemic are staggering and frightening.
Compassion and outrage compel us as a society to act to prevent the human suffering, and our first concern must be prevention, Mr. President. It must be to prevent the abuse of children who now are compelled to suffer the kind of maternal substance abuse that simply does not give them a decent break in life. We are compelled as well by the initial health care costs already reaching $13 billion annually for treatment of infants whose mothers use illegal drugs and engage in other substance abuse during pregnancy.
Mr. President, we can no longer simply hope that this problem will improve. It will not. Left unaddressed, the situation can only continue to deteriorate so seriously and so rapidly as to justify description as a metastasis.
No matter how costly preventive outreach, education, treatment, and rehabilitation may be, the cost of inaction is infinitely greater. We cannot allow the stranglehold drugs have on these mothers to further tighten and constrict the lives of those who represent America's future--our children.
In this vein, yesterday I have introduced, S. 1444, the Drug Abuse During Pregnancy Prevention Act of 1989, which will make available five $10 million grants to States to treat drug-addicted mothers.
This bill will make possible the development of comprehensive solutions to reduce illegal substance dependency among pregnant women and to prevent the recurrence of births of infants who are seriously injured or impaired by their mother's drug habit.
Mr. President, we have to provide rehabilitation which hopefully some substance-abusing mothers will be strong enough to seek voluntarily, early enough in their pregnancy to avoid lasting harm to their child. But for others who cannot find the strength to do so, who carry to term a pregnancy in which they have damaged their child, there must be mandatory rehabilitation or we will simply see recurrence--recurrence, Mr. President, as in the case of Cheryl, described in one of the articles cited, as the mother of seven drug-addicted children--seven children have entered the world addicted, scarred, and damaged permanently by her substance abuse.
Mr. President, this represents an exploding tragedy, the dimensions of which are difficult to comprehend. So rapid has been the escalation in births of damaged children, damaged by the addiction and by the use of dangerous substances during their mother's pregnancy that the figures truly astound. And it is not simply a problem in the District of Columbia. It is a problem in my home State of California. It is a problem in the State of Ohio. It is a problem increasingly across the land everywhere that drug use has altered the natural pregnancy of women of childbearing years.
Mr. President, two important goals must be met by grantees under my legislation.
First, aggressive preventive outreach and education efforts must be pursued to identify pregnant substance abusing women in the hope of minimizing long term effects upon the child. Once identified, these women must be afforded the opportunity to voluntarily kick their drug habits through treatment.
Second, for those women who give birth to substance addicted infants, recurrence must be prevented through mandatory rehabilitation.
I recall a woman named Cheryl, also the subject of the Wall Street Journal article I cited earlier. It wasn't until Cheryl's seventh drug-addicted child that she realized what she was doing to her children was bad.
This type of emotional tragedy and loss to society is both incalculable and avoidable. We must say to the Cheryl's of this country that if you bring a drug-addicted child into this world, we will require you to enter involuntary drug rehabilitation treatment until you are certifiably drug free.
I am convinced that our response can be no less if we are to prevent the kind of needless suffering experienced by first, second, and third generation drug-addicted children.
In addition, Mr. President, to assist grantees in identifying mothers of drug-addicted infants, my legislation will enlist our Nation's health care professionals in the fight against substance abuse through mandatory reporting of suspected drug using mothers.
Finally, my legislation will require that all services provided to drug-addicted mothers be coordinated and comprehensive in nature to prevent the kind of disjointed and self-defeating treatment approach adopted by too many communities across this Nation.
Mr. President, condemning an innocent life to dispair is not acceptable. We must seek to assist substance abusing pregnant women in need of education, treatment, and vital prenatal care.
Of equal importance, for those who do not seek our assistance voluntarily and who give birth to drug-addicted infants, we must require that they rid themselves of all temptation. A humane society can require no less.
Let me close with the story of a 3-year-old girl who lives with foster parents in Napa, CA, and Laney, a 4-year-old girl, also living in Napa, both of whom I first read about in a San Francisco Chronicle article last spring.
Their tormented lives are representative of the majority of babies born addicted to drugs.
The Chronicle article begins:
Dressed in pink overalls and matching sneakers, a 3-year-old girl living in a Napa foster home looks healthy, happy and normal long after her tortuous withdrawal from the crack her mother smoked while pregnant.
But in her short life, the little girl has been hospitalized 11 times for pneumonia, diarrhea, and meningitus. She suffers from learning disabilities, hyperactivity and night terror.
Her foster mother, Linn Ford says she has never slept through a night in her life. `She wakes up screaming--tense, trembling, terrified. Sometimes it happens two or three times a night.'
Mr. President, meet Laney. She is 4 years old and was also born addicted to crack.
According to her adopted mother, Kathie Respini, most days Laney can perform certain simple tasks such as picking up her toys but other days she cannot remember and must learn everything all over again.
`Some days, Laney is gone,' her mother said. `When she's not responding, I may as well be talking to a wall.'
Mr. President, the repeated 20 minute highs of expectant mothers create a lifetime of dispair not only for themselves but also for the Laneys of this world.
This tragedy must end.
I urge my colleagues to support S. 1444, the Drug Abuse During Pregnancy Prevention Act of 1989, as a first step in that direction.
Mr. President, I ask unanimous consent that the text of the bill, the Child Abuse During Pregnancy Prevention Act of 1989, along with articles by Charles Krauthammer and Allen Gershwitz, be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Child Abuse During Pregnancy Prevention Act of 1989'.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) substance abuse (as defined in the amendment made by section (3)) by a pregnant woman is a form of child abuse that risks the addiction and other serious injury or impairment of the child;
(2) The tragedy of substance abuse by pregnant females crosses all socioeconomic and other demographic lines;
(3) 375,000 infants are born annually to mothers who engage in substance abuse during pregnancy and that number appears to grow exponentially each year;
(4) the initial cost of providing care to infants suffering maternal substance abuse is over $13,000,000,000 annually;
(5) the human cost in suffering and loss to society in terms of wasted potential of both the abusing mother and especially the abused and innocent child is both incalculable and avoidable;
(6) it is essential as a matter of both compassion and avoidance of unaffordable public expenditure that a maximum effort be made to prevent the recurrence of substance use during pregnancy;
(7) a women who chooses to carry a pregnancy to term has a responsibility for the health and welfare of her child which requires that she refrain from substance abuse during her pregnancy;
(8) substance abuse during pregnancy produces severe and lasting or even irreversible physical, mental, and emotional damage to the child, including low birthweight, prematurity, congenital deformities, risk of child abuse, and death;
(9) programs for the rehabilitation of substance abusing pregnant females are not readily available;
(10) expanded preventive outreach and education are needed to reduce the incidence of substance abuse infants (as defined in the amendment made by section (3));
(11) it is essential to reduce the incidence of substance abuse by pregnant women and the birth of infants addicted or otherwise injured or impaired by such abuse, both for the sake of the mother and especially in order to reduce the avoidable cruel suffering of and damage to infants so afflicted, and to reduce the unaffordable costs in tax dollars that will be required as the necessary alternative to successful preventive measures; and
(12) there must be testing of new born infants for the effects of maternal substance abuse so that infants addicted or otherwise injured or impaired by the substance abuse of their mothers will be brought to the attention of the proper authorities.
(b) Purposes.--It is the purpose of this Act to--
(1) prevent substance abuse by pregnant women;
(2) prevent, by outreach and intervention during early pregnancy, the continued substance abuse of
pregnant women and the resulting incidence of births of infants who are addicted or otherwise injured or impaired by the substance abuse of their mothers during pregnancy; and
(3) prevent, through the mandatory rehabilitation of women who deliver infants suffering from the substance abuse of the mother during pregnancy, the recurrence of births of infants who are addicted or otherwise injured or impaired by the substance abuse of their mothers during pregnancy.
SEC. 3. MODEL PROJECTS FOR PREGNANT WOMEN.
Part A of title V of the Public Health Service Act (42 U.S.C. 290aa et seq.), is amended by adding at the end thereof the following new section:
`SEC. 509H. MODEL PROJECTS FOR PREGNANT WOMEN.
`(a) Definitions.--As used in this section:
`(1) Substance abuse.--The term `substance abuse' means the use of controlled substances, as defined in schedules I and II of section 202 of the Controlled Substances Act (21 U.S.C. 812), the possession or distribution of which is unlawful under such Act, or excessive or injurious ingestion of legal substances, including beverage alcohol.
`(2) Substance abused infant.--The term `substance abused infant' means an infant who is born addicted or otherwise injured or impaired by the substance abuse of its mother.
`(b) Grants to States.--The Secretary, acting through the Director of the Office of Substance Abuse, shall award grants to States to enable such States to develop, implement and operate five pilot projects for the purpose of demonstrating the effectiveness of, and expense associated with, providing outreach, education and treatment services concerning substance abuse to pregnant females, postpartum females and their infants.
`(c) Eligibility.--To be eligible to receive a grant under subsection (b), a State shall submit an application to the Secretary that shall contain--
`(1) a plan for a comprehensive approach for the prevention of substance abuse by pregnant females, including--
`(A) provisions relating to the provision of preventive outreach and education and treatment;
`(B) provisions detailing the penalties associated with giving birth to an infant who is addicted or otherwise injured or impaired by the substance abuse of its mother during pregnancy; and
`(C) provisions relating to the manner in which the State will provide treatment services to such pregnant females and postpartum females and their drug-abused infants;
`(2) a description of the manner in which appropriate services will be coordinated, including prenatal and postnatal medical care services, drug abuse education and treatment services, crisis counseling services, support group services, parent training services, and child developmental services;
`(3) a comprehensive reporting plan that shall require health care providers, within the jurisdiction in which services are to be provided, to identify substance abused infants to the appropriate authorities;
`(4) a certification that, it is a crime in such State to abuse a child, and that such abuse includes giving birth to an infant who is addicted or otherwise injured or impaired by the substance abuse of its mother during pregnancy;
`(5) a certification that, on a conviction for a violation of the criminal statute described in paragraph (4), the female so convicted shall be sentenced to a period of 3 years of mandatory rehabilitation in a custodial setting or, on certification by appropriate medical authorities that the female is unlikely to engage in substance abuse if released from custody, the female may be released for a probationary period subject to the
conditions described in paragraph (7) for the remaining portion of her sentence, except that in order to encourage substance-abusing pregnant females to seek assistance and to abandon substance abuse in the first trimester of pregnancy, the law of the State may provide for an exception that enables a female in the first trimester of her pregnancy to voluntarily submit to rehabilitation for such term and under such conditions as competent medical authorities shall prescribe, and such female shall not be charged with criminal child abuse if she completes the term and conditions prescribed;
`(6) a certification that the State has an expedited adjudicatory process for females charged with giving birth to a substance abused infant;
`(7) conditions of probation, that shall include--
`(A) abstinence from substance abuse; and
`(B) no association with known substance abusers;
`(8) a certification that efforts will be made to serve both the infant and the mother in the same treatment setting if the female is competent to function in a maternal capacity;
`(9) a certification that efforts will be undertaken to provide for outpatient followup care for females placed in mandatory substance abuse rehabilitation programs during probation;
`(10) a certification that on the successful completion of the conditions of probation as described in paragraph (7), females sentenced to mandatory substance abuse rehabilitation programs will be afforded the opportunity to have their record expunged; and
`(11) additional information as the Director may determine appropriate.
`(c) Evaluations, Studies, and Reports by Secretary:
`(1) Evaluations: The Secretary shall require that each State receiving a grant under subsection (b), conduct a systematic evaluation of the projects that receive assistance through such grant to record the impact of such projects on treated individuals, and on the community as a whole, not later than 6 months after the completion of each such project.
`(2) Study: Not later than 1 year after the date of enactment of this section, the Secretary shall conduct a study for the purpose of determining--
`(A) the number of infants born having suffered substance abuse;
`(B) the existence of specific trends regarding the incidence of such substance abused infants for the 5-year period immediatley preceding, and the 5-year period immediately following, the date of enactment of this section;
`(C) the health consequences of prepartum intervention efforts on obstetric and neonatal outcomes;
`(D) the number of substance abused infants abandoned in hospitals in the United States; and
`(E) the annual costs incurred by the Federal government and by State and local governments in providing medical services, housing and care for such infants.
`(3) Report: Not later than 6 months after the date of the completion of the evaluations under paragraph (1), and not later than 6 months after the date of completion of the study under paragraph (2), the Secretary shall prepare and submit, to the appropriate Committees of Congress, reports containing the information contained in the evaluations and study.
`(d) Supplemental Funds: Amounts received under this section by the State shall be used only to supplement, not to supplant, the amount of Federal, State, and local funds expended for the support of projects of the type described in this section.
`(e) Authorizations of Appropriations: There are authorized to be appropriated to carry out this section $50,000,000 for fiscal year 1990. Amounts appropriated under this subsection shall remain available for use in subsequent fiscal years.'.
From the Washington Post, July 30, 1989
[FROM THE WASHINGTON POST, JULY 30, 1989]
Children of Cocaine
(BY CHARLES KRAUTHAMMER)
The inner-city crack epidemic is now giving birth to the newest horror: a bio-underclass, a generation of physically damaged cocaine babies whose biological inferiority is stamped at birth. `This is not stuff that Head Start can fix,' explains Douglas Besharov, the former director of the National Center on Child Abuse, who first coined the term bio-underclass. `This is permanent brain damage. Whether it is 5 percent or 15 percent of the black community, it is there. And for those children it is irrevocable.'
Five percent is the estimate of New York City infants exposed to cocaine in the womb. Fifteen percent is the estimate for the District of Columbia. Although this catastrophe is particularly acute in the black community, it is obviously not restricted to it. Besharov's estimate (the best that I have seen) is that 1 to 2 percent of all babies born in the United States have been exposed to cocaine. It is clear, moreover, that throughout the country the problem is exploding. In 1985 two cocaine babies were born in Cincinnati. This year, University Hospital expects 120.
It is crack that accounts for the astonishing jump in infant mortality rates in places such as the District of Columbia. Cocaine babies, for example, have 15 times the risk of Sudden Infant Death Syndrome. But the dead babies may be the lucky ones.
For some of the crack babies who survive, the first life experience is the agony of cocaine withdrawal. They suffer terribly. They are so sensitive to touch that they cannot be held or fed properly. Some move their limbs endlessly, looking for relief. Even the hardened veterans of the neonatology intensive care units find the piercing cries of withdrawing babies intolerable. `Never in my medical career have I seen so much suffering as cocaine has brought,' says the director of the nursery at D.C. General Hospital (quoted in The Wall Street Journal).
A mother's use of cocaine during pregnancy can cause appalling damage to the infant: strokes, seizures, paralysis, prematurity, deformed hearts and lungs, abnormal genital and intestinal organs. And, most ominously, permanent brain damage. A cohort of babies is now being born whose future is closed to them from day one. Theirs will be a life of certain suffering, of probable deviance, of permanent inferiority. At best, a menial life of severe deprivation. And all this is biologically determined from birth.
It is a horror worthy of Aldous Huxley. In `Brave New World,' the state creates a race of (sub)human `Epsilon' drones by reducing their oxygen as they incubate in government-run fetal `hatcheries.' `Nothing like oxygen-shortage for keeping an embryo below par,' explains Mr. Foster, a hatchery scientist, rubbing his hands.
Cocaine works the same way. It does its damage in the womb by cutting off the blood supply to the baby, leaving every organ, the brain in particular, screaming for oxygen. Yet life has outdone Huxley. Even he could only imagine a mad (and satirical) utopian state doing this to its children. It is harder to imagine mothers doing it to their own. Yet, says Dependency Court Commissioner Stanley Genser of Los Angeles County, `We are getting women in here now who have given birth to their second or third or fourth drug baby.
It is not just in the inner city that a bio-underclass is emerging. Alcohol is creating a similar bio-underclass among Indians. Studies show that on some reservations 5 to 25 percent of children suffer from fetal alcohol syndrome--physical abnormalities and mental retardation caused by heavy maternal drinking during pregnancy. The children are hyperactive, difficult to raise, harder to educate. They have quite simply been robbed of the capacity for thinking well. The consequence, pediatrician Geoffrey Robinson told The New York Times, is `a devastation that is worse than smallpox.'
No doubt, maternal drug and alcohol abuse is producing damaged babies throughout society. A 1985 survey by the National Institute on Drug Abuse found that at least one in 10 of all American women of child-bearing age had used cocaine in the previous year. The problem does exist among the middle class, where it is better hidden for being widespread. But middle-class values and middle-class money can at least help protect these children after birth.
Morever, when the problem is widespread it produces individual targedies, but only when it becomes concentrated and localized, as in the inner city or on the reservation, does it become a threat to communal life as a whole. In the poorest, most desperate pockets of America society, it has now become a menace to the future. For the bio-underclass, the biologically determined underclass of the underclass, tomorrow's misery will exceed yesterday's. That has already been decreed.
What to do? Indeed can we really do anything about women so controlled by cocaine that they risk horrible damage to their babies by doing crack during pregnancy? A new burden for inner-city hospitals is cocaine babies abandoned by mothers who simply leave the hospital after delivery and never come back. Cocaine may be the most effective destroyer of the maternal instinct ever found. And repairing the maternal instinct is a problem beyond politics.
The other voice of despair says that until the government solves the drug problem as a whole, it cannot hope to solve the problem of cocaine babies. This too may be true, but it is irresponsible, as well as cruel, not to try to save some babies pending solution of the larger drug problem. But how?
(1) Punishment. Several jurisdictions have tried criminal prosecution. Three weeks ago a judge in Florida found a 23-year-old mother guilty of criminally conveying cocaine to her unborn child. This case followed a string of legal failures, the most prominent of which occurred in Winnebago County, Ill., where a grand jury refused to indict a Melaine Green of involuntary manslaughter for killing her fetus with cocaine.
The jury was probably right. Current legislation, never intended for the contingency of cocaine babies, is too vague to sustain such a conviction. Moreover, criminal sanctions probably won't work. If concern for the child is no deterrent to a pregnant crack addict, concern for the justice system is hardly a better one.
One rationale for not prosecuting cocaine mothers is entirely fatuous, however. Leave it to the local ACLU legal director (who represented Green) to offer it. He praised the Green jury for refusing `to criminalize and punish a pregnant women who was herself a victim and who had already lost her child.'
The sang-froid of middle-class whites so addicted to rights and so enamored of victimhood is shocking. It is one thing to let the homeless mentally ill die with their rights on in the streets of America. You might, if you stretch it, say that these adults are destroying themselves: the state has no business interfering in people's privacy. But how can you maintain the fiction that a women who does crack during pregnancy is protected from state intrusion because she, too, is engaged in a self-regarding act? The hospital wards filled with these broken, tormented infants utterly refute the proposition.
(2) Treatment. The liberal answer, of course, is not to punish these women but to treat them. But that assumes that they will accept treatment. In the District of Columbia, prenatal care is not only free, the city has made a large effort to bring pregnant women in for help. Yet, reports The Post, at Greater Southwest Community Hospital 25 to 30 drug-abusing women show up every month for delivery. `A person who is addicted to drugs has another priority,' explains Pamela Robinson, a social worker at the hospital. `The unborn child is not a priority.' Care for these mothers, says Robinson, `is available, and they are aware of it, but they are not seeking care.'
The other problem with treatment is that we do not have the slightest idea how to go about it for crack addiction. Besharov, a scholar at the American Enterprise Institute who has studied the problem for 20 years, concludes that `there is almost no evidence of our ability to deliver a successful drug treatment program to people.' The heroin successes are due either to the development of blocking drugs (such as methadone) or to programs with a charismatic leader who uniquely engages the participants. Otherwise? `There ain't no proof that this stuff makes a difference,' concludes Besharov.
(3) Custody. Jeaneen Grey Eagle, who runs an alcohol treatment program at the Pine Ridge reservation in South Dakota, tells The New York Times that her tribe once locked up a pregnant woman who could not stop drinking. She supports such action.
So do I. The choice is simple. We can either do nothing, or we can pass laws saying that any pregnant woman who takes cocaine during pregnancy will be sent until delivery to some not uncomfortable, secure location (boot camp, county jail, house arrest--the details are a purely technical matter) where she will be allowed everything except the liberty to leave or to take drugs.
We should do this not as punishment, nor as vengeance, nor even for deterrence, but purely for the protection of the soon-to-be-born child. Taking custody of the child unfortunately but necessarily means taking custody of the mother. This is no solution to mother's drug problem. But it is a solution to baby's. There might be a better solution fairer to both, but no one can find it. And until we do, the underclass grows.
From the Los Angeles Times, May 14, 1989
[FROM THE LOS ANGELES TIMES, MAY 14, 1989]
Drawing the Line on Prenatal Rights
(BY ALAN DERSHOWITZ)
There is a dangerous implication in some pro-choice arguments that may frighten the Supreme Court into restricting or even overruling Roe vs. Wade, the 1973 decision that established women's right to abortion. The implication is that the right to abortion also precludes the state from requiring women to take any degree of prenatal care after they make the decision not to abort.
Syndicated columnist Ellen Goodman recently suggested this in criticizing the Bush Administration's efforts to overrule Roe vs. Wade. She wrote: `There are suggestions among those who talk of fetal rights that the government could constrain a pregnant woman's diet and physical activities, stamp out her cigarettes, empty her wine glass . . . or else,' Goodman also invoked the specter of mandatory testing and treatment for the fetus.
Now, I am not a `fetal-rights' advocate. I favor Roe vs. Wade. I believe that a pregnant woman should have the right to choose between giving birth or having an abortion. But I am a human-rights advocate, and I believe that no woman who has chosen to give birth should have the right to neglect or injure that child by abusing their collective body during pregnancy.
Once a woman has made the decision to bear a child, the rights of that child should be taken into consideration. What happens to the child in the womb may have significant impact on his or her entire life. One example is the woman who drank half a bottle of whiskey a day while pregnant and gave birth to a mentally retarded child. She is now suing the whiskey company for not warning her about the relationship between heavy drinking during pregnancy and birth defects. Anyone who has spoken to an inner-city obstetrician is aware of the near epidemic of birth defects among babies born to heavy drug users.
This is not to argue for intrusive governmental rules on occasional drinking or smoking. But at the extremes, there is a compelling argument in favor of some protection for the future child against maternal excesses that threaten to cause enduring damage. Once a woman decides to give birth, a balance must be struck between her rights during the nine months of pregnancy and the equally real rights of her child during its life span. I believe that the balance should generally be struck in favor of the woman's privacy and against the power of state compulsion. But a balance, nonetheless, must be struck.
My colleague, Prof. Laurence Tribe, agrees with Goodman and argues as follows: `There's no principled way to say that the government can use women's bodies against their will to nurture the unborn without accepting the other serious and totalitarian implications about privacy.' With respect, I disagree.
There is a principled distinction between totalitarian intrusions into the way a woman treats her body, and civil-libertarian concerns for the way a woman treats the body of the child she has decided to bear. That principled distinction goes back to the philosophy of John Stuart Mill and is reflected in the creed that `your right to swing your fist ends at the tip of my nose.' In the context of a pregnant woman's rights and responsibilities in relation to the child she has decided to bear, the expression might be: `Your right to abuse your own body stops at the border of your womb.'
Of course, any recognition that future child may have rights--even limited ones--in relation to its mother, may be grist for the `right to life' mill. Anti-abortionists will argue that if a future child has the right not be damaged during pregnancy, then it follows that the fetus has the even more important right not to be killed--i.e., aborted.
But the second conclusion does not necessarily follow from the first. Under Roe vs. Wade, a fertilized egg, or even a biologically more advanced fetus, has no right to be born unless the mother chooses to give birth. But it does not follow, as a matter of constitutionality, principle or common sense, that a woman has the right to inflict a lifetime of suffering on her future child, simply in order to satisfy a momentary whim for a quick fix.
A principled person can fully support a woman's right to choose between abortion or birth, without supporting the very different view that the state should have no power to protect the health of a future child. The state should begin by making prenatal care available to every pregnant woman. But we need not be frightened, by the specter of totalitarianism, from considering reasonable regulations designed to reduce the serious long-term problems caused by pregnant women who abuse their future children.
Proponents of a woman's right to abortion should not weaken their powerful argument in favor of a woman's right to control her body.
And, in the eyes of many who support choice, they do weaken it when they link it to the far weaker argument denying the state the power to protect babies who are to be born.
(Alan M. Dershowitz is a professor of law at Harvard University.)