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July 10, 2006 - Lexington Herald-Leader (KY)

New Wave Of 'Fetal Protectionism' Decried

Today's Topic: Legal Rights

By Rick Montgomery, McClatchy Newspapers

Return to Drug War News: Don't Miss Archive

In Arkansas, lawmakers are considering making it a crime for a pregnant woman to take a drag off a cigarette.

In Utah, a woman serves 18 months' probation for child endangerment after refusing to undergo a Caesarean section to save her twins, one of whom died. In Wisconsin and South Dakota, authorities can haul pregnant women into custody for abusing alcohol or drugs.

And July 1 in Alabama, Brody's Law took effect. It enables prosecutors to level two charges against anyone who attacks a pregnant woman and harms her fetus.

Common-sense measures to protect America's most helpless citizens-to-be ... or something else?

Abortion-rights groups see this revived wave of "fetal protectionism" as a set-up to make a fetus a person, entitled to constitutional rights, contrary to how the U.S. Supreme Court ruled in Roe vs. Wade.

But anti-abortion forces, plus some groups with no stake in the fetal-rights debate, say it's a no-brainer that society do whatever it can to keep developing fetuses safe and healthy.

"It's an economic issue and a public-health issue," said state Rep. Bob Mathis, an Arkansas Democrat who touts a record backing abortion rights and recently floated the idea of a smoking ban during pregnancy.

A case in Wichita, Kan., last month underscored the intractable politics at work.

The killing of 14-year-old Chelsea Brooks, who was nine months pregnant, became a political controversy after her family learned that the state could not file homicide charges in the death of Alexa, the daughter Chelsea had been carrying. Three people, including her boyfriend, have been charged in Chelsea's killing, which authorities say was a murder for hire.

Legislative inaction this year on a fetal-homicide bill kept Kansas from joining more than 30 states, including Kentucky, where murder laws include the unborn as legal victims.

The anti-abortion group Kansans For Life leaped onto the controversy, accusing Senate moderates and Gov. Kathleen Sebelius of "kowtowing" to abortion-rights forces by stalling a bill that might have given Chelsea's family the justice it sought.

"Two lives were taken from us," Chelsea's mother said in a statement. "We will do whatever it takes to make sure that the law, in the future, recognizes all life."

Critics of fetal-rights legislation see a slippery slope in the making. In some states, prosecutors have turned such laws against mothers whose behavior, typically methamphetamine or crack use, might have contributed to a stillbirth or to costly birth defects.

Taken further, could authorities charge pregnant women who miscarry after rejecting a doctor's advice to take prenatal vitamins?

How about banning them from playing sports?

And why not punish alcoholic men whose addiction, studies show, could affect sperm and produce birth defects?

"What we're seeing is a political trend in which the fetuses are coming first, and the rights of women ... are coming last," said Lynn M. Paltrow, executive director of the National Advocates for Pregnant Women.

"I think 30 years of anti-abortion rhetoric, 'women killing their babies,' has led to a moral vilification that doesn't just stick to those who seek to terminate a pregnancy. It's spreading to all pregnant women."

In South Carolina, Regina McKnight is serving a 12-year prison sentence for killing her unborn child by smoking crack, as jurors saw it. They needed only 15 minutes to deliberate, and the U.S. Supreme Court let the verdict stand.

The Center for Reproductive Rights says six states passed fetal-homicide bills last year, but others have had them on the books for decades.

In California, fetal-homicide laws date to before the legalization of abortion. They were leveled against Scott Peterson, convicted in the well-publicized murder of his wife, Laci, and the son she was carrying.

Still, many courts have been uneasy about how far fetal rights can go.

Saying prosecutors overreached, a Texas appeals court last year unanimously threw out the convictions of two women charged under the state's Prenatal Protection Act for "delivering" cocaine and methamphetamine to their babies through the umbilical cord.

"It makes sense that if a woman's right to privacy encompasses decisions regarding procreation, such as contraception and abortion, it should also include decisions regarding health during pregnancy," wrote Chicago lawyer Erin N. Linder in the September issue of University of Illinois Law Review.

Even Mathis, the Arkansas legislator, harbors doubts about the state's ability to enforce an anti-smoking law.

"The more I think about it ... you might end up with a fat lip" if police approach a smoker who is overweight but not pregnant, he said.

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