A defense of drug addicts another one, in the pages of our family magazine? But defend them we must; this time from prohibitionists who would carry on the fight in utero. Recent cases in Wyoming and Michigan have seen pregnant women being brought up on charges of delivering drugs and alcohol to a minor—not through the chain-link fence of a city school yard, but through the umbilical cord. Of the thirty-odd cases that have cropped up nationwide, most have been dismissed or seen the charges dropped, though Jennifer Clarise Johnson in Florida was sentenced to 15 years probation in an action that is presently being appealed.
These cases pose grave problems no matter how you look at them. In a country in which abortion is still perfectly legal, perhaps it is the only recently expressible frustration of some state attorneys general that has caused them to try to protect unborn children from one kind of abuse when they can’t do much about another. This does give rise to some legal confusion, however, especially in states like Michigan, where a fetus is expressly held not to be a person. There the prosecutor got around that difficulty by charging Kimberly Hardy with delivering drugs to her just-born baby (now a person) a second or two before the umbilical cord was clamped.
In Michigan, as in South Carolina (where a viable fetus has the rights a born child does), the state is going after the mothers under child abuse and child neglect statutes. These new cases are a direct outcome of the heightened awareness of child abuse, and of the President’s drug “war.” Is it only my cynicism that makes me wonder at prosecutors that go after these pregnant “pushers”? South Carolina has made ten arrests since last August, when the Medical University of South Carolina complained to the attorney general that they were seeing five or six pregnant crack users a week. Surely no dealer can be easier to catch than a pregnant one coming in for a checkup.
Of course these women are bringing sick babies into the world. And understandably, the state perceives it has an interest, in that it will tax us to foot the bill for the care of probably many of these babies. But the question is, always, where does the state’s interest stop? With a poster in a New York bar warning pregnant women of the dangers of drinking? With a “warning” prosecution—for the South Carolina attorney general maintains that “we’re not really interested in convicting women and sending them to jail. We’re just interested in getting them to stop using drugs before they do something horrible to their babies”? Or with closer regulation for all women—fines for taking a glass of wine at dinner, or for missing a now-mandatory doctor visit, or for foolishly slipping on ice no pregnant woman should have any business walking on?
A judge in Wyoming dismissed charges against a woman for being intoxicated while pregnant because no damage to the baby could be shown. But it seems likely that in the future such a case will go the way of other child abuse cases. Given a condition of intoxication, harm will be presumed, and mothers will have to prove themselves innocent before their children are returned to them. No one is arguing that a crack user will be much of a mother. But Uncle Sam has not proved himself to be much of an uncle. Is there really no possibility of some nonfederal intermediating group—extended family, church, neighbors, local crisis center—that can step in and take care of children and parents? All the national government has proved is that it can warehouse them.
Assuming that there are no such intermediaries (and we have not reached such a degraded state of society yet), still, it would be preferable to sacrifice some children to their mothers’ addictions than to force help on such people, in a misguided act of mandatory charity that will endanger the parental rights of all the rest of us. In general our problem as a society—arising from the extremism of our Puritan legacy and our childishness—is that we never know when to stop. The ACLU claims that the same South Carolina attorney general who wants to use the force of law only to encourage these women to seek treatment, arrested some of them the day they gave birth, or the day after. If so, then he has not shown much moderation.
It is the nature of our governors to never be content with going after just the worst cases—they will go after the gray ones, too, in an effort to increase their own power. As has been shown in child abuse cases, they will use the wedge of this new law to split open families whose problems are not so monumental, families for whom the state’s cure is worse than the initial disease. Perhaps the law is going after that woman on the wrong side of town today, but tomorrow it will be coming after us.