Fetal protection in Wisconsin's revised child abuse law: Right goal, wrong remedy

Journal of Law, Medicine and Ethics

Volumn 27, Issue 4, 1999, Pages 332-342

  De Ville, Kenneth A ^a   Kopelman, Loretta M ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

PSYCHOTROPIC AGENT; STREET DRUG;

ARTICLE; CHILD ABUSE; FEMALE; FETAL ALCOHOL SYNDROME; GENETICS AND REPRODUCTION; GOVERNMENT REGULATION; HUMAN; LEGAL APPROACH; LEGAL ASPECT; MANDATORY PROGRAM; MOTIVATION; NEWBORN; PREGNANCY; PREGNANT WOMAN; UNCERTAINTY; UNITED STATES; WITHDRAWAL SYNDROME;

GENETICS AND REPRODUCTION; LEGAL APPROACH;

CHILD ABUSE; FEMALE; FETAL ALCOHOL SYNDROME; GOALS; GOVERNMENT REGULATION; HUMANS; INFANT, NEWBORN; MANDATORY PROGRAMS; NEONATAL ABSTINENCE SYNDROME; PREGNANCY; PREGNANT WOMEN; PSYCHOTROPIC DRUGS; STREET DRUGS; UNCERTAINTY; WISCONSIN;

EID: 0033288493     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.1999.tb01468.x     Document Type: Article

References (86)

1. See Wis. Star. §§ 48.01-.347 et seq. (1998); and "Child Abuse and Neglect and Child Abuse Services," 1997 Wisconsin Laws 292 (A.B. 463) (enacted June 16, 1998).
2. See S.D. Codified Laws §§ 34-20A-63 to -70 (Michie 1998).
3. See S. Zeller, "Fetal Abuse Laws Gain Favor," National Journal, July 25, 1998, at 1758.
4. Id.
5. See Center for Reproductive Law & Policy, "Elevating the Legal Status of the Fetus: Pregnancy Prosecutions and Abortion Rights," Reproductive Freedom News, 8, no. 6 (1999): 1-3.
6. See B. Steinbock, Life Before Birth (New York: Oxford University Press, 1992) and D. Mathieu, Preventing Prenatal Harm: Should the State Intervene? (Washington, D.C.: Georgetown University Press, 1996) are two of the most thoughtful and cogent overviews of this topic.
7. See B. Steinbock, Life Before Birth (New York: Oxford University Press, 1992) and D. Mathieu, Preventing Prenatal Harm: Should the State Intervene? (Washington, D.C.: Georgetown University Press, 1996) are two of the most thoughtful and cogent overviews of this topic.
8. See, for example, G.L. Bell and K. Lau, "Perinatal and Neonatal Issues of Substance Abuse," Pediatric Clinics of North America, 42 (1995): 261-81; and G.K. Hulse et al., "Assessing the Relationship Between Maternal Opiate Use and Neonatal Mortality," Addiction, 97 (1998): 1033-42.
9. See, for example, G.L. Bell and K. Lau, "Perinatal and Neonatal Issues of Substance Abuse," Pediatric Clinics of North America, 42 (1995): 261-81; and G.K. Hulse et al., "Assessing the Relationship Between Maternal Opiate Use and Neonatal Mortality," Addiction, 97 (1998): 1033-42.
10. See M.A. Plessinger and J.R. Woods Jr., "Cocaine in Pregnancy: Recent Data on Maternal and Fetal Risks," Obstetrics and Gynecology Clinics of North America, 25 (1998): 99-112; and F.D. Eyler et al., "Birth Outcome from a Prospective, Matched Study of Prenatal Crack/Cocaine Use: II. Interactive and Dose Effects on Neurobehavioral Assessment," Pediatrics, 101 (1998): 237-41.
11. See M.A. Plessinger and J.R. Woods Jr., "Cocaine in Pregnancy: Recent Data on Maternal and Fetal Risks," Obstetrics and Gynecology Clinics of North America, 25 (1998): 99-112; and F.D. Eyler et al., "Birth Outcome from a Prospective, Matched Study of Prenatal Crack/Cocaine Use: II. Interactive and Dose Effects on Neurobehavioral Assessment," Pediatrics, 101 (1998): 237-41.
12. See K.A. De Ville and L.M. Kopelman, "Moral and Social Issues Regarding Pregnant Women Who Use and Abuse Drugs," Obstetrics and Gynecology Clinics of North America, 25 (1998): 237-54.
13. Wis. Stat. § 48.01 (1998).
14. Id. §§ 48.01-.02.
15. Id. § 48.01(1)(a)(am).
16. Id. §§ 48.01-02.
17. Id. § 905.04(2).
18. Id. § 905.04(4)(e)(3).
19. Id. § 48.981(1)-(3).
20. Id. § 48.981(3)(b).
21. See id. §§ 48.193, .981(3).
22. Id. §§ 48.213, .235.
23. See id. § 48.299(4)(b).
24. See id. § 48.355.
25. Id. §§ 48.133, .19(8).
26. See id. §§ 48.205, .345, .347.
27. See id. § 48.207.
28. See id. §§ 48.345, .347(1)-(6), .355.
29. Id. §§ 48.345, .347(1)-(6), .355. See also K.A. De Ville and L.M. Kopelman, "Wisconsin's 1998 Fetal Protection Law: An Immodest Proposal," Medicine and Law, American Philosophical Association Newsletter, 98, no. 1 (1998): 99-102.
30. Angela M.W. v. Kruzicki, 561 N.W.2d 729 (Wis. 1997), rev'd Angela M.W. v. Kruzicki, 541 N.W.2d 482 (Wisc. Ct. App. 1995).
31. See, for example, In re Dittrick, 263 N.W.2d 37 (Mich. Ct. App. 1977); and In re Steven S., 126 Cal. App. 3d 23 (1981).
32. L. Carroll, Alice in Wonderland and Through the Looking Glass (New York: Peter Pauper Press, 1941): at 123, available at 〈http://etext.lib.virginia.edu/etcbin/toccer-new?id=CarGlas&tag= public&images=images/modeng&:data=/texts/english/modeng/ parsed&part=0〉 (visited Dec. 16, 1999).
33. See R.I. Solomon, Note, "Future Fear: Prenatal Duties Imposed by Private Parties," American Journal of Law & Medicine, 17 (1991): 411-34.
34. See M. A. Graber, Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics (Princeton: Princeton University Press, 1996).
35. See J.C. Campbell et al., "Correlates of Battering During Pregnancy," Research in Nursing & Health, 5 (1992): 219-26; J.A. Gazmararian et al., "Prevalence of Violence Against Pregnant Women," JAMA, 275 (1996): 1915-20; M.A. Curry, N. Perrin, and E. Wall, "Effects of Abuse on Maternal Complications and Birth Weight in Adult and Adolescent Women," Obstetrics & Gynecology, 92, no. 4, pt. 1 (1998): 530-34; C.B. Smikle et al., "Physical and Sexual Abuse in a Middle-Class Obstetric Population," Southern Medical Journal, 89 (1996): 983-88; and J. McFarlane, B. Parker, and B.K. Soeken, "Abuse During Pregnancy: Associations with Maternal Health and Infant Birth Weight," Nursing Research, 45, no. 1 (1996): 37-42.
36. See J.C. Campbell et al., "Correlates of Battering During Pregnancy," Research in Nursing & Health, 5 (1992): 219-26; J.A. Gazmararian et al., "Prevalence of Violence Against Pregnant Women," JAMA, 275 (1996): 1915-20; M.A. Curry, N. Perrin, and E. Wall, "Effects of Abuse on Maternal Complications and Birth Weight in Adult and Adolescent Women," Obstetrics & Gynecology, 92, no. 4, pt. 1 (1998): 530-34; C.B. Smikle et al., "Physical and Sexual Abuse in a Middle-Class Obstetric Population," Southern Medical Journal, 89 (1996): 983-88; and J. McFarlane, B. Parker, and B.K. Soeken, "Abuse During Pregnancy: Associations with Maternal Health and Infant Birth Weight," Nursing Research, 45, no. 1 (1996): 37-42.
37. See J.C. Campbell et al., "Correlates of Battering During Pregnancy," Research in Nursing & Health, 5 (1992): 219-26; J.A. Gazmararian et al., "Prevalence of Violence Against Pregnant Women," JAMA, 275 (1996): 1915-20; M.A. Curry, N. Perrin, and E. Wall, "Effects of Abuse on Maternal Complications and Birth Weight in Adult and Adolescent Women," Obstetrics & Gynecology, 92, no. 4, pt. 1 (1998): 530-34; C.B. Smikle et al., "Physical and Sexual Abuse in a Middle-Class Obstetric Population," Southern Medical Journal, 89 (1996): 983-88; and J. McFarlane, B. Parker, and B.K. Soeken, "Abuse During Pregnancy: Associations with Maternal Health and Infant Birth Weight," Nursing Research, 45, no. 1 (1996): 37-42.
38. See J.C. Campbell et al., "Correlates of Battering During Pregnancy," Research in Nursing & Health, 5 (1992): 219-26; J.A. Gazmararian et al., "Prevalence of Violence Against Pregnant Women," JAMA, 275 (1996): 1915-20; M.A. Curry, N. Perrin, and E. Wall, "Effects of Abuse on Maternal Complications and Birth Weight in Adult and Adolescent Women," Obstetrics & Gynecology, 92, no. 4, pt. 1 (1998): 530-34; C.B. Smikle et al., "Physical and Sexual Abuse in a Middle-Class Obstetric Population," Southern Medical Journal, 89 (1996): 983-88; and J. McFarlane, B. Parker, and B.K. Soeken, "Abuse During Pregnancy: Associations with Maternal Health and Infant Birth Weight," Nursing Research, 45, no. 1 (1996): 37-42.
39. See J.C. Campbell et al., "Correlates of Battering During Pregnancy," Research in Nursing & Health, 5 (1992): 219-26; J.A. Gazmararian et al., "Prevalence of Violence Against Pregnant Women," JAMA, 275 (1996): 1915-20; M.A. Curry, N. Perrin, and E. Wall, "Effects of Abuse on Maternal Complications and Birth Weight in Adult and Adolescent Women," Obstetrics & Gynecology, 92, no. 4, pt. 1 (1998): 530-34; C.B. Smikle et al., "Physical and Sexual Abuse in a Middle-Class Obstetric Population," Southern Medical Journal, 89 (1996): 983-88; and J. McFarlane, B. Parker, and B.K. Soeken, "Abuse During Pregnancy: Associations with Maternal Health and Infant Birth Weight," Nursing Research, 45, no. 1 (1996): 37-42.
40. See Solomon, supra note 30.
41. See J.R. Schroedel and P. Pretz, "A Gender Analysis of Policy Formation: The Case of Fetal Abuse," Journal of Health Politics, Policy & Law, 19 (1994): 335-60.
42. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 868 (1992).
43. Roe v. Wade, 410 U.S. 113 (1973); and Webster v. Reproductive Health Services, 492 U.S. 490 (1991).
44. J.E. Nowak and R.D. Rotunda, Constitutional Law (St. Paul: West Publishing, 5th ed., 1995): at 813-23.
45. See J.G. Shoop, "Is a Fetus a Person? Court Decisions Prompt Debate Over Fetal Rights," Trial, 33, no. 6 (1997): 13-16; L.M. Paltrow, "Punishing Women for Their Behavior During Pregnancy: An Approach that Undermines the Health of Woman and Children," in C.L. Wetherington and A.B. Roman, eds., Drug Addiction Research and the Health of Women (Rockville: National Institutes of Health, 1998): 467-501; and Center for Reproductive Law & Policy, supra note 5, at 1-3.
46. See J.G. Shoop, "Is a Fetus a Person? Court Decisions Prompt Debate Over Fetal Rights," Trial, 33, no. 6 (1997): 13-16; L.M. Paltrow, "Punishing Women for Their Behavior During Pregnancy: An Approach that Undermines the Health of Woman and Children," in C.L. Wetherington and A.B. Roman, eds., Drug Addiction Research and the Health of Women (Rockville: National Institutes of Health, 1998): 467-501; and Center for Reproductive Law & Policy, supra note 5, at 1-3.
47. See H.D. Krause, Family Law (St. Paul: West Publishing, 1986): at 246-47.
48. See L.M. Kopelman, "The Best-Interests Standard as Threshold, Ideal, and Standard of Reasonableness," Journal of Medicine and Philosophy, 22 (1997): 271-89. It is important to note, however, that although the initial thrust of child protective services is aimed at the securing the well-being of the endangered child, the goal of the state child welfare organizations is usually to reunite the child with his/her family. We are indebted to an anonymous reviewer for this insight.
49. See Addington v. Texas, 441 U.S. 418 (1979).
50. In moral theory and in law, physical liberty is typically treated with more deference than other liberty rights because it is the liberty most closely associated solely with one's own interests. In contrast, parents' right to direct the upbringing of their child affects not only the parents, but also the child.
51. See P.S. Appelbaum and T.G. Gutheil, Clinical Handbook of Psychiatry and the Law (Baltimore: Williams & Williams, 2nd ed., 1991): at 50-51.
52. See S.N. Mattson and E.P. Riley, "A Review of the Neurobehavioral Deficits in Children with Fetal Alcohol Syndrome or Prenatal Exposure to Alcohol," Alcoholism: Clinical and Experimental Research, 22 (1998): 279-92.
53. See F.S. Coleman and J. Kay, "Biology of Addiction," Obstetrics and Gynecology Clinics of North America, 25 (1998): 1-19; and Bell and Lau, supra note 7.
54. See Mattson and Riley, supra note 44, at 286.
55. See S.N. Mattson et al., "Heavy Prenatal Alcohol Exposure With or Without Physical Features of Fetal Alcohol Syndrome Leads to IQ Deficits," Journal of Pediatrics, 131 (1997): 718-21; and E.L. Abel and R.J. Sokol, "Incidence of Fetal Alcohol Syndrome and Economic Impact of FAS-Related Anomalies," Drug and Alcohol Dependency, 19 (1987): 51-70.
56. See S.N. Mattson et al., "Heavy Prenatal Alcohol Exposure With or Without Physical Features of Fetal Alcohol Syndrome Leads to IQ Deficits," Journal of Pediatrics, 131 (1997): 718-21; and E.L. Abel and R.J. Sokol, "Incidence of Fetal Alcohol Syndrome and Economic Impact of FAS-Related Anomalies," Drug and Alcohol Dependency, 19 (1987): 51-70.
57. Mattson and Riley, supra note 44, at 285.
58. See L. Kaskutas, "Interpretations of Risk: The Use of Scientific Information in the Development of the Alcohol Warning Label Policy," International Journal of Addictions, 30 (1995): 1519-48 (providing a useful summary of the strong but still somewhat equivocal scientific evidence regarding gestational consumption of alcohol).
59. See Bell and Lau, supra note 7.
60. G. Koren, "Cocaine and the Human Fetus: The Concept of Teratophilia," Neurotoxicology and Teratology, 15 (1993): 301-04, at 303. See also D.R. Neuspiel, "Behavior in Cocaine-Exposed Infants and Children: Association Versus Causality," Drug and Alcohol Dependence, 36 (1994): 101-07. For excellent surveys of the scientific literature regarding the flawed and inconclusive nature of much of the gestational cocaine use literature, see J.E. Ellis et al., "In Utero Exposure to Cocaine: A Review," Southern Medical Journal, 86 (1993): 725-31; and Lindesmith Center, Research Brief: Cocaine & Pregnancy (visited July 22, 1999) 〈http:// www.lindesmith.org/library/subject.html〉.
61. G. Koren, "Cocaine and the Human Fetus: The Concept of Teratophilia," Neurotoxicology and Teratology, 15 (1993): 301-04, at 303. See also D.R. Neuspiel, "Behavior in Cocaine-Exposed Infants and Children: Association Versus Causality," Drug and Alcohol Dependence, 36 (1994): 101-07. For excellent surveys of the scientific literature regarding the flawed and inconclusive nature of much of the gestational cocaine use literature, see J.E. Ellis et al., "In Utero Exposure to Cocaine: A Review," Southern Medical Journal, 86 (1993): 725-31; and Lindesmith Center, Research Brief: Cocaine & Pregnancy (visited July 22, 1999) 〈http:// www.lindesmith.org/library/subject.html〉.
62. G. Koren, "Cocaine and the Human Fetus: The Concept of Teratophilia," Neurotoxicology and Teratology, 15 (1993): 301-04, at 303. See also D.R. Neuspiel, "Behavior in Cocaine-Exposed Infants and Children: Association Versus Causality," Drug and Alcohol Dependence, 36 (1994): 101-07. For excellent surveys of the scientific literature regarding the flawed and inconclusive nature of much of the gestational cocaine use literature, see J.E. Ellis et al., "In Utero Exposure to Cocaine: A Review," Southern Medical Journal, 86 (1993): 725-31; and Lindesmith Center, Research Brief: Cocaine & Pregnancy (visited July 22, 1999) 〈http:// www.lindesmith.org/library/subject.html〉.
63. G. Koren, "Cocaine and the Human Fetus: The Concept of Teratophilia," Neurotoxicology and Teratology, 15 (1993): 301-04, at 303. See also D.R. Neuspiel, "Behavior in Cocaine-Exposed Infants and Children: Association Versus Causality," Drug and Alcohol Dependence, 36 (1994): 101-07. For excellent surveys of the scientific literature regarding the flawed and inconclusive nature of much of the gestational cocaine use literature, see J.E. Ellis et al., "In Utero Exposure to Cocaine: A Review," Southern Medical Journal, 86 (1993): 725-31; and Lindesmith Center, Research Brief: Cocaine & Pregnancy (visited July 22, 1999) 〈http:// www.lindesmith.org/library/subject.html〉.
64. D.R. Neuspiel, "Cocaine and the Fetus: Mythology of Severe Risk," Neurotoxicology and Teratology, 15 (1993): 305-06.
65. See D.R. Neuspiel et al., "Maternal Cocaine Use and Infant Behavior," Neurotoxicology and Teratology, 13 (1991): 229-33; Bell and Lau, supra note 7; Hulse et al., supra note 7; Plessinger and Woods, supra note 8; and Eyler et al., supra note 8.
66. J.R. Woods Jr., "Translating Basic Research on Drugs and Pregnancy into the Clinical Setting," in Wetherington and Roman, supra note 38, 187-95, at 190.
67. L.L. LaGasse, R. Seifer, and B.M. Lester, "Interpreting Research on Prenatal Substance Exposure in the Context of Multiple Confounding Factors," Clinics in Perinatology, 26 (1999): 39-54, at 39.
68. See Wis. Stat. § 146.0255(2) (1998).
69. See J. Kaplan and J.R. Waltz, Evidence: Cases and Materials (Mineola: Foundation Press, 6th ed., 1987): 81-96.
70. See L. Handwerker, "Medical Risk: Implicating Poor Pregnant Women," Social Science Medicine, 8 (1994): 665-75.
71. See Wis. Stat. §§ 940.06-.25 et seq.
72. See M. Rosenbaum and K. Irwin, "Pregnancy, Drugs, and Harm Reduction," in Wetherington and Roman, supra note 38, at 309-18.
73. See E.M. Howell, N. Heiser, and M. Harrington, "A Review of Recent Findings on Substance Abuse Treatment for Pregnant Women," Journal of Substance Abuse Treatment, 16 (1999): 195-219.
74. See A.M. Cole, "Legal Interventions During Pregnancy: Court-Ordered Treatment and Legal Penalties for Potentially Harmful Behavior by Pregnant Women," JAMA, 264 (1990): 2663-70.
75. See De Ville and Kopelman, supra note 9; and Solomon, supra note 30.
76. See D.E. Roberts, "Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right to Privacy," Harvard Law Review, 104 (1991): 1419-82; I.J. Chasnoff, H.J. Landress, and M.E. Barret, "The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," N. Engl. J. Med., 322 (1990): 1202-06; D.R. Neuspiel, "Racism and Perinatal Addiction," Ethnicity 6-Disease, 6, nos. 1-2 (1996): 47-55; and P.H. Jos, M.F. Marshall, and M. Perlmutter, "The Charleston Policy on Cocaine Use During Pregnancy, A Cautionary Tale," Journal of Law, Medicine & Ethics, 23 (1995): 120-28.
77. See D.E. Roberts, "Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right to Privacy," Harvard Law Review, 104 (1991): 1419-82; I.J. Chasnoff, H.J. Landress, and M.E. Barret, "The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," N. Engl. J. Med., 322 (1990): 1202-06; D.R. Neuspiel, "Racism and Perinatal Addiction," Ethnicity 6-Disease, 6, nos. 1-2 (1996): 47-55; and P.H. Jos, M.F. Marshall, and M. Perlmutter, "The Charleston Policy on Cocaine Use During Pregnancy, A Cautionary Tale," Journal of Law, Medicine & Ethics, 23 (1995): 120-28.
78. See D.E. Roberts, "Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right to Privacy," Harvard Law Review, 104 (1991): 1419-82; I.J. Chasnoff, H.J. Landress, and M.E. Barret, "The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," N. Engl. J. Med., 322 (1990): 1202-06; D.R. Neuspiel, "Racism and Perinatal Addiction," Ethnicity 6-Disease, 6, nos. 1-2 (1996): 47-55; and P.H. Jos, M.F. Marshall, and M. Perlmutter, "The Charleston Policy on Cocaine Use During Pregnancy, A Cautionary Tale," Journal of Law, Medicine & Ethics, 23 (1995): 120-28.
79. See D.E. Roberts, "Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right to Privacy," Harvard Law Review, 104 (1991): 1419-82; I.J. Chasnoff, H.J. Landress, and M.E. Barret, "The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," N. Engl. J. Med., 322 (1990): 1202-06; D.R. Neuspiel, "Racism and Perinatal Addiction," Ethnicity 6-Disease, 6, nos. 1-2 (1996): 47-55; and P.H. Jos, M.F. Marshall, and M. Perlmutter, "The Charleston Policy on Cocaine Use During Pregnancy, A Cautionary Tale," Journal of Law, Medicine & Ethics, 23 (1995): 120-28.
80. See D. Humphries, "Crack Mothers at 6," Violence Against Women, 6, no. 1 (1998): 45-61.
81. J.M. Wilton, "Compelled Hospitalization and Treatment During Pregnancy: Mental Health Statutes as Models for Legislation to Protect Children from Prenatal Drug and Alcohol Exposure," Family Law Quarterly, 25 (1991): 149-70, at 150.
82. See L.J. Nelson and M.F. Marshall, Ethical and Legal Analyses of Three Coercive Policies Aimed at Substance Abuse By Pregnant Women (Princeton: Robert Wood Johnson Foundation, Substance Abuse Policy Research Program, Grant 030790, 1997): at 95-111.
83. See S.A. Garcia and I. Keilitz, "Involuntary Civil Commitment of Drug-Dependent Persons with Special Reference to Pregnant Women," MPDLR, 15 (1991): 418-37.
84. Wilton, supra note 66, at 166.
85. The intentionality requirement, of course, would allow pregnant women to avoid involuntary commitment for potentially injurious substance abuse throughout the first two trimesters of their pregnancies by merely informing the court that they did not intend to carry the fetus to term. At the same time, however, if the pregnancy has progressed past the point of a legal abortion, then the issue of whether the woman "intends" to carry the fetus to term becomes irrelevant. She would be legally precluded from deciding otherwise.
86. H.C. Black, Black's Law Dictionary (St. Paul: West Publishing, 5th ed., 1979): at 227.