IT'S often said of expectant mothers that they're ``eating for two.'' More and more pregnant women are doing other things ``for two,'' as well - like drinking and taking drugs. More than 300,000 babies are born each year in the United States with traces of illegal drugs in their systems. Many others show the effects of their mothers' alcohol abuse during pregnancy. The consequences of prenatal substance abuse on infants can range from mild learning disabilities to severe retardation and physical disorders.
The behavior of these women is irresponsible, indeed, immoral. Should it also be illegal?
There aren't any laws that explicitly criminalize fetal endangerment, but district attorneys are starting to apply other statutes to prosecute women who ``abuse'' their fetuses. In August a Florida woman was convicted of distributing illegal drugs via the umbilical cord to two babies. A Massachusetts woman has been indicted on a similar charge, and another woman in the state will soon face trial on vehicular homicide for the death of her fetus in a drunk-driving accident. At least 18 fetal-abuse cases are pending in the US.
Naturally one sympathizes with the motives behind these prosecutions. Yet they raise troubling issues. For one thing, DAs may be violating fundamental rights of due process when they prosecute mothers under laws never intended to punish fetal endangerment.
Moreover, these prosecutions may increase abortions by women with drug or alcohol habits. This result would be directly contrary to the hopes of many, including anti-abortion groups that favor fetal-abuse prosecutions as a way to establish rights for fetuses.
Finally, the criminalization of fetal ``abuse'' could be an open-ended process that, once it goes beyond such obvious targets as crack mothers, encroaches on maternal rights and practices that fall within the private realm. If the state can prosecute expectant drug addicts for endangering their babies (reprehensible as such conduct is), could it also indict women who, for instance, elect methods of prenatal care that differ from those prescribed by most doctors?
It's well that society is becoming increasingly sensitive to protecting the unborn. But this concern must be balanced against the legitimate claims of individual freedom and due process. As for mothers whose substance abuse threatens their babies, most would benefit far more from better education and treatment than from being hauled into the dock.