JOSEPHINE PELLEGRINI, of Brockton, Mass., took cocaine two days before her son's birth. She was arrested, not just for her own illegal drug use but for distributing cocaine to a minor. Women who use drugs while they are pregnant may have a surprise waiting for them - jail. Fetal endangerment cases are on the rise; 18 are pending in South Carolina, Colorado, Florida, California, Massachusetts, Ohio, Arizona, and Indiana. Ms. Pellegrini was indicted two weeks ago on a drug charge and awaits trial.
Some legal and health experts view this trend with alarm, saying pregnant women on drugs need help, not jail. They also contend that these kinds of cases play fast and loose with the Constitution.
``The law is clear that it is unconstitutional to prosecute women who use drugs when pregnant when the sole issue is harm to the fetus under existing state law,'' says Walter Connolly Jr., a Detroit lawyer representing the National Association for Peri-Natal Addiction Research and Education, in Chicago.
Yet prosecutors have charged women, using statutes never intended to be used in these situations, legal experts say. Laws prohibiting child abuse, distribution of drugs to minors, contributing to the delinquency of a minor, and involuntary manslaughter have been applied to a woman and her fetus.
``Massachusetts has a statute saying it's a crime to transmit drugs,'' says Alan Dershowitz, a law professor at Harvard University. ``Every legislator voted for that. No one dreamed it would be applied to women taking drugs while pregnant.''
The first such case was in 1985, when Pamela Rae Stewart of San Diego was charged with criminal neglect of her fetus for failing to follow medical advice. Her son was said to have been born brain-damaged and died within weeks. Ms. Stewart spent a week in jail and charges were later dropped.
Since that time, convictions have been handed down and sentencing has become tougher, including a 15-year probation and several jail terms. Some legal experts believe the public debate over whether a fetus has rights - and whether those rights supercede that of the mother - is one element pushing prosecutors to bring fetal endangerment cases.
Such cases appear to be related, though perhaps not directly linked, to the abortion question. A number of fetal abuse cases have been filed since July's US Supreme Court verdict giving states broad authority to limit abortions. Professor Dershowitz sees these cases as ``surrogates'' for the anti-abortion movement. ``There's a misuse of existing laws to try to make points in the abortion debate.''
Mr. Connolly disagrees, saying both anti-abortion proponents and those who favor individual choice agree that applying standing child laws to a fetus is bad policy. ``If you criminalize this type of activity, it will increase the number of abortions substantially'' because some women, if they have been taking drugs, will choose to have an abortion rather than run the risk of being charged, Connolly says.
Does an unborn child have any rights? Dershowitz argues that ``once a woman chooses to have a baby, she gives that child certain rights. One of those is a right to a healthy life. At that point the fetus does get rights.''
University of Albany professor Bonnie Steinbock, who is writing a book on the moral and legal status of fetuses and newborns, says once a woman decides to have a baby she has a moral obligation to be reasonable in her behavior. ``But that's still on the moral level. To translate that to the legal level brings a new dimension.''
Sandra Anderson Garcia, an associate professor of psychology at the University of South Florida, Tampa, who has consulted on such cases, says they too often reflect a society or prosecutor angry over problems not easily solved.
``We're losing the war on drugs, and there's a perception that we need an easy win,'' she says. ``Also, with the growing media focus on the pathology of the underclass, the average taxpayer is saying `this is a generational problem and we're paying for it.' People are saying `enough.'''
But jailing women will not come close to solving the problem. ``There are 375,000 babies born each year with drugs in their systems,'' Connolly says. ``There are not 375,000 jail cells for all those women. And if you know anything about jail, it's no place to try to get away from drugs.''
Prosecuting pregnant women using drugs need good prenatal care. But fear of arrest may drive them away from such care, and services tend to be hard to get to, are open at the wrong hours, or is too expensive for women needing it most. Many women also have no financial coverage for prenatal care.
One move toward a solution might include an advertising blitz. He also suggests that authorities educate on street corners and TV.
``In some states, women who use drugs can have their children taken away,'' Connolly says. ``Over 150 a month are taken away in California. Tell pregnant women that.''
Yet drug treatment slots for any addict are in short supply, and for pregnant women, the picture is bleak. In a New York City study by Dr. Wendy Chavkin of 78 drug treatment centers, 54 percent said they did not take pregnant women; 87 percent said they did not take crack-addicted pregnant women on Medicaid.
Connolly suggests centers might accept pregnant women if state legislators pass laws giving centers immunity from malpractice suits.