WHEN ALICIA Beltran visited her prenatal physician in July, she had been drug-free for more than six months through her own determination and resourcefulness. In a rational world, Beltran would have gotten the congratulations she deserved. She and the fetus would have been given the care they needed.
Unfortunately, Beltran was in Wisconsin--where instead, she was handcuffed, shackled, involuntarily committed to a rehab center and forced to take medication against her will.
The state's belligerent behavior against Beltran was considered constitutional, due to fetal rights legislation commonly known as the "cocaine mom" act.
In 1998, Wisconsin became the first state to pass this kind of legislation which gives the court "exclusive original jurisdiction over an unborn child...whose expectant mother habitually lacks self-control [regarding substance abuse], exhibited to a severe degree," creating substantial risk to the unborn child. Since that time, other states have passed similar measures.
The use of the law appears to be quite broad. Beltran was drug-free when her physician decided she should be detained for child endangerment.
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ON JULY 2, at 14 weeks pregnant, Beltran visited St. Joseph's Hospital in West Bend, just north of Milwaukee. In her medical history, Beltran honestly admitted she had recently been addicted to Percocet, a painkiller, but had weaned herself off of it.
In November 2012, she had even sought treatment for withdrawal symptoms at which time she was prescribed Suboxone, a drug frequently used to treat opiate addiction. Unable to afford the prescription, she found ways to cut costs by borrowing pills from a friend and reducing her dosage.
Feeling like she'd reached a point where she could go without the treatment, and three days prior to her prenatal check-up, Beltran stopped taking the pills. A urinalysis taken at St. Joseph's showed no signs of Suboxone, Percocet or any other drug in her system. Despite Beltran's confidence that she'd beaten her addiction, the attending physician insisted she get a prescription and continue to take Suboxone. Beltran refused.
Two weeks later, the physician came to Beltran's house, unannounced, and threatened her with a court order mandating her to continue the treatments. The threat was followed up two days later when, according to the New York Times, "county sheriffs surrounded her home on July 18 and took her in handcuffs to a holding cell."
Beltran was held in the Washington County Jail until she was brought before a judge, in shackles and without an attorney to defend her. As her requests for defense were ignored, she was informed that the court had appointed an attorney to the fetus!
Though another doctor had examined her and testified that she had no need of inpatient treatment, the judge told her to choose between jail and the Casa Clare rehabilitation clinic two hours away from her home. Beltran chose the latter and remained there against her will until October when she was finally sent home. Her detention caused her to lose her waitressing job and primary source of income.
"This is supposed to be the happiest part of my pregnancy, and I'm just terrified," Beltran said to the New York Times.
Beltran obtained legal representation and, with the help of the New York-based National Advocates for Pregnant Women, has filed a federal lawsuit aimed at getting the "cocaine mom" law ruled unconstitutional.
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BELTRAN'S CASE is the first federal lawsuit brought against a "cocaine mom" act.
The lawsuit seeks to get the Wisconsin law ruled unconstitutional, and at the same time apply that ruling to Beltran who, as is common in similar cases, was denied due process, not given a lawyer and subjected to unreasonable search. Her right to privacy and her right not to incriminate herself were also violated when the information about her prior drug use was shared with law enforcement.
The Wisconsin Journal Sentinel reported on the status of the lawsuit that was filed September 30:
The only response to the federal suit so far has been an October 23 request for more time to respond, filed by the state attorney general's office on behalf of Washington County District Attorney Mark Bensen, one of several officials named as defendants in the case. It indicates Benson will file a motion to dismiss next month [November] and notes that Beltran is no longer in custody.The "cocaine mom" act states that Beltran is in violation of the law because she is addicted to a "controlled substance" to the extent that there is a "substantial risk" that the physical health of the unborn child.
Aside from the fact that Beltran is clearly not taking drugs anymore, there is only inconclusive evidence that drug use is even harmful to a fetus. In general, drug use by a pregnant woman is simply used an excuse by the state to control her and her pregnancy, and violate her rights to life, dignity and freedom.
According to a study of the effects of so-called "fetal personhood laws" by the National Advocates for Pregnant Women, "in a majority of cases [where fetal personhood laws were applied], no adverse pregnancy outcome was reported and where an adverse outcome was alleged, state authorities were typically not required to provide expert testimony or scientific evidence to prove that the pregnant woman's actions, inactions or circumstances would or in fact did cause the alleged harm."
More specifically in regards to Beltran's case, there is no well-defined evidence that proves that Percocet (the painkiller Beltran was taking in 2012) is harmful to a fetus at all. The FDA gives it a "Category C" rating that marks it potentially harmful, mostly because there have been no conclusive studies saying otherwise.
However, in the few studies that have been conducted, there have been very few birth defects reported in babies that had been exposed to Percocet as a fetus. In fact, according to the book Drugs in Pregnancy and Lactation, data from a study on 281 newborns exposed to oxycodone [Percocet] during the first trimester did not find an increased risk of major malformations."
There is however, a slight risk of withdrawal symptoms after the baby is born. Still, doctors prescribe this medication to pregnant women on the occasion that a milder painkiller will not work.
Now compare Percocet to Suboxone, the drug that Beltran was forced to continue taking as part of her "rehabilitation" process even after she had successfully weaned herself off. Suboxone is also listed as "Category C" by the FDA due to lack of testing. It may also cause withdrawal symptoms in newborns if they were exposed to the drug consistently while in the womb.
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THE CONCLUSION to be drawn here is two-fold. First, though both Percocet and Suboxone pose a slight risk to the fetus as they may cause withdrawal symptoms after birth, it would be hard to characterize this risk as "substantial" as the law requires in order to detain the mother. After all, there are no conclusive studies done on either drug.
Second, if you conclude that Percocet is harmful to a fetus, then you must also conclude that Suboxone will be equally harmful to the fetus. The fact that the court sentence was to put Beltran back on Suboxone, supposedly to prevent her from wanting to take Percocet again, proves without a doubt that the concern in this case isn't really on the well being of the fetus despite the rhetoric.
So the question becomes, what is the purpose of the "cocaine mom" law if not the best interest of woman or the fetus?
"Fetal personhood laws create a 'Jane Crow' system of law, establishing a second-class status for all pregnant women and disproportionately punishing African American and low-income women," according to a report by the National Advocates for Pregnant Women.
The "cocaine mom" law is another in the onslaught of attacks that have been launched against women in this country. It victimizes and criminalizes the woman, infringes on her legal and human rights, and at least in theory treats an unborn fetus with more respect than the woman carrying it.
Lynn Paltrow, executive director of National Advocates for Pregnant Women, explained the impact of "cocaine mom" laws like the one in Wisconsin. In a press release, Paltrow wrote:
The Wisconsin law takes away from a pregnant woman virtually every right associated with constitutional personhood--from the most basic right to physical liberty to the right to refuse bad medical advice...This kind of dangerous, authoritarian state-action, is exactly what happens when laws give police officers and other state actors the authority to treat fertilized eggs, embryos, and fetuses as if they are already completely separate from the pregnant woman.As the court battle continues, Beltran, with the support of her boyfriend--the father of the child--is holding strong. Beltran is due to deliver the baby in January, and must win the lawsuit in order to insure that she will be allowed to bring her child home after giving birth. She also sees her case as a precedent for others in the future.
"It's tough," she told the Milwaukee Journal Sentinel, "but I don't want this to ever happen to anyone else."