In September of this year, a Wisconsin woman brought a federal lawsuit challenging the constitutionality of a Wisconsin statute providing for the incarceration of pregnant women who are abusing alcohol or drugs and refusing drug treatment. This fetal protection measure, known informally as the “cocaine mom” act, raises some of the same questions and issues that we frequently encounter in abortion litigation. In this column, I will consider important ways in which fetal-protection laws both resemble and differ from abortion laws, along with the implications that such differences might have for the relative legitimacy of fetal-protection legislation.
How Is the Use of Drugs During Pregnancy Like an Abortion?
There are obvious parallels between governmental attempts to regulate abortion, on the one hand, and to regulate pregnant women’s conduct vis-à-vis their embryos and fetuses, on the other. In both cases, the government intrudes upon a pregnant woman’s freedom and bodily integrity with the objective of protecting the developing embryo or fetus from harm to be inflicted by—or at the direction of—the pregnant woman. In the case of abortion, the relevant harm is death, while in the case of fetal protection, the harm is injury short of death, such as the possibility of fetal-alcohol syndrome. In both cases, as well, the government takes the side of the embryo or fetus in a clash between the interests of the woman and the putative interests of her child, who is currently living inside her body, in freedom from harm.
It is fair to say that supporters of laws banning abortions come from more or less the same community as supporters of laws protecting embryos and fetuses against maternal infliction of injury. In both cases, the unborn represent a vulnerable constituency, the moral status of which is contested in our society. Arguing on the side of the argument that holds that the unborn ought to enjoy the same rights as the already-born, advocates champion fetal (and embryonic) rights against pregnant women’s competing rights claims.
It may also be the case that some of the people who support fetal-protection laws are interested in that issue as a device for raising awareness about the plight of the unborn more generally. According to an article in the New York Times, for example, “similar policies have won strong support from anti-abortion groups around the country, in part because they advance the goal of granting independent personhood and rights to the unborn child.”
Important Differences Between the Two Sorts of Legislation
Despite their similarities, however, there are some significant differences between laws that prohibit (or regulate) abortion, on the one hand, and laws that protect fetuses or embryos from maternally-inflicted injuries (such as by drinking or drug use), on the other. These differences have implications for the desirability and propriety of the respective types of regulation.
One major difference between the two sorts of legislation concerns the entity whose putative interests the regulations aim to protect. In the case of abortion, the answer is clear: the embryo or fetus to be killed during an abortion is the entity to be protected. Prohibitions against abortion generally assume that an embryo or fetus has the right to continue living. People who take different positions on abortion, depending on when in pregnancy the termination is to take place, generally take the view that a fetus at more advanced stages (for example, one who has reached the third trimester) has a greater moral entitlement to life than does an embryo in its early stages of development.
I have argued that prior to a fetus’s attaining the capacity to experience subjective states (such as pleasure, pain, or comfort), the fetus is not a being with interests entitled to protection. Whatever one’s position, though, the relevant moment from which an assessment of interests takes place, in the abortion context, is the moment at which the abortion would occur.
For fetal-protection policies, by contrast, the relevant timeframe can be long after the moment of maternal infliction of injury upon the embryo or fetus. The reason we concern ourselves with injuries to an embryo or fetus is not primarily that we wish to protect the embryo or fetus as such. Indeed, an embryo or fetus is unlikely to experience, while living inside its mother, any manifestation of the loss of cognitive capacity associated, for instance, with fetal-alcohol syndrome. The difficulties will come after the fetus develops into a full-term baby and is born into the world, where those cognitive capacities become important to his or her ability to function successfully in the world.
Stated differently, if we care about a pregnant woman’s decision to drink, it is at least partly because we worry about the impact that such a decision may have on the future infant, toddler, child, and adult who will come to experience impairments as a result of his mother’s decision to drink. We are not, in contrast, concerned mainly about present suffering or difficulties that might be faced by the embryo or fetus in utero.
Because of this distinction, we may become increasingly concerned about the ethics of abortion as a pregnancy progresses toward term, even as we simultaneously grow less concerned about the use of potentially-damaging substances by the pregnant woman later in pregnancy. This is because the earlier in pregnancy a woman ingests alcohol or other potentially harmful substances, the greater the impact that the alcohol or other substances might have on the development of her fetus. This is why, for example, doctors may caution women early in pregnancy to avoid alcohol altogether but then loosen the proscription as the pregnancy progresses, even as opposition to abortion tends to increase.
This difference is not paradoxical. It simply reflects the nature of the moral concern and the differential impact, respectively, of abortion and of embryonic or fetal injury, respectively. If our concern for the existing embryo or fetus is instrumental—that is, if it is intended to protect the health and capacities of the future child—then our focus will rightly be on the moments in gestation when exposure to toxins would be most harmful to the future prospects of the child, and that time happens often to coincide with the earlier stages of pregnancy. Rules against abortion are far more straightforward, because they aim to guard the life of the embryo or fetus at the time of the intended termination, and that life—from the perspective of many people—acquires greater entitlement to protection as it undergoes greater development.
The Scope of Abortion Versus Maternal-Fetal Conflict Legislation
If we are concerned with protecting an embryo or fetus from losing its life, then we might choose to prohibit or regulate abortion, either throughout pregnancy (if we believe the entitlement to life begins at conception) or in pregnancy’s later stages (if we believe instead that the fetus’s entitlement to life begins only with the onset of particular capacities, such as sentience). If our concern is for the life of the embryo or fetus, then the only people subject to regulation will be pregnant women (and their medical providers), and the regulations in question will aim to restrict or ban abortions themselves.
If, on the other hand, our primary concern is the future child, rather than the existing embryo or fetus, then the above limits on regulation would no longer make very much sense. We know, for instance, that some substances are most harmful to the prospects of a future child at the point in pregnancy when the woman may not even know that she is pregnant yet. This was the employer’s rationale for barring fertile women from parts of the Johnson Controls workplace that exposed workers to lead, in the U.S. Supreme Court case of Automobile Workers v. Johnson Controls. Any fertile woman might, at any given time, turn out to be in the early stages of pregnancy, when exposure to lead would be very damaging to the child she would later have. This is why the workplace regulation that was challenged (and ultimately struck down) in Johnson Controls provided for a limited exception for those women who could prove that they had been sterilized.
Even beyond the possibility of pregnancy itself, exposure of eggs or sperms to toxins can have a detrimental effect on the people who will ultimately result from those eggs or sperms. For this reason, a true concern for the wellbeing of future children would not limit itself to the period of gestation, but would instead aim to regulate the habits of everyone who might someday have a child who could suffer from exposure to substances including cigarettes and alcohol. Women might accordingly find themselves regulated far more extensively than they would be under a pure anti-abortion regime. The implications of regulating with an eye to protecting future children are therefore broad, and potentially quite frightening.
The Potentially Equalizing Force of Child Protection
For those worried about a totalitarian approach to women in this area of law, one feature of fetal protection may, potentially, provide reason for optimism. It turns out that men’s behavior throughout their lives can have as harmful an effect on their future offspring as can women’s behavior on their future children. Studies have suggested, for example, that even as advanced maternal age is famous for yielding an increased incidence of Down Syndrome, advanced paternal age is associated with a higher incidence of a number of mental disorders in children, including autism spectrum disorder, schizophrenia, and bipolar disorder.
If aging alone can have this harmful an effect on sperm cells, causing damage to the resulting children, it would seem likely that the use of alcohol, cigarettes, and other toxic substances could have a similarly deleterious effect. And there is some evidence to suggest that a man’s behavior in one generation can have an impact on children born several generations later.
Why is this good news? It is good news only in a very limited sense. Obviously, it is an unfortunate fact that our behavior throughout our lives, long before we begin planning a family, can hurt our future offspring. In particular, it would be better for future humans if their wellbeing did not turn on the wisdom of choices we made before reaching the age of twenty.
Nonetheless, there is arguably a bright side to this research, at least from a social point of view. In the light of what we know about the impact of exposure of men and women to toxins, it is quite irrational, arbitrary, and sexist to limit child-protective legislation to women generally, or to pregnant women in particular. As we have learned, and regardless of how the pro-life movement (or the pro-choice movement, for that matter) would like to define the beginning of “life,” the incontrovertible fact is that our behavior can have a tremendous impact on our children and perhaps even on their children, even when that behavior occurs long before our reproductive cells come into contact with anyone else’s reproductive cells. Thus, if we are truly serious about ensuring that people refrain from conducting themselves in ways that will harm their children, we must prohibit the ingestion of toxic substances by all potentially fertile people, male and female, adult and child, alike.
Do I expect a brave new world in which the government compels all of us to eat healthfully throughout our fertile lives and to avoid using substances that could negatively affect our reproductive cells? No, I do not. I do not expect that men as a group—and particularly men with money, power, and influence—would tolerate this sort of intrusion into their privacy and freedom, however noble the goal. As the hackneyed joke goes, “If men could get pregnant, abortion would be a sacrament.” That may not be true, but I suspect nonetheless that men would strongly resist any move toward global regulation of their personal conduct, aimed at protecting the integrity of their sperm cells.
A Better Way
So far, I have refrained from discussing the policy wisdom of fetal-protection laws, because my main objective here has been to identify how these laws resemble, and how they differ from, abortion regulations in their purposes and their resulting scope. I do, however, have serious doubts about the benefits of trying to ensure positive pregnancy outcomes by proceeding on the premise that women are the adversaries of the very children they intend to bring into the world. Such an approach is likely to deter women from seeking prenatal care, out of a fear of incarceration, and it may even alienate such women enough to undermine their motivation to do what is in their own and their babies’ best interests.
To the extent that the potential reach of sincere future-child-protection legislation would be prohibitive, because it would affect men and others who are more able to resist regulation than the minority that constitutes pregnant women, there are also far better ways to protect our future children. Rather than regulating individual conduct, the law can do more to protect the environment from toxins: It can ensure that products are accurately labeled (so that willing individuals are empowered to protect themselves); and it can subsidize the efforts of impoverished people to access what they need, in the way of information and food, to achieve optimal health (rather than so heavily subsidizing the meat and dairy industries, for example, to the collective detriment of animals, human health, and the global environment).
Instead of treating future parents as the enemies of their children, we can accomplish far more by understanding that the overwhelming majority of the population wants to have happy and healthy offspring and may simply lack the information, the resources, and the support to fulfill its wishes. The law can thus step in to facilitate people’s beneficial choices, rather than construing pregnant women (and potential parents more generally) as threats to their families, somehow bent on doing them harm.