Fetal Protection in Wisconsin's Revised Child Abuse Law: Right Goal,Wrong Remedy

See Wis. Stat. §§ 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).

See S.D. Codified Laws §§ 34–20A-63 to −70 (Michie 1998).

See Zeller S. , “Fetal Abuse Laws Gain Favor,” National Journal, July 25, 1998, at 1758.

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.

See Steinbock B. , Life Before Birth (New York: Oxford University Press, 1992) and Mathieu D. , 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.

See, for example, Bell G.L. and Lau K. , “Perinatal and Neonatal Issues of Substance Abuse,” Pediatric Clinics of North America, 42 (1995): 261–81; and Hulse G.K. , “Assessing the Relationship Between Maternal Opiate Use and Neonatal Mortality,” Addiction, 97 (1998): 1033–42.

See Plessinger M.A. and Woods J.R. Jr. , “Cocaine in Pregnancy: Recent Data on Maternal and Fetal Risks,” Obstetrics and Gynecology Clinics of North America, 25 (1998): 99–112; and Eyler F.D. , “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.

See De Ville K.A. and Kopelman L.M. , “Moral and Social Issues Regarding Pregnant Women Who Use and Abuse Drugs,” Obstetrics and Gynecology Clinics of North America, 25 (1998): 237–54.

Wis. Stat. § 48.01 (1998).

Id. §§ 48.01–.02.

Id. § 48.01(1)(a)(am).

Id. §§ 48.01–.02.

Id. § 905.04(2).

Id. § 905.04(4)(e)(3).

Id. § 48.981(1)–(3).

Id. §48.981(3)(b).

See id. §§48.193, .981(3).

Id. §§ 48.213, .235.

See id. § 48.299(4)(b).

See id. § 48.355.

Id. §§48.133, .19(8).

See id. §§ 48.205, .345, .347.

See id. § 48.207.

See id. §§ 48.345, .347(1)–(6), .355.

Id. §§ 48.345, .347(1)–(6), .355. See also De Ville K.A. and Kopelman L.M. , “Wisconsin's 1998 Fetal Protection Law: An Immodest Proposal,” Medicine and Law, American Philosophical Association Newsletter, 98, no. 1 (1998): 99–102.

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).

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).

Carroll L. , 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).

See Solomon R.I. , Note, “Future Fear: Prenatal Duties Imposed by Private Parties,” American Journal of Law & Medicine, 17 (1991): 411–34.

See Graber M.A. , Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics (Princeton: Princeton University Press, 1996).

See Campbell J.C. , “Correlates of Battering During Pregnancy,” Research in Nursing & Health, 5 (1992): 219–26; Gazmararian J.A. , “Prevalence of Violence Against Pregnant Women,” JAMA, 275 (1996): 1915–20; Curry M.A. Perrin N. , and Wall E. , “Effects of Abuse on Maternal Complications and Birth Weight in Adult and Adolescent Women,” Obstetrics & Gynecology, 92, no. 4, pt. 1 (1998): 530–34; Smikle C.B. , “Physical and Sexual Abuse in a Middle-Class Obstetric Population,” Southern Medical Journal, 89 (1996): 983–88; and McFarlane J. Parker B. , and Soeken B.K. , “Abuse During Pregnancy: Associations with Maternal Health and Infant Birth Weight,” Nursing Research, 45, no. 1 (1996): 37–42.

See Solomon , supra note 30.

See Schroedel J.R. and Pretz P. , “A Gender Analysis of Policy Formation: The Case of Fetal Abuse,” Journal of Health Politics, Policy & Law, 19 (1994): 335–60.

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 868 (1992).

Roe v. Wade, 410 U.S. 113 (1973); and Webster v. Reproductive Health Services, 492 U.S. 490 (1991).

Nowak J.E. and Rotunda R.D. , Constitutional Law (St. Paul: West Publishing, 5th ed., 1995): at 813–23.

See Shoop J.G. , “Is a Fetus a Person? Court Decisions Prompt Debate Over Fetal Rights,” Trial, 33, no. 6 (1997): 13–16; Paltrow L.M. , “Punishing Women for Their Behavior During Pregnancy: An Approach that Undermines the Health of Woman and Children,” in Wetherington C.L. and Roman A.B. , 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.

See Krause H.D. , Family Law (St. Paul: West Publishing, 1986): at 246–47.

See Kopelman L.M. , “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.

See Addington v. Texas, 441 U.S. 418 (1979).

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.

See Appelbaum P.S. and Gutheil T.G. , Clinical Handbook of Psychiatry and the Law (Baltimore: Williams & Williams, 2nd ed., 1991): at 50–51.

See Mattson S.N. and Riley E.P. , “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.

See Coleman F.S. and Kay J. , “Biology of Addiction,” Obstetrics and Gynecology Clinics of North America, 25 (1998): 1–19; and Bell and Lau , supra note 7.

See Mattson and Riley , supra note 44, at 286.

See Mattson S.N. , “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 Abel E.L. and Sokol R.J. , “Incidence of Fetal Alcohol Syndrome and Economic Impact of FAS-Related Anomalies,” Drug and Alcohol Dependency, 19 (1987): 51–70.

Mattson and Riley , supra note 44, at 285.

See Kaskutas L. , “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).

See Bell and Lau , supra note 7.

Koren G. , “Cocaine and the Human Fetus: The Concept of Teratophilia,” Neurotoxicology and Teratology, 15 (1993): 301–04, at 303. See also Neuspiel D.R. , “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 Ellis J.E. , “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>.

Neuspiel D.R. , “Cocaine and the Fetus: Mythology of Severe Risk,” Neurotoxicology and Teratology, 15 (1993): 305–06.

See Neuspiel D.R. , “Maternal Cocaine Use and Infant Behavior,” Neurotoxicology and Teratology, 13 (1991): 229–33; Bell and Lau , supra note 7; Hulse , supra note 7; Plessinger and Woods , supra note 8; and Eyler , supra note 8.

Woods J.R. Jr. , “Translating Basic Research on Drugs and Pregnancy into the Clinical Setting,” in Wetherington and Roman , supra note 38, 187–95, at 190.

LaGasse L.L. Seifer R. , and Lester B.M. , “Interpreting Research on Prenatal Substance Exposure in the Context of Multiple Confounding Factors,” Clinics in Perinatology, 26 (1999): 39–54, at 39.

See Wis. Stat. § 146.0255(2) (1998).

See Kaplan J. and Waltz J.R. , Evidence: Cases and Materials (Mineola: Foundation Press, 6th ed., 1987): 81–96.

See Handwerker L. , “Medical Risk: Implicating Poor Pregnant Women,” Social Science Medicine, 8 (1994): 665–75.

See Wis. Stat. §§ 940.06–.25 et seq.

See Rosenbaum M. and Irwin K. , “Pregnancy, Drugs, and Harm Reduction,” in Wetherington and Roman , supra note 38, at 309–18.

See Howell E.M. Heiser N. , and Harrington M. , “A Review of Recent Findings on Substance Abuse Treatment for Pregnant Women,” Journal of Substance Abuse Treatment, 16 (1999): 195–219.

See Cole A.M. , “Legal Interventions During Pregnancy: Court-Ordered Treatment and Legal Penalties for Potentially Harmful Behavior by Pregnant Women,” JAMA, 264 (1990): 2663–70.

See De Ville and Kopelman , supra note 9; and Solomon , supra note 30.

See Roberts D.E. , “Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right to Privacy,” Harvard Law Review, 104 (1991): 1419–82; Chasnoff I.J. Landress H.J. , and Barret M.E. , “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; Neuspiel D.R. , “Racism and Perinatal Addiction,” Ethnicity & Disease, 6, nos. 1–2 (1996): 47–55; and Jos P.H. Marshall M.F. , and Perlmutter M. , “The Charleston Policy on Cocaine Use During Pregnancy, A Cautionary Tale,” Journal of Law, Medicine & Ethics, 23 (1995): 120–28.

See Humphries D. , “Crack Mothers at 6,” Violence Against Women, 6, no. 1 (1998): 45–61.

Wilton J.M. , “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.

See Nelson L.J. and Marshall M.F. , 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.

See Garcia S.A. and Keilitz I. , “Involuntary Civil Commitment of Drug-Dependent Persons with Special Reference to Pregnant Women,” MPDLR, 15 (1991): 418–37.

Wilton , supra note 66, at 166.

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.

Black H.C. , Black's Law Dictionary (St. Paul: West Publishing, 5th ed., 1979): at 227.