While the legal definition of a "child" is a "child born alive", many states, influenced to do so by federal grants, introduced and are vigorously applying laws reporting and prosecuting pregnant women for suspicions of using drugs or alcohol during pregnancy - in a sort of "fetal neglect" prosecutions.
A test case was filed last year in a federal court in Wisconsin with a constitutional challenge to an arrest, detention and order of involuntary drug treatment of a pregnant mother who disclosed at a prenatal visit that she did, but no longer does, abuse prescription drugs.
The constitutional challenge survived a motion to dismiss, even though the part of the lawsuit charging individuals for arresting the mother was dismissed on "qualified immunity" grounds, because, since the lawsuit is the first constitutional challenge of its kind, the actors sued allegedly did not have notice that their actions towards the mother are unconstitutional.
The challenge to this statute
is to both facial and as-applied constitutionality.
Note that the fetus of "any gestational age" is under protection of social services in the state of Wisconsin (and many other states) now, indicating that a woman can be arrested, kept in custody and ordered into an involuntary treatment simply because she had unprotected sex yesterday, the woman's right to control over her body and the right to abort that fetus guaranteed to women in the U.S. by the U.S. Supreme Court decision Roe v Wade be damned.
Such interest in protection of fetuses is greatly enhanced by federal grants provided to states if they introduce such legislation - as Wisconsin did.
It is common knowledge how important it is for a woman to go to prenatal visits, as early as possible in the pregnancy.
Pregnancy to some women can be a life-threatening event. Pregnancy may be counter-indicated to women with some medical conditions such as cancer, heart problems, kidney problems, and can severely worsen the mother's medical condition, if not cause the mother's death - along with the unborn child.
A woman can terminate a pregnancy at will in the first trimester, on medical indications during the 2nd trimester and if her life is in danger until late in pregnancy.
Yet, if the woman wants to keep the child, she needs to be able to go to a prenatal visit without a fear of being arrested for her report to the doctor of what drugs she was taking in the past or is taking at the time of the pregnancy.
The recent "double-birth" of a child in Texas - who was first taken out of her mother's womb at 23 weeks to undergo a surgery to remove a tumor that was detected during a routine ultrasound at 16 weeks, put back into the womb, grew to term and was born for the second time - is a miracle of modern medical technology, but that miracle was made possible because the mother went to prenatal visits that helped detect that the unborn child is in need of that surgery.
At the time I was an attorney representing
- mothers who were hunted by social services before birth,
- pregnant mothers whose already-born children were taken away, and social services created conditions for visitation of those children that could cause speedy unattended labor in a mother (remote location, no car, the pregnant mother was supposed to bring heavy bags of stuff - snacks, toys, other items - to satisfy social services that she is a good mother for the children she is visiting), and
- pregnant mothers to whom social services made a declaration that they will snatch the baby as soon as it is born
I saw that social services do not really give a damn as to welfare of that newborn child - otherwise they would not cause the pregnant mother to carry heavy things to remote locations, risking to die, together with the baby, in a premature labor in the middle of a remote field.
Otherwise they will not deprive the child of the mother's breastfeeding.
Yet, federal laws "require", as a condition for the States to receive grants, to speed up snatching of newborns, children of the age most desirable by adoptive parents - and to get that money, safety and wellbeing of mothers and newborn babies is disregarded.
As a blogger, I also received reports from around the country that pregnant mothers targeted by social services forgo not only prenatal visits (as mothers in Wisconsin and other states with similar legislation, I am sure, may be doing now - fearing an arrest if they say, of if the doctor detects anything that makes the doctor suspect that the mother drank alcohol or did drugs at ANY time during her pregnancy).
Since during prenatal visits the mother can also be given some help with food - in New York, it is WIC (Women, Infants, Children) food assistance for pregnant mothers - not going to such visits may cause the mother to unnecessarily starve herself and the baby she is carrying. If the mother is doing that for fear of being put in jail, such a law is not protecting the unborn children, it is jeopardizing them.
But, as people are reporting to this blog, mothers are forgoing not only prenatal doctor's visits, but also hospital births, too, trying to instead choose a home birth, give birth to the child secretly, in the hope of preventing social services from snatching it.
And that is an extremely dangerous situation. Labor is unpredictable. It was the highest cause of mortality of women for centuries before the advent of hospital births - and for a reason.
The mother can have eclampsia, the mother can bleed to death, the labor may not progress fast enough, the baby can be strangled by the cord, the baby can have an incorrect position preventing safe delivery - a number of different things can go wrong, even in a young and very healthy woman.
The following mortality statistics in labor was officially reported.
6 to 9 women per 1000 died in labor, and
100 babies died before reaching 1 year of age
After 1900, infant mortality sharply dropped, with introduction of better sewage, better nutrition and better prenatal care and care during delivery - hospital delivery.
Yet, as recently as in September of 2016, a trend of rising maternal mortality in birth was reported, and moreover, it was reported that maternal mortality in black mothers is 3 to 4 times higher than in mothers of other races.
Under these circumstances, it is criminal to introduce laws that drive pregnant women from doctor's offices and from hospital births to hide themselves and to hide their babies from being seized by social services.
Laws reporting "fetal neglect" and laws allowing prosecution of mothers for taking drugs before birth, are jeopardizing the LIVES of both mothers and babies.
As to infant mortality at birth, we already have an infant mortality rate that is 4 TIMES HIGHER than in the neighboring Canada, 28 infant deaths from birth complications per 100,000 births, as compared to 6.9 infant deaths in Canada per 100,000 births in 2016, up from 23 infant deaths per 100,000 births in 2013.
Compare it with rates of infant mortality reported in the U.S. in 1995, around the same as in Canada now.
What happened since then?
Adoption out of foster care act happened in 1997, giving CPS money incentive to grab children at birth, and intimidating mothers into not going to prenatal visits or hospital births, in order to prevent snatching children by CPS for purposes of adopting them out to the waiting richer adoptive parents.
With such an alarming trend, we as taxpayers need to dedicate funds to encourage pregnant women to obtain prenatal and natal care, and to improve quality of that care - and repeal laws that help intimidate women against going to prenatal visits, and scare pregnant mothers into giving birth in secrecy, out of hospital, with no help, for fear that their babies will be snatched at birth in order to be adopted, in exchange for federal grant money.
THAT is a crime.
