Wisconsin has the dubious distinction of being one of three states (along with Minnesota and South Dakota) that allow civil commitment of pregnant women for mental health and substance abuse treatment (you can find your state’s policies here). In an ironic twist, it is very hard for pregnant women to voluntarily enroll in appropriate substance abuse treatment–many programs will not accept pregnant women, and specialized programs are few and far between (and often have no room). Only four states prohibit discrimination against pregnant women seeking treatment in publicly funded programs–none of them are states that allow civil commitment. So when the state of Wisconsin forced 28 year old Alicia Beltran into substance abuse treatment under the “cocaine mom act”–even though she was not abusing any substances at the time–she was held for 78 days in a treatment center, received no medical care, and was forced to take a drug that helps people withdraw from their drug of abuse–even though she had already finished withdrawing from Percocet before entering treatment (verified by drug tests). She was also not allowed to have a lawyer to represent her at her commitment hearing (she requested one), but the court appointed representation for her fetus.
People in Wisconsin also took notice of the case of Marlise Munoz in Texas. Munoz’s body was kept artificially alive after she was declared brain dead (which is the clinical definition of dead) so that she could incubate her fetus against her previously stated wishes and the wishes of her family. A judge finally ruled that a law stating that life support could not be withdrawn from a pregnant woman, regardless of her wishes, did not apply in Munoz’s case because Munoz was already dead.
Understandably, some in Wisconsin are concerned that pregnant people are not being accorded the same human rights as other people. As a result, three new bills are being introduced, the “Pregnancy Protection Package,” sponsored by Rep. Chris Taylor, D-Madison and Rep. Terese Berceau, D-Madison (as reported here):
- Assembly Bill 860 ensures pregnant women who have allegedly used drugs have the right to an attorney before being detained.
- Assembly Bill 861 requires a pregnant woman’s advanced medical directives to be respected, just like any other patient’s.
- Assembly Joint Resolution 111, affirms that “pregnant women be afforded all the rights of non-pregnant people.”
Here is a part of ACOG’s Committee Opinion on substance abuse and pregnancy:
Seeking obstetric–gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing. These approaches treat addiction as a moral failing. Addiction is a chronic, relapsing biological and behavioral disorder with genetic components. The disease of substance addiction is subject to medical and behavioral management in the same fashion as hypertension and diabetes. Substance abuse reporting during pregnancy may dissuade women from seeking prenatal care and may unjustly single out the most vulnerable, particularly women with low incomes and women of color. Although the type of drug may differ, individuals from all races and socioeconomic strata have similar rates of substance abuse and addiction.
Many people would love to have mental health or substance abuse treatment, but cannot get it. In other cases, people who are a genuine danger to themselves or others cannot be committed to treatment involuntarily. Pete Early’s book Crazy details his agonizing quest to get treatment for his young adult son, who was delusional and ultimately broke into someone’s home and was criminally prosecuted. Early points out that not allowing family members or qualified medical professionals to mandate treatment for the severely mentally ill means that we populate our jails with people who are in desperate need of treatment. They do not get better in jail, where one psychiatrist is generally responsible for hundreds of severely mentally ill prisoners.
The concern for receipt of mental health treatment for pregnant women generally has nothing to do with the health or well being of the woman. In the case of Bei Bei Shuai, pregnant and depressed, Shuai’s suicide attempt led not to mental health treatment, but to 435 days in jail and a trial for murder (the baby was born alive by cesarean but died two days later). It is also notable that fetal protection laws directed against pregnant women are unlikely to help the fetus either — as Beltran noted, she spend her entire 78 days in “treatment” with no prenatal care. Inadequate prenatal care is a known risk factor for poor pregnancy outcomes for the baby as well as the woman.
Rather than criminalizing pregnant women for legal behavior or criminalizing health conditions only for pregnant women, perhaps we should make sure that all people have access to needed health care, including care for mental health and substance abuse. And perhaps we should make sure pregnant women have at least as much right to consent and refusal for treatment as people who are actively hallucinating. And perhaps we should recognize that if we are going to allow for anyone to have advance directives, it is not acceptable to say that pregnant women have no say over their own bodies if the state wants to use those bodies as incubators.
What does it say about our attitude toward the humanity of women that we have to generate laws that say that ordinary human rights extend to them whether they are pregnant or not?