child welfare. Rights, laws, and discretionary decisionmaking.

This article was downloaded by: [University of Sussex Library] On: 18 January 2015, At: 09:28 Publisher: Taylor & Francis Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Journal of Legal Medicine Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/ulgm20

Drug addiction and mother/child welfare Sandra Anderson Garcia Ph.D., J.D

a

a

Professor of Psychology and Professor of Interdisciplinary Arts and Sciences , University of South Florida , Office of the Dean, CPR 107, 4202 E. Fowler Ave., Tampa, FL, 33620–5550 Published online: 23 Jul 2009.

To cite this article: Sandra Anderson Garcia Ph.D., J.D (1992) Drug addiction and mother/child welfare, Journal of Legal Medicine, 13:2, 129-203 To link to this article: http://dx.doi.org/10.1080/01947649209510880

PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http://www.tandfonline.com/ page/terms-and-conditions

The Journal of Legal Medicine, 13:129-203 Copyright © 1992 by Hemisphere Publishing Corporation

DRUG ADDICTION AND MOTHER/CHILD WELFARE Downloaded by [University of Sussex Library] at 09:28 18 January 2015

RIGHTS, LAWS, AND DISCRETIONARY DECISIONMAKING Sandra Anderson Garcia, Ph.D., J.D.*

INTRODUCTION The convergence of several events over the past 10 years has resulted in heightened awareness of the harmful effects of drugs and drug addiction1 on developing fetuses. Many persons learned about the "cocaine baby" problem from the widely cited and disputed survey done in 1988 that concluded that if hospitals drug tested every baby they delivered, about 375,000 (at least 11%) would test positive for drugs.2 "Cocaine babies" became the focus of numerous conferences, television and radio talk shows, newspaper and magazine articles, and scholarly journals follow-

* Professor of Psychology and Professor of Interdisciplinary Arts and Sciences, University of South Florida. Address correspondence to Professor Garcia at Office of the Dean, CPR 107, College of Arts and Sciences, University of South Florida, 4202 E. Fowler Ave., Tampa, FL 33620-5550. 1 The term "addiction" is used in this article to mean a harmful, overwhelming involvement with any drug; the term "drug" is used to include alcohol and the following 17 other drugs listed in one article in order of addictiveness (as measured by experts' responses to the questions: How easy is it to get hooked on these substances and how hard is it to stop using them): nicotine; ice, glass (methamphetamine smoked); crack cocaine; crystal meth (methamphetamine injected); valium (diazepam); quaalude (methaqualone); seconal (secobarbital); alcohol; heroin; crank (amphetamine taken nasally); cocaine; caffeine; PCP (phencyclidine); marijuana; ecstasy (MDMA); Psilocybin mushrooms; LSD; mescaline. See Franklin, Hooked: Why Some of Us Turn into Addicts, and Others Walk Away, HEALTH, Nov./Dec. 1990, at 41. The term "addiction" is used instead of the terms "chemically dependent," "substance abuser" or similar terms because the concept of addiction is an integral part of medical, legal, and sociopsychological literature covering major issues germane to the problem of perinatal drug abuse, such as criminal culpability. The author acknowledges the distinctions between drug abuse and alcoholism that many people make, and will use the terms separately when warranted for clarity. 2 See Drug Babies Push Issue of Fetal Rights, L.A. Times, Apr. 25, 1989, pt. 1, at 30. See also infra note 246 and accompanying text.

129

Downloaded by [University of Sussex Library] at 09:28 18 January 2015

130

GARCIA

ing the first successful criminal prosecution of a woman for having given birth to a baby who had been exposed to cocaine in utero. 3 Topics of debate between groups as varied as students, feminists, legislators, judges, fetal rights advocates, theologians, and ethicists included whether addictions are medical diseases, whether fetal rights exist, whether, and when, maternal procreative rights should be regulated, whether perinatal chemical dependence is primarily a minority group problem, whether babies have the right to be born healthy, and whether pregnant drug abusers should be held criminally culpable for the harm that illegal substances cause to their fetuses. In addition, increasing interest in addiction as the source of a myriad of social problems has stirred controversy about the concept of addiction-as-disease, or addiction-asexcuse for irresponsible behavior. The publication in 1989 of an award-winning book on Fetal Alcohol Syndrome (FAS)4 prompted some people to ask why, in view of the fetal damage caused by alcohol abuse during pregnancy, FAS was not receiving as much attention as were "cocaine babies." The rationale for the distinction between illicit and licit drugs came increasingly into question. News of the firing of two Seattle cocktail waiters for trying to convince a pregnant woman not to order a strawberry daiquiri heated up the debate over which attempts of others to control women's prenatal behavior should be considered illegal harassment and deprivation of women's right to privacy, or valid expressions of social responsibility.5 Within this vortex of questioning and activity has been an effort to identify and understand the most salient issues involved in perinatal drug addiction that can perpetuate, complicate, or lead to the resolution of problems that envelop addicted mothers and babies. One of the most prevalent methods of analysis has been to juxtapose maternal, fetal, and newborn rights, focusing on mother/child conflict, rather than on their mutual impairments and need for help. A second common approach is to examine existing and evolving laws that govern various aspects of perinatal drug abuse to discover ways to control the perinatal behavior of women and to protect the unborn and newborn.6 However, two additional areas—the perceived nature of addiction and its 3

See Florida v. Johnson, No. 89-890-CFA (Cir. Ct., Seminole County Fla. 1989). See also L.A. Times, July 14, 1989, at 22, col. 1; Curriden, Holding Mom Accountable, 76 A.B.A.J. 50 (Mar. 1990) (analyzing the Johnson case).

4

M. DORRIS, THE BROKEN CORD (1989).

5

See The Pregnancy Police, NEWSWEEK, Apr. 29, 1991, at 52. For a comprehensive review of the legal issues involved in perinatal drug addiction, see Connolly & Marshall, Drug Addiction, Pregnancy and Childbirth: Legal Issues for the Medical and Social

6

Services Community, in DRUG EXPOSED INFANTS AND THEIR FAMILIES: COORDINATING RESPONSES OF THE LEGAL, MEDICAL AND CHILD PROTECTION SYSTEM 29 (J. Larsen ed. 1990).


DRUG ADDICTION AND MOTHER/CHILD WELFARE

131

medical and legal effects, and the exercise of discretionary decisionmaking by various individuals at crucial points during the ongoing involvement of women with medical personnel, social service agencies, and courts—have not received coverage commensurate with their impact on the ultimate welfare of drug-exposed mothers and children. Following a discussion of differing views of the causes and nature of addiction, and how these views effect policymaking, this article examines the rights claimed by pregnant and postpartum drug addicts, and rights that are claimed for fetuses and newborns. It next reviews laws that have been invoked or created to respond to problems associated with perinatal addiction, after which it discusses a variety of discretionary decisions that are made throughout a woman's period of contact with authorities. The last section presents one jurisdiction's efforts to respond to perinatal drug addiction. The importance of examining factors that influence the exercise of discretion is stressed throughout the article to support the thesis that if affected women and children are to be best served, then decisionmakers must thoroughly examine their views on addiction, and their understanding of the dynamic interaction of rights, laws, and practice. I. ADDICTION In recent years, Americans have been inundated with testimonials from people who allege that they are addicted to things as diverse as tobacco, food, love, sex, shopping, drugs, gambling, and alcohol. As they seek understanding, empathy, forgiveness, or exculpation from criminal acts, their primary message is that they succumbed to a force greater than their human ability to resist, and that they are powerless to change without treatment. For those who have the power or authority to grant the soughtafter dispensation, decisions must be made about the causes for and nature of addiction. If, for instance, addiction is a medical disease that certain people are predisposed to get, and everything can be an addiction, both prevention and cure of addiction seem to present insurmountable problems. If, on the other hand, addiction expresses peoples' values, skills at living, and personal resolve, and does not obviate their responsibility for socially unacceptable behavior or for choices in continuing the addiction, certain policies are suggested.7

7

See S. PEELE, DISEASING OF AMERICA 3 (1989).

132

GARCIA


A. Theories of Causation Among the many theories proffered to explain the cause and nature of addiction are biochemical/strong substance, 8 behavior /genetic, 9 characterological/free will,10 adaptive/coping,11 psychosocial/moral,12 and medical/disease.13 Clearly, there is considerable overlap of these theories, and just cause for one's inability to comfortably subscribe to any one as definitive and scientifically validated. In fact, there has never been a consensus on what might be the most feasible approach, and the disease model, perhaps the most widely discussed view of addiction, is frequently under attack.14 While author Stanton Peele strongly condemns the "addiction treatment industry" and its "self-serving claims" as a particularly 8

See Schwartz, Views of Addiction and the Duty to Warn, 75 VA. L. REV. 509, 512 (1989) (discussing a "strong substance caused view," which holds that certain substances can addict ordinary persons by inducing excessive behaviors that ultimately lead to addiction). 9 See Tarter & Edwards, Vulnerability to Alcohol and Drug Abuse: A Behavioral-Genetic View, 17 J. DRUG ISSUES 67 (Winter 1987) (discussing the interaction of genetic vulnerability and risk factors such as family socialization disturbances, personality, availability of drugs, and life stage as underlying behavioral manifestations of addictive behaviors). See also Goodwin, Alcoholism and Heredity: A Review and Hypothesis, 36 ARCHIVES GEN. PSYCHIATRY 57 (1979); Goodwin, Alcoholism and Genetics: The Sins of the Fathers, 42 ARCHIVES GEN. PSYCHIATRY 171 (1985); Scientists Say Gene Related to Alcoholism, Tampa Trib., Apr. 18, 1990, at 1, col. 1. 10 See Schwartz, supra note 8, at 531 (positing that some people exercise their free will and choose to engage in excessive potentially addictive behavior based on their character and selected adaptations to life's challenges). 11 See Alexander, The Disease and Adaptive Models of Addiction: A Framework Evaluation, 17 J. DRUG ISSUES 47 (1987) (comparing the disease and adaptive models of addiction, supporting the adaptive model, an organized set of causal relationships that either result in adult integration or harmful adaptations, and suggesting that scientific creativity and courage are needed to replace the disease model). 12 See Peele, A Moral Vision of Addiction: How People's Values Determine Whether They Become and Remain Addicts, 17 J. DRUG ISSUES 187 (1987) (noting that differing value orientations and moral considerations partially explain varying development and expression of addictive behaviors among ethnic and social-class groups). 13 The disease model, embraced by many practitioners and recovering addicts, views addiction as an illness that is progressive and irreversible without medical treatment; loss of control is a primary feature. See S. PEELE, supra note 7, at 3; ALCOHOLICS ANONYMOUS. THE STORY OF HOW MANY THOUSANDS OF MEN AND WOMEN HAVE RECOVERED FROM ALCOHOLISM 18 (3d ed. 1976) (referring to

alcoholism, this textbook for recovering alcoholics states: "An illness of this sort—and we have come to believe it an illness—involves those about us in a way no other human sickness does"). 14 Some criticisms of the disease model of addiction include the following: (1) systematic comparisons indicate that treated patients do not fare better than untreated people with the same problem; (2) people's belief that they have a disease makes it less likely that they will outgrow the problem because treatment programs for chemical dependence stress to young abusers that they will always have a drug-taking or drinking problem; (3) disease treatments are regularly forced upon people, supposedly for their own good; (4) by revising notions of personal responsibility, our disease conceptions undercut moral and legal standards exactly at a time when people suffer most from a general loss of social morality; and, (5) disease notions actually increase the incidence of the behaviors of concern because they legitimize, reinforce, and excuse the behaviors in question. S. PEELE, supra note 7, at 27, 28. See also H. FINGARETTE, HEAVY DRINKING: THE MYTH OF ALCOHOL-

ISM AS A DISEASE (1988); Alexander, supra note 11.



133

negative artifact of the medical disease view of addiction, the issues of individual choice and responsibility are the cornerstones of his and others' criticisms of the medical disease model.15 When a pregnant woman walks into a clinic, hospital, or treatment facility seeking help, it is highly probable that the personnel who first interact with her have views of addiction that answer for themselves the fundamental question of whether drug addicts are passive, sick, out-ofcontrol victims of an incurable disease, or active persons who exercised free will and allowed themselves to become addicts based on a host of values, expectations, and experiences, and whose addiction can be controlled. It seems safe to assume that intake service providers' perceptions of addiction probably will affect how they respond to the woman more than will their knowledge of the woman's rights and the laws that can be applied to effect her perinatal behavior.16 If this assumption about the relative influence of strong views regarding addiction and minimal information regarding the rights and laws involved is accurate for intake personnel, then a similar assumption is likely to be true for others. Social workers assigned to investigate the woman's fitness for custody after delivery of a drug-exposed baby, and treatment facility practitioners are examples. Thus, from the beginning of a woman's help-seeking behavior, a chain of reactions to her, many of which are discretionary decisions based on particular views of the causes and nature of addiction, largely will determine her fate. B. Licit and Illicit Drugs Many pregnant and postpartum addicts are polydrug abusers.17 Alcohol is frequently used by cocaine and polydrug abusers as an attempt to decrease the effects of other drugs.18 Cigarette smoking is common among users of alcohol, heroin, methadone, marijuana, and cocaine, and the harmful effects of each substance, and collectively, on developing fetuses

15 16

17

18

S. PEELE, supra note 7, at 115. Options such as performing urine or blood tests, reporting positive results to social service agencies or state's attorneys, seeking involuntary civil commitment to a treatment facility, or bringing criminal charges are discussed in a subsequent section. See Keith, MacGregor, Friedell, Rosner, Chasnoff, & Sciarra, Substance Abuse in Pregnant Women: Recent Experience at the Perinatal Center for Chemical Dependence of Northwestern Memorial Hospital, 73 OBSTETRICS & GYNECOLOGY 715, 716 (1989) (reporting on a study of 137 women receiving prenatal care who logged a total of 258 responses to specific types of substance abuse. Positive responses to specific drug use were as follows: cocaine 35% (N = 91); marijuana 26% (N = 67); heroin 14% (N = 35); methadone 14% (N = 35); and, other substances 12% (N = 30)). Chisum, Substance Abuse During Pregnancy, 4 The Perinatal Times, Spring 1989, at 1.


134

GARCIA

have been documented repeatedly.19 Armed with this information, policymakers must reconcile a basic tenet of their work—that it is important to protect fetuses and newborns from preventable harm, with the distinction between licit and illicit drugs. The ethical, medical, and psychological conflicts that this distinction creates are widely discussed among practitioners, writers, and policymakers. Professor Steven Wisotsky, who writes about Americans' attitudes toward drugs, states that "[r]eality, after all, is a function of social agreement," and that the sociopolitical environment helps to shape societal attitudes toward drugs.20 Using phrases like "the demonology of illicit drugs,"21 he asserts that the fact that some drugs are labeled dangerous and illegal and others are not is a function of convention and culture, not scientific fact.22 Wisotsky further asserts that even after an impressive number of reputable medical, legal, and educational organizations concluded that marijuana for personal use should not be a crime, "the impotence of rational thinking in a confrontation with the tyranny of social agreement was demonstrated quite clearly by the failure of the movement to 'decriminalize' marijuana."23 One commentator who acknowledges the apparent absence of logic in using the licit and illicit drug distinction as the prime determiner of sociolegal responses to pregnant and postpartum drug addicts, nevertheless sees the need to draw a line somewhere, and she writes: The abuse of alcohol and prescribed medications, so-called "ethical" drugs, may present the same sorts of problems with respect to parental fitness as does the abuse of illicit substances. However, intervention on behalf of infants whose mothers have engaged in lawful activity, such as consuming alcohol, is more complicated than intervention on behalf of those whose mothers have engaged in

19

Women who smoke during pregnancy deliver infants with significantly lower birth weight than nonsmoking women. Babies born of alcoholic mothers often present fetal alcohol syndrome (FAS) with prenatal growth deficiencies in length and weight, short palpebral fissures, microcephaly, and central nervous system anomalies. See Chasnoff, Drug Use in Pregnancy: Parameters of Risk, 35 PEDIATRIC CLINICS N. AM. 1403, 1408 (Dec. 1988); Zuckerman, Marijuana and Cigarette Smoking During Pregnancy: Neonatal Effects, in DRUGS, ALCOHOL, PREGNANCY & PARENTING 73-89 (I.

Chasnoff ed. 1988). Maternal cocaine abuse can result in life-threatening cardiovascular and central nervous system complications, low birth weight, lower gestational age at delivery, irritability, poor feeding patterns, increased tremulousness, and startles. See also MacGregor, Keith, Chasnoff, Rosner, Chisum, Shaw, & Minogue, Cocaine Use During Pregnancy: Adverse Perinatal Outcome, 157 AM. J. OBSTETRICS & GYNECOLOGY 686, 689 (1987); Schneider & Chasnoff, Cocaine Abuse During Pregnancy: Its Effects on Infant Motor Development—A Clinical Perspective, 2 TOP ACUTE CARE TRAUMA REHAB. 59 (1987); Finnegan, Drug Addiction and Pregnancy: The Newborn, in DRUGS, ALCOHOL, PREGNANCY & PARENTING, supra, at 5 9 . 20

S. WISOTSKY, BREAKING THE IMPASSE IN THE WAR ON DRUGS 184 (1986).

21

Id.

22

Id. at 185.

23

Id. at 194.


135


illegal activity, because it involves an even more substantial intrusion into the mother's rights of autonomy and privacy. Focusing on illegal substances creates a bright line that is useful while developing the first systematic scheme for coercive intervention on behalf of their infants. [S]ome future system will need to address the discrepancies in the legal treatment of infants of drug-using mothers as compared with those of alcohol-using mothers or mothers who abuse prescribed medications.24

While this "bright line" justification for the licit and illicit drug dichotomy may satisfy some, it serves little purpose for others because it leaves unanswered questions related to the relative dangerousness of licit and illicit drugs to mothers and babies. Moreover, such an analysis raises new questions, such as whether the primary result of drawing a line between illicit and licit drugs has been to make it easier and more acceptable to intrude upon the rights of women who find themselves on its illegal side, and if so, whether the result has been more antitherapeutic than therapeutic for both mother and child. Nevertheless, it also can be argued that, without such a bright line, the greatest fears of some women's rights advocates, excessive "fetal empowerment," will occur. They speculate that women's rights will be greatly curtailed because of the identification and control of a wide array of illicit and licit substances and activities suspected of being potentially harmful to developing fetuses.25 C. Addiction and Responsibility, Duty, and Obligation 1. The Unborn Depending on one's views of the causes and nature of drug addiction, the concepts of addict responsibility, duty, and obligation are variably embraced. An inherent problem with describing and analyzing the utility of these concepts in addressing the topic of pregnant women and their fetuses is the need to face the intractable question of the status of the unborn. The question of rights of the unborn, which is discussed in a later section, raises all the issues that attend the abortion debate, such as when life begins, and at what point during gestation the conceptus, embryo, or 24

Robin-Vergeer, The Problem of the Drug-Exposed Newborn: A Return to Principled Intervention,

42 STAN. L. REV. 745, 745 n.l (1990). 25

Dr. Margery Shaw, Professor of Medical Genetics and Community Medicine, writes that medical advances allow us to counsel parents who are at risk of having children with preventable medical defects and "armed with such knowledge, the burden has shifted from the physicians to the parents to act in reasonable ways to prevent the birth of a child who would certainly or likely suffer postnatally, or to accept prenatal treatment if it is expected to benefit the would-be child." Shaw, Conditional Prospective Rights of the Fetus, 5 J. LEGAL MED. 63, 66 (1984). She concludes: "Whether society is ready to protect the would-be child will depend, as it does in the case of child abuse, on the public awareness of the problem and the will to fashion legal restrictions on the mother." Id. at 99.


136

GARCIA

fetus acquires rights. Like the abortion debate, drug addiction during pregnancy raises the question of at what point during gestation the state has an interest compelling enough to warrant intervention to protect the fetus. However, the additional issue of whether the unborn have a right to be born healthy compounds the problem of determining when the state should step in to protect the health of the unborn. Thus, it is inevitable that policymakers must consider the rights of the unborn as they seek to answer questions about to whom a duty is owed, and to whom a pregnant woman has an obligation. Viability, the established legal concept that affects the abortion debate26 and influences decisionmaking, can not readily be grafted onto the problems associated with prenatal drug abuse. Clearly, issues concerning the prevention of fetal harm from the point of conception are not the same as those concerned with one's right to come into being. 2. Social Responsibility As a citizen of a state and country where there exist community interests and rules that protect the good of the collective, how does one define the entity for whom the pregnant addict has a responsibility, and to whom she is expected to be held accountable for her "deviant" behavior.27 Part of the extensive media coverage of "cocaine babies" estimated the enormous costs that would fall upon the shoulders of law-abiding citizens. Combined costs for treating premature, critically ill, drugexposed newborns, for establishing an adequate number of effective treatment facilities to receive addicted women, and for hearing cases in civil and criminal court, have been estimated to be in the billions of dollars. The frequently heard warnings, often based on imprecise and incomplete data, about the influx of drug-exposed children into the public school system, and speculations about what long-term, terrible problems these "shadow children" are likely to bring to the schools and to society-atlarge,28 have prompted citizens to ask what duty individuals have to help maintain the collective good.

26

27

28

See Roe v. Wade, 410 U . S . 113, 163 (1973): With respect to the State's important legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. For a discussion of socio-cultural, historical, and psychological aspects of the social responsibility of addicted pregnant women, see Garcia & Segalman, The Control of Drug Abuse: Legal, Psychological, and Social Imperatives, 15 LAW PSYCH. REV. 19 (1991). See Cocaine's Most Innocent Victims, St. Petersburg Times, Sept. 10, 1989, at 1, col. 1; The Crack Children, NEWSWEEK, Feb. 12, 1990, at 62; Children Born to Drug Users Need New Kind of Teaching, St. Petersburg Times, Sept. 11, 1989, at 1A; Children Devastated by Crack, Studies Say, Tampa Trib., Sept. 17, 1989, at 1A, col. 1 (reporting on the first follow-up studies of babies born


137

Individual and agency responses to pregnant addicts are undoubtedly affected by their answers to questions about responsibility, obligation, and duty. Moreover, once individuals have come to terms with their views on the social/community aspects of responsibility, they are also likely to take a position on legal responsibility and accountability within both the criminal and civil law contexts. Their policy and discretionary decisions will reflect their views.


3. Criminal Responsibility a. Voluntary and Involuntary Behavior Settled doctrine requires not only that criminal liability be based on conduct, but also that the conduct be in some sense voluntary—the result of an exercise of free will.29 Some examples of involuntary acts are reflex movements, physically coerced movements (such as being pushed into someone who is subsequently harmed), movements during sleep, acts that occur during impaired or disturbed states of conscious, and somnambulism.30 Inextricably bound are the medical disease model of addiction, the debate over whether the conduct of addicts is voluntary or involuntary, and the defense of intoxication within the criminal law.31 Despite years of controversy and debate, courts have been unable to produce many widely supported precedents involving addiction and criminal culpability. The United States Supreme Court's holding in Robinson v. California,32 that it is cruel and unusual punishment to make the medical "status" of an addict a criminal offense for which the offender might be prosecuted at any time before he reformed,33 is no exception. The decision in Robinson left unanto mothers using crack cocaine, showing that in early childhood, they have serious difficulty relating to their world, making friends, playing like normal children, and feeling love for their mothers or primary caretakers); Vindero, Drug-Exposed Children Pose Special School Problems, 9 EDUC. W E E K 1 (Oct. 2 5 , 1989); Crack Kids, TIME, May 13, 1991, at 56; The Shadow Children, 9 RESEARCH BULL. 1 (July 1990). 29

P. Low, J. JERRIES, & R. BONNIE, CRIMINAL LAW: CASES AND MATERIALS 152

30

Id. at 152-53. For a comprehensive review of various aspects of intoxication and criminal responsibility, see Special Issue: Intoxication and Criminal Responsibility, 13 INT'L J.L. & PSYCHIATRY 1 (D. Weisstub & C. Mitchell, eds. 1990). See also Nemerson, Alcoholism, Intoxication, and the Criminal Law, 10 CARDOZO L. REV. 393 (Dec. 1988); Wald, Judicial Activism in the Law of Criminal Responsibility: Alcohol, Drugs, and Criminal Responsibility, 63 GEORGETOWN L.J. 69 (1974); Cocaine Defense Falls Flat: Jury Convicts White of Murder in 1st Degree, Tampa Trib., Dec. 15, 1989, at 1, § B, col. 1.

31

32 33

(1982).

370 U . S . 660 (1962). T h e needle marks, scar tissue, and scab on the arm of Lawrence Robinson indicated his addiction to narcotics, and notwithstanding his denial under oath, he was convicted under a California law after an instruction to the jury that specifically indicated that addiction was a status or condition and not an act. Id. at 662-63.


138

GARCIA

swered the question of at what point a drug abuser can be considered having achieved the status of addict. It also left to speculation the issue of the relationship of the status of addicts and subsequent illegal behavior. Seeking clarity regarding the criminal culpability of drug addicts, a dissenter in Robinson distinguished between "incipient," or volitional addicts, and "chronic," or nonvolitional addicts, and recommended that the law treat them differently.34 The holding in Robinson also has been criticized because it provides no rationale for relying solely on the medical disease model of addiction when declaring that it is cruel and unusual punishment to make diseasestatus per se a criminal offense, and because it does not account for the conduct of addicted persons.35 The 1968 case of Powell v. Texas36 made what some thought was the crucial connection between addiction, conduct, and criminal culpability. There, the United States Supreme Court held that punishing involuntary conduct is cruel and unusual. Leroy Powell was a chronic alcoholic who had been arrested more than 100 times for public intoxication before he was convicted under a Texas public intoxication statute. Powell's conviction was upheld by a divided United States Supreme Court that held that punishing involuntary conduct is cruel and unusual, but that the facts of Powell did not warrant the application of that principle. Thus, following the holding in Powell,31 there remained many questions about the relationship of human conduct to addiction (whether conduct is a "symptom," "condition," "result," or "effect" of addiction), and whether any given conduct of addicts is involuntary. Prenatal drug abuse is one such conduct. Some defense attorneys attempt to apply to their drug-addicted clients the standard established in McDonald v. United States3^ "[t]hat 'mental disease' or 'mental defect' includes any abnormal condition of the mind substantially affecting mental or emotional processes and substantially im-

34

35

36 37

38

In his dissenting opinion, Justice Clark wrote: Thus, the " c r i m i n a l " provision applies to the incipient narcotic addict who retains selfcontrol, requiring confinement of three months to one year and parole with frequent tests to detect renewed use of drugs. Its overriding purpose is to cure the less seriously addicted person by preventing further use. On the other hand, the " c i v i l " commitment provisions deal with addicts who have lost the power of self-control, requiring hospitalization up to two years. Each deals with a different type of addict but with a common purpose. Robinson, 370 U . S . at 6 8 1 . See Fingarette, The Perils of Powell: In Search of a Factual Foundation for the "Disease Concept of Alcoholism," 83 HARV. L. REV. 7 9 3 , 795-97 (1970). 392 U . S . 514 (1968). For an analysis of the divided Court's decisions in Robinson v. California and Powell v. Texas, see Batey & Garcia, Prosecution of the Pregnant Addict: Does the Cruel and Unusual Punishment Clause Apply? CRIM. L . BULL. 99 (Mar.-Apr. 1991). 312 F.2d 847 ( D . C . Cir. 1962).



139

pairing behavior controls."39 However, courts have repeatedly debated and rejected such application, using language in opinions and dicta in cases involving convictions of drug addicts that clearly reflect uncertainty about the relationship between addiction, mental illness, and criminal responsibility.40 Further distinctions and requirements exist for those who wish to use a voluntary intoxication defense for the illegal conduct of addicts, such as in Florida where the availability of the defense depends on the classification of the offense as a specific intent crime, rather than a general intent crime. Specific intent crimes, such as rape, burglary, first-degree murder, and robbery, require that the accused have the mental capacity to form the requisite intent to commit the crime.41 It is not enough, however, only to argue that there was sufficient mental incapacitation to prevent the commission of a specific intent crime, because in cases where it can be proven that the alleged crimes in which the nature of the offenses suggest that the

39 40

41

Id. at 848. See, e.g.. United States v. Moore, 486 F.2d 1139 (D.C. Cir. 1973). The conviction of Moore on possession of narcotics was upheld in a 5-4 decision, rejecting the appellant's contention that his conviction was improper because he is a heroin addict with an overpowering need to use heroin and should not, therefore, be held responsible for being in possession of the drug. Writing for the court, Justice Wilkey observed: In the case of any addict there are two factors that go to make up the "self-control" (or absence thereof) which governs his activities, and which determines whether or not he will perform certain acts, such as crimes, to obtain drugs. One factor is the physical craving to have the drug. The other is what might be called the addict's "character," or his moral standards. In any case where the addict's moral standards are overcome by his physical craving for the drug, he may be said to lose "self-control," and it is at this point, and not until this point, that an addict will commit acts that violate his moral standards. Id. at 1145. The dissenting opinion by Justice Wright focuses on the conduct of addicts with which three justices concurred: The basic question of criminal responsibility under the addiction defense is a legal, and not a purely medical, determination. Not all drug users are "addicts" and, as with any compulsion, the degree of dependence may vary among different individuals and, indeed, even in a given individual at different stages of his addiction. Thus, what we are concerned with here is not an abstract medical or psychiatric definition of addiction which sets forth a clinical checklist of relevant symptoms but, rather, a behavioral model, based upon traditional legal and moral principles, which tests the ability of the defendant to control his behavior. The essential inquiry, then, is simply whether, at the time of the offense, the defendant, as a result of his repeated use of narcotics, lacked substantial capacity to conform his conduct to the requirements of the law. Id. at 1258. Difficulty in discerning the most fundamental differences in the two positions represented by the holding and the dissent reflects the apparent confusion and indecision in this area. See also Watson v. United States, 439 F.2d 442 (D.C. Cir. 1970) (adopting the standard set forth in McDonald). For a discussion of the voluntary intoxication defense in Florida, see generally Note, The Voluntary Intoxication Defense in Florida: A Question of Intent, 13 STETSON L. REV. 649 (Spring 1984); Massey, Intoxication as a Defense Against Criminal Charges in Florida, 16 CRIM. JUSTICE & BEHAVIOR 325 (1989).

140

GARCIA

perpetrators were aware of their behavior or, that it was illegal, the defense is not available.42 Efforts by those who try to use these and related cases to fashion a defense for pregnant addicts who have been accused of an assortment of crimes43 will, of necessity, involve making decisions based on vague psychological concepts, unsettled law, and personal biases.


b. Pregnant and PostPartum Addicts Since the country's first successful prosecution of a Florida woman for having a cocaine-exposed baby in 1989,44 criminal charges have been brought against pregnant and postpartum drug addicts in more than 60 cases and in at least 17 states.45 When the charges of delivery of a controlled substance to a minor and child abuse were filed in Florida, it was thought that the case would be dismissed, or that there would be an acquittal once it was argued that the drafters of the Florida law did not intend for the law to apply to the unborn.46 Within the nearly two years between the conviction47 and its unsuccessful appeal,48 the case for and against crimina-

43 44 45

46

47

48

42 Massey, supra note 4 1 , at 336. See infra note 4 5 . See Florida v. Johnson, N o . 89-890-CFA (Cir. Ct. Seminole County, Fla. 1989). Alaska, California, Connecticut, District of Columbia, Florida, Georgia, Illinois, Indiana, Massachusetts, Michigan, Nevada, North Carolina, Ohio, South Carolina, South Dakota, Texas, and Wyoming are among the states that have brought criminal charges against pregnant or postpartum women who abused cocaine or alcohol during their pregnancies. Some of the charges brought include fetal endangerment, involuntary manslaughter, child endangerment, assault with a deadly weapon, child abuse, criminal neglect, possession, and distributing cocaine to a minor. See Paltrow, Case Update and Brief Overview of the Arguments Against Permitting Forced Surgery, Prosecutions of Pregnant Women or Civil Sanctions Against Them for Their Conduct of Status During Pregnancy, A . C . L . U . LEGISLATIVE UPDATE (1990).

The author served as consulting expert with defense counsel on the case and agreed with the decision to make the absence of fetal rights in Florida, the legislative intent underlying the delivery law, and claims of cruel and unusual punishment the primary arguments at the trial level. Jennifer Johnson was sentenced to 15 years probation and required to complete a drug treatment program. See Johnson v. Florida, N o . 89-1765 (Dist. Ct. A p p . , 5th Dist. Apr. 18, 1991) (appeal from the Circuit Court of the Ninth Judicial Court, and Opinion, affirming Johnson's conviction two votes to one, with the dissenter writing, in part: In summary, I would hold that section 893.13 (1) (c) 1., [Florida Statute (1989)] does not encompass 'delivery' of an illegal drug from womb to placenta to umbilical cord to newborn after a child's birth. If that is the intent of the Legislature, then this statute should be redrafted to clearly address the basic problem of passing illegal substances from mother to child in utero, not just in the birthing process. Since the majority opinion is a case of first impression in this state, and necessarily will have a tremendous impact on law enforcement, as well as (I fear) an adverse impact on the health and welfare of addicted pregnant women and their unborn children, I think we should certify this case to the Florida Supreme Court as one involving a question of great public importance. See also Moss, Substance Abuse During Pregnancy, the issues that were argued in the appeal).

13 HARV. WOMEN'S L.J. 278 (1990) (reviewing


141

lizing perinatal drug addiction was made by individuals and groups with differing views of addictive behavior, of fetal rights to be protected from preventable harm, and of maternal responsibility. It has become apparent that the task of determining whether pregnant and postpartum addicts should be held criminally responsible for their conduct is a difficult one requiring numerous moral, legal, and ethical decisions, often within a framework that is near void of any definitive answers.


4. Civil Liability Those who believe that addicted mothers owe a duty to their fetuses and that babies born to addicts should have remedies for damage done to them sometimes advocate tort actions against mothers on behalf of their children.49 However, this option also presents complicated issues concerning fetal rights, maternal culpability, and volitional behavior. In Grodin v. Grodin,50 where a mother was charged with negligence51 for taking drugs that caused prenatal injuries (the child developed brown teeth), the court held that the injured "child's mother would bear the same liability as a third person for injurious, negligent conduct that interfered with the child's 'legal right to begin life with a sound mind and body.'"52 This language raises several questions, such as whether the addict's problem behavior was volitional and if involuntariness is a defense to a charge of negligence,53 whether fetuses have the right to be born healthy, and whether an addict can exercise the judgment of a reasonable person. In a 1988 case that reached the Supreme Court of Illinois, recognition of a cause of action of unintentional infliction of prenatal injuries against the mother of a fetus ultimately born alive was rejected in Stallman v. Youngquist.54 After a thorough analysis of maternal duty to her fetus in this 49

A tort, a private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages, has three essential elements: (1) existence of a legal duty from defendant to plaintiff; (2) breach of duty; and, (3) damage as proximate result. BLACK'S LAW DICTIONARY 1335 (5th ed. 1979).

50 51

52

53

54

102 Mich. App. 396, 301 N.W.2d 869 (1980). Negligence has been defined as "conduct which falls below a standard established by law for the protection of others against unreasonable risk of harm." RESTATEMENT (SECOND) OF TORTS § 282 (1965). The theory of negligence presupposes a uniform standard behavior to which the "reasonable man" conforms and has as the two primary elements for a cause of action: (1) a duty recognized by law requiring the actor to conform to a certain standard of conduct; and, (2) a failure on the actor's part to conform to the standard required. W. PROSSER, LAW OF TORTS 143 (4th ed. 1983). Grodin, 31 N.W.2d at 870 (quoting Smith v. Brennen, 31 N.J. 353, 364-65, 157 A.2d 497, 503 (1960)). It is uniformly held that voluntary or negligent intoxication cannot serve as excuse or absolution for conduct that would otherwise be negligent. See, e.g., Mikula v. Balogh, 9 Ohio App. 2d 250, 224 N.E.2d 148 (1965). Based on several cases, the consensus seems to be that one who intentionally or negligently becomes intoxicated is held thereafter to the same standard of conduct as if the individual were sober. W. PROSSER, supra note 5 1 , at 154. 531 N.E.2d 355 (Ill. 1988).

142

GARCIA


case, which involved prenatal injuries sustained in an automobile accident, the court wrote: "The way to effectuate the birth of healthy babies is not, however, through after-the-fact civil liability in tort for individual mothers, but rather through before-the-fact education of all women and families about prenatal development."55 As is the case with determining the criminal responsibility of pregnant women for preventable harm to their fetuses resulting from prenatal behavior, the law is also imprecise in the civil area. In both cases, the questions become particularly complex when the harm is caused, at least in part, by illegal drugs.56 II. PERINATAL DRUG ABUSE Pregnant women have used a variety of drugs for many years, and medical personnel have described to professionals and laypersons the harm that prenatal drug use can inflict on developing fetuses. When, in the 1960s, numerous babies were born with severe anatomical defects as a result of their mothers' ingestion of the drug thalidomide, physicians cautioned that other drugs also might cause fetal harm if taken during pregnancy.57 However, following the initial media coverage of "thalidomide babies," there was no nationwide movement to control either the prenatal behavior of drug users or the behavior of physicians who prescribed drugs to pregnant women indiscriminately. Changes in the social and legal environment have created perspectives of the problem that differ from the complacency and indifference that existed in many quarters during past periods of wide use of both legal and illegal drugs. 55 56

57

Id. at 3 6 1 . For a discussion of the type of civil causes of action that can be brought against women for prenatal behavior and related legal issues, see generally, Beal, Can I Sue Mommy? An Analysis of a Woman's Tort Liability for Prenatal Injuries to Her Child Born Alive, 21 SAN DIEGO L . REV. 325 (198384); Binetti, The Child's Right to "Life, Liberty, and the Pursuit of Happiness": Suits by Children Against Parents for Abuse, Neglect, and Abandonment, 34 RUTGERS L . REV. 154 (1981); Blank, Emerging Notions of Women's Rights and Responsibilities During Gestation, 7 J. LEGAL M E D . 441 (1986); Collins, An Overview and Analysis: Prenatal Torts, Preconception Torts, Wrongful Life, Wrongful Death, and Wrongful Birth: Time for a New Framework, 22 J. FAM. L . 677 (1983-84); Carroll, Stallman v. Youngquist: The Illinois Supreme Court Rejects Maternal Civil Liability, 39 D E PAUL L . REV. 199 (1989); Dougherty, The Right to Begin Life with Sound Body and Mind: Fetal Patients and Conflicts with Their Mothers, 6 3 U . DET. L . REV. 89 (1985); Connolly & Marshall, supra note 6 ; Meyers, Abuse and Neglect of the Unborn: Can the State Intervene? 23 DUQUESNE L . REV. 1 (Fall 1984). Other drugs identified as potentially dangerous for prenatal use are antibiotics, hormones, steroids, anticoagulants, hallucinogenic drugs, tranquilizers, alcohol, and narcotics. See generally, Catz & Yaffe, D.P.,

in 1 H U M A N GROWTH: PRINCIPLES AND PRENATAL GROWTH 116 (F. Falkner &

J.M.

Tanner e d s . 1978); K . L . M O O R E , T H E DEVELOPING H U M A N : CLINICALLY ORIENTED EMBRYOLOGY

(1982).


143


A. The Social Environment Within the context of the "war on drugs," the labeling of some drugs licit and others illicit is but one of many factors that helped to create a social environment that provided the impetus for many to respond to "cocaine babies" in ways different from their responses to babies exposed to drugs in the past. The social environment of the late 1980s and early 1990s was particularly conducive to suggestions for drastic measures to control the problem. Some of the main reasons for this included the following: (1) cocaine emerged as an extremely popular, readily available drug; (2) there was a nearly total loss of confidence in the ability of the criminal justice system to slow the influx of drugs and the problems drugs caused; (3) the media increasingly overemphasized drug-related problems of the "underclass" and the idea that the average taxpayer was financing the perpetuation of those problems; (4) the number of drug-addicted babies increased, as did a growing public awareness that these babies might suffer lasting physical and mental impairments; (5) there was a subtle, yet fundamental change in attitude toward addicted mothers, particularly those who abandoned babies, thereby increasing the number of "boarder babies" (many of whom were to become wards of the state); and, (6) the national debate over abortion—and attendant demands for rights for the unbornintensified.58 These factors, taken together with sociopolitical forces that emerged independently as a result of demographics, economics, and beliefs, or that were promoted by design to increase racial tension and magnify race and class differences,59 created a potent social context within which policymakers had to make critical decisions about the fate of drug-addicted mothers. Individuals and agencies looked to existing laws to get a better grasp of the nature of the legal issues involved.

58

59

Garcia, Birth Penalty: Societal Responses to Perinatal Chemical Dependence, 1 J. C L I N . ETHICS 135 (1990). See also Drug War "Focused" on Blacks, USA Today, D e c . 2 0 , 1990, at 1 (reporting an analysis of drug arrest statistics showing that blacks are being detained in numbers far exceeding their involvement and that the war on drugs is focused disproportionately on the black community). Use of the notorious Willie Horton prison furlough political ad featuring the picture of a black male furloughed rapist in the 1988 presidential campaign, and the anticipated use of the issue of racial quotas against the Democratic party in 1992 to intimidate and anger white voters are two widely discussed examples of what has been labeled the "politics of fear." Opponents of a May, 1991 U . S . Supreme Court decision banning Planned Parenthood clinics that receive federal funds from conducting abortion counselling or mentioning abortion as an option, believe that it flagrantly discriminates against poor women who cannot afford legal abortions. See Court Limits Abortion Advice, St. Petersburg Times, May 2 4 , 1991, at 1, col. 3 (discussing Rust v. Sullivan, 111 S. Ct. 1759 (1991)).

144

GARCIA


B. The Legal Environment Because countries, like individuals, operate under several different legal philosophies,60 understanding the prevailing philosophy or philosophies at any given time can enhance one's ability to anticipate individual and group responses to legal issues. For instance, the frequent exercise of discretionary decisionmaking by policymakers in the area of perinatal drug addiction may reflect a rational response to the absence of legal doctrine in the area. Moreover, persons embracing the doctrine of "legal realism," which "finds the source of legal decisions in the economic, psychological or ideological preferences of the decisionmakers," might be expected.61 Given existing laws, between the time a pregnant drug addict is identified through mandatory drug testing and reporting, and the time that she is fully recovered, in full custody of her drug-exposed baby and other children, and free of any outside control, a great many things may occur. For instance, she might find herself in criminal court, civil court, juvenile court, or family court, facing hearings for a variety of actions that will affect her life and determine whether she has access to her children. These actions may include the following: (1) being charged with a prenatal crime; (2) being involuntarily committed to a drug treatment program; (3) undergoing treatment in a mental health facility; (4) suffering termination of parental rights; or, (5) being charged with child abuse or neglect. The nature and implementation of the many laws that affect pregnant addicts and their children will be discussed in subsequent sections. However, it is important to note here the pervasiveness of legal issues that require a broadbased knowledge of the laws involved to make informed and just decisions.

60

61

Harvard law professor Harold J. Berman summarized several legal philosophies: [I]n the United States, as elsewhere, there are those who accept a so-called natural-law theory, which finds the primary source and the primary sanction of legal rules and decisions in reason and morality; there are others who accept a so-called positivist theory, which distinguishes sharply between law and morality, and views law as the creature ultimately of political authority, the 'will of the State'; still others follow a historical jurisprudence, which explains law as a product of the historical development of a people's spirit and character; and there are many who have adopted modern variations of these traditional schools of legal thought—such as sociological jurisprudence, which interprets law as a balancing of various kinds of interests, a weighing of the social consequences of alternative policies, or so-called legal realism, which is skeptical of legal doctrine and which finds the source of legal decisions in the economic, psychological or ideological preferences of the decision-makers. Each of these philosophies has its advocates, and each has had its period of popularity at one time or another in our history." Berman, Philosophical Aspects of American Law, in TALKS ON AMERICAN LAW 221 (1961). Id. at 222.


145


C. The Medical Environment Since the time when the matter of cocaine-exposed babies first attracted national attention, the short- and long-term effects of "crack" cocaine62 on addicted mothers and their newborns and preschoolers have presented one of the most compelling issues for medical personnel. Neonatologists treating underweight, severely ill newborns63 are confronted with problems of rapidly increasing numbers of births of drugexposed babies64 as well as their own uncertainty about the biochemistry of crack cocaine and how to treat its effects.65 A corollary of the developing, yet incomplete medical knowledge of cocaine's effects during pregnancy has been a reluctance to provide treatment for pregnant addicts who are at high risk for complications because of possible medical liability. Although plaintiffs were unsuccessful in a New York City suit alleging denial of the right to treatment,66 the medical com-

62

The most common form of cocaine smoking in the United States is "freebasing": smoking alkaloidal cocaine or freebase. Freebase is prepared by dissolving cocaine hydrochloride in water and then adding a strong base such as ammonia or baking soda to this aqueous solution. This chemical process produces cocaine freebase, which may be dissolved in ether to extract the cocaine. The ether is then removed by drying, resulting in a product that may range from 3 7 % to 9 6 % purity. An alternate method of preparation bypasses the ether; in this process, the mixture of cocaine and alkali is washed and filtered instead of adding ether. " C r a c k " or " r o c k " is cocaine freebase that has been manufactured from cocaine hydrochloride by the dealer rather than the user and is readyto-smoke in the form of small white chips sold on the street for as little as $5 to $10. R. WEISS & S.

63

Sec MacGregor, Keith, Chasnoff, et al., supra note 19. Some hospitals, such as Howard University Hospital in Washington, D . C . , have reported that as many as 3 0 % to 5 0 % of all births involve chemically exposed babies. See Born to Lose: Babies of Crack Users Crowd Hospitals, Break Everybody's Heart, Wall St. J., July 1989, at 1. According to some clinical pharmacologists and addictologists: Cocaine in effect, prevents the brain from calming itself down. Normally, in response to certain external stimuli, specific neurons release a chemical called dopamine that helps trigger good feelings, or euphoria. The dopamine is then reabsorbed by the sending neuron. But cocaine somehow blocks the reabsorption. The neighboring nerves thus become overexcited and the euphoria intensifies greatly. Not for long, however. The brain's supply of dopamine becomes depleted, and once that happens, the crack user sinks into profound depression.

M I R I N , COCAINE: T H E H U M A N DANGER, THE SOCIAL COSTS, THE TREATMENT ALTERNATIVES 18 (1987). 64

65

66

Kolata, Experts Finding New Hope on Treating Crack Addicts, N.Y. Times, Aug. 24, 1989 (citing Snyder, Drugs and the Brain, National Institute of Drug Abuse). See also Salner, What's the Hook? Scientists Still Don't Know Why Cocaine Is Addictive, Chicago Trib., July 16, 1989, at 2. See Elaine W. v. North Gen. Hosp., N o . 6230-90 (N.Y. App. Div. 1990) (three women, with the assistance of the American Civil Liberties Union's Rights Project, sued Joint Diseases North General Hospital, Inc., St. Barnabas Hospital, Bronx-Lebanon Hospital Center, and Puerto Rican Organization to Motivate, Enlighten and Serve Addicts, Inc. on their own behalf and on the behalf of all others similarly situated, where the nature of the action as stated in the plaintiff's brief was, "Defendants have discriminated against plaintiffs on the basis of sex and pregnancy in violation of statutory obligations by denying pregnant women access to alcohol and drug treatment facilities and services").


146

GARCIA

munity has become increasingly aware of mounting potential legal challenges to their ability to practice unencumbered in this area. As growing numbers of drug-exposed children have begun to enter public school systems, schools have been advised to prepare to place such children in classes for the learning disabled and socially maladjusted. Subsequently, neurologists, developmental psychologists, and pediatricians have been called upon to predict behavioral and cognitive patterns of chemically exposed children at different developmental stages, and to describe their probable source and remediation. Laws that have enhanced efforts to locate, test, and report pregnant abusers of illicit drugs have affected the medical environment by mandating that physicians act in ways that challenge or violate their professional or personal code concerning patient care and physician-patient relations.67 The degree to which physicians and other medical personnel follow these laws is determined by a combination of factors, such as whether they are in public or private facilities that allow different opportunities for discretionary decisionmaking, their personal biases and assumptions about race and class differences, and their philosophies concerning addiction, maternal rights, and fetal welfare.68 D. The Economic Environment Initial reports on the potential for addiction to crack cocaine alerted all concerned that it is extremely addictive and, consequently, difficult to treat.69 Concurrent with the rise in anecdotal evidence and reports from treatment facilities of a high incidence of relapse after treatment for addiction to alcohol70 and crack cocaine, has been a demand for more affordable, long-term, residential treatment programs.

68

69

70

67 For effects of mandatory reporting laws on physician/patient relations, see infra note 160 and accompanying text. See, e.g., Chasnoff, Landress, & Barrett, The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida, 322 N E W ENG. J. M E D . 1202 (1990) (reporting on a study revealing that black women who used a controlled substance during pregnancy are 10 times more likely than white women to be reported to authorities even though the white women were slightly more likely to have used drugs at the time of their first prenatal visit). According to two addiction specialists: Some of the characteristics of freebase or crack that make it so addictive include the intensity of euphoria it produces, its nearly immediate onset of action, and the rapidity with which its effects disappear. In addition, the aftermath of freebasing is often characterized by severe craving for more drug. R. WEISS & S. MIRIN, supra note 62, at 20.

See generally Gorski, Dynamics of Relapse, 1 EAP DIGEST 1 (Nov./Dec. 1980) (discussing relapse with alcoholism and defining relapse as " a progressive pattern of behavior which allows the symptoms of a disease or illness to become reactivated in a person who had previously arrested those



147

One aspect of the economics of the "cocaine baby scourge," as the problem has sometimes been labeled, can best be understood by determining how and where poor, uninsured women, and affluent, insured women work their way through the system—from intake until final outcome. Throughout the country, a number of state-funded public clinics and hospitals and federally funded treatment programs71 serve a limited number of women who are uninsured and unable to pay for treatment. However, many such programs report long waiting lists for residential care,72 and anecdotal evidence suggests that there is a high rate of "burnout" and turnover among the staff of public treatment facilities due in large part to lack of definitive policies, inadequate funding, and strained resources.73 Middle- and upper-class addicts who have private physicians and insurance are likely to become patients in a highly lucrative "treatment industry," with extended stays in treatment programs that cost thousands of dollars per month. However, women who can pay are also at risk of inadequate treatment, overcharging, and discharge when they can no longer pay for care.74 Thus, this two-tiered system creates programs that, on the one

71

72

73

symptoms"). According to a 13-state study by the Comprehensive Assessment and Treatment Outcome Research (CATOR) program at the Ramsey Clinic in St. Paul Minn., which tracks treatment efforts throughout the country, only 50% of cocaine users were abstinent a year after treatment, as compared with 7 1 % of alcoholics. Some Things Work, NEWSWEEK, Sept. 24, 1990, at 78, col. 3 . One of the primary funding sources of a variety of treatment programs is the Office for Substance Abuse Prevention, Division of Demonstration and Evaluation, Alcohol, Drug Abuse and Mental Health Administration, U . S . Department of Health and Human Services. According to an October, 1989 survey by the National Association of State Alcohol and Drug Abuse Directors, more than 66,000 addicts are on waiting lists with waits up to four to five months in heavily drug ridden areas. Some Things Work, supra note 70, at 7 8 . Although this study did not identify the percentage of pregnant addicts, the shortage of comprehensive treatment programs for pregnant cocaine, alcohol, and polydrug users has been documented. See Born to Lose, supra note 64, at A6 (reporting on strained waiting lists in New York's Second Genesis Treatment Program with 300 available beds but only 10 for pregnant addicts). See also infra, notes 101-03 and accompanying text. According to a national study, social workers working with addicted mothers and their babies are "highly frustrated" because of lack of coordination among the medical, legal, drug-treatment, and social service communities that would improve hospitals' ability to respond to the problem, and to the lack of resources. Elizabeth Nobel, director of the Family Study Center at the University of Missouri-Kansas, observed: "There is little incentive to try to detect drug exposure. If you find it, what do you do t h e n ? " See Hospitals Lack Guidelines for Handling "Drug Babies," NATL A. Soc. WORKERS N E W S , July, 1990,

74

at

15.

Expensive treatment programs can be profit and non-profit; the Betty Ford Program fitting the latter category. Controversy over some for-profit programs such as the Fair Oaks Hospital and the Lake Hospital in Florida, run by the Psychiatric Institute of America, revolves around reported policies of charging at least $1,000 per day for treatment of questionable value, and immediate discharge of addicted persons after their insurance benefits are exhausted. Such persons are given the option of "self-pay," regardless of their ability to pay or their medical condition. Reports of


148

GARCIA

hand, are often coping with extremely large waiting lists, and that are constantly in keen competition for local, state, and federal dollars for research and demonstration programs for uninsured, poor, addicted women as well as expensive programs that serve insured and financially sound women, but that sometimes deplete all of their financial resources before recovery is achieved. The yearly costs of caring for impaired drug and alcohol-exposed babies, including abandoned "boarder babies," has been estimated to be in the millions of dollars.75 The issue of how these costs will be met is an ongoing problem that inevitably helps to shape thought, policy, and the balancing of maternal, fetal, and societal rights. III. RIGHTS Rights emerge from, and survive in, a variety of contexts that do not form one distinguishable cohort with a common origin, but rather a montage of pronouncements of the founding fathers made nearly two centuries ago, evolving municipal, state, and federal laws, and common law. Moreover, rights do not exist in a static, predictable environment, but in a dynamic and everchanging sociopolitical milieu. Thus, a meaningful analysis of the rights of parties directly involved in all phases of perinatal chemical dependence must be broadbased. A. Maternal Rights Beginning with a pregnant addict's right to procreate,76 drug-addicted women who are brought under the control of social service agencies and civil and criminal courts enjoy additional rights, including the right not to procreate, the right to privacy, to equal protection, to be protected from cruel and unusual punishment, and to parental authority, the right to treatment, to refuse treatment, and in the context of legal proceedings, the right to notice, counsel, habeas corpus, and to appear and be heard. Fundamental to the discussion of rights that follows is the question of whether preg-

75

falsified claims to insurance companies, over-medication, and other unethical practices have contributed to ongoing investigations of the Institutes' programs in N e w Jersey, Florida, and Texas. " P r i m e Time Live," ABC Television, July 18, 1991. Five hundred Oregon infants born prenatally exposed to alcohol and drugs during 1990 were estimated to require $400,000 worth of services during t h e first year. OFFICE OF THE DIRECTOR, O F F I C E OF A L C O H O L AND D R U G A B U S E PROGRAMS, TASK F O R C E REPORT ON ALCOHOL & D R U G A B U S E A M O N G PREGNANT W O M E N AND M O T H E R S WITH YOUNG CHILDREN 3 (Salem, Oregon F e b . 1990).

76

For a discussion of the right to procreate, see Batey, Constitutional

Rights in the Family Context, in

I B CURRENT PERSPECTIVES IN PSYCHOLOGICAL, LEGAL AND ETHICAL ISSUES: CHILDREN AND FAMILIES:

CREATION AND CONFLICT 1 (S. Garcia & R. Batey eds. 1991). See also Burt, The Constitution of the Family, 1979 SUP. C T . REV. 329; Developments in the Law, The Constitution and the Family, 9 3 HARV. L . REV. 1156 (1980).


149

nant addicts lose some of their rights because of the state's interest in fetal protection, and if so, which ones.


/. The Right to Procreate Involuntary sterilization of women who society believes should not bear children was first upheld by the Supreme Court in the 1927 case of Buck v. Bell.11 Carrie Buck, a mentally incompetent woman whose mother and daughter also were mentally incompetent, was sterilized against her will in a Virginia institution. Only one justice dissented from an opinion that concluded that "[t]hree generations of imbeciles are enough."78 Although Buck has never been overturned, the Court has upheld a person's right to procreate in subsequent decisions.79 However, permanent sterilization through surgery, or temporary sterilization from use of the recently approved Norplant birth control device,80 has been supported in criminal court,81 and by some abortion opponents and fetal and children's rights advocates,82 as an appropriate way to control the procreative ability of some women. Among the most prominently mentioned women for such control are drug addicts who, as "repeat offenders," have multiple births of drug-exposed, and sometimes AIDS-exposed, babies. Proposals for mandated and voluntary sterilization both trigger several responses from different constituencies, not all of which focus solely on the right to procreate. An editorial in the Philadelphia Inquirer on December 12, 1990, entitled, "Poverty and Norplant: Can Contraception Reduce the Underclass?" that asked "What if welfare mothers were offered 77 78 79

80

274 U . S . 200 (1927). Id. at 207. See, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U . S . 535 (1942) (holding that the forced sterilization of a habitual criminal would deny equal protection of the laws). Norplant, a new, reversible chemical contraceptive that protects women from unwanted pregnancies for five years, is said to be 9 9 % effective and has been hailed by some as a breakthrough in contraception. Under a local anesthetic in a 15-minute procedure, silicone capsules containing progestin, which inhibits ovulation and helps block the passage of sperm by thickening cervical mucus, are inserted in a fanlike formation into a 1/8-inch incision made on the inside of the woman's upper arm. As a form of reversible sterilization, the capsules can be removed through another small incision, by maneuvering each implant so it can be pulled out. See A Birth-Control Breakthrough, NEWSWEEK, Dec. 24, 1990, at 68.

81

Saying Melody Baldwin, who had poisoned her four-year-old son with lethal doses of psychotropic drugs, " h a s no need for any more children," Indiana Superior Court Judge Roy F. Jones suggested that if she were sterilized, he would reduce a possible 20-year prison term. See Is Sterilization the Answer? Controversial Punishment for Abusive Mothers, NEWSWEEK, Aug. 8, 1988, at 59, col. 1. See also Judge Orders Mother to Use Norplant, Daily Press, Jan. 6, 1991, at C 8 , col. 1 (reporting on a California judge who ordered a 27-year-old pregnant woman convicted of beating her four children to have Norplant surgically implanted in her arm for three years).

82

When Rep. David Flagg of Florida proposed that Norplant be made available to poor women, an editorial in the St. Petersburg Times cautioned that it is wise to be wary of the proposal, but not paranoid. Norplant Proposal Deserves Attention, St. Petersburg Times, June 2 3 , 1991, at 2 D , col. 1.


150

GARCIA

an increased benefit for agreeing to use this safe, long-term contraceptive?" triggered a letter from the president of the local Association of Black Journalists calling the editorial "a tacit endorsement of slow genocide."83 A rights analysis is an essential prerequisite to trying to influence the passage of laws concerning the potential use of Norplant and similar devices for the sterilization of pregnant and postpartum drug addicts in both the civil and criminal courts. It must examine the issue of whether a baby has a right to be protected from preventable harm, take into account the sociopolitical factors that are manifest, and, inevitably, address the question of whether women's procreative rights insulate them from involuntary nonreversible or reversible sterilization. 2. The Right to Privacy Subsumed under the right to privacy are the rights to bodily integrity and autonomy in reproductive decisionmaking.84 Although there is constitutional,85 statutory, and case law that protects a person from nonconsensual bodily intrusion involving acts such as stomach pumping,86 surgery to remove a bullet to use as evidence,87 and performing blood tests,88 there is an increasing number of exceptions that permit a variety of types of nonconsenual bodily intrusion. Concerning pregnant women, so long as there exists indecision about whether and when fetuses acquire rights related to their well-being while in utero, procedures such as court-ordered caesarean sections,89 intrauterine

83

84

85

86

87 88

89

See One Well-Read-Editorial: A Bitter Debate About Race and Birth Control, NEWSWEEK, Dec. 3 1 , 1990, at 65. The editorial's author acknowledged that the idea "might be considered deplorably insensitive, perhaps raising the specter of eugenics." The holding in Griswold v. Connecticut, 381 U . S . 479 (1965), allowed married persons access to contraceptives. For a discussion of the right not to procreate, see Batey, supra note 76, at 7. The fourth amendment has played an important part in securing the right to bodily integrity and creating meaningful constraints on would-be violators. For a review of the evolution of the constitutional treatment of governmental searches involving bodily intrusion, see Garcia & Batey, Protecting Forcibly Institutionalized Mental Patients from Unwanted Drug Therapy: A Fourth Amendment Analysis, 1 LAW & PSYCH. REV. (1988). See Rochin v. California, 342 U . S . 165 (1952) (the U . S . Supreme Court found that having one's stomach pumped involuntarily to acquire evidence "shocks the conscience"). See Winston v. Lee, 470 U.S. 753 (1985). See Schmerber v. California, 384 U . S . 757, 771 (1966) (the U . S . Supreme Court noted that blood tests constitute searches of persons, and therefore must be performed in a reasonable manner after probable cause to extract blood is demonstrated). The right to bodily integrity of Angela Carder, a terminally ill pregnant woman, was overridden when an unconsented court-ordered caesarean section was performed in an attempt to save the life of her fetus. See In re A . C . , 573 A.2d 1235 ( D . C . App. 1990). Court-ordered caesarean sections have been documented in at least 11 states.



151

transfusions, and corrective fetal surgery are likely to continue.90 Moreover, two important effects of the unsettled law in the area of the right to bodily integrity of pregnant drug-addicted women appear to be the potential for the emergence of significant precedents from individual cases,91 and the likelihood that advocates of both fetal well-being and maternal rights will insist that changes in the law be subject to strict scrutiny by the courts. The fact that the mother is a drug addict undoubtedly will affect the way that states determine and define their compelling interests in infringing on the women's right to bodily integrity.92 A pregnant drug abuser's right to confidentiality of medical information, an aspect of the right to privacy, has been challenged in court. Joan M. alleged that her constitutional right to privacy under article I, section 1 of the California Constitution, and her statutory right to confidentiality of medical information under Civil Code section 56.10, the Confidentiality of Medical Information Act, had been violated when the hospital in which her baby was born performed a urine toxicology screen on her and her baby without explaining that positive results would be reported to Child Protective Services.93 Although the appeal was lost,94 there was a successful organized effort on the part of private attorneys, academicians, and other advocates for pregnant women and their families to have the reported decision 90

In a national survey that investigated the scope and circumstances of court-ordered obstetrical procedures in cases in which the women had refused therapy deemed necessary for the fetus, 4 6 % of the heads of fellowship programs in maternal-fetal medicine thought that women who refused medical advice and therapy endangered the life of the fetus and should be detained; 4 7 % supported court orders for procedures such as intrauterine transfusions. The researchers concluded from the study data that court-ordered obstetrical procedures represent an important and growing problem that evokes sharply divided responses from faculty members in obstetrics. Kolder, Gallagher, & Parsons, Court-Ordered Obstetrical Interventions, 316 N E W ENG. J. M E D . 1192 (1987). See also Gallagher, Prenatal Invasions & Interventions: What's Wrong with Fetal Rights, 10 HARV. WOMEN'S L.J. 9 (1987).

91

In a 1991 settlement of a case brought by the parents of Angela Carder, who had died after a courtordered caesarean section, the defendant hospital developed a new policy governing the medical staff, recognizing the right of a pregnant patient to determine the course of medical treatment on behalf of herself and her fetus, including the right to refuse medical recommendations, and emphasizing that it will rarely be appropriate to seek judicial intervention to resolve ethical issues relating to a patient's decision or to assess or override a pregnant patient's decision. See Stoners v. George Washington Univ. Hosp., Civil Action No. 88-05433 (Super. Ct. D . C . Nov. 2 1 , 1990) (Settlement Agreement, No. 111290A923).

92

See generally Johnsen, From Driving to Drugs: Governmental Regulation of Pregnant Women's Lives After Webster, 138 U . PENN. L. REV. 179 (1989); Johnsen, The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection, 95 YALE L.J. 599 (1986).

93

See In re Noah Adam M . v. Joan M . , 212 Cal. App. 3d 30 (1989). The California Court of Appeal ruled that the hospital was under a legal obligation to report the results of the tests because of an existing penal code that required health practitioners and others to report suspected child abuse. The court further observed: " I n light of these reporting requirements, mothers of newborns who test positive for dangerous drugs have no reasonable expectation of privacy as to the test results." Daily App. Rep., July 20, 1989, at 9204.

94

152

GARCIA

in this case withdrawn from publication because, according to an attorney at the Legal Services of Northern California, the decision would create terrible precedent for women with chemical dependence problems and their families.95


3. Protection from Cruel and Unusual Punishment The eighth amendment to the United States Constitution protects against crael and unusual punishment. Fundamental to the issue of whether criminalizing prenatal drag addiction is crael and unusual punishment are the questions of what, in fact, is the criminal act that the women commit, and whether addiction is a crime.96 Summarizing the issue of punishing pregnant addicts, and emphasizing the fact that the law is unsettled, Batey and Garcia wrote: Whatever the rationale chosen and whether from new or existing law, any prosecution of an addicted mother will ultimately focus on two facts: that she is an addict and that she is or soon will be a mother. But a substantial body of constitutional law (numerous cases that recognize a right to procreate) will divert attention from the latter fact because the state must frame its prosecution in a way that recognizes the mother's right to give birth. The United States Supreme Court's decisions in Skinner v. Oklahoma ex rel. Williamson and in more recent cases, make it clear that an addict, like a habitual felon, still possesses a constitutional right to bear offspring. The prosecution is thus forced to concentrate on the mother's status as an addict. Doing so will necessarily raise questions about the propriety of punishing a person for her addiction or for acts that are an inevitable consequence of her addiction—the questions at issue in Robinson and Powell.91

4. Equal Protection and Due Process The fourteenth amendment to the United States Constitution reads in part: "Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."98 It has been argued that criminalizing prenatal drag addiction violates women's due process and equal protection rights in several ways. Due process requires that persons have notice of the law that they are alleged to have broken. The right to due process is violated when a law is construed in a unique way to create a cause of action, as was noted in the Jennifer Johnson case, where an anti-drag trafficking law was converted 95

96 97 98

The order from the Chief Justice of the Supreme Court of the State of California read: " T h e Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled appeal filed July 17, 1989, which appears at 212 Cal. App. 3d 30 (Cal. Const., Art. VI, section 14; Rule 976, Cal. Rules of Court)." See supra notes 29-48 and accompanying text. Batey & Garcia, supra note 37, at 101-02. U . S . CONST., amend. 14, § 1.



153

into a child abuse law through an expedient interpretation of the word "delivery."99 It can also be argued that subjecting women to such ex post facto laws based solely on an aspect of female reproductive capability violates their right to equal protection. Laws that mandate criminal prosecution of pregnant addicts, and loss of custody of their newborns based on positive toxicology screens, are deemed to be discriminatory for two primary reasons: (1) they are overinclusive in that they do not distinguish between occasional, or even one-time users of illicit drugs from drug abusers whose addiction might, in fact, make them a threat to the child's well-being; and, (2) they are underinclusive because they do not include men and nonpregnant addicts who enter hospitals but either are not tested for illicit drugs, or if they are tested, test results are not reported nor are their infants removed from their custody.100 Practices that appear to be blatantly discriminatory against poor and minority pregnant and postpartum drug addicts, such as selective testing and reporting of results, are highly amenable to the exercise of discretionary decisionmaking across races, sexes, and socioeconomic classes, notwithstanding mandates of existing law. It can be argued that individual physicians who do not test or report their middle- and upper-class nonminority addicts in the same way that they report poor minority women not only help to create a dual system of care and justice, they also discriminate against advantaged women through their underservice. 5. Treatment Long waiting lists for drug treatment for people who are severely ill and unable to function in society raise the question of whether treatment is

99

100

The issue of distorting the legislative intent of a law and creating prohibited ex post facto laws is succinctly summarized in the dissent to the rejected Johnson appeal, supra note 48, and by a civil rights attorney and representative of the appellant in the Johnson case who wrote: The defense also challenged the court's expanded reading of the word "delivery" in light of the statute's purpose of controlling drug trafficking, sale, delivery, and use of the controlled substances listed in the statute. Given this purpose, the defense argued that "delivery" should be interpreted as referring to the transfer of a controlled substance from one person to another fully separate and independent person. Only by ignoring the statute's purpose, the defense contended, could "delivery" be read to include the transfer of chemicals through an umbilical cord. Even if the statute is interpreted in this way, [n]o reasonable woman could have foreseen that the state would view the transfer of a cocaine metabolite through the umbilical cord to her newborn as a violation of a drug trafficking law. Accordingly, this novel construction would not comport with the requirements of the prohibition against ex post facto laws. Moss, supra note 48, at 283. See Oberman, Sex, Drugs, and Pregnant Addicts: An Ethical and Legal Critique of Societal Responses to Pregnant Addicts, 1 J. CLINICAL ETHICS 145, 147 (1990). See also Chasnoff, Landress, & Barrett, supra note 68.


154

GARCIA

a right that should not be denied. Examining the concept of a right to treatment requires making a distinction between an inherent, or constitutionally protected right, and a right of persons who are involuntarily confined by agents of the state. A distinction also should be made between the unwillingness of facilities to treat, and their inability to treat. In an unsuccessful New York lawsuit, charges were brought on behalf of (1) all women who sought treatment for alcohol or drug dependency from any of the defendants and were denied such treatment because they were pregnant and, (2) all pregnant women who had sought or in the future would seek alcohol or drug treatment by the defendants.101 Asking for declaratory and injunctive relief requiring the defendants to provide immediate and appropriate alcohol and drug treatment as well as damages for past discrimination or future refusal to provide such treatment, plaintiffs' attorneys alleged that refusing treatment to pregnant women is more than just discrimination because it sets off a chain reaction that brings long-term harm to the women and their children.102 The successful defendant hospitals alleged that their policies were based on realities such as their lack of obstetrics departments and other resources needed to handle the special needs of pregnant addicts and the fact that some of the drugs used in detoxification might be harmful to the fetus.103 However, if these agencies had been responsible for women committed to their care involuntarily, results probably would have been different. Several court decisions have held that involuntarily hospitalized individuals have a right to treatment or, in the case of the developmentally disabled, a right to habilitation.104 Close to three-quarters of the states and the District of Columbia have at least some policies, and half the states have specific provisions governing the involuntary commitment of drug dependent persons,105 with Minnesota's commitment act the only one that

101

102 103

104

105

See Plaintiffs' Opening Brief, Elaine W. v. Joint Diseases North Hosp. Inc., (Sup. Ct. N.Y. Nov. 2 3 , 1989). Id. See Hospital Defends Limiting of Drug Program, N.Y. Times, Dec. 12, 1989, (Metropolitan Section) at 9; Elaine W. v. North Gen. Hosp., No. 6230-90 (N.Y. A p p . D i v . 1990). See, e.g., Rouse v. Cameron, 373 F.2d 451 ( D . C . Cir. 1966) (holding that the right to treatment is guaranteed to those involuntarily committed by reason of insanity); Wyatt v. Stickney, 325 F. Supp. 781 ( M . D . Ala. 1971), hearing on standards ordered, 334 F. Supp. 1341 ( M . D . Ala. 1971), enforced, 344 F. Supp. 373 ( M . D . Ala. 1972), 344 F. Supp. 387 ( M . D . Ala. 1972) (recognizing the right of mental patients to some minimal level of medical treatment); Youngberg v. Romeo, 457 U . S . 307 (1982) (granting to a mentally retarded man the right to habilitation).

F o r a review of involuntary civil commitment of drug dependent persons, including pregnant addicts, see Garcia & Keilitz, Involuntary Civil Commitment of Drug Dependent Persons with Special Reference

to Pregnant

Women, 15 MENTAL & PHYS. DISABILITY L . REP. 4 1 8 (1991). See also

notes 196-206 and accompanying text.

infra


155

specifically includes pregnant women in its definition of chemically dependent persons subject to civil commitment.106 Although a pregnant, drug-addicted woman's claim to a right to treatment is not supported by clear legal precedent, it does enjoy a foundation in mental health law for favorable legislative action.


6. The Right to Refuse Treatment For whatever reason a pregnant drug addict seeks to exercise her right to refuse treatment that will positively affect her fetus, she raises the questions of who, between her and her fetus, is the patient, and whose rights should supersede the other's. Moreover, because states' interests in forcing treatment on unwilling women are in direct conflict with the woman's liberty and privacy interests, such interests must be compelling. There is a substantial body of case law and commentary covering the right to refuse mental health treatment107 that can be helpful in understanding the constitutional bases for the right108 for people who are involuntarily committed to the custody of the state.109 There is also a growing body of law regarding the overriding of maternal refusal of treatment during pregnancy.110 Although parallels between coerced drug treatment and the use of mind-altering drugs to treat mental patients are not exact, both involve invasive procedures that can violate privacy rights. Depend-

106

MINN. STAT. ANN. § 253B.02(2) (West 1991). See, e.g., Rennie v. Klein, 476 F. Supp. 1294 (D.N.J. 1979), modified, 653 F.2d 836 (3d Cir. 1981), vacated 4 5 8 U . S . 1119 (1982), on remand, 7 2 0 F.2d 266 (3d Cir. 1983) (en banc) (antipsychotic drugs); Knecht v. Gillman, 4 8 8 F.2d 1136 (8th Cir. 1973) (disapproving coercive use of drugs as aversion therapy in behavior modification program); Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 4 8 9 , 458 N.E.2d 308 (1983) (antipsychotic drug therapy could b e forced on a patient in a non-emergency only after judicial determination that the patient is incompetent and that, if competent, the patient would consent to the treatment); Rivers v. Katz, 67 N.Y.2d 4 8 5 , 4 9 5 N . E . 2 d 3 3 7 , 504 N.Y.S.2d 74 (1986); Wisconsin ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 4 1 6 N.W.2d 888 (1987) (all committed mental health patients have the right to refuse psychotropic medication despite their involuntary commitment status); Winick, The Right to Refuse Mental Health Treatment: A First Amendment Perspective, 4 4 U . MIAMI L. REV. 1 (1989); Dart, Prisoners Can Be Medicated Against Their Will, Court Rules, Tampa Trib., F e b . 2 8 , 1990, at 2-A, col. 1 (prison officials can force inmates to take mindaltering drugs without a judicial hearing). 108 Cort, Constitutional Bases for a Right to Refuse Antipsychotic Drugs, 51 U M K C L . REV. 83 (1982). 109 Such nonconsentual confinement by the state includes involuntary civil commitment, protective custody, and commitment after acquittal following a verdict of not guilty by reason of insanity. 110 See Kolder, Gallagher, & Parsons, supra note 9 0 ; Jefferson v. Griffin Spalding County Hosp. Auth., 274 S.E.2d 457 (Ga. 1981) (court ordered a pregnant woman who had withheld consent to submit to a caesarean section and related procedures considered necessary by the attending physician to sustain the life of her fetus). 107

156

GARCIA

ing on the immediate goal of mandated treatment of pregnant addicts, interventions can include practices such as acupuncture, fetal surgery, diet changes, therapeutic abortion, and other procedures that women might resist.111 Therefore, the answer to the question of whether a pregnant addict can exercise her right to refuse treatment will depend on how the maternal/fetal rights issue is viewed by the jurisdiction, institution, and authorities under whose control she finds herself.


7. Parental Authority A key development in the attempt to control the behavior of pregnant and postpartum drug addicts and to protect their children is the intervention of state social service agencies that take into protective custody newborns with positive toxicology screens. In addition to the many questions that this practice raises regarding the accuracy and meaning of toxicology screens, the discriminatory use of testing and reporting laws, and the fate of some of the children who ultimately become victims of "foster care drift,"" 2 necessitates examination of the nature and scope of the right to parent. While the United States Supreme Court has recognized the right to parent in a series of decisions,113 all states have an interest in preserving the health and welfare of minors and they will intervene when that interest becomes compelling. The state can authorize temporary removal of children from their homes or the termination of parental rights, as has been the case with some drug-abusing women.114 However, state laws that mandate social services agencies to try to preserve families before they seek removal of children or termination of parental rights, contribute to the critical and conflicted roles that these agencies play; roles that suggest great

111

112 113

114

An ethics committee in Madison, Wisconsin reviewed a case where a woman suffering from anorexia nervosa refused the prescribed treatment—eating. The woman was strongly encouraged to comply with her treatment plan but, after continued refusal, she was released from the hospital. The woman was determined competent to decide for herself and forced treatment in such a situation was deemed violative of her rights. Conversation with medical ethicist and lawyer Alta Charo (April 9, 1991). See Robin-Vergeer, supra note 24, at 755. See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (granting parents the right to choose education for children); Stanley v. Illinois, 405 U.S. 645 (1972); Wisconsin v. Yoder, 406 U.S. 205 (1972) (affirming the right of parents to oversee the upbringing of their children). See, e.g., In re A.W., 569 A.2d 168 (D.C. App. 1990) (child found suitable for adoption and mother's parental rights were terminated after she acknowledged that she had a history of drug abuse, including free-basing cocaine, that her baby was born suffering from drug withdrawal, that her drug use impaired her ability to plan for and provide care for the child, and that she had failed to maintain a parental relationship with the child).


157

latitude for the exercise of discretionary decisionmaking.115 There is a large body of anecdotal evidence that pregnant and postpartum drug addicts fear the intervention of social service agencies far more than that of the prosecutor because of the threatened loss of their drug-exposed newborn and his/her siblings to overcrowded and dysfunctional foster care systems. Regaining custody of their children looms as an unachieveable task for many women given their addiction, poverty, and general lack of resources.


8. Rights of Persons Detained by the State Complementing the rights already discussed, pregnant and postpartum drug addicts who have been arrested, taken into temporary protective custody for detox, or involuntarily civilly committed to drug treatment programs have several additional rights that may or may not be granted at the discretion of those in authority. For instance, in Florida, persons involuntarily committed to treatment programs have the right to habeas corpus, notice (of pending hearings), counsel (to be appointed by the court if the person is indigent), access to a private physician, to call witnesses, and to appear in court and be heard.116 Preliminary research suggests that jurisdictions are variously responding to the possibility of involuntary civil confinement of pregnant and postpartum addicts, and many have not yet established policies and procedures for implementing their state laws. Interviews conducted in February of 1991, as part of a study on the implementation of involuntary civil commitment laws, revealed that neighboring Hillsborough and Pinellas Counties in western Florida made opposite decisions in this regard, with the former creating and operating an involuntary drug court, and the latter choosing not to implement the law. Some of the reasons given by Pinellas County officials for not implementing the law include the following: (1) the unavailability of an adequate number of treatment beds with a waiting list of over 200 for "voluntaries"; (2) the law has no "teeth" because the

115

116

See, e.g., FLA. STAT. § 39.001(2) (b), (c) (1987). (2) The purposes of this chapter are: . . . (b) To assure to all children brought to the attention of the courts, either as a result of their misconduct or because of neglect or mistreatment by those responsible for their care, the care, guidance, and control, preferably in each child's own home, which will best serve the moral, emotional, mental, and physical welfare of the child and the best interest of the state. (c) To preserve and strengthen the child's family ties whenever possible, removing him from the custody of his parents only when his welfare or the safety and protection of the public cannot be adequately safeguarded without such removal; and, when the child is removed from his family to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents; and to assure, in all cases in which a child must be permanently removed from the custody of his parents, that child be placed in an approved family home and be made a member of the family by adoption. Id. § 397.052(2)(6).


158

GARCIA

treatment facilities are not locked and the "involuntaries" can just walk away; (3) the requirements of the law will make it difficult to comply; and, (4) it is more expedient to commit addicts under the state's law covering the commitment of mentally ill persons.117 In this period of evolving law and indecision, some jurisdictions do not fully grant certain rights.118 The rights of pregnant and postpartum drug-addicted women can be undermined in several ways. Without legal representation and advocacy, women can not effectively exercise their rights, many of which they do not know. Moreover, when women's rights are in direct conflict with rights claimed for their fetuses and existing children, their defense is particularly difficult and contentious. B. Fetal Rights The topic of fetal rights presents a complex set of issues concerning practices as diverse as harvesting the cells, tissues, and organs of aborted (or otherwise expired) fetuses for transplantation and research, and nonconsensual medical interventions during gestation, such as fetal surgery and caesarean sections. Calls for the prolongation of the gestation of a fetus in a comatose woman who was 18 weeks pregnant, while her guardian sought an abortion to enhance the woman's chances for recovery, was a particularly perplexing case.119 "Fetal empowerment" and "fetal supremacy" are terms heard frequently from those on both sides of the debate over the conflict between fetal and maternal rights. Among the many distinct but related bodies of literature and law that impact the topic of fetal rights in the context of perinatal drug addiction are abortion rights120 and liability for prenatal

117

Conversation with the Alcohol, Drug Abuse and Mental Health Program Supervisor, Department of Health and Rehabilitative Services, St. Petersburg, Fla. (Mar. 1991). 118 According to Florida commitment law, respondents have the right to legal counsel. If individuals cannot afford a private attorney, the statute mandates that one be appointed by the court. However, under Fla. Stat. § 27.51 (11) (1987), the Office of the Public Defender is without authority to represent alcoholics whose involuntary commitment is being adjudicated, although the same law imposes duties upon the public defender to represent persons who are, or alleged to be, mentally ill. There is no specific mention of drug dependent persons in the law, with the result that indigent defendants w h o are not appointed private attorneys have no recourse. 119 See Abortion Performed on Woman in Coma, St. Petersburg Times, F e b . 12, 1989, 1A, col.3. 120 See generally Dellapenna, The History of Abortion: Technology, Morality and Law, 4 0 U . PITT. L . REV. 359 (1979); J. FEINBERG, T H E PROBLEM OF ABORTION (1984); Rhoden, Trimesters and Technology: Revamping Roe v. Wade, 95 YALE L . J . 639 (1986); Kolbert, Webster v. Reproductive Health Services: Reproductive Freedom Hanging by a Thread, 11 WOMEN'S RTS. L.J. 153 (1989); Callahan, The Abortion Debate: Is Progress Possible? in ABORTION—UNDERSTANDING DIFFERENCES ( D . Callahan & S. Callahan eds. 1984); Tumulty, The Abortion of Last Resort, L . A . Times Mag., Jan. 7, 1990, at 10 (discussing second and third trimester abortions); Sagan & Druyan, The Question of



159

injury.121 These topics are frequently debated together in terms of the paradox of women having the right to abort their fetuses during the first trimester without state interference, while they are subject to prosecution and incarceration during that same period for taking illicit drugs. Although the national debate over the right of fetuses to be born, and their right to be protected from preventable harm during gestation, has raised several perplexing questions that have similar religious, philosophical, social, and legal underpinnings, the questions are fundamentally different.122 Parallel historical analyses that demonstrate the differences between the abortion and fetal-well-being debates, and evaluation of the relative value of core concepts such as viability and trimesters, may advance the discussion more than will attempts to demonstrate their entanglement. Moreover, comprehensive analysis of fetal rights in different contexts will reveal a slow, but constant expansion of those rights and raise questions about probable future trends that may culminate in advocacy for fetal protection from all preventable prenatal harm. Although such an analysis is beyond the scope of this article, the following discussion examines some evolutionary trends in the area of fetal rights during the modern era. 1. Abortion The abortion debate in its purist form is one about the right of a conceptus to come into being, with no concern for the quality of life of a baby saved from abortion.123 However, inherent in the call for the right to

Abortion, Parade, St. Petersburg Times, Apr. 2 2 , 1990, at 4 ; R o e v. Wade, 4 1 0 U . S . 113 (1973); Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989); Akron v. Akron Center for Reproductive Health, 4 6 2 U . S . 4 1 6 (1983); Siegel, "Potential Life": Maternal/Fetal Discourse in the History of American Abortion Law (paper presented at the Feminist Legal Theory Conference on Motherhood, Madison, Wis., June 18, 1990); T H E ETHICS O F ABORTION (R. Baird & S. Rosenb a u m e d s . 1989); P. SACHDEV, PERSPECTIVES O N A B O R T I O N (1985); A B O R T I O N , SOCIETY, AND T H E LAW 121 122

123

(Walbert & Butler eds. 1973). See supra notes 29-56 a n d accompanying text. Concerning abortion, o n e author lists the following questions, which a r e particularly difficult to resolve: (1) W h e n does the fetus become a person? (2) What interests a r e legitimately affected before the stage of personhood is reached? (3) What indications a r e sufficient to justify the grave step of killing if abortion is to occur after the stage of personhood is reached? (4) A r e there any circumstances that justify killing the fetus when it can b e removed from the mother in a viable state? Dellapenna, supra note 120, at 4 2 7 . Gestational rights focus on questions such as the following: (1) whether a fetus has rights; (2) if fetuses have rights, what a r e the nature of those rights?; (3) under what circumstances, if any, should fetal rights supersede maternal rights?; and, (4) whether being protected from preventable harm is a fetal right. T h e most staunch right-to-life advocates have taken the position that even the most severely i m paired fetus should not b e aborted, including those with anencephalia, whose humanness is questioned b y some because of the absence of brain functions that help to define humans. See Capron,


160

GARCIA

life is the assumption that the reference is to human life,124 and the question of when the issue of the quality of life, including fetal well-being, will enter the abortion debate.125 Changes in moral values, political alignments, and medical knowledge and technology have all contributed to changes in laws governing abortion over the years.126 The trimester framework and the concept of viability, two bright lines drawn in Roe v. Wade,121 the 1973 case that legalized abortion, and one drawn for the state of Missouri in Webster v. Reproductive Health Services,™ that life begins at conception, have been controversial primarily because their foundations are medically and legally uncertain. However, the concepts of trimesters and viability have been

Anencephalic Donors: Separate the Dead from the Dying, 17 HASTINGS CENTER REP. 5 (Feb. 1987). Describing Louisiana's abortion bill passed on June 18, 1991, an editorial observes: Even many thoughtful opponents of abortion must be offended by the punitive, patronizing legislation . . . that prohibits victims of rape or incest from receiving abortions unless they meet the Legislature's cruel and arbitrary deadlines for reporting crimes committed against them. It forces women with terribly deformed fetuses to carry their pregnancies to term even if their babies have n o chance of survival outside the womb. Louisiana's War on Women, St. Petersburg Times, June 2 0 , 1991, at 14A, col 1. 124 " T h o s e who assert a 'right to life' are for (at most) not just any kind of life, but for—particularly and uniquely—human life. So they too, like pro-choicers, must decide what distinguishes a human being from other animals and when, during gestation, the uniquely human qualities—whatever they are—merge." Sagan & Druyan, supra note 120, at 5 . 125 When listening to pro-life advocates dramatically describe what they believe happens to fetuses during the abortion process, using terms like "ripping from limb-to-limb," and other graphic phrases that stress agony and pain, it is clear that fetal well-being has already entered into the abortion debate. See Klein, How an Abortion Crusader Became a Right-to-Lifer, N.Y. Times, Jan. 7, 1985, at 4 1 (reporting on Dr. Bernard Nathanson, w h o shows throughout the country a film entitled " T h e Silent Scream," that supposedly shows a fetus screaming and shying away from an abortionist's knife). 126 For a discussion of four phases through which the anglo-American law regarding abortion has passed, consider the following: I (1200-1600)—Abortion Relegated to Ecclesiastic Courts; II (16001803)—Jurisdiction Over Abortion Captured by the Royal Courts; III (1803-1967)—Statutory P r o hibition of Abortions; and, IV (1967-Present)—The Legalization of Induced Abortions. See Dellapenna, supra note 120, at 366. On June 18, 1991, the Louisiana Legislature voted to override Gov. Buddy Roemer's veto of a bill outlawing all abortions except when the mother's life is threatened or after rape or incest if they are reported within a week. T h e measure would send physicians w h o perform abortions to jail for u p to 10 years with fines of u p to $100,000. T h e women would not be punished. Opponents of the legislation said they would immediately move in court to stop enforcement, while supporters of the bill said they hoped the court challenges would lead to the reversal of Roe v. Wade. LA Overrides Veto of Tough Abortion Bill, St. Petersburg Times, June 19, 1991, at 6A, col. 1. See also Morgan, Alone Among Strangers—Abortion and Parental Consent, CHRONICLES, Oct. 1990, at 5 4 ; An Archbishop Rattles a Saber—Will Pro-Choice Politicians Face ExCommunication? NEWSWEEK. June 2 5 , 1990, at 6 4 . 127 4 1 0 U . S . 113 (1973). In Roe, the Court found that when a fetus becomes viable (potentially able t o survive outside the w o m b with or without artificial aid), the state has a compelling interest to protect potential life a n d m a y intervene b y prohibiting all abortions not necessary t o preserve the w o m a n ' s health. Id. at 163-64. 128 4 9 2 U . S . 4 9 0 (1989).



161

used as guidelines since Roe, even though they have often been challenged and have started to erode. For instance, the fact that medical technology has made it possible for fetuses to survive outside of the womb during the second trimester129 evoked Supreme Court Justice O'Connor's observation that the trimester framework is "on a collision course with itself,"130 having been rendered unworkable by medical advances. The viability concept, once determinative in causes of action against third parties for tortious prenatal conduct, has been rejected by some states.131 The Webster case is significant because as fetal rights move back in time toward the beginning of gestation, the decision that life begins at conception represents a bright line that some would embrace as the determiner not only of when the right to life is acquired, but also when the state has a compelling interest in protecting that right. Although the Webster case, which challenged a state statute limiting a woman's right to an abortion, was not intended to promote maternal civil and criminal liability, it seems reasonable to conclude that advocacy for the right to be born with physical and mental attributes that are uniquely human, and that should be protected prenatally, will be the next logical expansion of fetal rights advocacy in the abortion debate. Such an expansion will necessarily involve the question of when, after conception and before a legal abortion, the conceptus can be protected from toxic agents that threaten the development of human qualities such as the ability to think. Developments in abortion rights law are paralleled by developments in the law covering prenatal liability, which is also articulating a gradual expansion of fetal rights. 2. Prenatal Liability a. Third Parties An article written in 1984, before the height of the "cocaine baby scourge," observed: "Now that the courts are recognizing the right of a fetus to be protected from the negligence of others, it is only a short step to allow a fetus to recover for negligent prenatal care."132 The author accurately predicted current evolving law. The legal status of the fetus has moved from nonrecognition for a cause 129

Babies as small as 5 0 0 grams at birth have survived after only 24 weeks of gestation. See Allen & Capute, Assessment of Early Auditory and Visual Abilities of Extremely Premature Infants, 2 8 DEVELOPMENTAL M E D . & C H I L D NEUROLOGY 4 5 8 , 4 5 8 (1986).

130

131 132

Akron Center v . Akron Center for Reproductive Health, 4 6 2 U . S . 416, 4 5 8 (1983) (O'Connor, J . , dissenting). See infra notes 134-38 and accompanying text. Beal, supra note 5 6 , at 325.


162

GARCIA

of action for prenatal injury in common law and case law,133 to current civil and criminal causes of action for fetuses against third parties134 and the fetuses' parents.135 Bonbrest v. Kotz,m the first case to allow a child who was injured in the birth process to recover money damages, was the forerunner of several cases allowing children born alive to recover for tortious acts of third parties, with causes of action such as wrongful birth, wrongful death, and wrongful life.137 One author recommends the adoption and use of the cause of action known as wrongful impairment against third parties.138 With the constant evolution of law in this area, it is conceivable that a tort such as wrongful impairment could be established to apply to pregnant drug abusers. The expansion of fetal rights to bring actions against third parties was enhanced when viability as the standard for the recognition of prenatal tort actions against third parties came under attack as being difficult to assess, irrelevant to proof of causation, and an arbitrary bar to legal redress.139 In Kelly v. Gregory,m the court found that a child is a biological entity separate from its mother at conception and recognized a cause of action for the tortious infliction of injury to a three-month fetus. Although only about onethird of states that allow a cause of action for prenatal torts do not require a child to be viable at the time of injury to recover for his/her injuries, the growing nonrecognition of the viability standard significantly expands fetal rights. b. MothersIGestators Courts have gradually strengthened fetal rights in the area of tortious infliction of injury caused by pregnant women's conduct during gestation, 133

The first decision in the United States that considered, and denied, a wrongful death recovery to a child born alive but fatally injured in the womb by the negligence of another occurred in 1884. Justice Oliver Wendell Holmes reasoned that the fetus was a part of the mother at the time of the injury, and not a separate entity. Dietrich v. Northampton, 138 Mass. 14, 16 (1884). 134 See Collins, supra note 5 6 , at 678. 135 See supra notes 45-56 and accompanying text. 136 65 F. Supp. 138 ( D . D . C . 1946). 137 Parents may bring a wrongful birth cause of action if the birth of an unplanned child occurs because the parents' right to control their own reproduction has been denied by the tortious conduct of another. A n action for wrongful death may lie if the death of a newborn, or an unborn, is caused by tortious conduct. A child may have a wrongful life cause of action if its birth is due to the tortious conduct of one other than its parents. Collins, supra note 56, at 678. 138 A child who is born alive, may have a wrongful impairment cause of action if it suffers from impairments that are the result of wrongful postconception or preconception conduct of, generally, persons other than his or her parents. Id. 139 Id. at 680. For a discussion of the viability standard, see Paonessa, Recovery for Prenatal Injuries: Michigan Exorcises its "Ghosts" of the Past, 47 NOTRE DAME LAW. 976 (1972); Babin, Preconception Negligence: Reconciling an Emerging Ton, 67 GEO. L.J. 1239, 1246 (1979); Hartye, Tort Recovery for the Unborn Child, 15 J. FAM. L. 276 (1977); Willa, Negligence and the Unborn Child: A Time for Change, 18 S.D. L. REV. 204 (1973). 140 282 A . D . 542, 125 N.Y.S.2d 696 (N.Y. A p p . Div. 1953).



163

including the ingestion of drugs.141 Key to the expansion of fetal rights to bring causes of action against their parents was the erosion of the doctrine of parental immunity.142 The decision in Grodin v. Grodin,w which recognized a cause of action for a fetus against its mother for negligently inflicted prenatal injury, was by no means universally supported. In rejecting Grodin, the court in Stallman v. Youngquist,m concluded that to recognize such fetal rights and correlative maternal duties would make the woman the guarantor of her child's mind and body. Nevertheless, the Stallman court indicated that it in no way sought to minimize the public policy favoring healthy newborns, and left to the legislature the recognition of a maternal duty to the fetus.145 The divergent holdings and dicta in Grodin and Stallman illustrate the complexity of the issues that envelop the tension between maternal and fetal rights analyses. The advent of the national debate over the most effective societal response to remedy the injurious effects of perinatal drug addiction on both mothers and their offspring has occurred concurrently with the expansion of rights of the unborn to be born alive, and without injuries caused by their mothers' tortious or criminal behavior during pregnancy. The legal community has responded with rushed legislation and unique causes of action that have been challenged because of their alleged violation of rights.146 IV. APPLICABLE AND EVOLVING LAWS The relationship between rights and laws is dynamic, and, one can argue, symbiotic, just as is the relationship between laws and practice. As legal responses to pregnant and postpartum addicts have emerged, rights advocates have examined the potential impact of law on drug-addicted mothers and their offspring, and have reacted in ways designed to protect maternal and fetal rights. Many legal issues, such as testing and reporting 141

See, e.g., Smith v . Brennan, 31 N . J . 353, 157 A.2d 4 9 7 (1960) (holding that a fetus has a right to begin life with a sound body); In re Smith, 492 N.Y.S.2d 331 (Fam. Ct. 1985) (child whose mother failed to seek prenatal medical care and has misused alcohol was a neglected child based on the mother's conduct prior to the child's birth); In re Theresa J., 551 N.Y.S.2d 219 (App. Div. 1990) (mother's testing positive for cocaine, her admitted drug use, proximity of her drug use to premature birth of infant, and her willingness to enter treatment established prima facie case of neglect of child); In re Baby X , 9 7 Mich. A p p . 111, 2 9 3 N.W.2d 7 3 6 (1980) (Michigan probate court concluded that evidence of neonatal heroin withdrawal w a s sufficient evidence of neglect to justify taking temporary custody of the newborn). 142 See Beal, supra note 5 6 , at 333 (for a comprehensive discussion of the doctrine of parental immunity). 143 102 Mich. A p p . 396, 301 N.W.2d 869 (1980). 144 125 Ill. 2 d 267, 276, 531 N.E.2d 355, 358 (1988). 145 See Carroll, supra note 5 6 , at 220. 146 See Garcia, supra note 5 8 .


164

GARCIA

laws, physician/patient privilege, confidentiality of records, and mandated birth control either have been extensively explored elsewhere or briefly discussed in this article147 and are further discussed here only to the extent that they impact the foci of this section—fetal/child protection and maternal control. Since the first cases involving criminal charges against women for prenatal harm caused by their conduct,148 the bifurcated nature of the problem of perinatal drug addiction has become increasingly clear. The maternal/fetal conflict is widely described as a struggle between adversaries that are separate legal entities with hostile rights and, notwithstanding calls for a new framework in which to view prenatal drug addiction, two distinct sets of legal activities have emerged—(1) fetal/child protection and (2) maternal control, treatment, and punishment. A. Fetal/Child Protection An important response to the problem of perinatal drug addiction has been efforts to bring drug-exposed fetuses and newborns under the protection of child abuse and neglect laws. These efforts have included such efforts as testing, reporting, child custody and dependency, foster care, termination of parental rights, and adoption. Although several articles have comprehensively analyzed the key issues concerning mandatory testing and reporting laws,149 and their potential effects on women's prenatal behavior,150 there has been less coverage of issues involving child custody laws 147

See, e.g., Robin-Vergeer, supra note 2 4 ; Connolly & Marshall, supra note 6. See, e.g.. People v. Stewart, N o . M508197 (Mun. C t . , San Diego J u d . Dist., F e b . 2 6 , 1987) (woman criminally prosecuted o n the theory o f prenatal neglect for not following physician's orders to refrain from conduct that might harm the fetus); Illinois v . Green, N o . 88-CM-8256 (Rockford Ill. Cir. C t . , Winnebago County 1989) (a grand jury refused to indict a young mother for m a n slaughter in the cocaine-linked death o f h e r two-day-old daughter). See Jury Won't Indict Mother for Baby's Drug-Linked Death, Tampa Trib., M a y 2 7 , 1989, at 7-A, c o l . 1; Florida v. Johnson, N o . 89-890-CFA (Cir. C t . , Seminole County F l a . 1989) (woman convicted of delivery of a controlled substance t o a minor). 149 See, e.g., Robin-Vergeer, supra note 2 4 , at 782-809 (discussing the merits of toxicological screens used to detect the presence of drugs in the urine, and asking who between mother and fetus should be screened; suggests criteria for screening infants and discusses implications of reporting practices); Oberman, supra note 100, at 147 (arguing that "while reporting laws based on newborns' positive toxicology screens catch women who may not pose threats to their children, a more striking problem is that such laws fail to identify many whose behavior clearly threatens their children"); Besharov, Mandatory Reporting of Child Abuse and Research on the Effects of Prenatal Drug 148

Exposure,

unpublished manuscript adapted from D . BESHAROV, RECOGNIZING C H I L D ABUSE: A G U I D E

FOR THE CONCERNED (1990) (enumerating several forms of reportable child maltreatment and which professionals are required to report suspected child abuse and neglect; addressing the issues of liability for failure to report, legal immunity from civil and criminal liability for those w h o report, and explicit requirements to report prenatal drug exposure). 150 There is abundant anecdotal evidence that pregnant drug addicts forego prenatal care because of fear of being detected and losing custody of their babies. See Oberman, supra note 100. This important effect of testing and reporting laws warrants empirical validation.


165


and their probable long-term effects on child and family welfare, and women's prenatal conduct and postnatal recovery. Based on interviews and anecdotal evidence, it appears that many involved in making policy to confront the problem of perinatal drug addiction view the use of child abuse, neglect, and custody laws as effective mechanisms for child protection, for altering maternal behavior, and for preserving existing families or creating new ones. Facts do not conclusively show that any one of these goals is being achieved. 1. Child Abuse and Neglect Laws The novel cause of action in the Johnson case,151 that led to the conviction of a woman for prenatal drug use,152 reflected a growing trend among the states to enact or propose laws that consider prenatal drug abuse as evidence of child abuse or neglect.153 This further expansion of fetal rights154 and subordination of maternal rights to fetal protection has put pregnant and postpartum drug addicts on notice that, if they are identified, then it is highly likely they will become entangled with local social service agencies.155 These agencies have raised several questions about the relationship between drug usage, drug abuse, drug addiction, and the ability to

151 152

153

Florida v . Johnson, N o . 89-890-CFA (Cir. C t . , Seminole County, Fla. 1989). Johnson framed the issue on appeal as follows: The conviction of a woman w h o used drugs during her pregnancy for pushing drugs to her children is without precedent, not only in Florida but throughout the nation. T h e State urged and the court accepted the extraordinary claim that the passage of cocaine—after it has been broken down by a woman's liver, gone through the placenta and then the umbilical cord—to a newborn still connected to the mother by the umbilical cord constitutes " d e l i v e r y " of a controlled substance to a person under the age of eighteen. This interpretation violates basic principles of statutory construction and creates a crime neither intended n o r enacted by the Florida legislature. Appellant's Initial Brief, at 1 3 , Johnson v . Florida, N o . 89-1765 (Fla. App. Dec. 2 8 , 1989). See, e.g., FLA. STAT. § 415.503(8)(a)(2) (1987) (child abuse or neglect includes "physical dependency of a newborn infant upon any drug controlled in Schedule II of § 8 9 3 . 0 3 " ) ; ILL. REV. STAT. ch. 2 3 , ¶ 2053 (1990) (neglected children include " a n y newborn infant whose blood or urine contains any amount of a controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substance A c t " ) ; M I N N . STAT. ANN. § 626.556(4)(2) (1988) ("neglect includes prenatal exposure to a controlled substance"); OKLA. STAT. tit. 2 1 , § 846(a) (Supp. 1989) (a report must b e made for a "child w h o appears to be a child born in a condition of dependence on a controlled dangerous substance"); UTAH CODE A N N . § 78-36-3.5 (Cum. Supp. 1989) (a report is mandated when a child " a t the time of birth, has a fetal alcohol syndrome or fetal drug depen-

dency"). 154 155

See supra notes 119-47 and accompanying text. Social service agencies, such as Health and Rehabilitative Services (HRS) in Florida, the Department of Children a n d Family Services (DCFS) in Illinois, and the Department of Human Resources in Maryland have the task of investigating allegations of child abuse and neglect and removing from their homes drug-exposed babies and their siblings deemed to be at risk.


166

GARCIA

parent. Moreover, implementation of rapidly enacted laws has created problems in some jurisdictions.156 All states have laws that mandate physicians, nurses, emergency room personnel, social workers, mental health professionals, and other professionals to report suspected child abuse and neglect to the social service agency in the jurisdiction where the alleged mistreatment occurred, to police, child protective services, or, as is the case in Florida, the Child Abuse Registry.157 Pregnant drug users usually come to the attention of authorities from referrals from intake agencies where the women have gone for prenatal or postnatal care and have had urine or blood samples screened for drugs. The policy of some jurisdictions is to automatically take into custody a newborn whose toxicology screen is positive, while other states require an investigation to determine if the home environment is suitable to care for a high-risk infant. The potential for the exercise of vast amounts of administrative discretion exists from the moment a pregnant woman suspected of using drugs comes into contact with intake personnel. Some decisions that are likely to be affected by the decisionmaker's view of perinatal drug addiction are whether to perform toxicology screens on babies, mothers, or both,158 to report the findings to a particular authority, to engage in the overbroad practice of removing all babies with positive toxicology screens from the mother's custody, to conduct a home investigation, or to find that the

156

See Spitzer, A Response to "Cocaine Babies"—Amendment of Florida's Child Abuse and Neglect Laws to Encompass Infants Born Drug Dependent, 15 FLA. ST. L. REV. 866 (1987). See also Newborn's Death Stirs Debate on Law, Agency, St. Petersburg Times, Apr. 2 , 1988, at 4 A , col. 1 (describing confusion and argumentation between two Florida legislators and Health and Rehabilitative Services personnel over implementation of the amended child abuse and neglect law after the death of a drug-exposed baby—the dispute was over w h o authorized the baby's release from the hospital and why H R S had not conducted an investigation); Thompson Signs Bill to Hasten Treatment of Cocaine Babies, Chicago Trib., Aug. 2 5 , 1989, at 2 , col. 4 (reporting that, after a new law was passed changing the legal definition of child neglect to include any newborn infant whose blood or urine contains any amount of a controlled substance other than those present due to medical treatment, "[t]he governor noted that one difficulty encountered by those w h o treated these infants was that Illinois law relied o n gathering evidence of neglect, which takes time," and that "[c]ocaine babies can't wait for that kind of intervention"). 157 See Tompkins & Kepfield, Policy Responses When Women Use Drugs During Pregnancy: Using Child Abuse Laws to Combat Substance Abuse, in PERINATAL SUBSTANCE ABUSE: RESEARCH F I N D INGS AND CLINICAL IMPLICATIONS (T. Sonderegger e d . 1991) (listing states' abuse a n d reporting statutes). It h a s been argued that drug screening based on suspicion of drug u s e violates the right t o privacy of both mothers and babies. T h e laws of each jurisdiction, and the goals of medical personnel, such as diagnosis of fetal harm that requires particular early medical intervention, or getting evidence to u s e against mothers, largely will determine w h o is tested, and h o w test results a r e used. See Robin-Vergeer, supra note 2 4 , at 7 8 4 ; In re Noah A d a m M . v . Joan M . , 2 1 2 Cal. A p p . 3d 30 (1989).


167

mother is unfit to parent.159 Despite penalties for failure to report suspected child abuse,160 the Chasnoff study demonstrated that actual reporting is affected by race, class, and whether a public or private agency is involved.161 Moreover, custody decisions are also largely based on the exercise of social service agency and judicial discretion.


2. Child Custody The rationale for social service agencies taking newborns into protective custody is that drug-addicted mothers are somehow unfit to care for their babies. Although it seems logical to assume that drug addicts have a predilection for child abuse and neglect because of the panoply of social and psychological problems that often attend addiction,162 evidence that pregnant addicts later abuse their babies is equivocal and largely undocumented. Factors that are considered likely to contribute to postnatal child abuse and neglect include the following: (1) diversion of money, food, time, and other resources from the child's needs to maintaining the drug habit; (2) criminal activity to support the drug habit, such as theft, selling drugs, and prostitution; (3) debilitating mental, emotional, and physical illness; (4) poor parenting skills due to isolated, chaotic, dysfunctional family backgrounds with minimal social and cultural stimulation, inconsistent discipline, and destructive forms of communicating; (5) the side effects of the drugs, such as paranoia, violence, hyperactivity, anger, distrust of others, hallucinations, intolerable depression, and aggressiveness; and, (6) a history of family violence.163 159

When asked about his reporting practices, a prominent Chicago physician responded that he did not report his middle and upper-class pregnant drug abusers because they " h a v e a different support system" from his indigent clients. 160 Failure to report suspected child abuse and neglect can result in administrative, criminal, and civil penalties. See, e.g., Illinois Abused and Neglected Child Reporting Act, Ill. Laws P.A. 86-659 § 4.02 (1989), which provides that any physician who fails to report child abuse or neglect shall be reported to the Illinois State Medical Disciplinary Board for action. See also The Child Abuse Prevention and Treatment Act, P u b . L . N o . 93-247, 84 Stat. 4 (1974), reprinted in 1974 U . S . C O D E CONG. & A D . N E W S (codified as amended at 42 U . S . C . §§ 5101-15 (1985) (now called the Child Abuse Prevention and Treatment Act, which provides that a state must have a child abuse reporting law in place to qualify for federal child abuse prevention treatment funds). Saltzman, Protection for the Child or the Parent? The Conflict Between the Federal Drug and Alcohol Abuse Confidentiality Requirements and the State Child Abuse and Neglect Reporting Laws, 1985 So. ILL. U.L.J. 181 (concluding that state laws requiring mandating child abuse reporting, and federal laws with confidentiality provisions designed to protect the rights of drug abuse patients, can co-exist, and should be interpreted to d o so). 161 See Chasnoff, Landress, & Barrett, supra note 6 8 . 162 See, e.g., Black, Parents with Special Problems: Alcoholism and Opiate Addiction, in T H E BATTERED CHILD (Kempe & Heifer eds. 3d ed. 1981). 163 These factors are identified in the writings of Dr. Jan Bays, Director of Child Abuse Programs within the Department of Pediatrics at Emanuel Hospital in Portland, Oregon, cited in Myers, Maternal Substance During Pregnancy: A Limited Role for the Legal System (unpublished manuscript 1990) (available from author).


168

GARCIA

Given these impairments that exist in varying degrees in the families of drug-addicted mothers, social service agencies and judges frequently take one of three approaches, or combinations of them, when they make decisions about mothers' fitness to retain custody of their newborns and the infants' siblings: (1) focus on the prenatal drug-taking behavior;164 (2) review of past child care behavior;165 and, (3) prediction of fitness based on anticipated future drug use.166 If the task of identifying potential future abusers is to be predicated on sound, legal criteria, then authorities also must take into account the history of drug use in women's lives,167 and factors peculiar to the drug(s) involved on a case-by-case basis. a. Social Service Agency (HRS) and Courts When a drug-exposed newborn is taken into custody, HRS168 personnel play a key role in determining what ultimately happens to the mother, infant, and siblings. The two-pronged nature of responding to perinatal drug addiction is particularly apparent at this stage because HRS takes control over the lives of mothers and children while working with a number of agencies. When it is determined that the mother or a close relative is

164

Robin-Vergeer succinctly describes the fallibility of assuming future child abuse or neglect from prenatal drug-taking behavior: [BJecause of the uniqueness of pregnancy, the argument that a mother's drug use during pregnancy evinces a gross indifference to the welfare of her unborn child that necessarily will continue after birth, fails. Regardless of the pregnant drug user's awareness of the danger drug use entails for her unborn child, any harm inflicted upon the fetus is incidental to her decision about the care of her own body. T h e mother's future decisions about the care of her own body will n o longer produce a corresponding effect on her child. Robin-Vergeer, supra note 2 4 , at 776. 165 Many drug-addicted pregnant and postpartum women a r e from dysfunctional families, and they suffer from the far-reaching effects of poverty, from sexual and spousal abuse, and from other factors that preclude the development of appropriate parenting skills. Consequently, many have lost custody of their children. A series of 1991 inquiries by the author directed toward women undergoing treatment at Substance Abusing Mothers and Their Infants (SAMI), a drug treatment program in Tampa, Florida, revealed that more than half of the active clients had lost custody of other children before their most recent pregnancies. Most children were in the custody of relatives as opposed to foster care. Part of SAMI's comprehensive treatment program are classes on family involvement and parenting. See also infra note 225. Women recovering from crack cocaine and alcohol addiction, are known to have a high incidence of relapse, raising the question of at what point during treatment women can be determined to be sufficiently recovered t o regain custody of their children. See supra note 7 0 . 167 T h e result of a study of 178 drug dependent women t o discover the likelihood that they would neglect or abandon their children revealed that a history of violence or abuse is related to maternal drug abuse and to the placement of their child(ren) in foster care. Regan, Ehrlich, & Finnegan, Infants of Drug Addicts: At Risk for Child Abuse, Neglect and Placement in Foster Care, 9 NEUROTOXICOLOGY & TERATOLOGY 3 1 5 (1987). 168

T h e Department of Health and Rehabilitative Services (HRS), the social service agency in Tampa, Florida, will be used in the discussion of child custody.



169

unable to care for a newborn, HRS places him or her in foster care and enters into a performance agreement with the mother.169 In practice, a performance agreement is a contract between the woman and HRS for her to meet certain requirements before she can regain custody of her children. Examples of conditions for the women include completion of a drug treatment program, acquisition of suitable housing, and study culminating in a high school diploma. The intent of the legislature in devising performance agreements was to facilitate the reunification of families.170 The fate of the mother is determined by a number of factors, such as whether she has been charged with a crime and is offered treatment in lieu of prosecution, whether she has mental problems, whether she is involuntarily civilly committed to treatment, what treatment facilities are available to accept her, whether she requires a residential treatment program or can be assigned to an outpatient program, and her compliance with the conditions of her probation or performance agreement.171 Child dependency is a complex matter that is made more problematic when drug addiction is involved, largely because of the lack of knowledge and consensus about the nature of addiction, and the paucity of legal precedent to help shape policy.172 Child dependency hearings can involve several people, with competing interests and expectations,173 and can culminate with the infant being placed in foster care. Although women are ordered by judges to comply with the conditions of their performance agreements, the terms of the agreements are largely determined by recommendations made to the judges by HRS caseworkers. The relative amounts of discretion and personal views used to construct performance agreements, compared to the

169

170

171

172 173

A performance agreement is defined by statute as follows: "Performance agreement" means a document written in layman's terms in the principal language, to the extent possible, of the natural parent and in English which is ordered by the court, prepared by the social service agency responsible for the foster home placement in conference with the natural parents, and signed by the parent, parents, or other custodian of the child; the child's legal guardian; the social service agency responsible for the foster home placement; and, if possible, the child. FLA. STAT. § 409.168(2)(g) (1983). See Note, Parental Rights Termination: Are the Interests of Parents, Children, and the State Mutually Exclusive? 17 STETSON L. REV. 295 (1987) (analyzing the legislative intent in creating performance agreements). For a discussion of treatment in lieu of prosecution, involuntary civil commitment, and other legal controls of pregnant and postpartum drug addicted women see infra notes 191-210 and accompanying text. See supra notes 7-75 and accompanying text. The parties in a dependency proceeding can include attorneys for the parent and child, the HRS representative, a guardian ad litem, members from the family protection team, other expert witnesses, and the judge. See Garcia & Batey, The Role of Counsel for the Parent in Child Dependency Proceedings, 22 GEO. L. REV. 1079 (1988) (describing court proceedings, conflicting interests, and interviews of various parties represented in court).

170

GARCIA


use of individual case facts, research results, and information about drug addiction, warrant study. Unrealistic and unattainable conditions in performance agreements can preclude the reunification of mothers and children, and render the intervention of social service agencies ineffective or destructive. For instance, children in foster care while their mothers are in treatment programs are sometimes shuffled back and forth between home and foster care during periods of maternal relapse and sobriety where neither condition is fully understood. b. Foster Care One irony of the expansion of fetal rights and fetal protection is that there is evidence of diminishing children's rights and child protection.174 Foster care systems are notoriously overcrowded and staffed with untrained personnel who are not adequately screened.175 With the increasing numbers of drug-exposed babies entering foster care systems, there exists an acute need to train prospective foster parents to respond to the children's special needs. Assuming that Florida is typical of state foster care systems, the danger of abuse, neglect, and death is such that it should be a matter of great national concern.176 However, drug-addicted mothers who lose custody of

174

Child sexual and physical abuse, poverty, abandonment, homelessness, A I D S , a n d neglect have left thousands of children vulnerable t o lives of sickness, poverty, and emotional disturbances. See generally Baumeister, Dokecki, & Kupstas, The New Morbidity, in 1A CURRENT PERSPECTIVES IN PSYCHOLOGICAL, L E G A L A N D E T H I C A L ISSUES: C H I L D R E N A N D FAMILIES (S. Garcia & R. Batey e d s .

1991); Cotter & Kuehnle, Sexual Abuse Within the Family, in CURRENT PERSPECTIVES, supra note 76, at 157; Cupoli, The Consequences of Child Abuse, in CURRENT PERSPECTIVES, supra, note 76, at 145; Osterholm & MacDonald, Facing the Complex Issues of Pediatric AIDS: A Public Health Perspective, 2 5 9 J . A . M . A . 2736 (1987). 175 See Invisible Children, St. Petersburg Times, Apr. 2 , 1988, at 12A, col. 1 (describing severe problems for the approximately 8,500 children w h o live in Florida's state-sponsored foster homes such as overcrowding, beatings, constant moving, inadequate training of parents, a n d murder). I n 1991, T h e Legal A i d Bureau, Inc. in Maryland, filed a suit against the social service agency, the Department of Human Resources, in U . S . District Court for the District of Maryland alleging, inter alia, intentional neglect of children in foster care. A consent decree was entered that stipulated how the provision of services for children in foster care must b e improved. Conversation with the director of the Legal Aid Bureau, Tampa, Fla. (July 19, 1991). 176 See, e.g., Foster Mother Gets 5 Years for Child Abuse, St. Petersburg Times, Apr. 2 , 1988, (Metro sec.) at 2 , col. 3 (reporting that a 32-year-old foster mother described as borderline mentally retarded w a s sentenced t o five years in prison after a 19-month-old boy and a three-year-old girl were found beaten, bruised, and undernourished in h e r home); Foster Mom Charged with Murder of Boy, St. Petersburg Times, Mar. 3 1 , 1988, at 1-B, c o l . 5 ; HRS Reviewing Child's Death, St. Petersburg Times, Apr. 1, 1988, at B - l , col. 1; Mistake or Murder? St. Petersburg Times, Apr. 5 , 1988, at 1-B, col. 5 (describing the beating death of a five-year-old boy in foster care and the


171

their newborns and other children have few alternatives to having them become part of the foster care system when relatives are unwilling or unable to take custody of the children. While foster grandparent programs have the advantage of keeping the children in the family, when it comes to drug-exposed babies, such programs have their own problems, such as undertraining and inadequate support.177


c. Reunification of Mother and Child It would be inaccurate to assume that all drug-addicted mothers ultimately want custody of their children, as demonstrated by the growing number of drug-exposed "boarder babies" abandoned by their mothers to hospitals and other public facilities.178 However, reunification with their babies and older children is the goal of many women, some of whom are homeless and abandon their infants because they have no place to take them, and is a priority of most states.179 Reunification of drug-addicted women with their children in foster care poses imposing problems, particularly for women who live in areas where drug trafficking is a widespread and accepted way of life.180 A study of African American children in foster care had four major findings: (1) child welfare agencies are not achieving permanency for most

conviction of his foster mother after she fractured his skull with a wooden board); Foster Mother Found Guilty in Girl's Death, St. Petersburg Times, June 20, 1991, (Metro sec.), at 4 , col. 1 (reporting on the conviction of first-degree murder and conspiracy to commit aggravated child abuse of a 32-year-old foster mother after the five-year-old girl in her care died after receiving a ruptured spinal cord and severe bruising to her buttocks, hips, and back. The woman's husband and son were tried separately on the same charges. The child was placed by a quickly-organized foster care program that was acknowledged by President Bush as his 59th "Point of Light" because of its work in placing drug-exposed babies in foster homes). 177 Grandmothers and other family members do not receive funding equal to non-family members for the care of foster children, creating economic hardships. 178 Baby-Holder Programs have been created primarily in N e w York and Washington, D . C . hospitals that attract volunteers w h o hold, massage, and otherwise comfort and nurture drug-exposed babies who have been abandoned. See Gale, Men Who Love Babies, PARADE, D e c . 2 4 , 1989, at 4 . 179 See, e.g., Florida's child protective laws on reunification: (2) T h e purposes of this chapter are: . . . (b) To assure to all children brought t o the attention of the courts, either as a result of their misconduct or because of neglect or mistreatment by those responsible for their care, the care, guidance, and control, preferably in each child's o w n home, which will best serve the moral, emotional, mental, and physical welfare of the child and the best interests of the state. F L A . STAT. § 39.001(2)(b) (1987). T h e correlation between abandonment and homelessness warrants thorough study in order to determine h o w realistic are t h e state's goals of reunification where homelessness is pervasive. 180 T h e author attended a Narcotics Anonymous meeting in Tampa Fla. in M a y of 1991 where several women expressed their fear of relapse because they live next door t o crack (cocaine) houses where the sale and use of cocaine continues day and night, thereby creating a constant temptation t o " p i c k u p " (resume using drugs).


172

GARCIA

children, particularly for those from homes with parental drug abuse; (2) services to address the problems of contributing to placement in foster care were either unavailable or insufficiently brokered or coordinated with other organizations to achieve reunification discharges; (3) relative placements were often available and represent a significant resource to the children; and, (4) families with parental drug abuse were more likely to have less education, be poorly housed, and receive AFDC prior to placement than other families with children in care.181 The attitudes, emotional well-being, fears, school performance, and physical condition of children of recovering addicts warrant in-depth study. Similarly, the perceptions of, and hopes and plans that recovering drug addicts have for their children under the supervision of HRS and the courts warrant thorough study. Such studies may produce useful information on how dependency, and fear of social service agency policies, particularly the foster care system, affects women's recoveries and their children's overall welfare. They might reveal that the women's recoveries are impeded, and that children who are moved in and out of foster care as permanent wards of the state, and who never develop the concept and security of "home," are the least protected of all children. d. Termination of Parental Rights Professionals have questioned when, in the best interest of children of drug-addicted women, it is most appropriate to seek the termination of parental rights and an order of permanent commitment of the children for adoption. Some suggest that more serious consideration should be given to the termination of parental rights of repeat offenders, women who have given birth to more than one chemically exposed baby, who have failed to successfully complete numerous treatment programs, and who demonstrate little interest in parenting their children. Opponents of a "knee-jerk" reaction to the termination of parental rights assert that continuity of care and the development of nurturing relationships for children of addicted mothers may be achieved by supporting members of their extended families, at least until adoptions can occur. The question of what conduct disqualifies drug-addicted mothers as caregivers for their children, justifying the intervention of the state to protect children until a permanent alternative caregiver becomes available, is not answered easily. The decision of the Florida Supreme Court in In re R. W.,1*2 that a

181

U . S . Department of Health and Human Services, Order No. SA-90-2233-1, Parental Drug Abuse and African American Children in Foster Care: Issues and Study Findings, Executive Summary (Feb. 1991). 182 495 S o . 2 d 133 (Fla. 1986). F o r a thorough analysis of In re R.W., see Note, supra note 170.


173


clear and convincing standard of proof for termination of parental rights is required, and that such rights cannot be terminated for failure to substantially comply with a performance agreement, had conflicting results. A writer summarizes this conflict: The performance agreement was designed to further legislative goals. Its purpose was to either assist families in their efforts to be reunited or, if this was not possible, to terminate parental rights so that children could then be adopted into stable homes. [I]n ruling that termination of parental rights for failure to comply with a performance agreement is unconstitutional, the Florida Supreme Court was ironically attempting to further much the same goal. The court's support of the fundamental right to family integrity and its concern that it might be abridged by arbitrary decisions, provided the basis for its holding. [T]he effect of the court's opinion may be that many children will remain indefinitely in foster care because there is no clear evidence of abuse, abandonment, or neglect to justify the severance of parental rights and yet a return to the parents is untenable without costly supportive services which may be unavailable. This is a result beneficial to no one.183

This Florida case once again raises questions about whether prenatal and postnatal drug addiction are, per se, evidence of child abuse and neglect, and if so, whether they meet jurisdictions' standards for termination of parental rights. Capability of recovery was at issue in Oregon ex rel. Juvenile Department of Lincoln County v. Ashley,,184 where the Oregon appeals court reversed the dismissal of a petition to terminate the parental rights of a drug-addicted mother, ruling that the trial court erred in excluding the testimony of her drug treatment counselors. The mother admitted that her drug addiction made her an unfit parent, but argued that she had been rehabilitated after her 1988 imprisonment. The trial court barred the testimony of the woman's therapist and social worker because of psychotherapist/patient privilege, but was overruled on the grounds that such witnesses could have provided information crucial to determining whether the mother was capable of recovery.185 The potential long-term positive impact of laws that are passed to create and strengthen fetal and newborn rights, but that exist in a milieu that fails to protect and adequately support children, seems highly questionable. Laws designed to control, treat, and rehabilitate drug-addicted mothers, while protecting their existing rights, also reflect great schisms between rights, laws, and practice.

183 184 185

See Note, supra note 170, at 3 1 7 . 7 9 0 P.2d 547 (Or. A p p . 1990). See Termination of Parental Rights—Mental

413 (Sept.-Oct. 1990).

Disabilities,

14 MENTAL & PHYSICAL DISABILITY L . R E P .

174

GARCIA

B. Maternal Control and Coerced Treatment


1. Coerced Treatment The diminution of the rights of pregnant drug-addicted women might have been rationally predicted in light of the expansion of fetal rights in recent years. However, not as easily predictable has been the extent to which some authorities are willing to go to control the pre- and postnatal reproductive behavior of addicted women. Although social service agencies assert that the primary reason for taking custody of children of drugaddicted women is to protect children at risk, a secondary effect is to modify and control the pre- and postnatal behavior of the women. Other methods of control that have either been proposed, or that have been implemented to reduce perinatal drug addiction, include criminalization,186 incarceration for the duration of the pregnancy so that the baby will be born "clean,"187 implantation of the birth control device, Norplant,188 and coerced treatment through involuntary civil commitment and treatment in lieu of prosecution. Because of the distinction made between illicit and licit drugs, there is great variability with implementing these methods of control, with alcoholic women generally escaping criminal charges. However, this is gradually changing.189 Clearly, each method of control infringes upon women's liberty interests and the rights that they claim regarding their freedom to make reproductive decisions and to be treated fairly under the law.190 However, this section will focus on the concept of coerced treatment for several reasons. First, the equivocal results of coercive treatment programs for persons addicted to drugs191 lend credence to one of this article's premises, that medicolegal knowledge about addiction has considerable limitations, and

186 187

188 189

190 191

See supra notes 44-48 and accompanying text. See, e.g., Sherman, Keeping Babies Free of Drugs, 12 NAT'L L . J . (Oct. 16, 1989) (describing the case of Barbara Vaughn, a 30-year-old pregnant cocaine addict who a Washington, D . C . Superior Court judge sentenced to four months jail time to coincide with her due date for the first-time offense of forging about $700 worth of checks. T h e judge admitted that normally such an offense would not warrant jail time, but that he wanted to protect her fetus from the cocaine's effects). See supra notes 80-83 and accompanying text. See, e.g., Pregnant Woman Faces Abuse Charge for Drinking, St. Petersburg Times, Jan. 2 2 , 1990, at 3 A , col. 1 (reporting on the Laramie, Wyoming case of Diane Pfannenstiel, a four-month pregnant, 29-year-old woman who was charged with felony child abuse because her blood-alcohol level was above the standard used to determine drunken drivers. The woman was under a judge's order to avoid alcohol because a previous child w a s born with fetal alcohol syndrome). See supra notes 77-100 and accompanying text. See, e.g., Anglin, The Efficacy of Civil Commitment in Treating Narcotic Addiction, in COMPULSORY TREATMENT OF DRUG ABUSE: RESEARCH AND CLINICAL PRACTICE, NIDA MONOG. SERIES 86, at 8

(C. Leukefeld & F. Tims eds. 1988) (reporting on a study of more than 1000 persons admitted to California's Civil Addict Program in the 1960s for a seven-year period and commenting:



175

suggest the exercise of great caution before embracing coercive treatment as an effective response to pregnant and postpartum addicts. The second reason for focusing on treatment in lieu of prosecution and involuntary civil commitment is that these practices appear to be emerging as forms of compromise between prosecutors and the treatment community intended to forestall an increase in the filing of criminal charges against pregnant and postpartum addicts.192 Third, an interesting merger of involuntary civil commitment and punitive incarceration in one jurisdiction, discussed below, vividly demonstrates complex interactions between agencies and individuals and how their exercise of discretionary decisionmaking sets policy. Finally, an examination of coercive treatment forces a reexamination of the theories of the causation and nature of addiction and how institutional responses reflect theory, discretionary decisions, and societal trends.193 For instance, after review of literature examining the relationship between the increased use of coercion as motivation for alcoholism treatment entry and the goals of alcoholism treatment, researchers concluded: Thus, one of the major implications of the changing characteristics of clients in alcoholism treatment brought on by the increasing use of coercion in the treatment of the "universe" of alcohol-related problems is the transformation of the social function of alcoholism treatment. It may be that the appeal of the disease concept has been eclipsed by the current utilitarian need to respond to the more numerous and troublesome concerns of social control. We, thus, postulate that the shift in

Before renewed consideration can be given to the compulsory commitment of drug addicts for treatment, it is crucial to determine whether such treatment can be effective in reducing addiction, or at least in minimizing the adverse social consequences of addiction. There have been only a few studies that have addressed this question, and the empirical evidence derived from most of them has been equivocal. Schotten, Involuntary Treatment of Substance Abuse Disorders—Impediments to Success, 52 PSYCHIATRY 164 (May 1989) (discussing some negative effects of compulsory treatment); Stizer & McCaul, Criminal Justice Interventions with Drug and Alcohol Abusers: The Role of Compulsory Treatment, in BEHAVIORAL APPROACHESTOCRIME AND DELINQUENCY: A HANDBOOK OF APPLICATION,

RESEARCH, AND CONCEPTS 331 (E. Morris & C. Braukmann eds. 1987); Webster, Compulsory Treatment of Narcotic Addiction, 8 INT'L J.L. & PSYCHIATRY 133 (1986) (comprehensive review of domestic and foreign compulsory treatment programs with general conclusions). State attorneys in several jurisdictions have announced that they will forego prosecution of pregnant and postpartum addicts if the women will successfully complete a court-mandated treatment program. See, e.g., C. MOLONY CONDON, SUBSTANCE ABUSE DURING PREGNANCY: A DESCRIPTION OF THE INTERAGENCY POLICY IN CHARLESTON COUNTY, SOUTH CAROLINA ( 1 9 8 9 ) . ( M r . C o n d o n i s t h e

193

Ninth Circuit Solicitor, Charleston/Berkeley Counties, South Carolina.) See also Pregnant Addicts Face Treatment or Charges, St. Petersburg Times, Oct. 6, 1989, at 3B, col. 1 (reporting that State Attorney James T. Russell of Pinellas County, Fl. agreed to give mothers of babies with cocaine in their bodies the alternative of treatment or trial). See supra notes 8-16 and accompanying text.

176

GARCIA

the clientele for treatment has the potential not only to change the profile of the treatment system but also to change the public definition of alcohol problems.194


2. Involuntary Civil Commitment Involuntary civil commitment is the legal, medical, and psychosocial process—operating at the confluence of the public safety, justice, and social service systems—whereby an individual alleged to be harmful to self or others as a result of some physical or mental impairment or disability (drug dependency, mental illness, mental retardation, alcoholism, or some combination), is forced to undergo some type of involuntary treatment or care.195 The practice has been widely used with mentally ill persons, and has generated ongoing controversy because of the deprivation of freedom, the question of the right to refuse treatment, the uncertainty about the effectiveness of treatment while under nonconsensual detention, and abuses by for-profit institutions.196 The involuntary civil commitment of drugaddicted pregnant women has evoked debate about the same issues, along with questions regarding for whose benefit, between mother and fetus, commitment has been ordered, and why women on waiting lists for treatment for which they volunteered should be supplanted by "involuntaries."197 Despite controversy and a wide variety of policies and practices among the states, the White House's September 1989 National Drug Control Strategy listed among its priorities "[exploration of ways to increase the use of civil commitment as a means to bring more drug dependent persons into the treatment system."198 Not a new concept, the National Addict Rehabilitation Act of 1966 (NARA) provides for civil commitment 194

Middleton & Kelso, Coercion into Alcoholism Alcoholism,

195

Treatment: Meanings for the Disease Concept of

17 J. D R U G ISSUES 3 0 1 , 315 (1987).

Garcia & Keilitz, supra note 105, at 4 1 8 . See generally, K. MILLER, MANAGING MADNESS xii (1976) (alleging that "civil commitment for mental illness is wrong . . . it is practiced in a highly selective fashion; it frequently involves the violation of individual rights; it is predicated on false premises; it usually does not achieve its avowed purposes; and it is wasteful of resources"); Abusing the Baker Act, St. Petersburg Times, May 2 8 , 1990, at 12A, col. 1 (asking if for-profit psychiatric hospitals d o what is best for involuntary patients rather than their own pocketbooks, and that insurance coverage rather than need for treatment can dictate not only which children get admitted but how long they stay); Beasley, Caught in the Promise of Help, Orlando Sentinel, May 2 0 , 1990, at A-10, c o l . 1; A System Thrives on Troubles of Children, Orlando Sentinel, M a y 2 1 , 1990, at A l , col. 1 (reporting that "Americans are putting their children in psychiatric hospitals in record numbers, feeding a highly profitable industry of private centers. A s these hospitals mushroom throughout Florida and the rest of the country, patterns of aggressive marketing and questionable admissions are increasingly troubles o m e " ) ; Private Hospitals—Few Rules but Many Patients, Orlando Sentinel, May 2 1 , 1990, at 1, col. 1. 197 See, e.g., Moss, Forced Drug or Alcohol Treatment of Pregnant and Postpartum Addicts: Part of the Solution or Part of the Problem, 17 N E W ENG. J. ON CRIM. & CIVIL CONFINEMENT 1 (1991). 198 National Drug Control Strategy, 34 T H E W H I T E H O U S E 1 (Sept. 1989). 196



177

of narcotics addicts who have been charged with or convicted of violating federal laws.199 An eligible addict or relative may apply for up to six months inpatient treatment followed by a three-year period of follow-up outpatient care. However, the two-felony exclusion adopted by Congress, designed to exclude from treatment those less likely to be rehabilitated through treatment and those with a "history of serious crimes,"200 disqualifies some criminal addicts from civil commitment. Thus far, no exclusionary rules have been created to bar certain pregnant addicts from civil commitment. Approximately 46 states have statutes that define alcoholics, and 43 states define drug addicts. Some statutes define them separately, while others combine them under terms such as "substance abuse" or "chemical dependent."201 Reflecting the ambiguity that exists in legal opinions and literature about the nature of addiction and its relationship to mental illness, at least five states include alcoholism and drug addiction in their definitions of mental illness.202 Of the 37 states that have statutes governing the involuntary civil commitment of drug dependent persons, and the 34 states with separate laws that authorize the commitment of alcoholics, several states use the definitions or procedures of mental health commitment laws for the drug-addicted population.203 Statutory language interpreted to fit institutional biases and beliefs about addiction and mental illness can result in misdiagnosis (such as failing to make a dual-diagnosis of mental illness and drug dependence), and commitment of pregnant women to institutions and treatment facilities that are ill-prepared to respond to their special needs. Involuntary civil commitment to drug treatment is a series of events, all of which have the potential of violating detainees' rights, and that are rife with opportunities for authorities to make subjective, discretionary 199 200

201

202

203

42 U . S . C . §§ 3 4 0 - 4 1 (1988). See Marshal] v. United States, 414 U . S . 417 (1974).

In approximately 15 states, the population subject to commitment is labeled "substance abuser," with language similar to Louisiana (LA. REV. STAT. ANN. § 28.2 (West 1975 & Supp. 1989)) which defines substance abuser as follows: " a person w h o uses narcotics, stimulants, depressants . . . drugs or alcohol to the extent that it renders the person dangerous to himself or others or renders the person gravely disabled." Alabama defines alcoholism and drug addiction as forms of "mental or emotional illness." A L A . C O D E § 22-50-1 (1988); Maine includes "suffering from the use of drugs and narcotics" in the definition of mental illness. M E . REV. STAT. ANN. 34-B § 3801(5) (1980); Tennessee includes alcoholism and drug dependence in the definition of a "mentally ill individual." TENN. CODE A N N . § 3 3 1-101(14) (1984); Virginia holds that "mentally ill . . . shall be deemed to include any person w h o is a drug addict." VA. C O D E ANN. § 37.1-1 (1984); Indiana includes alcoholism and addiction to narcotics under the definition of mental illness. IND. C O D E ANN. § 16-14-9.1-1 (1990). See Garcia & Keilitz, supra note 105 (tabular description of state statutes governing the involuntary civil commitment of drug dependent persons, and listing separately states that have limited provisions invoking mental illness commitment laws, and those with no specific provisions).


178

GARCIA

decisions. Beginning with the decision that a person meets the commitment criteria (most frequently "dangerous to self or others" and/or "in need of treatment"), decisions are also made regarding when hearings are held, who may attend, whether counsel is appointed by the court for indigent persons, where treatment will occur, and if the chosen place is the least restrictive alternative.204 Each of these decisions has special significance for a pregnant woman because if her commitment is ordered to protect her fetus, the "other" who her behavior endangers, the entire process might be intentionally prolonged so that her detention and release coincide with the duration of her gestational period. Although all of the state statutes set time limitations for the completion of initial physical or psychological examinations, for probable cause and full hearings, and actual commitment and recommitment,205 once a pregnant addict is committed, it can become difficult for her to gain release before her delivery date. The number of pregnant addicts who have been involuntarily committed to drug treatment, the amount and type of treatment they receive, and the duration of their commitment period in relation to their delivery date warrant study to shed some light on the motives of the authorities regarding the respective needs and rights of the mother and fetus. 3. Treatment in Lieu of Prosecution Nearly one-third of states have laws that provide treatment for drugaddicted and alcoholic persons charged with or convicted of a crime. These laws are similar to the NARA in that they authorize treatment in lieu of prosecution and sentencing, or as a condition of parole or mandatory supervised release.206 Some states have begun to use their laws to specifically respond to pregnant addicts.207 Notwithstanding reports of success in some

204

205 206

207

See also Keilitz, Conn, & Giampetro, Least Restrictive Treatment of Involuntary Patients: Translating Concepts into Practice, 29 ST. LOUIS U.L.J. 691 (1985). See Garcia & Keilitz, supra note 105. Florida Statute § 397.12, with language characterizing statutes authorizing treatment in lieu of criminal sanctions, states: When any person, including any juvenile, has been charged with, or convicted of a violation of any provision of chapter 893 [prohibited sale, delivery or possession to sell controlled substance], or of a violation of any law committed under the influence of a controlled substance, the court, Department of Health and Rehabilitative Services, Department of Corrections, or Parole and Probation Commission whichever has jurisdiction over the person, may in its discretion require the person charged or convicted to participate in a drug treatment program. . . . If referred by the court, the referral may be in lieu of, or in addition to, final adjudication, imposition of any penalty or sentence, or any other similar action. Perhaps Charleston County, South Carolina, has one of the most active and comprehensive programs designed to curb the use of cocaine during and after pregnancy, which involves the


179

programs,208 a phone survey of several cities indicated that the majority of both treatment and legal personnel are either unaware of the law, or they believe that trying to implement the law will create more problems than does ignoring the law.209 C. Interpretation and Implementation of Civil and Criminal Laws


/. Delivery and Distribution Statutes Although the most widely discussed example of the creation from existing law of new causes of action to use against pregnant and postpartum drug abusers may be the conviction of Jennifer Johnson for delivering a controlled substance to her baby,210 several other women have been similarly charged.211 Moreover, there are other cases of unique interpretation and implementation of laws, such as bringing charges of fetal endangerment or involuntary manslaughter against women for harm done to their fetuses in jurisdictions that have not granted rights to the unborn.212 The use of distribution, delivery, trafficking, and possession laws213 and laws such as contributing to the dependency of a minor, fetal abuse, Office of the Solicitor, the Medical University Clinic and Neonatal Intensive Care Unit, the Charleston County Department of Social Services, and Law Enforcement. In Tampa, Florida, it was announced in a May 30, 1991 letter from a HRS administrator to Drug Abuse Comprehensive Coordinating Office ( D A C C O ) , the city's largest treatment program, that " H R S District VI has entered into an agreement with the Hillsborough County State Attorney to offer a program of amnesty from criminal prosecution to women whose children are at high risk of abuse or neglect due to maternal substance abuse." See The Case Against Cocaine Moms, Tampa Trib., Apr. 8, 1990, at H 1 , col. 2 (stating that if a woman tests positive for drugs, State Attorney Bill J a m e s ' office will not prosecute if she gets treated, and if she gets treatment, the fact that her drug use is on the books will not be used against her in court). 208 209

210 211

See C. CONDON, supra note 192. The most frequent criticisms of the use of treatment in lieu of prosecution for pregnant addicts is that criminalization is still involved, that coerced treatment does not work, that there are not enough effective treatment programs specifically tailored to the needs of pregnant addicts, and that the laws violate women's rights to equal protection. See supra notes 44-48 and accompanying text. See, e.g., Florida v. Black, No. 89-5325 (Cir. Ct., Escambia County, Fla. Jan. 3 , 1990); Florida v. Carter, N o . 89-6274-D (Cir. Ct., Escambia County, Fla. Nov. 20, 1989); North Carolina v. Inzar, No. 90-CRS-6960-6961 (Sup. Ct., Robeson County, N . C . Apr. 16, 1990) (assault with a deadly weapon and distribution); Michigan v. Hardy, No. 89-2931-/fy (60th Dist. Ct., Muskegon County, Mich. Dec. 5, 1989); Michigan v. Cox, No. 9053545FH (Cir. Ct., Jackson County, Mich. Jan. 30, 1990).

212

See, e.g., Illinois v. Green, (Cir. Ct., Winnebago County, Rockford, Ill. 1989) (woman was charged with involuntary manslaughter following the death of her newborn, which was attributed to her use of crack cocaine during pregnancy). See Here Come the Pregnancy Police, TIME, May 22, 1989, at 104-05; Jury Won't Indict Mother for Baby's Drug-linked Death, Tampa Trib., May 2 7 , 1989, at 7-A, col. 1; Ohio v. Gray, No. CR88-7406 (Ct. of Common Pleas, Lucas County Ohio July 13, 1989) (dismissing charges of child endangerment brought against a woman who allegedly used cocaine in her third-trimester of pregnancy; the state is appealing).

213

See, e.g., Florida v. Hudson, No. K88-3435-CFA (Fla. Cir. Ct. July 26, 1989) (possession and distribution to a minor).

180

GARCIA

fetal endangerment, and fetal neglect all exemplify innovative interpretations as applied to charges brought against pregnant and postpartum addicted women. Their use also raises question about legislative intent, notice, ex post facto laws, and suggests that either the laws be amended, or that new laws be passed in order to preclude the current ad hoc bringing of charges in ways that violate women's rights to due process.


2. The Merger of Involuntary Civil Commitment and Punitive Sanctions in Tampa, Florida Florida has laws that govern both involuntary civil commitment and treatment in lieu of prosecution of alcoholics and drug dependent persons.214 In Hillsborough County, on the west coast of Florida with a population of 834,054, including 280,015 in its largest city, Tampa, there has been a broadbased effort to combat perinatal drug abuse.215 One response to the county's growing drug abuse problems216 that preceded the height of the publicized "cocaine baby scourge" was the development in 1986 of an Involuntary Drug Court (IDC), which is presided over by the county's chief judge. The IDC meets one day a week to hear cases of drug-addicted persons who have not sought, or who have refused treatment but who the court can order into treatment before they harm themselves, others, or commit criminal acts.217 Pregnant and postpartum drug addicted women can come in contact with the IDC through referrals from: (1) self; (2) public hospitals and clinics; (3) private practitioners; (4) juvenile courts in child dependency cases; (5) police; (6) prosecutors who recommend treatment in lieu of prosecution; (7) courts that make treatment a condition of probation; and, (8) any three petitioners, such as a relative, physician, head of a treatment facility, or sheriff. What ultimately happens to a woman is largely determined by the method she is brought into the IDC, the agencies that become involved, and the exercise of discretion in decisionmaking by a large number of people 214 215

See Fla. Stat. §§ 397.052, 397.10 & 12, & 921.187(d), (j) (1986). A county report describes, in a non-exhaustive list, 35 alcohol and drug treatment programs offering services such as detoxification, halfway house, domiciliary, adult residential units, postpartum care, high risk assessment, outpatient services, methadone maintenance, early intervention for preadolescents, and in-jail p r o g r a m s . See DEPARTMENT O F COMMUNITY SERVICES AND PLANNING AND HILLSBOROUGH COUNTY A N T I - D R U G A B U S E ADVISORY COUNCIL, T H E HILLSBOROUGH C O U N T Y C O M PREHENSIVE A N T I - D R U G A B U S E PLAN, F Y 1989-1990 (1991).

216

Greg Coler, former Secretary of the Florida Department of HRS said in 1989 that more than 10,000 cocaine babies would be born that year, a four-fold increase from 1988. HRS Chief Tells Panel Number of "Crack Babies" Skyrocketing, Tampa Tribune, Aug. 1, 1989, at 3-B, col. 1; Statistics compiled since 1988 on drug abuse, related crimes (murder, rape, robbery, aggravated assault, burglary, larceny, and motor vehicle theft), the incidence of birth of chemically-exposed babies, and the increase in the number of drug-related deaths as reported by the Office of Medical Examiners, indicate an increase in the extent and prevalence of drug abuse in the Tampa Bay area.

217

See Uhlmann, Involuntary

Court Offers Treatment Options, D A C C O NEWSLETTER, Dec. 1990, at 5 .



181

with whom she comes into contact. Two agencies that play critical roles in the involuntary civil commitment of drug dependent women are the social service agency, HRS, because of its control over the fate of the women's children,218 and the county's largest and most comprehensive drug treatment program, Drug Abuse Comprehensive Coordinating Office, Inc. (DACCO),219 where most of the women undergo treatment. If, after a series of proceedings, such as a physical examination, a probable cause hearing,220 and a full hearing,221 a woman is determined to meet commitment criteria,222 the judge will commit her to one of DACCO's programs, such as residential or day treatment, Substance Abusing Mothers and Their Infants (SAMI) (DACCO's program for pregnant and postpartum addicts),223 or to a treatment program that may be more suitable to meet her special needs.224 Upon successful completion of their treatment programs,225 and if it is found that they no longer meet commitment criteria, then they are discharged. However, if during their treatment programs the women repeatedly turn in "dirty" urine samples, confess to "picking up" (start to use drugs again), fail to attend their counseling and group sessions, or otherwise violate the conditions of their programs, then they are reported to the judge of the IDC who issues an order for their apprehension by someone from the sheriffs department.

218 219

220 221

222

223

224

225

See supra notes 168-86 and accompanying text. D A C C O w a s created in 1973. Its program brochure states that the goal of its treatment philosophy is to provide a personalized treatment approach for individuals w h o may fit anywhere along the continuum of chemical dependency from " a t risk" through "actively addicted," to "recovering" in order to assist them in living sober, responsible, productive lives. See FLA. STAT. § 397.052(2); 397.052(4) (1986). At the full hearing, the judge receives reports and recommendations from court liaisons from D A C C O ' s Treatment Alternatives to Street Crime Program (TASC) who have followed the client's case. Clients have the right to counsel and to be heard at the full hearing. The statutory criteria for involuntary civil commitment in Florida include the following: habitual drug user; person who has lost self-control; one who is dangerous to self or others; or one who is in need of treatment. FLA. STAT. § 397.052 (1986). SAMI is a day treatment program for pregnant and postpartum women and their infants and toddlers that provides intensive group therapy, parenting, life skills, child care, educational and vocational training for the mothers, and socialization, bonding, and developmental therapy for the infants five days a week. SAMI also provides community prevention and outreach services targeted toward inner-city and low income areas of the community that have a high incidence of substance exposed infants. Based upon the woman's individual treatment plan, the length of stay in the program is 8-10 months, followed by aftercare. T h e child care component provides mothers with a place for their children while they are in daily treatment, and a multidisciplinary team approach is used in the program. See also supra note 165. Alcohol Community Treatment Services, Inc. (ACTS) is a private, non-profit agency that provides a comprehensive system of alcohol and drug abuse treatment and prevention services including detoxification and domiciliary programs, residential treatment unit, halfway house, outpatient, and youth program. See 9 Women Graduate from Drug Program for Mothers, Tampa Trib., Apr. 19, 1991, at 2 Peninsula, col. 4 (describing the graduation of clients of D A C C O ' s SAMI Program).


182

GARCIA

The women are arrested and charged with contempt of court.226 If the violation of treatment program mandates is presented convincingly enough at the noncompliance hearing,227 then the women may be sentenced to five months and 29 days in jail, during which time they remain under the jurisdiction of the IDC. While incarcerated, arrestees receive drug treatment through a program sponsored by the Sheriffs Department, but this treatment is not as comprehensive as that offered by programs such as DACCO. Upon completion of their jail term, the judge recommits the women to an appropriate treatment facility pursuant to advice from authorities with an interest in the women's welfare and location. Where children are involved, HRS personnel play a key role in this process.228 Theoretically, the judge can refer such women to the county prosecutor, where criminal charges could be brought, such as criminal possession of a controlled substance,229 involuntary manslaughter,230 and criminal contempt of court.231 However, the primary goal of the IDC is to divert women from the criminal justice system, and the purpose of incarceration has been questioned as incompatible with civil system remedies to the women's problems.232 226

Constructive contempts are those that arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term is chiefly used with reference to the failure or refusal of a party to obey a lawful order, injunction, or decree of the court laying upon him a duty of action or forbearance. Criminal contempts are offenses or injuries offered to the court, and a fine or imprisonment is imposed upon the contemnor for the purpose of punishment. A court of the United States has power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other. BLACK'S LAW DICTIONARY 289 (5th ed. 1979).

227

Where DACCO is involved in the client's case, the TASC court liaisons report to the judge, presumably having consulted with the treatment program personnel, the client's social worker, and her legal advisor. 228 See supra notes 168-71 and accompanying text. 229 The mother of a stillborn baby whose liver was filled with enough cocaine to kill an adult was sentenced to 12 years in prison on a cocaine possession charge. Traci Jackson smoked the drug for several hours on July 9, 1989, in a Houston crack house, then went to the bathroom apparently to deliver her baby. See Mom Guilty of Drug Charge, St. Petersburg Times, July 2 , 1991, at 6 A , col. 1. 230 Involuntary manslaughter and delivery during pregnancy of a controlled substance to a minor charges were unsuccessfully brought against Melaine Greene of Rockford, Illinois after her twoyear-old daughter died of oxygen deprivation attributed to her mother's alleged cocaine use during pregnancy. See Jury Won't Indict Mother for Baby's Drug-Linked Death, Tampa Trib., May 27, 1989, 7-A, col. 1. 231 See supra note 226. 232 The author was told that the goal of jailing non-compliant women was to let them "hit bottom," a prerequisite to the breaking down of their defenses, such as denial, and coming to terms with their need to get help. However, it was reported that "Chief Judge Dennis Alverez sentences pregnant women to drug treatment or—jail. He says the only fail-safe methods of preventing delivery of a cocaine baby is to incarcerate the mother during pregnancy. . . . HRS District 6 Administrator Tom Weinberg is contemplating a related step: instructing HRS workers to file petitions that would land a pregnant drug user to Alverez' court." See Cocaine Babies, Tampa Trib., June 10, 1990, at C 1 , col. 4.


183

Taking a more in-depth look at the operation of Hillsborough County's Involuntary Drug Court is particularly amenable to a review of some aspects of discretionary decisionmaking because of its unique features. Such an analysis is undertaken in a future section. V. INSTITUTIONAL DISCRETIONARY DECISIONMAKING233


According to one law professor: It is commonplace that the law in action frequently bears little resemblance to the structure of rules found in statute and precedent, but what is the precise nature of the mechanism by which this occurs? It is in the everyday discretionary behavior of police officials, lawyers, judges, and others that the legal system takes shape and gets things done.234

When pregnant or postpartum drug-addicted women come to the attention of authorities, a flow of information, assessment, opinion, and bias begins between individuals, and within and between agencies. This flow continues until the fate of the women and their children is no longer under the control of others. Crucial decisions are made by individuals with the authority to do so, who bear responsibility for the consequences of their decisions, and who receive input from a wide variety of sources.235 The exercise of discretion in decisionmaking exists in institutional settings where policies are shaped by information and internal and external constraints.

233

234 235

Although a thorough review of the literature on discretionary decisionmaking is beyond the scope of this article, the topic has been included here to suggest that, to better serve pregnant and postpartum drug addicted women, it is important to learn more about factors that contribute to a person's decision, such as regularities in decisionmaking, the relation between strict adherence to prevailing law and the exercise of judicial discretion in decisionmaking, and what processes prevail when there is little, or unsettled applicable law, as is the case with addiction and criminal culpability, fetal rights, and perinatal drug-addiction. Hawkins, Discretion in Making Legal Decisions, 4 3 WASH. & LEE L . REV. 1161, 1163 (1986). According to Keith Hawkins, law professor: Some decisions are made by apparently single decision-makers such as the police officer on the street, or the sentencing judge. T h e phrase "apparently single" is important because effective decision-making authority does not usually reside solely in one particular spot, but is diffused among information suppliers and colleagues whose ostensible role is to service the decision makers, like probation officers with their presentencing enquiries. For instance, there can be few cases where the single decision-maker actually makes a decision alone, devoid of knowledge contributed by others, without a stock of information about individual, event, and relevant history, which together make up a legal " c a s e . " Hawkins, supra note 234, at 1172.

184

GARCIA

A. Sources of Discretionary Decisions


1. Information Decisionmaking is a process that implies the existence of information, or lack thereof, and choice, with those who supply information, opinion, or assessment having the potential of greatly influencing the decisions subsequently made about the handling of cases.236 Concerning perinatal drug addiction, the information and choices available to decisionmakers are either just evolving (as is the case with crack cocaine), or being brought more persuasively to the attention of decisionmakers (as with perinatal alcoholism and FAS) who are diffuse among social service, medical, and legal institutions. Dissemination of information based on scientific, replicable research, and observation about a new phenomenon, such as perinatal crack cocaine addiction, inevitably lags behind information disseminated through rumor and the media. Another related phenomenon that has experienced the slow development and dissemination of information is pediatric AIDS, which gained attention along with perinatal drug abuse because of its high incidence among intravenous drug abusers.237 Until communities, states, and the nation adequately support efforts to study and report on new phenomena, those assigned the task of responding to the effected groups must make choices in a near void of reliable information. How, by whom, and when this void is filled can greatly affect the individual decisions made by policymakers and help to determine the type of public policy that emerges. Several years before large amounts of federal funds from the Office for Substance Abuse Prevention (OSAP),238 the National Institute on Drug Abuse (NIDA),239 and other federal and state entities were made available to a wide assortment of agencies involved in perinatal drug research and treatment, certain persons began to shape the flow of information and dialogue. Dr. Ira J. Chasnoff, and several research teams that are affiliated with the Departments of Pediatrics and Psychiatry, Prentice Women's Hospital and Maternity Center, Northwestern University Medical School, Chi236

Id. at 1166.

237

See

238

239

DEPARTMENT O F HEALTH AND REHABILITATIVE SERVICES A I D S PROGRAM, DISEASE CONTROL, T H E

FLORIDA AIDS/HIV REPORT 3 (No. 6 8 , Apr. 2 , 1990) (total adult cases diagnosed in 1989, cumulative since 1980, revealed that of 1489 cases among females, 655 (44%) were IV drug users). By the end of 1989, OSAP had targeted $4.5 million for model projects intended to aid pregnant alcohol and drug-dependent women. See Sherman, supra note 187, at 2 8 . See, e.g., Cocaine Babies Studied, St. Petersburg Times, June 1 1 , 1991, at 4 B , col. 1 (reporting on a study to be conducted at the University of Florida Health Science Center to determine whether babies of mothers addicted to crack cocaine are prematurely brain damaged in the womb. Funded by a grant from the National Institute on Drug Abuse worth almost $2 million, the project will compare the development of crack babies to normal children through the first three years of life).



185

cago, Illinois, have produced a formidable amount of work on a wide variety of issues on perinatal substance abuse.240 Dr. Chasnoff founded the National Association of Perinatal Addiction Research and Education (NAPARE) in the late 1980s, and it became the vehicle for the dissemination of vast amounts of information through conferences, training programs, videotapes, and media coverage. Thus, Dr. Chasnoff emerged as a powerful influence over the types of data that were gathered and reported, the methods proposed as best for responding to drug-impaired newborns, and issues that were pushed to the forefront for discussion. For instance, after Dr. Chasnoff completed a study in Pinellas County, Florida, that revealed a discrepancy in the reporting of black and white women who used illicit drugs,241 he called a press conference and subsequently reported the study's results at numerous media events and conferences. The study became the sole source of such information for lecturers and writers (including this author), with the acknowledgment of the need for follow-up studies, notwithstanding the assertion of a coresearcher and neonatologist, that the key issue was economic class and not race. Dr. Chasnoff s research has also helped to shape thinking about the degree to which chemically exposed babies might be able to overcome impairments caused by substances. Initial reports suggested that "crack babies" would have irreversible developmental disabilities that would manifest themselves during infancy, childhood, and beyond. These reports, along with the widespread pessimism and alarm that pervaded the media, undoubtedly affected the perspectives of practitioners. However, recent studies by Chasnoff and others have stressed the powerful effect of nurturance and other environmental factors in enhancing the chances of chemically exposed babies to develop and thrive with their cohorts.242 A study by Dr. Wendy Chavkin, revealing that of 78 drug treatment programs in New York City, 54% refused to treat addicted pregnant women, 67% denied 240

See, e.g., Chasnoff, Harcher, & Burns, Polydrug-and Methadone-Addicted Newborns: A Continuum of Impairment, 70 PEDIATRICS 210 (Aug. 1982); Chasnoff, Bussey, Savich, & Stack, Clinical and Laboratory Observations: Perinatal Cerebral Infarction and Maternal Cocaine Use, 108 J . PEDIATRICS 456 (Mar. 1986); Chasnoff, Perinatal Effects of Cocaine, CONTEMPORARY OB/GYN, May 1987, at 163; MacGregor, Keith, Chasnoff, Rosner, Chisum, & Shaw, Cocaine Use During Pregnancy: Adverse Perinatal Outcome, 157 A M . J. OBSTET. & GYNECOL. 6 8 6 (Sept. 1987); Chasnoff, Burns, & Burns, Cocaine Use in Pregnancy: Perinatal Morbidity and Mortality, 9 NEUROTOXICOLOGY & TERATOLOGY 291 (1987); Chasnoff, Drug Use in Pregnancy: Parameters of Risk, 35 PEDIATRIC CLINICS N . A M . 1403 (1988); Chasnoff, Hunt, Kletter, & Kaplan, Prenatal Cocaine Exposure Is Associated with Respiratory Pattern Abnormalities, 143 A M . J. DISEASES

241

See supra note 6 8 . See supra notes 2 8 & 240. See also Chasnoff, Griffith, Freier, & Murray, Cocaine/Polydrug Use in Pregnancy: Two-Year Followup, 89 J. PEDIATRICS 284 (Feb. 1992); Goodman, Crack-Baby Scare Stories Are in Need of Revision, St. Petersburg Times, Jan. 14, 1992, at 7 A , col. 1.

C H I L D R E N 583 (1989); D R U G S , A L C O H O L , PREGNANCY AND PARENTING (I. Chasnoff ed. 1987). 242


186

GARCIA

treatment to pregnant addicts on Medicaid, and 87% denied treatment to pregnant women on Medicaid addicted specifically to crack,243 has not only been cited repeatedly,244 it also has been used to justify charges that there are insufficient numbers of treatment programs for pregnant addicts, and to lobby Congress for an increase in such programs.243 An additional example of the influence of information that was presented in the early stages of development of a data base on the effects of perinatal drug addiction is the estimate of 375,000 drug-exposed babies born annually. While this frequently cited estimate stressed the gravity of the problem, it has been criticized as being much too high,246 requiring the recipient of the information to determine its meaningfulness regarding factors such as the drugs included in the term "drug exposed," whether alcohol and polydrug users were included in the number, and what the figure means across regions of the country, races, and socioeconomic classes. As is the case with the Chasnoff and Chavkin data, their information created choices for those who sought to respond to the problem of perinatal drug addiction, one of which might be to verify the data before formulating policy. 2. Assessment and Opinion The breadth and depth of the problems of drug-exposed mothers and babies have been demonstrated repeatedly by new information on aspects such as the cognitive and developmental disabilities that some assume inevitably will afflict babies exposed to crack cocaine, alcohol, and multiple

243 244

245 246

See Chavkin, Help, Don't Jail, Addicted Mothers, N.Y. Times, July 18, 1989, at 2 3 , col. 2 . See, e.g., Sherman, supra note 187, at 29 (citing Chavkin study); Brief of American Public Health Association and Other Concerned Organizations as Amici Curiae in Support of Appellant, at 7, Johnson v. Florida, No. 89-1765 (Fla. A p p . , Fifth Dist. Dec. 29, 1989) (citing Chavkin study as presented to Congress). See Testimony Before House Select Committee on Children, Youth and Families (Apr. 2 7 , 1989) (statement of Dr. Chavkin). See id. Commenting on the 375,000 figure, Douglas Besharov, resident scholar at the American Enterprise Institute, Washington, D . C . , observed: No one knows how many crack babies there are. The most widely cited estimate was made by Ira Chasnoff. In 1988, he surveyed 4 0 hospitals, 36 of which responded. On average, the responding hospitals reported that 11 percent of the pregnant women they saw in 1987 were substance abusers. (The high was 27 percent; the low 0.4 percent). Chasnoff took this 11 percent average and simply multiplied it against all live births in the country that year (3,809,394) to arrive at the much quoted statement that " a s many as 375,000 infants may be affected each year." This estimate is much too high. The 36 hospitals in the study accounted for less than 5 percent of all live births in 1987 and, more importantly, they were hardly representative of the nation as a whole; roughly two-thirds were located in large cities. Also, in the study, "substance" was broadly defined as heroin, methadone, cocaine, amphetamines, PCP, or marijuana. Besharov, The Children of Crack: Will We Protect Them? 47 PUB. WELFARE 7 (Fall 1989).



187

drugs. The work of three people, Drs. Judy Howard, of the UCLA School of Medicine, Michael Dorris, expert on FAS and author of The Broken Cord,247 and Harlem's Clara McBride Hale,248 has provided important assessments of the development of cocaine, alcohol, polydrug, and AIDSexposed children that have added to the knowledge base of decisionmakers, and offered information crucial to issue identification and examination of differing courses of action. For instance, the scientific soundness of Dr. Howard's comparison of premature babies born to crack users with other (noncrack) preemies has been questioned,249 as has been her dire assessment of the developmental potential of crack-exposed babies.250 However, some of the findings of Dr. Howard's research, such as that drug-exposed toddlers show striking deficits in free play situations that require self organization, self initiation, and follow-through, and that they have insecure attachments,251 have been substantiated anecdotally, if not by comprehensive empirical research. School system personnel have the task of evaluating scarce data regarding the predicted onslaught of uncontrollable children exposed to drugs prenatally, a warning that has come from several sources.252 Decisions that will have to be made will involve the question of special track-

247

See supra note 4 . Otherwise known as "Mother Hale," this octogenarian was cited in 1985 by President Ronald Reagan as an "American Hero." She founded New York City's $500,000 a year, city-funded enterprise, Harlem Hale House that ministers to AIDS-infected and drug-exposed babies, and she is a proponent of the positive effects of nurturing on the children's development. See Clara McBride Hale, Tampa Trib., Mar. 15, 1989, at 4-F, col. 1; Hale House May Set up in Florida, Tampa Trib., Jan. 2 7 , 1990, 2-Northwest, col. 3 . 249 Given that physiological, cognitive, and psychological impairments caused by crack cocaine are dependent variables, factors such as differences in amount of drugs used during pregnancy, parental nurturing and acceptance during infancy, duration of institutional involvement, the effects of poverty on the mothers' prenatal well-being, and social class and race of the children, will confound the results of Dr. Howard's research if they are not carefully controlled. 250 According to one report: Dr. Judy Howard says that [crack babies] are hard to care for almost from the moment of birth. They may be either extremely irritable or very lethargic, have poor sucking abilities that hamper feeding and irregular sleep patterns. As they grow older, they may be hyperactive, slow in learning to talk and have trouble relating to other people. Even at the age of 18 months, after receiving good medical care and educational therapy, the crack kids were in bad shape. Doctors haven't been able to pinpoint the exact reason for these problems, but they suspect neurological damage. Howard says it is as if the part of the brain that "makes us human beings, capable of discussion o r reflection" has been "wiped out." See The Crack Children, supra note 2 8 , at 62-63. 251 See Howard, Beckwith, Rodning, & Kropenske, The Development of Young Children of SubstanceAbusing Parents: Insights from Seven Years of Intervention and Research, 9 ZERO TO THREE 8, 11 (1989). 252 See supra note 2 8 . See also Howard, Beckwith, Rodning, & Kropenske, supra note 2 5 1 , at 12 (summarizing research results). 248


188

GARCIA

ing253 of drug-exposed children, and the nature of the role that their mothers, in various stages of recovery, can be expected to play in their children's education. Some of the conclusions drawn by Michael Dorris in The Broken Cord, regarding the type and permanence of impairments suffered by children of mothers who were chronic alcoholics during their pregnancies,254 have evoked renewed interest in the effects of FAS,255 and strongly suggest a reexamination of the logic of viewing pregnant women who are addicted to licit drugs differently from those addicted to illicit drugs. Two areas that have not provided an abundance of definitive information for those who must make decisions and set policy effecting drugaddicted mothers and their babies are the nature of addiction,256 and the long-term effects that particular drugs have on the ability of women to parent at different stages of addiction and recovery.257 For various reasons, the use of "addiction" has decreased in much of the writing and dialogue about perinatal chemical dependence. Explanations for this have included the fact that "addiction" is overinclusive, and does not encompass women who are merely at risk, or those who are in various stages of recovery. Terms such as "user of illegal substances," "chemically dependent," "user of drugs and alcohol," and "abuser of drugs and alcohol" have replaced the term "addict," that is seen by some as harsh and insensitive, akin to a 253

254

The placing of children in groups according to certain ability or behavioral traits, or tracking them, is common in the country's schools. Some opposition to the use of tracks such as "educationally mentally retarded," and "socially maladjusted," stems from the belief that poor and minority children are disproportionately placed in these tracks where they languish without the particular type of instruction and purposeful positive intervention that they require. Commenting on his son, a victim of FAS, Dorris wrote: Adam perpetually had a hard time with certain abstractions: Bigger than/smaller than. Planning ahead. Saving money. And, carrying this a step further, it logically struck me that someone like him, someone who happened to be a female, could not relate to a warning that " N i n e months from now something bad is going to happen for the rest of your child's life if you drink today." It would be an impossible concept for a counselor or obstetrician to convey, and it would not successfully hinder drinking during a pregnancy. I kept coming back to the obvious deduction that fetal alcohol victims were behaviorally among the most likely people to reproduce fetal alcohol victims. For them, logical argumentation had the least sway. M . DORRIS, supra note 4 , at 179.

255

"Fetal Alcohol Syndrome and Other Congenital Alcohol Disorders: A National Conference o n Surveillance and Prevention," was held in Atlanta, GA, April 1-3, 1991, sponsored by the Center for Environmental Health and Injury Control and the Center for Chronic Disease Prevention and Health Promotion of the Centers for Disease Control, the Indian Health Services, the National Institute on Alcohol Abuse and Alcoholism, the Office of Substance Abuse Prevention, Association for Retarded Citizens of the United States, the March of Dimes Birth Defects Foundation, the National Organization for Fetal Alcohol Syndrome, and the National Council on Disability.

256

See supra notes 7-56 and accompanying text. See supra notes 162-71 and accompanying text.

257



189

term like "junkie," with no instructive or informing purpose. Some addicts, themselves, reject the term as representing persons or a condition lower than they are,258 even though those who attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings readily comply with the rules and introduce themselves with their name and the phrase "I am an addict." Until changes in terminology are commonly understood, it is likely that "addiction" will remain a point of reference for treatment personnel, social workers, judges, and others who make, or have made, critical decisions about women and their children.259 Moreover, understanding legal opinions and dicta in several cases involving drug addicts and alcoholics requires some knowledge of, or assumptions about, what the court intended to convey with its use of the terms "addict" and "addiction."260 When there is a new problem of great social import, paucity of information remains a primary problem for policymakers for a limited period of time, after which, the focus shifts to determining what data, assessments, and opinions are credible and merit consideration. There has been a substantial response to perinatal drug addiction on several levels. Following the initial rush of media coverage, there has been a plethora of local, regional, and national conferences covering a wide variety of topics, and at which participants have been encouraged to respond to requests for proposals for research and demonstration projects. The topic has been exam258

259

260

Conversation with Audrey Kouloheris, Manager of Treatment Alternatives to Street Crime (TASC), D A C C O , Tampa, F L (July 2, 1991). See Califano, Addiction Is the Problem, Not Just Illegal Drugs, St. Petersburg Times, Dec. 9, 1989, at 18A, col. 3. Califano wrote: America's problem is addiction, not simply illegal drugs. . . . Addiction to alcohol and drugs, legal and illegal, crowds every nook and cranny of our nation. Its economic costs—in health care, crime, lost productivity, forfeited education, property destruction—will top $300-billion this year and, unchecked, reach a trillion dollars by the mid 1990s. Addiction in America gives new meaning to the word awesome: 57-million Americans are hooked on cigarettes; 18-million are addicted to alcohol or abuse it; 21-million have tried cocaine; more than 1-million are hooked on crack; 7-million smoke marijuana at least once a week; as many as 1-million are hooked on heroin; 10-million abuse tranquilizers and other psychotherapeutic drugs; 1-million regularly use hallucinogens like LSD and P C P ; and ice—smokeable speed and a likely candidate to succeed crack as the 1990s drug of die month—has already hooked thousands. See, e.g.. Heard v. United States, 348 F.2d 4 3 , 4 3 (1965) ( " A showing of narcotics addiction, without more, does not constitute " s o m e evidence" of mental disease or insanity and does not raise issues of criminal responsibility so as to require instruction thereon."); United States v. Moore, 486 F.2d 1139, 1145 (1973) ("Drug addiction of varying degrees may or may not result in loss of selfcontrol, depending on the strength of character opposed to the drug craving"); Castle v. United States, 347 F.2d 4 9 2 , 493 (1965) ("In this narcotics case, the primary issues raised concern appellant's claim that, because of his narcotics addiction, he lacked the capacity to commit the offense, and that the trial court erred in failing to direct a judgment of acquittal."); Robinson v. California, 370 U . S . 6 6 1 , 673 (1962) ("If addicts can be punished for their addiction, then the insane can also be punished for their insanity. Each has a disease and each must be treated as a sick person.").

190

GARCIA

ined widely in scholarly journals and the public press, providing information and assessments for policymakers to make choices within their respective institutions.


3. Institutional Structure Contributing to the way in which discretionary decisions are made are external and internal organizational factors that shape and influence responses to drug-addicted pregnant and postpartum women. The evolving literature, which empirically explores the dynamics of discretionary decisionmaking in various legal contexts, provides useful descriptions of how institutional decisionmakers think about and react to cases, and offers insights into the factors that shape the exercise of discretionary power.261 Sociologist Robert Emerson, in his classic study of the way juvenile court judges manage delinquency cases, has argued that internal courtroom dynamics and the court's own problems and institutional constraints shape court practices and case outcomes.262 Similarly, political scientists James Eisenstein and Herbert Jacob, have stressed the importance of internal courtroom interaction in setting limits on individual judges' sentencing decisions.263 On the other hand, other scholars, such as Thomas Y. Davies264 and Frederic Suffet,265 have emphasized the influence of the external context of institutional environment on court behavior. Still other scholars, like anthropologist Larry Rosen in his study of "kadijustiz" in the Islamic legal system,266 describe the cultural assumptions of a society that shape discretionary power in a system. While the above-mentioned studies focus on courtroom behavior, their findings, that internal institutional dynamics, the external institutional environment, and cultural assumptions influence discretionary decisionmaking, can readily be applied to institutions concerned with perinatal drug addiction.

261

The author thanks Janet A . Gilboy, Fellow, American Bar Foundation, for allowing me to review her research proposal from which the following five references and text on the literature regarding discretionary decisionmaking have been extracted.

262

R. EMERSON, JUDGING DELINQUENTS: CONTEXT AND PROCESS IN JUVENILE COURT 268, 271 (1969).

263

J. EISENSTEIN & H . JACOB, FELONY JUSTICE: A N ORGANIZATIONAL ANALYSIS O F CRIMINAL COURTS

285-86 (1977). Davies, Affirmed: A Study of Criminal Appeals and Decisionmaking Appeals, 265

266

Norms in a California Court of

1982 A B F RESEARCH J. 5 4 3 .

Suffet, Bail Setting: A Study of Courtroom Interaction, in CRIMINAL JUSTICE: LAW AND POLITICS 353 (G. Cole ed. 1976). Rosen, Equity and Discretion in a Modern Islamic Legal System, 15 LAW & Soc. REV. 217 (198081).


191

B. Institutional Exercise of Discretionary Decisionmaking


1. Federal Government Involvement effecting perinatal drug abuse of individuals and agencies of the federal government generally has occurred in three areas: (1) creating and funding agencies with the task of conducting research and overseeing research and information dissemination projects;267 (2) passing applicable laws;268 and, (3) acting in an advisory capacity.269 One source of information about perinatal drug addiction for decisionmakers at the federal level is testimony before Congressional committees from persons who claim to be experts in addictology, civil rights, obstetrics, neonatology, pediatrics, and related topics.270 Although information on maternal drug abuse ultimately may be included in workshops and lectures for judges, a primary source of information for the judiciary comes from attorneys' briefs and oral argument, and amicus briefs.271 The content of Congressional testimony and argument before state and federal judges combines with factors such as prevailing views on ethical issues, the type and magnitude of public pressure being asserted,272 and the political 267

268 269 270

271

272

See supra notes 238-39 and accompanying text. See also Department of Health and Human Services, National Institute on Drug Abuse, Research Monographs 59, Current Research on the Consequences of Maternal Drug Abuse and 60, Prenatal Drug Exposure: Kinetics and Dynamics (1987). See, e.g., supra notes 160 & 199 and accompanying text. See supra note 198. See, e.g., Law and Policy Affecting Addicted Women and Their Children, Testimony Before the U.S. House of Representatives Select Committee on Children, Youth, and Families (May 17, 1990) (statement of Jo Ann Kaufman, M.P.H., President, National Association for Native American Children of Alcoholics). In Johnson v. Florida, the Fifth District Court of Appeals in Florida refused to accept any amicus briefs. However, the American Public Health Association attempted to file a brief along with the American Society of Law and Medicine, American Medical Women's Association, Inc., American Society of Addiction Medicine, Center for Law and Social Policy, Florida Nursing Students' Association; National Association of Alcoholism and Drug Abuse Counselors, National Black Women's Health Project, National Council of Negro Women, I n c . , National Abortion Rights Action League, National Women's Health Network, and NOW Legal Defense and Education Fund. Several amicus briefs are being prepared for submission to the Supreme Court of Florida in the Johnson case. See, e.g., Brief for Amicus Curaie, Johnson v. Florida, N o . 89-1765 (Fla. Dec. 2 9 , 1989). The influence of public pressure on Congress and the federal courts is a complex issue, and one can look forward in anticipation of decisions regarding the right of women to have abortions, equal rights for people with AIDS, and backwards to landmark decisions concerning school desegregation, and the right to counsel for indigent defendants. Differing patterns of public awareness and expression can be seen, including differing political configurations. One writer's view on the relation between public opinion and the Supreme Court is as follows: Discussing the due-process clause of the fourteenth Amendment, Justice Frankfurter wrote once that it was the Supreme Court's duty to ascertain the "conscience of society." There could not properly b e a suggestion that the Court find some minimum level of acceptability by an intuitive public opinion poll. The Court's function is not to reflect mass ideas but to lead enlightened opinion, to educate. A . LEWIS, GIDEON'S TRUMPET 218 (1964).

192

GARCIA


ideology and personal biases of Congress and members of the judiciary, to provide a framework for decisionmaking, or for choosing between action and inaction. It is probable that the average treatment program therapist, clinic physician, or social worker views his or her chances of significantly effecting Congressional policymaking and judicial behavior as rather remote, and that impacting state and local institutions is more likely. However, institutional constraints may cancel the advantages gained by access and proximity on the local level. 2. State Legislatures Perhaps the institutions most looked to for immediate intervention when a social problem of the magnitude of perinatal drug abuse develops, and that relies on accurate information and credible assessments, are state legislatures. As is the case with the federal government, testimony before select committees provides crucial information to lawmakers. Other sources of information used by legislators in decisionmaking are the products of research units,273 research and recommendations from governors' offices, lobbying from special interest groups,274 and correspondences from members of their constituencies. Legislative action has come in many forms. New laws have been enacted, and existing laws have been modified to provide greater protection for the unborn and newborns, and to create greater control over drugaddicted pregnant and postpartum women. For instance, child abuse and neglect reporting laws have been amended to include drug-exposed babies,275 and several states either have passed new laws on the involuntary civil commitment of drug dependent persons, or have made changes in fact or interpretation of existing laws, to include such persons.276 As of April 273

The Alaska State Legislature has a Legislative Research Agency and a Legislative Analyst who researches legal or policy issues upon the request of legislators. 274 In 1991, Florida's Governor, Lawton Chiles, announced his full support for programs designed to enhance the welfare of mothers and children, and he lobbied for and obtained from the legislature funds to be used in that area. 275 See supra note 153 and accompanying text. In the legislative session in Connecticut, Spring, 1991, an attempt was made to pass a law that any substance abuse by a child would be included in what must be reported under the child abuse reporting statute. The bill was "dying" as of April 1991. Conversation with S. Sunderland, Esq., Hartford, Conn., April 5, 1991. For a tabular presentation of state laws and 1991 legislation, see THE NATIONAL ASSOCIATION OF PERINATAL ADDICTION R E SEARCH AND EDUCATION, 1991 STATE LAW UPDATE; MOSS, Guerrero, & Kolbert, Legislative

Update

on Drug Use During Pregnancy, ACLU memorandum, Sept. 16, 1991. 276 See Garcia & Keilitz, supra note 105. Florida has three separate laws for the involuntary detention of persons: the Florida Mental Health Act, FLA. STAT. ch. 394, part I (1973) (The Baker Act) (mentally ill); the Comprehensive Alcohol Prevention, Control and Treatment Act, id. ch. 396 (The Meyers Act) (alcoholic persons); and, Treatment and Rehabilitation of Drug Dependents, id. ch. 397 (drug dependent persons).



193

1990, there were 15 bills pending before the California Legislature relating to perinatal substance abuse.277 It is instructive to review state legislative policies or expressions of legislative intent that preface involuntary commitment statutes. These diverse policy statements reflect legislators' preferences and biases, and include goals such as to "protect the health and safety of people from the menace of drug addiction,"278 "provide an alternative to criminal imprisonment,"279 "reduce incidence of drug abuse,"280 "encourage voluntary treatment . . . [and] return patient to the community,"281 "assist in ways consistent with the dignity, rights, and responsibilities of citizens; within available resources, eliminate, reduce, or prevent disabling effects of substance abuse within the least restrictive available setting,"282 "provide humane care and treatment in accordance with highest standards accepted in medical practice,"283 and "recognize that chemical dependence is a disease; ensure that prevention and treatment services are available and eliminate the distinction between alcohol and drug addiction services."284 These policy statements clearly reflect input that legislators have received from various constituencies. The need to continuously provide information and assessments to the lawmaking bodies to enhance the possibility of changing opinions and policy through informed lobbying, seems apparent.285 3. Intake and Treatment Facilities The degree to which private physicians and public intake facilities comply with testing and reporting laws has external and internal determinants. Private physicians with middle- and upper-class drug-addicted 277

Some of the bills introduced in the 1989 session of the California Legislature include ones covering: Med-Cal for drug-exposed infants; alcohol and drug recovery services for pregnant and postpartum women under Medi-Cal benefits; two-year kindergarten for high-risk children who were drugexposed as infants; drug free families pilot projects to provide on-site services to families with a history of substance abuse; foster care funds for relatives who care for drug-exposed infants; foster parent training. CALIFORNIA LEGISLATURE, SENATE SELECT COMMITTEE ON CHILDREN AND YOUTH, SUMMARY O F PENDING LEGISLATION RELATING TO PERINATAL SUBSTANCE A B U S E (Apr. 9 , 1990).

278 279 280 281 282 283 284 285

D . C . C O D E A N N . §§ 601-15 (1989). FLA. STAT. ANN. § 397.001 - 20 (West 1986 & Supp. 1990). HAWAII REV. STAT. §§ 334-2-60.7 (1985 & Supp. 1989). L A . REV. STAT. A N N . §§ 28:50-56 (West 1977 & Supp. 1989). N . C . G E N . STAT. §§ 122C-1 to 294 (1989). OKLA. STAT. ANN. tit. 43A, §§ 1-101 to 9-104 (West 1990). WASH. REV. C O D E A N N . §§ 70.96A.10 t o 140 (West 1990). In Hartford, Connecticut, several pro-woman advocacy groups have lobbied the state legislature resulting in the drafting of acts that "veer a w a y " from punishment and coercion into treatment of pregnant and postpartum drug abusing women, recognizing the futility of pitting mother against fetus. Conversation with S. Sunderland, Esq., Associate Staff Director, Alcohol and Drug Abuse Commission, Hartford, Conn. (Apr. 5 , 1990).


194

GARCIA

women have more options regarding testing and reporting than do their counterparts who serve women in public clinics, often run by the county. Notwithstanding penalties for not reporting suspected child abuse,286 and based upon their personal ethical standards and regard for the pertinent laws, private physicians serving women with insurance and other resources that preclude their having to use public facilities are freer to choose not to test for substance abuse, at all, or if they do test, to not report the results.287 This exercise in discretionary decisionmaking can result in women going undetected by prosecutors, by social service agencies that would investigate them and possibly take their newborns into custody, or by those who would involuntarily civilly commit them to treatment. In such cases, more affluent drug-addicted women may be under served, to their detriment. Results of the study by Chasnoff, that revealed a discrepancy in reporting black and white women,288 demonstrated discretionary decisionmaking within facilities, and raised questions about how the race of clients also affects testing and reporting practices generally. Such decisions are, undoubtedly, influenced by cultural assumptions, personal biases, and similar factors that are difficult to quantify and control. Treatment facilities make crucial decisions about accepting or rejecting pregnant and postpartum drug-addicted women who seek particular care, such as residential, day treatment, and outpatient. They also have the option of joining other petitioners in seeking the involuntary civil commitment of the women. A telephone survey of several jurisdictions revealed that there are great differences not only in the perception of the value of civil commitment laws, but also in the way that the laws are being implemented.289 The internal constraint of the unavailability of locked facilities forced some states to either ignore the laws, implement them with the understanding that the women could walk away at will, and in one case, place the women in the local prison. For instance, interviews conducted in February of 1991 revealed that neighboring HiUsborough and Pinellas counties in western Florida have made opposite decisions about implementing the state's civil commitment law, with the former creating and operating an involuntary drug court,290 and the latter choosing not to implement the law. Some of the reasons given by Pinellas County officials for not implementing the law, which 286

See supra note 160. See, e.g., note 159 and accompanying text. 288 See supra note 68. 289 As part of a study of state laws authorizing the involuntary civil commitment of drug dependent persons conducted by the National Center for State Courts, court, treatment facility, and state drug abuse agency personnel in selected jurisdictions were contacted to ascertain the extent to which the laws are being implemented. 290 See supra notes 217-32 and accompanying text. 287



195

reflect internal and external constraints, include the following: (1) the unavailability of an adequate number of treatment beds with a waiting list of over 200 for "voluntaries"; (2) the law has no "teeth" because the treatment facilities are not locked and the "involuntaries" can just walk away; (3) the requirements of the law will make it difficult to comply; and, (4) it is more expedient to commit addicts under the state's law covering the commitment of mentally ill persons.291 An interviewee in Georgia stated that the absence of locked facilities except for exclusion rooms with restraints for violent patients, usually abusers of PCP, is a primary reason that the involuntary civil commitment law is not widely used, and that there is much greater success with keeping people in treatment if they go voluntarily for detoxification and ultimate referral to community services and treatment facilities.292 Two women filed suit in Massachusetts for services and treatment after they were sent to the state's women's prison at MIC Framingham, having been involuntarily committed for treatment. A settlement agreement signed November 30, 1990, provided an interagency plan to ensure adequate access to treatment within the community-based public health system and, with the exception of women being held on criminal charges pending adjudication, to eliminate civil commitments to MCI Framingham.293 Thus, even before a social service agency becomes involved in women's cases, many decisions—arbitrary, discretionary, well-reasoned, and in concert with the law, and ill-reasoned and in violation of existing laws and women's rights—already have occurred. Learning the nature of these decisions, and the sources of information and beliefs upon which they were based, might suggest to women's advocates alternative foci for intervention. 4. Judiciary Discussions of judicial discretion often focus on the function of legal rules, and factors that either do, or do not, constrain judges from acting outside legal precedents. Juxtaposed are two fundamentally different positions, the first supporting the notion that judges are greatly constrained from the exercise of discretion, reflected by statements made by Benjamin Cardozo in a lecture on "The Nature of the Judicial Process": "[I]n count291

292

293

Conversations with the Supervisor of the Alcohol, Drug Abuse and Mental Health Program, and the Hearing Master appointed to hear involuntary civil commitment cases in Pinellas County (Spring 1991). Conversation with M . Cone and P. Redman, Division of Mental Health, Mental Retardation, and Substance Abuse, Atlanta, GA (Apr. 1991). See

DEPARTMENT O F PUBLIC HEALTH, DIVISION O F SUBSTANCE A B U S E SERVICES, ADDRESSING T H E

TREATMENT N E E D S O F CIVILLY-COMMITTED W O M E N U N D E R MASSACHUSETTS GENERAL LAW, CHAPTER

123, SECTION 35 (Boston, Mass. Jan. 1991),

196

GARCIA


less litigations, the law is so clear that judges have no discretion. They have the right to legislate within gaps, but often there are no gaps";294 and by Ronald Dworkin: A judge, therefore, needs to decide not only which principles and policies he must take into account, but must also decide what weight each should be accorded in reaching a decision. Dworkin bars the possibility that a judge has "discretion" like a legislator to determine comparative weight, for the judge is legally bound by some external standard with respect to that determination just as he is bound in his determination as to which principles and policies are to be given any weight at all. The result, for Dworkin, is that when judges are making determinations about the content of legal norms, they are always constrained by the law, never free to go outside the law to make a creative legislative choice.295

The second point of view, stressing the significance of decision behavior in the translation of legal rules is summarized: It is difficult to imagine many occasions when legal rules are mechanically applied; at every stage in the legal process choices are made by actors; litigants, accused persons, lawyers, enforcement officials, judges, penal practitioners, and so on. The creation of any legal "case" and its subsequent career are shaped by decisions made in a dynamic unfolding process. . . . Decision-making, in short, is the stuff of the law. Discretion enables legal rules and mandates to be interpreted and given purpose and form. It enables judgments to be made about the application, reach, and impact of the law. And it enables the conflicting imperatives of consistency and individualization to be reconciled.296

The language of much of the literature on the exercise of judicial discretion includes concepts such as legal rules, legal principles, and precedent that guide or constrain the decisionmaking behavior of judges. Perinatal drug addiction is replete with issues, such as the legal status of fetuses, where such guidelines either do not exist, are just evolving, or are in great dispute. When there are no rules, the probability of discretionary decisionmaking is greatly enhanced. Moreover, when child welfare is at issue, and medical and legal uncertainties continue to surround maternal fitness at various stages of addiction and recovery, judges are sometimes left no alternative but to "legislate," by creating new rules or ignoring existing laws.297 294

B. CARDOZO. THE NATURE OF THE JUDICIAL PROCESS 129 (1921).

295

Greenawalt, Discretion and Judicial Decision: The Elusive Quest for the Fetters that Bind Judges, 75 COLUM. L. REV. 359, 360 (1975).

296

Hawkins, supra note 234, at 1164. 297 See, e.g., United States v. Vaughn, No. F-2172-88B (Super. Ct. D.C., Aug. 23, 1988) (judge disregarded sentencing guidelines and sent a pregnant drug abuser to jail to protect her fetus from further exposure to drugs).


197


5. Social Service Agency (HRS) and Courts Although social service agencies298 and courts are two distinct entities, the relationship between them is complex and it can be difficult to determine when observance of existing laws govern the types of decisions made, or when the exercise of discretionary decisionmaking prevails. In the matter of addicted pregnant and postpartum mothers' rights to the custody of their children, social workers play a vital role by supplying the court with what they have decided are determinative facts about the women's ability to parent.299 In addition to the testimony of HRS social workers, judges receive information from numerous sources in child dependency, involuntary civil commitment, and termination of parental rights hearings. Physicians, treatment specialists, guardians ad litem,300 state's attorneys, and women and their family members can all testify at such hearings. However, a common complaint heard from persons who believe that HRS wields an inordinate amount of influence in the courtroom is that judges "rubber stamp" HRS recommendations. On the other hand, judges who appear to make decisions based primarily on their personal biases are attacked as vehemently. Decisions by a circuit court judge in Tampa, Florida, in cases that allegedly allowed accused child abusers access to their victims, and that returned abused children to volatile homes even when the judge was begged not to by guardians and HRS staff, have been publicly challenged in a lengthy editorial. After finding a dozen "disturbing" decisions by one circuit court judge in which the strong recommendations of HRS investigators and guardians ad litem were ignored, the Tampa Tribune asked, "why are questionable if not dubious decisions emanating from Foster's court?"301 Providing some insights into her decisionmaking process, the judge said in an interview: I am very interested in the family. I got involved (in child-abuse issues) more from the idea of keeping families intact. I really feel with the proper help, so many families that are in trouble can get out of trouble they are in. In fact, the

298

299 300

Once again, H R S in Tampa, Florida, will b e used in this section as a frame of reference. See supra note 168. See supra notes 164-83 a n d accompanying text. Florida's guardian ad litem program w a s designed t o train and assist volunteers to act as representatives t o protect abused o r neglected children's interest in legal proceedings. T h e guardian ad litem serves as an investigator, monitor, protector, spokesperson, and reporter for the child. See GUARDIAN A D L I T E M PROGRAM, STATE OF FLORIDA, SPEAKING U P FOR CHILDREN 2-3 (undated b r o c h u r e avail-

301

able from author). One Judge's Curious Way of Handling Child-Abuse col. 1.

Cases, Tampa Trib., July 2 , 1991, at 6-North,

198

GARCIA


statute mandates that every reasonable effort be made before the children are removed from the home, even temporarily.302

The editorial observes that, even though the judge maintains that she has ruled against HRS and court-appointed guardians in custody and visitation cases, but not against child-behavior experts, the record shows otherwise. It asks what can be done, and suggests that the chief judge intervene by using his discretion over judges' assignments to transfer the alleged ineffective judge, or that HRS appeal her decisions, a costly and timeconsuming process.303 The dynamics of the situation described in the editorial is a microcosm of the larger picture that involves complex interactions between huge, constantly troubled social service agencies,304 and an independent judiciary where discretionary decisionmaking can occur with only the remote chance of being overruled at the appellate level serving as a deterrent to abuse of discretion.305 The sentencing of Brenda Vaughn, a 30-year-old pregnant cocaine addict, to a jail term for a first-time offense is a case in point. The Washington D.C. Superior Court judge admitted that normally the offense of forging about $700 worth of checks, a second degree theft, would not warrant jail time, but said that he wanted to protect the woman's fetus from the cocaine's effects.306 Whether this use of judicial discretion actually results in an illegal form of preventive detention307 is debatable. Aware of judges' discretionary power to sentence them to terms specifically designed to protect their fetuses, some women have elected to plea bargain for terms that include treatment.308 The effectiveness of advocates for drug-addicted pregnant and postpartum women may be greatly enhanced if they become increasingly 302

Id. Id. 304 See, e.g., HRS Workers Try to Find the Keys to Handling Stress, Tampa Trib., June 24, 1991, at 1, col. 3 (describing the near debilitating stress experienced by child abuse investigators, counselors, and supervisors, and how to cope with "burnout"); Newborn's Death Stirs Debate, supra note 156. 156. 305 The ACLU has filed appeals in Johnson v. Florida, and some other cases that have involved indigent drug addicted women. However, inadequate legal representation for indigent, addicted women often precludes the filing of appeals. 306 See United States v. Vaughn, No. F-2172-88B (Super. Ct. D.C. Aug. 2 3 , 1988). 307 Preventive detention is defined as "confinement imposed generally on a defendant in a criminal case who has threatened to violate the law while awaiting trial or disposition, or of a mentally ill person who may harm himself or others." BLACK'S LAW DICTIONARY 1070 (5th ed. 1979). 308 A pregnant woman in West Palm Beach, Florida, agreed to a plea bargain intended to keep her behind bars and away from crack cocaine until the birth of her baby. Having pleaded guilty to a misdemeanor charge of attempted cocaine possession, the plea bargain called for the woman to serve 90 days in the county stockade and nine months on probation with the requirement that she submit to drug evaluation and treatment. Expectant Mom OK's Jail Term, Tampa Trib., Dec. 17, 1989, at 17-B, col. 5. 303


199

knowledgeable of the interaction between social service agencies and the courts, and about the factors that contribute to the use of discretionary decisionmaking for individuals in each institution.


6. State's Attorney and Public Defender Perhaps the most important decision that the state's attorneys must make in response to pregnant and postpartum drug-addicted women is whether their primary goal is to detain, deter, punish, or coerce the women into treatment; their two most obvious options are to prosecute or to promote treatment in lieu of prosecution.309 Once that decision is made, a host of others follow, such as what charges to bring and at what point, after reports from treatment facilities of noncompliance with mandated program regimens, are women to be removed and prosecuted. Because none of the above decisions can be made based on settled law due to the rapidly changing law in the field, it would be highly instructive to discover the sources upon which state's attorneys rely to make their decisions. Considering the Public Defender's Office, and using Tampa, Florida, as an example, the most pressing decision may be whether to lobby the state legislature to pass a law that will mandate that office to represent pregnant and postpartum drug-addicted women in involuntary civil commitment hearings and other legal proceedings.310 VI. RIGHTS, LAWS, AND PRACTICE: TAMPA, FLORIDA OBSERVATIONS A. A Multi-Faceted Approach Tampa, Hillsborough County, Florida, has responded to the problem of perinatal drug addiction with the development of several agencies, treatment programs, and forums through which dialogue about the most pressing problems continuously occurs. Hillsborough County created an Anti-Drug Advisory Council with members from a wide variety of organizations,311 and the Tampa Chamber of Commerce established, and 309 310

311

See supra note 192. Although Florida Statute section 397.052(6) (1986) provides that counsel be appointed for indigent persons in involuntary civil commitment hearings, from observations it is not clear that this is routinely done. The right to counsel would be better protected if attorneys from the Office of the Public Defender were required by law to represent clients in commitment hearings, as they routinely represent those committed under the mental health statute. FLA. STAT. ch. 394 (1973). See also supra note 118 and accompanying text. Members of the Council include the county jail administrator, Chief Judge of Hillsborough County, Hillsborough County Public Defender, Hillsborough County State Attorney, Hillsborough County Sheriff, Substance Abuse Coordinator, Department of HRS, Tampa Greater Chamber of Commerce, ACTS, Inc. (alcohol treatment), Florida Department of Corrections, Tampa Housing Authority, Department of Public Safety, D A C C O , Inc., and Hillsborough County Health Department.


200

GARCIA

staffed with persons from multiple disciplines, agencies, and institutions, an Anti-Drug Task Force and a Cocaine Babies Committee, both of which have met regularly. However, upon close examination, it has become clear that this substantial and diverse effort is focused primarily on policy and practice, not on rights advocacy312 or legislative intervention.313 The broadbased approach that Tampa has taken in response to drug addiction among pregnant and postpartum women is important because participants from active entities provide an abundant flow of information that can be utilized by decisionmakers at all levels. In addition, the interdisciplinary approach tends to foster the examination of the internal structures and external constraints on entities that have created obstacles to the achievement of therapeutic goals set for women by the treatment community and other bodies. For instance, the nature and extent of the power of HRS, real or perceived, is frequently debated by people who monitor the agency's actions, or who provide input to those deciding child custody and parental rights issues.314 The scope of Tampa's approach also promotes multiple solutions that can include a myriad of legal interventions that must be closely monitored for effectiveness and appropriateness. A paradigm for such an approach is reflected in a report from the National Commission Against Drunk Driving that lists 19 "State Drunk Driving Countermeasures," explanations of the countermeasures, and states that have adopted them. Included on the list are factors such as testing, licensing, penalizing sellers of alcohol, and victims.315 There have been many "countermeasures," proposed to control

312

Rights advocacy will, of course, be strongest when alleged violations occur, or are noticed. There have been no attempts in Tampa to bring charges against a pregnant woman for fetal endangerment or a similar charge that would bring into clear focus the maternal/fetal rights debate. However, case-by-case observation of pregnant women and their children in Tampa reveals potential widespread rights violations, particularly in the area of right to counsel.

313

As a former member of the now disbanded Cocaine Baby Committee of the Tampa Chamber of Commerce, and having attended many highly productive meetings in Tampa addressing the problems of perinatal drug addiction, the author does not recall the issue of women's rights ever having been broached. Moreover, there is widespread unawareness of existing laws governing areas of importance to pregnant and postpartum drug-addicted women, such as involuntary civil commitment and child custody, manifested in relatively little discussion and analysis of those laws. See supra notes 168-83 and accompanying text. The "checklist of countermeasures" includes things such as administrative license suspension/ revocation, dram shop law, preliminary breath test permitted by law, greater license sanctions for D W I offenders under 2 1 , victim restitution, victim impact statement permitted, D U I plea bargaining prohibited, D W I related death considered a felony, mandatory 90 day loss of license for 1st offense D W I , exchange information on D W I convictions with other states, mandatory jail for driving on suspended/revoked license, and two or more DWI questions on driver's license examination. National Commission Against Drunk Driving, Washington, D . C . ( n . d . ) .

314 315



201

various aspects of drug-addicted pregnant and postpartum women, some of which have been implemented.316 Responding to perinatal drug addiction requires an approach that recognizes issues under constant review by rights advocates, understands the limits of the law, supports attempts to implement a variety of therapeutic programs, and strongly promotes the necessity to examine and monitor the nature and effect of decisions that are being made in numerous interrelated agencies. Tampa has begun to move from an organizational period to a more evaluative one that will, of necessity, set priorities among the abovementioned activities, and allocate money and manpower accordingly. B. The Involuntary Drug Court (IDC) Revisited Tampa's involuntary civil commitment drug court (IDC)317 presents an interesting picture of the interaction between rights, laws, discretionary decisionmaking, and practice. Upon close examination of the operation of the IDC, one can conclude that its creation was a courageous act and its operation a critical public service, or that it is an interesting experiment with procedures that bear little resemblance to the provisions in the state's involuntary civil commitment law.318 The IDC's most noteworthy feature, the incarceration for five months, 29 days of drug-addicted persons who have violated their treatment regimens, is a clear example of absolute exercise of judicial discretion that has engendered no audible opposition. Concerning pregnant and postpartum drug-addicted women, HRS plays such a dominant role in determining the fate of women and children that drug treatment program counselors, court liaisons, and administrators are in the untenable position of acting as both healer of the women and informer to HRS. The treatment facility's freedom to peruse therapeutic modalities with drug-addicted women in recovery is severely limited by the external constraints imposed by reporting laws. For instance, HRS performance agreements319 routinely contain the stipulation that one "dirty" urine test constitutes grounds for the loss of custody of a woman's child. 316

317 318

319

Some countermeasures are prenatal maternal urine testing, newborn urine tests, mandatory reporting laws, emergency custody of newborns, child abuse and neglect laws, urine test refusal as evidence, voluntary sterilization, mandatory sterilization, drug use testing on public assistance applicants, and enforcement of a newborn's right to sue the mother. See supra notes 217-27 and accompanying text. FLA. STAT. § 397.052 (1986) (provides detailed procedures for the following: involuntary civil commitment of drug dependent persons, including commitment criteria; a maximum time for precommitment detention of five days if mandated examination is refused; conditions for precommitment release; rights guaranteed to potential committees including the right to counsel and to notice; judicial review including probable cause and full hearings; commitment periods and conditions for recommitment; and conditions for discharge or release). See Garcia & Keilitz, supra note 105. See supra note 169.


202

GARCIA

Reporting of the positive urine test is mandated by child protection laws; removal of children is totally discretionary on the part of HRS workers.320 Well-founded, publicized inquiries from treatment program personnel and other agencies serving drug-addicted women about the medical, legal, and psychosocial soundness of the actions of HRS, particularly those regarding women's rights and child welfare in the face of frequent, swift, and prolonged separation of women from their children, rarely evoke definitive action either from the agency itself or from the legislature. Moreover, some women express considerable fear of the wrath of HRS workers, whose policies are formally challenged, while treatment program personnel consciously work at not alienating HRS personnel because of the vital role that they play in the recovering woman's future.321 Within an atmosphere of widespread HRS-bashing, largely based on deaths of children that have occurred while they were under their care, and alleged indiscriminate charges of child abuse,322 many of the agency's personnel have become overly defensive and cautious. Increased authoritarianism sometimes is also a response to an inordinate amount of what HRS workers perceive to be scapegoating in a generally dysfunctional child welfare system.323 Thus, internal and external constraints on the IDC and on numerous agencies involved with drug-addicted women and their children preclude strict adherence to statutory mandates. Such constraints include the infrequency of court hearings, inadequate provision of legal representation for

320

321 322

Conversation with an administrator in the day treatment program at D A C C O , Tampa, Florida's largest treatment facility (July 11, 1991). Id. A quarter-page ad in one of the most widely circulated newspapers in southwest Florida reads: HRS'

CHILD ABUSE WITCH H U N T

Dear Florida Citizen: HRS will falsely accuse over 100,000 Florida families of child abuse this year. Since many HRS child abuse advocates consider a simple disciplinary spanking to be child abuse, good parents who believe in traditional child rearing are particularly vulnerable to H R S ' accusations. There is no way to protect yourself! HRS operates unconstitutionally. Absurd, vague laws, and virtually no due process, allow HRS to legally kidnap children from innocent families and place them in dangerous state custody.

323

No one is safe! Anyone can be accused anonymously. Once an investigation is started, very little can be done to help. HRS can seize children out of the arms of loving parents at any time, for any reason, without any due process of law. In state custody, children are sometimes killed, often sexually violated, usually physically abused, and always emotionally scared. But HRS denies this! That is why it is imperative for you to be on guard. Family Rights Committee can help. We are a nonprofit organization that is committed to exposing HRS in order to protect innocent families. Find out how you can help abolish HRS, Florida's Gestapo. HRS' Child Abuse Witch Hunt, St. Petersburg Times, July 12, 1991, at 11A, col. 3 . See supra notes 176 & 181 and accompanying text.



203

indigent clients,324 clients' poverty and inability to hire private attorneys and physicians to protect their and their children's rights, the court's near total reliance on input from HRS personnel, whose professed institutional interest is the best interest of the child in child welfare matters versus maternal rights, and treatment facility autonomy being held hostage to reporting laws and HRS influence. In other words, the IDC is most accurately viewed as a small part of a system that helps, frustrates, scares, harms, and saves from death drugaddicted pregnant and postpartum women and their children through a panoply of discretionary decisions, rights violations, attempts at advocacy, treatment successes and failures, destructive and constructive child custody placements, and institutional power plays. And returning to one of the key premises of this article, all of the above activities occur among persons with limited knowledge and varied opinions of addiction, generally, and perinatal drug addiction in particular. CONCLUSION Advocates of pregnant and postpartum drug-addicted women and their children have a unique opportunity to help define issues and set parameters for intervention because rights and laws pertaining to mothers and children are in a state of flux. Policymakers, who are confronted with the complex issues surrounding maternal and fetal rights at all stages of gestation, and the rights of children born of addicted women, find minimal help in arriving at sound decisions from existing unsettled law and social division. The sheer complexity of the issues and the paucity of precedent compels discretionary decisionmaking among those under whose authority pregnant and postpartum drug-addicted women are placed. A thorough examination of the intricate and dynamic interaction of rights advocacy, legislative enactments, and the exercise of discretionary decisionmaking among practitioners can enhance the analysis of current efforts to find solutions to the many drug-related problems faced by women and their children, and suggest new directions for intervention on their behalf. 324

See supra note 117.

From Practice to Evidence in Child Welfare: Model Specification and Fidelity Measurement of Team Decisionmaking.

Animal rights: new laws divide lawmakers.

Comment on AAALAC international and compliance with animal welfare laws.

Massachusetts patients' Bill of Rights: cabbages, kings, sausages and laws.

Agency Culture and Climate in Child Welfare: Do Perceptions Vary by Exposure to the Child Welfare System?

Human rights principles in developing and updating policies and laws on mental health.

European Policies to Promote Children's Rights and Combat Child Poverty.

Infants and the decision to provide ongoing child welfare services.

Approaches to evaluation in Australian child and family welfare organizations.

Child psychiatry perspectives. Professional competence, public confidence, and children's rights.

Family and child welfare in relation to urbanization.

Commercial Sexual Exploitation of Children and State Child Welfare Systems.

Collaboration, Competition, and Co-opetition: Interorganizational Dynamics Between Private Child Welfare Agencies and Child Serving Sectors.

The Role of International Human Rights Norms in the Liberalization of Abortion Laws Globally.

From Elizabethan poor laws to Thatcher: British Welfare Services for the elderly.

A charter for the rights of the dying child.

Expanding evidence-based practice to service planning in child welfare.

Digital society generates new challenges on child welfare services.

Child welfare in Indian country: a story of painful removals.

Religious socialization of youth involved in child welfare.

Building research capacity in child welfare in Canada.

Introducing Technology in Child Welfare Referrals: A Case Study.

Multiple Family Groups for Child Behavior Difficulties Retention Among Child Welfare-Involved Caregivers.

China's laws, rights, and administrative structures in occupational safety and health: a comparison with the United States.