pug846

I’ll get to DMB’s post later when I have more time.

JerryM said:

The only purpose of the criminal code isn’t to control behaviors, but to punish people when they wrong others. Further, just because it won’t accomplish complete deterrence doesn’t mean it shouldn’t be enacted. It probably would deter at least some activity and punish a person who hurts another. In this case, you could hope to rehabilitate the mother to ensure that this doesn't happen again.

I actually thought the Supreme Court upheld that practice? Either way, that’s a completely separate issue. The proposed law wouldn’t require that every pregnant women be required to take drug tests, etc. The law could work in cases where the baby does in fact develop some sort of disorder, like fetal alcohol syndrome, the women would then be charged. (Assuming other factors were present: she knew that she was pregnant, taking the alcohol, etc. was voluntary…) To draw on a situation to make the point clearer: You can handle a gun and be as reckless as imaginable. However, as long as the gun hurts no one, you won’t be charged. So, if you drink a lot of alcohol during your pregnancy, but your baby doesn’t develop any sort of defect, you won’t be charged and can count yourself lucky.

To jump back to an earlier point regarding what type of punishment would be appropriate: Let’s assume this is a first time mother and her kid develops fetal-alcohol syndrome. We could sentence her to two years probation and require her to take classes on alcohol abuse or something along those lines. There are a lot of options that would be available to a judge in these types of situations. The only options wouldn’t have to be a prison sentence or a fine.

[ November 04, 2002: Message edited by: pug846 ]</p>

pug846

crab juice said:

News flash: we live in a real live world where there are rarely clear lines. If we didn’t enact a criminal law because there was no clear breaking point, there would be no law. You ask the mother to take reasonable care of herself within her means. This doesn’t mean that the mother should avoid anything that could potentially be dangerous. In a lot of situations we simply use the reasonable person test. Would a the typical reasonable mother who is pregnant use cleaning supplies? She probably would. Either way, if this is really your objection, then let’s tear down the whole entire criminal justice system because there’s no point in having laws regulating anything.

So, two more comments: 1) (And I should have been clearer on this earlier) “Punishment” does not necessarily have to be a prison sentence. For a first time offender, we can simply offering counseling. 2) A lot of objections to enacting a criminal law if taken seriously would pretty much destroy the very concept of having a criminal justice system. It seems people feel like this is just wrong and then are looking for some sort of justification after the fact.

pug846

Glory said:

I’m not sure how this law would invade privacy any more than any other statue? Please explain. If we believe there has been a crime committed, an investigation takes place. This would be no different.

Two comments: I’m not “forcing” women to adhere to some crazy standard where they have to do everything possible to avoid harming their child. A good example would be of the mother who drinks a 40 every single day and her child, when born, has fetal-alcohol syndrome. (Is that what it is called?) Further, the “legal sanctions” would be counseling and two years of probation. I’m not sure that this type of policy would force women into hiding since I assume nearly all women do a reasonable job of taking care of themselves. How many kids a year are born with defects because of the mother being reckless? Anyone know where to get those numbers?

Is this directed at me? I’m not following you. (Oddly enough, I know a lot of people who have no problem with 2nd trimester abortion, including at least a few Supreme Court Justices. )

I’m somewhat at a loss for most of these objections. If a women gave a child a beer a day and eventually the kid died, would any of you have a problem with charging this women with a crime? Or would you cry out, “where do we draw the line?!”

pug846

Actually, to back away a little bit from the reasonableness standard to only catch the most grievous offenders: We could use the negligent standard, which would mean the women ought to be aware of “a substantial and unjustifiable risk that the circumstance or result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as view from the actor’s standpoint.”

pug846

Okay - I thought about it and I don't think the law would make good policy.

*shrugs* I tried.

Glory

Well, with fetal alcohol syndrome I don't see the need for much investigating. There is only one way for a child to be afflicted with it. Actually, I think there have been children removed from the care of parents whose behaviour during pregnancy resulted in fetal alcohol syndrome or drug addiction. So that point is moot as far as I am concerned. Existing law already covers it. Judges tend to be reluctant to terminate parental rights but they will in such a case. Also, people do look for reasons to arrest women who are actively damaging their unborn babies. For instance, a junkie gets arrested for possession and gives birth in jail. Her parental rights are terminated. We don't need new legislation for this.

GPlindsey, however, suggested that we pass legislation that goes much further. His suggestions would require monitoring in order to enforce them. That involves an invasion of privacy, an invasion of one's body no less.



How do you write a law that covers what you want it to cover without covering anything else? It is harder than it looks. For instance, do you propose a minimum amount of alcohol consumption be allowed so as to avoid having to arrest the woman who had a glass of wine before she knew she was pregnant while still being able to charge the woman who downs the forty daily? How much would that minimum be? Do you arrest just those women whose children are born with Fetal alcohol syndrome? What about other defects not as severe? How do doctors determine that alcohol or cigarettes were the cause of defects to a certainty? Do you want to put doctors into the roll of law enforcement? They are the ones who determine what is wrong with a baby and what caused it. Will doctors allow themselves to be put into that roll again? They are already required to report gunshot wounds to the police and to report suspected child abuse.



I do not know where to get those numbers but I can give it a shot. I wonder though, if you are correct about how well nearly all women take care of themselves, why would we need this legislation?

It forces women into hiding because they don't want to get into trouble by going to the doctor. A criminal record is a criminal record. Do you have any idea what that does to person's life? To a family dependant on that criminal's earning power? I would certainly do a lot to avoid arrest and sanction and I am not an addict. Also, if a woman already has a conviction and is on probation then she goes to prison.



The death of a child is a very clear thing. In order to apply this analogy you have to assume that the fetus is a person. This goes to the heart of my position. I would love to punish women who drink and smoke during their pregnancies. I would love to punish people who are too selfish to be bothered with the needs of their child unborn or otherwise. I don't know how to do that without doing other things that I don't want to do. I don't want to provide a precedent for any antiabortionists, that establishes a fetus as having rights or being a person. I don't want to discourage women from getting medical care. I don't want to put people in the position of being accessories to a criminal act which is what they would be if they watched a woman who was pregnant having a smoke or a drink and did nothing. I don't want to put bartenders and merchants in the position of asking women fat women if they are pregnant.

Lastly, I think GPLindsey has as his goal the protection of children. What is the point of waiting until the damage has been done and the existing law picks up? I think it's a noble goal and I am frustrated to no end that I can't do anything to advance it. When we get angry and frustrated and scared, we say "there oughtta be a law!” Well, laws are not always the way to solve a problem.

Glory

Hey Pug846,

I know you tried and I share your pain. I had to post my reply anyway. I type really slow so it took me a long time to write it!

Glory

[ November 04, 2002: Message edited by: Glory ]</p>

JerryM

The South Carolina drug testing case was Ferguson v. City of Charleston, decided in March, 2001. The USSC struck down the law on 4th Amendment grounds. I just don't think that any law imposing criminal penalties on pregnant women for drinking or smoking is likely to be upheld. I see this as singling out one class of citizens, pregnant women, and proscribing some actions which are non-criminal for other adults. To me, this violates the equal protection clause. To suspend a constitutional immunity should require an extremely compelling state interest, and I don't see that preventing fetal abnormalities or damaged babies (worthy as that is) meets that standard. By a 6-3 margin, the USSC didn't think that intervening to prevent cocaine addicted babies justified suspending the 4th Amendment.

Here's a link to the Ferguson case:
<a href="http://www.crlp.org/crt_preg_ferguson.html#casesummary" target="_blank">http://www.crlp.org/crt_preg_ferguson.html#casesummary</a>

[ November 05, 2002: Message edited by: JerryM ]</p>

MadMordigan

Since women can be pregnant for up to 2 months before they even know it, these rules should be enforced as willful neglience. All women who cannot prove their sterilization should be prohibited from doing anything that could harm their potential fetus or face charges of malicious negligence. After all, its better to be safe than sorry.

pug846

Glory said:

These laws probably have nothing to do with the way the mother treated the fetus. More than likely these women were drug addicts and had their kids taken away from them because when the child was born, they were then unable to care for the child. In most of those types of cases, it’s irrelevant that the mother’s lifestyle hurt the fetus. If the fetus hadn’t been hurt, the kid would have been made a ward of the state anyway. The law we were talking about had to do with the mother who damaged her fetus as I previously discussed and could in theory take care of a child, but would be “punished” anyway. (Although in most cases, she really wouldn’t have been capable of taking care of a kid with a birth defect.)

I should have made it clear that I didn’t endorse the entire OP.

I don’t know how to make my answer to this alleged problem any clearer – I even typed out the criterion (negligence) and it’s definition. There is no clear line what is and isn’t negligence. *shrugs* Every single criminal statue is going to have problems with “fringe” cases. Is pounding down a 20 pack every single day for 9 months too much? Yes. Is having one glass of wine in 9 months too much? No. There is no clear dividing line; we would leave it up to the jury to decide where that line lies. Your whole entire paragraph deals with the uncertainty involved in criminal statues. I could type out a clearer criterion, but you are looking for a bright line test that simply doesn’t exist.

And for the second time now – you could simply require that the women know that she was pregnant.

Because if we can legitimately prevent some of these situations from happening, that would be fine with me.

JerryM said:

To re-iterate my (now previous) position: You wouldn’t simply arrest a women who is smoking and is pregnant. If a women gave birth to a child who had a birth defect because of negligent actions on the part of the mother, she could be held criminally liable.

Eh? I’m not following what that case has to do with what we are talking about. You originally were talking about a case where women were required to consent to drug testing to receive Medicaid. That isn’t this case. Anyway, this case has to do with the reaches of the 4th amendment which deals with unreasonable searches. We aren’t talking about the 4th amendment. When someone decides to enact certain of their rights, they forfeit other rights. For instance, by drinking a lot, you forfeit your right to drive. By getting married to one person, you forfeit your right to marry someone else (unless you get divorced). By deciding to take your pregnancy to term, I think you have some sort of obligation to the fetus in your stomach.

Okay, I think I give up now. I just wanted to address some of these issues.