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Women In Wisconsin May Lose Civil Rights During Pregnancy

WAUKESHA, Wis. -- In the next few months, the Wisconsin Supreme Court is expected to decide whether county officials in this Milwaukee suburb acted legally when they took custody of an unborn child a month before its due date.

The mother-to-be was using cocaine, drugging the developing baby within. The local social services agency asked a Juvenile Court judge to place the fetus in Waukesha Memorial Hospital. The judge issued a detention order to the Waukesha County sheriff.

The 24-year-old addict wrapped around the fetus had no say in the matter. She was not under arrest, nor charged with any crime. Yet she was confined.

What happened to Angela M.W. in September 1995 is a logical extension of the famous case of Roe vs. Wade, maintains the county's attorney, Assistant Corporation Counsel William J. Domina.

His position, affirmed by the state Appeals Court, has heartened some youth justice experts. At the same time it has appalled the American Civil Liberties Union as well as some women's law specialists and public health advocates who contend that it would result in juvenile courts acting as pregnancy police, overseeing an expectant mother's way of life.

Twenty-four years ago, the U.S. Supreme Court decided in Roe that a woman had a right to choose whether to have an abortion or carry her pregnancy to term.

But as the fetus grows, the Supreme Court ruled, the state's interest -- its right to intervene and regulate -- grows as well.

The National Association of Counsel for Children and the prosecutor in neighboring Milwaukee County weighed in with legal briefs in support of recognizing the Juvenile Court's authority over babies-to-be. Eleven health, women's and children's organizations banded together to argue against seizing fetuses and depriving pregnant women of their liberty. They say the Roe decision applies only to the power to restrict abortion.

"This is heady stuff," said Deborah Mathieu, a University of Arizona political scientist and author of a recent book about prenatal protection.

She predicts that the state Supreme Court justices will not uphold the lower-court decisions.

"But if they do, it puts pregnant women in Wisconsin on notice," she said. "They're liable to be snatched."

Indeed, a second case in the town of Ashland on Lake Superior's shore. Last spring, a juvenile judge there ordered police to take a fetus -- and of course, the woman carrying it -- to the hospital because a physician had misgivings about the small-boned mother's plan to deliver the baby at home with the help of a midwife.

Anti-abortion activist Susan Armacost expressed qualms about imposing so much government control in the name of the fetus.

"We've got to look at this very carefully," said the legislative director of Wisconsin Right to Life. "It could be an incentive for women to have abortions."

To Domina, Waukesha County's approach to fetal health is more humane. "Our system is about child protection, not punishment," he said. Angela M.W. "didn't go to jail. We were working toward reunification of the family as soon as she could be a safe parent."

Sara Mandelbaum, an ACLU lawyer handling Angela M.W.'s Supreme Court appeal, said the threat of losing her liberty could keep a pregnant woman from seeking prenatal care. Which is a greater danger to a fetus, Mandelbaum wondered, a cocaine addict who sees her doctor regularly or one who avoids physicians out of fear of detention?

"If the lower court's . . . misinterpretation of Roe vs. Wade is upheld, pregnant women who smoke, or live with a smoker, or maintain a poor diet, or fail to take medications could be subjected to an order of protective custody to ensure that they change their behavior and provide `a safe environment in the womb' for their fetus," wrote attorneys representing 11 groups, ranging from the American Public Health Association to the NOW Legal Defense and Education Fund.

Domina disagreed. "It's not going to open the floodgates," he said. "You have to have proof."

Angela M.W.'s doctor had proof. Dr. Matthew Meyer wondered about Angela's erratic behavior. According to his affidavit, Angela admitted to him that she had started using cocaine in April 1995.

He screened her blood, drawn at prenatal visits. She tested positive twice. When she missed an appointment, Meyer reported the fetus as a child in need of protection.

A social worker petitioned for hospital placement for the "child of 16 weeks gestation." Circuit Judge Kathryn Foster granted the request, acknowledging "such detention will by necessity result in the detention of the unborn child's mother . . ."

Angela was not notified of the hearing.

Later, the judge granted Angela M.W.'s request for transfer to a nearby drug treatment program. If the mother left the treatment center, the judge ordered, the deputies should take her to the hospital.

Angela stayed for three weeks until giving birth to her third child, a boy. To the courts, he is known as Bobby L.W.

Cocaine was present in the baby's meconium -- the first solid waste --but not in his bloodstream, Domina said. Bobby L.W. appeared healthy. He and his siblings are in foster care now.