Fetal Abuse

Sally DeJesus knew right away she'd made a mistake.

After years of heavy cocaine use, she had been clean and sober for 11 months, and pregnant for nine, when she ran into one of her old crack dealers in a convenience store near Flat Rock, N.C. She was feeling lousy. Anxious to keep her system clean while her baby was growing inside her, the 28-year-old mother of two had months ago quit taking her anti-depressant medications; partly as a result, she says, she had been terribly depressed. "I'd hide in the bedroom crying," she says. "I wouldn't eat. I didn't shower for weeks at a time." To make matters worse, she and her husband had gotten into a bitter fight that morning.

So when the dealer offered to take her for a ride and get her high, DeJesus said yes.

"As soon as I did the first hit, I knew I'd screwed up," she says. "But when you're an addict, sometimes your judgment just goes right out the window."

The next day, DeJesus confessed to her midwife what had happened. "I told her I needed help," she says. "I was afraid for my baby." That night, DeJesus went into labor, and in short order gave birth to her daughter Emily -- who, despite her mother's prenatal relapse, came out perfectly healthy.

DeJesus' problems, however, were only beginning. Her midwife, it seems, had told the hospital where DeJesus was having her baby about her drug use. The doctors then tested newborn Emily for drug traces; when the tests came up positive, hospital staff called the police.

As DeJesus lay recuperating in her hospital room, Henderson County sheriffs marched in to interrogate her. By taking a drug that could have harmed her unborn child, they said, DeJesus had committed felonious child abuse. She is now awaiting a trial that could end with her sentenced to more than three years behind bars.

The concept behind DeJesus' prosecution is often referred to as "fetal rights": the notion that unborn babies deserve the same legal protections as children. After hibernating for several years, the issue is creeping back into view across the country, with a rash of women being charged criminally, or having their babies taken away from them, because they took drugs while pregnant.

The trend is deeply alarming to women's rights advocates and health-care workers, who warn that such a heavy-handed approach will only deter drug-addicted mothers-to-be from seeking out prenatal care. Moreover, many warn, such tactics may be paving the way for abortion -- the ultimate violation of "fetal rights" -- to legally be declared murder.

"These cases represent the intersection of the war on drugs and the war on abortion," says Lynn Paltrow, director of National Advocates for Pregnant Women, who has successfully helped argue against dozens of similar prosecutions in the last decade. "There may have been a temporary lull, but the issue has not gone away."

In the late 1980s and early 1990s, spurred by hyperventilating news stories warning of a coming deluge of "crack babies," prosecutors in more than 30 states sought to stem the anticipated flood by charging scores of drug-using pregnant women with everything from child abuse to manslaughter. In nearly all cases, however, judges eventually threw out those prosecutions, in part because the Supreme Court's landmark Roe v. Wade decision had firmly established that a fetus is not a person in the eyes of the law.

But in the last year, a fresh crop of fetal-rights cases have sprung up. In April, a 26-year-old Texas woman was indicted for child endangerment after her newborn tested positive for cocaine. The same month, a Pennsylvania judge ruled that prosecutors could charge an addicted mother with child endangerment for using heroin while pregnant -- even if her baby was born healthy. This spring, the Oklahoma state legislature nearly passed a bill making it a misdemeanor for pregnant drug abusers to fail to get substance-abuse treatment. And in Georgia, 21-year-old Shannon Moss is facing murder charges for allegedly killing her fetus by taking cocaine and amphetamines while pregnant.