A visibly pregnant Delilah Jones announced that she was going to drink her baby to death. While Jones' choice to use alcohol to induce an abortion or a the birth of a stillborn child may be morally repugnant to most people, a review of case law surrounding abortion and women's reproductive rights indicates that she was within her constitutional rights to make this decision. Although the Supreme Court has not ruled specifically on the Wisconsin law, it appears that any law which restricts the use of alcohol and other substances by pregnant women may be unconstitutional.As noted in Maher v.
Roe (1977) the State has a "strong and legitimate interest in encouraging normal childbirth. " From an ethical or moral perspective, the State's interest in encouraging normal childbirth, which by extension includes an interest in encouraging women to have healthy pregnancies, is deeply rooted in the history of Western civilization. In addition to these historic ethical and moral considerations in preserving the health of an unborn child, the State also has a compelling economic interest in protecting the health of a fetus.The cost of caring for a child born with fetal alcohol syndrome, drug addictions, and other complications that are related to the mother's conduct during pregnancy can be very high and may place an undue burden on healthcare systems, education systems, and social services. In many cases, these complications may have lifelong implications that require ongoing care and additional services.These ethical and economic interests in healthy pregnancies have led some States to pass laws regarding the conduct of women during pregnancy and excessive consumption of alcohol or other forms of substance abuse (Wisconsin Statute 48.
02, p. 3). However, while laws protecting a fetus from the harmful behaviors of the mother may be well-intentioned, a review of relevant case law indicates that such laws are ultimately unconstitutional and are a violation of the woman's constitutional rights.In Roe v.
Wade (1973), the Supreme Court ruled that a woman has the right to terminate a pregnancy. Since the Court's ruling in Roe, several attempts have been made to restrict the right to terminate a pregnancy or to prescribe the manner in which a pregnancy may be terminated. In Stenberg v. Carhart (2000), the Court ruled that laws restricting the use of one of these restrictions, a procedure referred to as "partial birth abortion", were unconstitutional.
Stenberg affirms the Court's amoral attitude towards abortion which was noted earlier in Maher, that "abortion and childbirth, when stripped of the sensitive moral arguments surrounding the abortion controversy, are simply two alternative medical methods of dealing with pregnancy. " In Stenberg, the Court appeared to be saying that women have a wide choice when selecting the manner in which they will terminate their pregnancies, including choices that other people might find morally repugnant.When Jones announced that she was going to "drink this baby to death", she was simply announcing the manner in which she had chosen to terminate her pregnancy. From a constitutional prospective, this was no different than if she had announced that she was going to have an abortion. If Jones' decision to use alcohol to induce an abortion was constitutional, then it also follows that the police officer's decision to arrest Jones and the subsequent court order that she remain in custody in a treatment facility for several months until the delivery of her child were unconstitutional.
In addition to the violations of Jones' rights to terminate her pregnancy, her imprisonment in the treatment facility was also a violation of her 14th Amendment rights to due process. The 14th Amendment states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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. In this case, Jones was deprived not only of the liberty to choose the method in which she would terminate her pregnancy, but also of the more general liberties of freedom of movement and the right to engage in the same legal behaviors as any other adult, including the right to drink alcohol. All of the above is based on the narrow list of court cases that were provided for this assignment.
However, the list that was provided omitted at least one case which has direct implications for this scenario and that should not be overlooked. Crawley v.Cato (2001) was a South Carolina case that involved a pregnant woman who used crack cocaine during her pregnancy and was subsequently charged with felony child abuse under South Carolina law. Crawley's appeal was based on the due process clause of the 14th Amendment. The United States Supreme Court ruled that Crawley's appeal was not made in a timely manner and that it could therefore not be overturned.
By allowing Crawley's conviction to be upheld on such a technical point, the Court appeared to be sending the message that it supported the South Carolina law regarding the conduct of women during pregnancy.From a constitutional law perspective, a more decisive ruling from the Court would have been helpful. While Delilah Jones' actions may be reprehensible to many people on both sides of the abortion debate, she is still afforded due process considerations under the Constitution. Cases like this will continue to create problems until the courts and/or the various state legislatures can agree on whether a fetus is a human and as such is entitled to the same protections as a child that has been born.
