Article Authors: Erica Smock, J.D., Priscilla Smith, J.D., Bebe J. Anderson, J.D., attorneys with The Center for Reproductive Rights, New York, NY.

Physicians' treatment of pregnant women is necessarily influenced by the legal status accorded to the fetus. To the extent that a fetus is considered a "person" under the law, it may have legal rights that may be used to restrict the mother's rights. Recently, anti-choice efforts to elevate the fetus's legal status have resulted in new laws and policies designed to protect the fetus at the expense of maternal health.

Historically, a fetus was not recognized as a legal entity separate from the pregnant woman. Indeed, abortion was generally not illegal until the latter half of the 19th century, when many states enacted laws criminalizing the procedure. Since its 1973 decision in Roe v. Wade, striking down Texas's criminal abortion laws and holding that a fetus is not a "person" with Fourteenth Amendment rights, ¹the United States Supreme Court has consistently ruled that the woman's right to health and life outweighs the state's interest in potential life, even after viability.²

In recent years, however, there have been numerous attempts to elevate the status of the fetus. For example, legislatures are increasingly considering bills that afford protections for the fetus, fueling the potential for a conflict between mother and fetus. One legislative trend is the enactment of "fetal homicide" laws, which create a separate crime penalizing actions taken against a woman that result in the death of, or harm to, her fetus. These laws treat the fetus as an individual being, separate from the woman. Over twenty states currently have such laws and other states are actively considering similar legislation. Some of the proposed bills are especially troubling in that they do not contain exceptions for the woman or her doctor (thereby posing potential criminal sanction for measures taken as a course of treatment, such as radiation treatment for cancer or antibiotics for infection) or for abortion (again creating possible liability on the part of the doctor). A federal version, known as the "Unborn Victims of Violence Act" (UVVA), which does contain exceptions for the woman, her doctor, and abortion, has been proposed and has passed the House of Representatives.³

Efforts to elevate fetuses' status have also occurred at the administrative level. For example, the Bush administration recently adopted regulations that allow states to classify a fertilized egg as an "unborn child," eligible for coverage under the State Children's Health Insurance Program, rather than allowing coverage of pregnant women under the program.⁴ This approach could be detrimental to pregnant women's health: for example, any medical treatments that do not directly benefit the fetus are not covered, post-partum care is excluded, and there is a potential for serious conflicts over health care decision making if the needs of the fetus and pregnant woman diverge.

The legal status of fetuses has also been at issue in the courts, in a variety of contexts with mixed results. For example, in Texas and Kansas, fetuses have been found to be "patients" to whom the physician owes a duty of care under tort law.⁵ However, courts have almost unanimously rejected attempts to elevate the status of the fetus over that of the pregnant woman. For example, efforts to prosecute women for engaging in self-destructive behavior that poses a risk of harm to the fetus have been rejected by courts in all but one state. These courts have recognized that the fetus is not a person and that homicide and child abuse statutes never were intended to apply to a pregnant woman's behavior.⁶

In a similar context, the U.S. Supreme Court held that, in the absence of informed consent, a hospital's policy of drug testing a targeted group of pregnant women and reporting positive test results to law enforcement was an unconstitutional search and would violate the patients' constitutional rights, guaranteed by the Fourth Amendment, to be free from unreasonable search and seizure.⁷ The Court reversed the lower court's holding that the hospital was under no duty to obtain a warrant or consent for the drug testing because the policy's alleged purpose was to promote fetal health. In describing the physician's duty to the patient, the Court recognized both the pregnant woman's expectation of privacy and confidentiality in the physician-patient relationship and the resulting increased duty on the physician in that context to "make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require."⁸ On remand, the lower court held that the hospital's use of general consent forms was insufficient to establish the required informed consent.⁹ Thus, law and medical ethics¹⁰ require that any physician who conducts drug tests on a patient must insure that the patient is fully informed of all the legal consequences of the drug test. The physician must therefore educate him or herself about the ramifications of a positive drug test, which could include mandatory reporting to a social services agency, with serious consequences for the patient and/or her children.

Attempts to grant greater legal status to the fetus -- most evident in the legislative arena -- threaten pregnant women's fundamental rights and, in particular, women's right of reproductive choice. Treating the fetus as a legal entity separate from the pregnant woman creates the potential for an adversarial relationship between the woman's health needs and those of her developing fetus and further confuses the issues of the health care provider's duty to his or her "patient," including the duty to obtain informed consent. Legislatures and medical practitioners should keep maternal health as their primary focus when addressing issues involving pregnant women.

1. Roe v. Wade, 410 U.S. 113 (1973).
2. See, e.g., Stenberg v. Carhart, 530 U.S. 914 (2000) (restrictions on abortion must include an exception for situations in which the woman's life or health is endangered).
3. H.R. 503/ S. 480. This bill died in the 107th Congress; however, a similar bill has been introduced in the 108th Congress.
4. 67 FR 61956-01 (Oct. 2, 2002).
5. See Nold v. Binyon, 31 P.3d 274 (Kan. 2001) (deciding that physician has doctor-patient relationship both with pregnant woman and with fetus she intends to carry to term); Brown v. Shwarts, 968 S.W.2d 331 (Tex. 1998) (holding that in utero fetus is doctor's patient for purposes of Texas Medical Liability Act).
6. See, e.g., State v. Ashley, 701 So. 2d 338 (Fla. 1997); but see Whitner v. South Carolina, 492 S.E.2d 777 (S.C. 1997).
7. Ferguson v. City of Charleston, 532 U.S. 67 (2001).
8. Ferguson, 532 U.S. at 85.
9. Ferguson v. City of Charleston, 2002 WL 31319506 (4th Cir. Oct. 17, 2002).
10. See, e.g., Lawrence J. Nelson & Mary Faith Marshall, Ethical and Legal Analyses of Three Coercive Policies Aimed at Substance Abuse by Pregnant Women (1998).