Should We Mix Alcohol with Pregnant Women’s Rights?

Last updated on November 4th, 2019

Fetal alcohol spectrum disorder (FASD) is a 40-year-old blame game, conducted with tired lectures about good mothers and bad mothers and sad stories of disabled children. It has been back in full swing over the last year on both sides of the Atlantic.

A panel of judges in the UK ruled in December that a seven-year-old girl known as “CP” who has FASD is not due any sort of government compensation for her mother’s excessive drinking because, under British law, a baby can’t be the victim of a crime until she’s born.

The mother in this case consumed a daily average of eight cans of beer and half a bottle of vodka during her pregnancy…

The mother in this case consumed a daily average of eight cans of beer and half a bottle of vodka during her pregnancy, the judges were told, and everyone agrees that’s why CP has “learning, development, memory and behavioral problems” of the kind long associated with FASD.

“There is no dispute that CP has in fact sustained grievous bodily harm,” the ruling stated.

But the judges said their hands were tied by the UK parliament’s insistence that fetuses are not people, so don’t have the same rights. Dozens more FASD compensation claims in the UK were awaiting the ruling on CP and are now presumably dead in the water.

The FASD story is a little different in the US, where many states already criminalize drinking-while-pregnant and the anti-abortion movement offers a special spin. Lately FASD debates have found their way to death row; to a few dozen bars in Alaska and Minnesota with pregnancy test dispensers in their ladies restrooms; and to a series of controversial ballot initiatives.

Legal Wrongs

In November, voters in Colorado and North Dakota were asked to consider recognizing legal “personhood” at conception. Under such laws, women who drink during pregnancy could be charged with felonies (the referenda lost in both states). In 2014 Tennessee became the first state to pass a law making women who take drugs during pregnancy subject to criminal penalties.

Reproductive rights advocates fighting this trend in the US say the UK decision in CP’s case reached the right results but not necessarily for the right reasons. National Advocates for Pregnant Women (NAPW) Executive Director Lynn Paltrow says cops, prosecutors and judges don’t belong in this debate, “but this is not because the fetus isn’t a person but because those officials have no place overseeing prenatal care or pregnant women’s lives.”

That kind of interference is unconstitutional, says Paltrow, because it violates the right to make one’s own medical decisions. And it doesn’t help anyone involved. “Punitive measures do nothing to protect the health of future children but do everything to return women to a truly second class status,” she says.

Not to mention the fear factor—as if pregnant women need extra reasons to avoid health care.

In a worst-case scenario, the threat of legal action puts the health of a mother and fetus in more danger than ever, as it did in the famous case of Angela Carder, who died along with her baby when a court ordered a dangerous Caesarean. Or pregnant women end up sleeping in jail cells.

NAPW just filed a lawsuit in Wisconsin, where the state is allowed to take into custody pregnant woman who have used any amount of alcohol or a controlled substance. The effect of the law, says Paltrow, is that “women who have gone to hospitals for help with their [drinking or drug] problem have been put in jail and put in situations that have actually increased the harm to their future children, not reduced it.”

Women who have gone to hospitals for help with their [drinking or drug] problem have been put in jail and put in situations that have actually increased the harm to their future children, not reduced it.-Lynn Paltrow

Controversial Innovations

There is a lot of supportive talk about FASD “prevention,” as in stopping alcohol from doing damage in the first place—finding the right mix of terrifying facts and practical advice to turn a woman’s head, for instance, and locating the budgets to support that.

A little more contentious are efforts to stop women in the very process of putting a cocktail glass to their lips. In December, 20 bars in Alaska were scheduled to start installing pink pregnancy test dispensers designed by a former school superintendent named Jody Allen Crowe and his Minnesota nonprofit, Healthy Brains for Children.

The machines, part of a $400,000 University of Alaska study, also dispense “My Baby’s Breath” breathalyzers (once $3 is deducted from your credit card). They warn “Think Before You Drink” next to a photograph of a woman’s hands folded into a heart shape atop a big, round belly. The study will investigate what seems to work better to change women’s minds: pregnancy tests or the pink posters on their own.
People who go to bars already see anti-drinking signs and posters, and under US law, every bottle and can gets a warning label. But Crowe figures—and this part is hardly disputed—that no amount of reading will coax a woman on a barstool to put her drink down as long as she assumes she’s not pregnant.

But critics of Crowe’s plan like Janet Golden, a medical historian at Rutgers University, see warning signs and bathrooms pregnancy tests as a cheap fix, a way out of actually having to design and pay for comprehensive health care.

“Women who drink during pregnancy are understood as willfully harming their fetuses,” Golden told RHRealityCheck.org. “There’s no acknowledgment that alcoholism is a severe health problem that’s killing women too. I don’t see any concern for those women’s ability to access care.”

Women who drink during pregnancy are understood as willfully harming their fetuses… There’s no acknowledgment that alcoholism is a severe health problem that’s killing women too.-Janet Golden

Where to Draw the Line?

The question remains of where exactly to draw the line between safe and unsafe drinking.

It’s tempting to say don’t drink at all if you’re pregnant. After all, alcohol is the only common recreational drug that causes a replicable set of birth defects, as opposed to just causing poor health. But research about alcohol’s effects on fertilized eggs, embryos and fetuses doesn’t back full prohibition because even though we know what causes FASD, the reverse isn’t true: Drinking while pregnant doesn’t always cause FASD.

A recent Danish study affirms growing evidence that a little bit of drinking is okay, especially later in a pregnancy… a small alcoholic drink a day had no effect on a growing fetus.

A recent Danish study affirms growing evidence that a little bit of drinking is okay, especially later in a pregnancy. Researchers found that a small alcoholic drink a day had no effect on a growing fetus.
(The study also found that women who had a couple of drinks a week birthed kids with higher IQs than those who abstained from alcohol completely.)

There’s a general consensus that it’s risky to binge drink during pregnancy, defined as consuming five or more drinks in one sitting. But even heavy drinkers can have healthy babies. Only about 5 percent of alcoholic women give birth to babies who are later diagnosed with the syndrome.

“Women cannot guarantee the outcomes of their births,” says NAPW’s Paltrow. “There are women who do everything not recommended by current medical and social standards and have perfectly healthy babies.”
Other factors are easily overlooked amid the heartbreak of birth defects: Certain people are genetically protected from FASD, and the latest thinking is that poverty and marginalization can play a strong role in whether someone is born with the disorder.

The effect of all this is mixed messages.

Most governments and the American Congress of Obstetricians and Gynecologists recommend that pregnant women don’t drink at all, but plenty of individual doctors say a little is fine. Not to mention your own mother’s memories of drinking an awful lot of martinis (and smoking an awful lot of cigarettes) while carrying you: “And look how you turned out!”

It’s a long way from teetotaling to emptying several dozen cans and bottles each week, like CP’s mother, and most women fall somewhere in between. The rules for these women are vague, and so they make their own—and then break them.

Most governments and the American Congress of Obstetricians and Gynecologists recommend that pregnant women don’t drink at all, but plenty of individual doctors say a little is fine.

“Everyone says they believe that abstention is overkill, but everyone goes ahead and does it just to be safe,” says Kathy*, a New York mom who was pregnant in 2011. “That said, I have known many women, including myself, who would enjoy a very small and very occasional glass of wine during pregnancy.”

Also, the place where a pregnant woman lives often has a lot to do with whether she find it’s okay to drink and how much: “We love to visit micro-breweries here in San Diego, and sometimes I would have a mini beer,” says Steph Habif, who gave birth just last September. “Nobody ever made a negative comment, but this is a very pro-beer community. My fiancé swears if we were in Tennessee, where he is from, it would have been different. We would have most likely received negative comments and looks.”

Assigning the Blame

The death penalty connection to FASD is another uniquely US effort to try and reassign blame.

Attorneys in a recent Louisiana death penalty case asked the US Supreme Court to allow their client’s FASD to be recognized as a mitigating factor in her murder case—hoping to piggyback on the Court’s 2002 ruling that executing “mentally retarded” people violates the Eighth Amendment’s ban on cruel and unusual punishment.

Holmes’ attorneys argued that she should not be executed because she was born with FASD and was therefore not entirely responsible for her behavior.

The Louisiana case involved Brandy Holmes, convicted with her boyfriend for a 2003 murder in which they had walked into the home of an elderly man and shot and stabbed him repeatedly. Holmes’ attorneys argued that she should not be executed because she was born with FASD and was therefore not entirely responsible for her behavior.

Prominent experts such as Tom Donaldson, president of the National Organization on Fetal Alcohol Syndrome (NOFAS), argued in her favor. “Brandy’s capacity to appreciate the criminality of her actions or to conform to the law is very seriously impaired,” said Donaldson, who noted that her mother had gone so far as to name her after her favorite drink.

The Supreme Court declined to hear the case. But now Alaska is among several states trying to pass legislation to permit such defense strategies. The fear is that any kind of recognition in a US or UK court might give FASD enough prominence to codify the disorder as a mother’s victimization of her child.

But most judges seem to have a pretty healthy fear of the domino effect: What else would mothers be punishable for? In the UK case, Ben Collins argued before the court on behalf of the government’s Criminal Injuries Compensation Authority, saying, “There is a conflict of ideas about what is or is not dangerous, not only in terms of drink but also in terms of smoking and food.”

He told the judges that if CP won compensation, a pregnant mother who eats unpasteurized cheese or a soft boiled egg might also be committing a crime.

Learn more about the side effects of substance abuse during pregnancy.

*Name has been changed.
Photo Source: istock

Sally Chew is a journalist in New York City. She has been an editor at Time Inc.’s Health.com as well as at Vibe, Out and POZ magazines. She has authored a true crime book and worked as a wire-service reporter overseas.

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