Things That Should Raise Questions

So, over at Pith (and, now the I’ve googled it, at every Nashville media outlet), they have this brief story:

Lateshia Coleman, a 34-year-old woman whose son died 16 days after his birth in June. He wasn’t here very long because when he was born, police say his mother tested positive for cocaine, marijuana and opiates at Vanderbilt University Medical Center. After the Department of Child Services handed the case over to Metro Nashville Police, an investigation led to a recent indictment. Coleman is now in jail, which may not be entirely unfamiliar to her. She’s been booked on suspicion of prostitution, shoplifting and possession of paraphernalia in the past. Now she’s charged with reckless homicide and aggravated assault.

And, of course, this tragedy is used to illustrate what a bad mother Coleman is.  As if it’s self-evident who’s in the wrong here.  Let me get this out of the way:  Of course I think that using drugs during your pregnancy is stupid.  I also know that the reason they call it “addiction” is because you can’t just magically give it up, no matter how much you want to, even when you’re pregnant, because babies aren’t magic and the presence of one in your uterus does not give you super-human powers.

But there are lots of questions here that are unanswered.  Questions that should trouble us.  Shall we start couting them?

1.  Why did Vanderbilt drug test her?

2.  More importantly, why weren’t the results of that drug test protected by doctor-patient privilege?

3.  Does Vanderbilt drug test every pregnant woman?

4.  If so, what are their standards for deciding when the police should be involved?

5.  What did the baby actually die of?  Though the writer at Pith thinks that it’s self-evident that, if a woman tests positive for drugs during delivery and the baby tests positive for drugs, if the baby later dies, it must be because of the mother’s drug us.  But a majority of women are given powerful painkillers during labor and, depending on how long labor lasts, traces of those drugs will be found in a baby’s system and most babies don’t die shortly after they’re born.

6.  Coleman is being charged with reckless homicide and aggravated assault, but she didn’t assault the baby in the hospital.  She didn’t give her child drugs.  She took drugs while she was pregnant and two weeks after she gave birth, the baby died.  It may be apparent that her drug use contributed to the death of her child, but how can a woman, who did something to herself, be charged as if she was intentionally doing it to her child, when legally, she doesn’t yet have a child.  Is the State of Tennessee now claiming a legal definition of personhood for a fetus?

7.  Doesn’t it seem weird that, if a fetus has legal personhood, that the legal personhood he or she has isn’t that of a child?  And yet Coleman isn’t being charged with child endangerment or child abuse.  Is the State not sure it can prove a fetus is a child under the law?

And 8., most importantly, what does this matter to you?  After all, you’re not a drug-using shoplifting prostitute.

But say you’re almost at the end of your pregnancy and you are out tooling around in your vehicle and your cell phone rings and you reach down to fumble through your purse and you aren’t paying attention and you rear-end the car in front of you.  It is a completely preventable accident–you should have been paying attention to what you were doing–and it is completely your fault.  If you killed the driver in front of you, you’d be charged, maybe even with reckless homicide.

But in this case, let’s say that it’s you who needs to be rushed to the hospital and while you’re there, your baby is born, but in distress.  And, after two weeks, it dies.  Should you be charged with reckless homocide?

What if the baby is stillborn?  Should you be charged with reckless homicide?

Okay, so what if you’re six months along and, when you go for your check-up, the doctor can’t find a heartbeat?  The fetus, sadly, seems to have just died.  Should the doctor call the police so that they can investigate whether you did anything wrong?

We are operating under a fallacy here, one brought about by modern medicine and wishful thinking, that the vast majority of fertilized eggs will lead to healthy one-year old babies as long as the woman doesn’t fuck it up.  But the truth is that there are many, many, many more fertilized eggs than ever result in healthy one-year old babies.  And most of the time, it’s not obvious why.

And my question for you is–is it then okay to hold the woman legally responsible for that?  Today it’s finding something, anything, that might stick to Coleman.  But what if it’s you?

Do you want the police judging what you do while you’re pregnant, looking for evidence of wrong-doing?

50 thoughts on “Things That Should Raise Questions

  1. Alternatively, if someone assaults a pregnant woman and the assault results in the loss of the fetus, is that person guilty of murder?

  2. I tried to find that in the state code, to see if that would shed some light on the issue–can a person be charged with some form of homicide if a woman loses a pregnancy on his account? Because, if so, it would make some sense (even if I disagree with it), that a woman could be charged with some form of homicide like in this case.

    But I couldn’t find it. I’m not a lawyer, so it’s not immediately obvious to me where to look, so it could be in there. I just couldn’t find it.

    But I would think that would have to be the case, otherwise, under what logic could they charge the mother?

  3. Yes, TN does have a fetal homicide law:

    Tenn. Code Ann. § 39-13-214 and § 39-13-215 defines “another” and “another person” as a viable fetus of a human being when any such term refers to the victim of any act made criminal by the provisions of the law. The law defines reckless homicide as the reckless killing of another.

  4. The only news coverage I’ve seen of this indicated simply that she testing positive for drugs, and the baby died. I haven’t seen a single story indicate whether the baby actually died from the drug exposure – that seems to be simply assumed, which is its own problem. And I would really love to know the answers to questions 1 through 3.

  5. There’s an odd set of schizophrenic laws surrounding the personhood of the fetus/unborn child.

    I’m using the term ‘unborn child’ for a reason.

    It’s homicide in most states to cause the death of a fetus through any means other than abortion. It has also become very very common practice in the last 15 years to charge women with assault, reckless endangerment, felony child abuse, etc, when their babies are born drug addicted or with Fetal Alcohol Syndrome.

    The logic behind this seems to be the Assumption of Personhood, hence the reason why I use the term ‘unborn child’. If there is no abortion–spontaneous or therapeutic–then the fetus is under the law in most states granted the status of Unborn Child for the purposes of Assuming Personhood in order to allow the state to prosecute and convict for the above-listed (and other) charges.

    Why do I know so much about this? Well, because I’m a libertarian. And this is actually one of the reasons I first started leaning libertarian years ago. You know all those episodes of Law & Order where the DA gets all clever with molding and shaping the law in order to get his own way? There’s a growing curse–as I see it–in the United States of doing those types of things to assert more control over people’s lives.

    I am so bothered to the core of my libertarian self when I hear people bitching about the Patriot Act and yet cheering on the types of legal ledgerdemain that allow the State to interfere in private lives in other ways. The laws you mention and the whole Assumption of Personhood thing is a craft of law which allows the State to put women in jail and take their children away.

    I know folks hate us libertarians for this type of thinking. Of COURSE it’s better for a baby to be raised in foster care instead of by its drug addicted prostitute mother, right? Well, I don’t think we know. We think we know–but maybe the mother gets clean and raises her child well. Or maybe the mother has a mother or an aunt or a church friend who would take excellent care of the child. And maybe the kid will get lost in the foster care system or sent to a foster parent who molests him. We can’t see all ends.

    But what we libertarians can and do see is that when the state starts thinking that it knows better and therefore is entitled to and eventually empowered to take someone’s children away you can’t stop it. It’s a freight train. What happens when they start taking obese children from parents who feed them because of ‘reckless endangerment of a child’? Or children of smokers? Or children whose parents practice a religion out of favour with society? You know…say that we all get up in arms that the Gooberites teach their children that it’s okay to kill cats. So some perfectly well-intentioned and educated person figures out a way to use the same laws to have all Gooberites taken from their parents.

    It’s a nightmare.

    Funnily enough, I link some of it to what you were talking about the other day in the other thread about some Universities graduating folks who are groomed as the Bosses of Tomorrow. A lot of this legal thinking comes from the same tree…it’s the idea that there’s this class that by virtue of their education, wealth and opportunity have the ability to decide what is Best for other people.

  6. Oh and as for the answer to #1 and #3, I think they test everyone for drugs–it’s part of the CBC and Chem Panel. They do that so they don’t give you something during treatment that’s contraindicated to what you’ve already got onboard.

    For #2, the law requires physicians to report suspected child abuse. It’s one of the things (along with gunshot wounds) that lay outside D/PC. Because of my longwinded explaination, I believe it’s also standard in some hospitals to report a pregnant woman with illicit drugs in her system. I know it is at the hospital where my uncle is Chief Of Surgery. I asked.

  7. Ya know … this is the sort of stuff that used to get people accused of witchcraft. Interesting that we have transferred the responsibility from the outcast or the midwife (the two groups that were most often affected by accusations of causing stillbirths, miscarriages, or infant deaths [as distinct from other causes of witchcraft accusations]) to the person most grieved and damaged. I am using “interesting” in the sense of “horrific,” of course.

  8. NM, that’s such a good point that I just about don’t know what else to say after that.

    Coble, I think you’re right. There’s a clear line in my mind between providing a safety net for everyone who might need it and social engineering, but many folks, very often on the Left, do not see that. And it is scary, this idea that, if I know what’s best for you, I should get to legislate it, even if you disagree about me knowing what’s best for you.

  9. And it is scary, this idea that, if I know what’s best for you, I should get to legislate it, even if you disagree about me knowing what’s best for you.

    I don’t know if its a matter of opinion that heavy drug or alcohol use is bad for infants or fetuses.

    Personally, I disagree with this notion that somehow people are so uncontrollably addicted to drugs that they cannot give them up. It may be hard, and it might require medical supervision, but just throwing out the word ‘disease’ is a bit of a cop out in my opinion.

    If this woman was a drug user, and made no effort to change her habits or take proper action so as not to carry the fetus to term, then I’m sorry, she’s a bad person…maybe she shouldn’t go to jail, but I don’t think she deserves much sympathy either.

  10. Come on, Braisted. The point isn’t “Oh, poor Coleman,” which is obvious from the post. The point is that, once you establish that a person can be tried for what she’s being tried for, it’s a short hop to investigating miscarriages. Babies die. There’s not always a reason. Or sometimes the reasons are that life sucks.

    When the State starts imposing on people’s civil liberties, they don’t start with the good people or folks would object.

  11. Eh, personally I’m not a big fan of the slipper slope argument. As Coble pointed out, the most likely cause for investigation was the result of normal testing procedures done on pregnant women. At what point should the medical community or law enforcement agencies start pondering the cause of death for a li’l one? 6 months? 1 year? If someone rolls in with a dead 4 year old should the hospital just collect the body and say, “shit happens, kids die, have a nice day”?

    I realize the overall argument is that the State has no compelling interest to protect a potential human being before than umbilical cord is separated, and we’ve disagreed on this issue before, but even though I don’t think every fertilized egg is some miraculous blob of joy, that doesn’t mean there shouldn’t be some legal or moral responsibilities for the women who chose to carry those blobs of joy to full term.

    If she took a large amount of narcotics during the latter stages of her pregnancy (and right now its just if), then it wasn’t merely “stupid,” anymore than a mother shaking her baby to death in order to get it to stop crying is “stupid”. Its reckless, irresponsible, immoral, and yes perhaps criminal.

  12. Sean, the existing media coverage does not at all specify that the baby could be demonstrated to have died *because of* the drug exposure. It’s a correlation vs. causation problem with the coverage.

  13. Exactly. And correlation doesn’t give the State the right to supervise what I do with my body, on the off-chance I do something they don’t approve of.

    If you think that my position is that the State has no compelling interest to protect a potential human being, then it’s no wonder that we have such ugly arguments. Because that’s not what I think at all. I think that the State should not have an interest in protecting a potential human being that overrides the rights of an actual living human being.

  14. Yes, but she wasn’t charged with consuming illegal narcotics. Nor was she even charged with giving illegal narcotics to her child.

  15. Sean, perhaps you’ll understand this example: If I force you to smoke weed, and you die two weeks later, the fact of my forcing you to smoke weed is not enough evidence to prove that I murdered you.

  16. But they are accorded the right to consume alcohol, and the right to a trial by jury (rather than trial by innuendo).

    But “dead baby” makes a great headline, especially when the picture of the mother reinforces every negative stereotype about single mothers. Black, addicted to drugs, promiscuous, irresponsible baby-makin’-&-killin’ machines. OMG WAS SHE ON FOOD STAMPS????

  17. I get that nothing has been proven against her, hence the consistent use of the word “if” in my comments…she has been indicted, which generally means there is some evidence of wrong-doing, which is then following by a trial where a jury of her peers can weigh the evidence brought by the State, and her defense lawyer

    I mean, if all the point of this is that the State needs to prove causation between her drug use and the baby’s death, then I have no argument there…I figured that was more or less self-evident in the fact that she is going on trial.

  18. Heh, yeah, “OK, he shot the guy, but have they proven the bullet killed him? He was kinda old, how do we know it wasn’t a heart attack? Are you really going to believe what The Man says?”

  19. Is this the part where someone points out that Sean is white and male so just expects things to go his way?

  20. No, I think that comes after Braisted does away with the Constitution and a presumption of innocence because it’s so pesky and gets in the way of good ole frontier justice. By god, if a person looks guilty, she must be.

    And as long as we’re good, we never have to worry.

    And we all lived happily ever after, the end.

  21. Yeah, even though I qualified all of my statements to say that the story might not be true…I must not believe in the right to a free and fair trial.

    No, maybe I was just trying to debate the notion that a woman might have some legal responsibility for her child’s well-being at some point before it takes that magical ride down the birth canal.

    I don’t really give a wet fart about this woman, whether she goes to prison or ends up winning the lottery and buying a McMansion in Brentwood…couldn’t really care less.

  22. Can we get back to how culpable an addict is for not breaking the addiction, if that addiction causes harm to another? Because I’ve never been addicted to anything, and luckily addiction isn’t a problem in my family so I don’t have long personal experience with addicts trying and succeeding or failing in getting clean. But without getting into florid hyperbole about demons and monkeys, it seems to me that I have no possible basis to judge anyone who tries to kick an addiction and can’t, or who is even to whipped to try. I also know that getting medical help to do it is next to impossible unless one has very good insurance (a position in which most addicts don’t find themselves). So I’m a little leery of arguments that boil down to ‘s/he could have stopped using.’ I mean, I agree that addicts ought to stop using — I’m just not so sure that that equates to could in any meaningful way.

  23. he shot the guy, but have they proven the bullet killed him?
    Generally speaking i think they do have the coroner prove that. And the analogy is a little thin when it comes to a fetus or even a newborn. There’s so many ways a fetus or newborn could die it’s sickening.

  24. I don’t really give a wet fart about this woman

    That much, as they say, is obvious.

  25. Exactly. Sometimes babies die. Sometimes there’s a reason for it. But sometimes there’s not. Hunting around for a way to attach criminal culpability to a tragedy is no good. And almost every heterosexual woman miscarries at some point in her life. if even one quarter of them somehow “caused” the deaths of their babies, where are you going to house us all?

  26. Yes, I will never get to experience the joys of childbirth, its a fact I struggle with on a daily basis *sniffle* *sniffle*…once again allow me to apologize for voicing my opinion on this matter. I just hope all those women commenting have proven fertile, because if you aren’t, stfu, your opinion isn’t valid.

  27. Yes, Sean, that’s it. The fact that you have a dick makes your opinion invalid. Not that it’s unrealistic, heartless, and allows the State to continue to treat me like I’m only good enough to be a Junior Citizen and not one with full rights. It’s your penis.

    (By the way, W.’s a dude. As is Andy. So… yeah… there’s that.)

  28. living human beings have no right to consume illegal narcotics.

    I’m an idiot for needing someone to explain to me why this is.

    And almost every heterosexual woman miscarries at some point in her life. if even one quarter of them somehow “caused” the deaths of their babies, where are you going to house us all?

    I guess I’m not going to try to get in the middle of this LeftFight between you and Braisted because I’m still of the position that even though we may think what happened was tragic, it’s not the business of the State.

    If I were her attorney I’d think a good case could be made to plead it down to the newfangled criminally negligent homicide. The charges levied were overkill–i suspect because they prosecutor knows a plea to lesser will be successful in her case.

    All of this to say, I know what you’re fearing and that you see this as the gateway to charging women who undergo therapeutic (or even spontaneous) abortion with a homicide crime.

    I know this because it’s been theorised as a possible end run around Roe in PL circles since I was a kid. (Don’t forget I’m the daughter of a prolife lawyer and a sister of a prolife lawyer and the granddaughter/niece of a passel of prolife physicians and nurses. Welcome to countless dinner conversations of my childhood.)

    The law knows this and as states have refined their criminal statutes the language of the law is such that it blocks anti-Roe prosecution.

    But you’re right to fear it.

  29. Oh, I thought this was a reference to my gender…”Dare I say it? Because it will never be your ass on the line.” If not, sorry for the confusion.

    And I don’t see it as unrealistic or heartless to think that, at some point, a woman should take responsibility for the thing growing inside of her. And, while I’m not medical expert, I imagine that an autopsy could probably show whether the kid died of complications due to drug use or not.

  30. I was just trying to debate the notion that a woman might have some legal responsibility for her child’s well-being at some point before it takes that magical ride down the birth canal.

    Okay. I lied. I am going to get in the middle of this part of it.

    Because if you argue that–and many people do–you are soon going to have to start arguing that we are empowered as an interventionist entity to require all pregnant women follow a specific prenatal diet, exercise and medication regimen. And of course since you’ll further find that these requirements to give your infant the greatest success in life are not available to the poor the state must provide them. As states are already universally broke, how do you propose we give all women all they need to have an optimum baby.

    And then do you realise that it was exactly the same argument you’re voicing that led to forced sterilisation of the mentally ill, the deaf, the blind, the epileptic and the Negro (the laws are written “Negro”) from 1905 to 1956 in the United States? orced sterilisation of the mentally ill, the deaf, the blind, the epileptic and the Negro (the laws are written “Negro”) from 1905 to 1956 in the United States?

    I know this because Indiana was the first state to enact CompSter laws and my grandmother was one of the doctors who falsified the records of some of her patients so they would NOT be sterilised. She was a nut, but she had some of her priorities right.

    There’s a real danger that happens when people mean well. I KNOW they mean well, but they so often get carried away. It’s why I prefer that most well-meaning people keep their impulses channeled in ways other than the law.

  31. Well, In Seanland, Health Care would be universal and paid for through taxes, so yes, pre-natal vitamins and the like would be covered by the State.

    As for leading to forced serialization, my personal wish towards population control would be a sterlization vaccine that could be reversed when the woman (or man, whichever way it works out) decided they wanted to breed. Of course, that probably won’t happen, but I think that would be the ultimate enabler of “choice” in reproduction.

  32. Um … by “sterilization vaccine” you mean “100% effective birth control,” right? Or are you suggesting that a person who wants “to breed” would have to get a physician’s approval and assistance to do so?

  33. And then do you realise that it was exactly the same argument you’re voicing that led to forced sterilisation of the mentally ill, the deaf, the blind, the epileptic and the Negro (the laws are written “Negro”) from 1905 to 1956 in the United States? […]from 1905 to 1956 in the United States?

    Just for grounding this in reality a little bit, my grandmother? Is one of those ‘Negroes’ that happened to. Lucky for me she’d already had my mother. Still, she went to the doctor for an unrelated condition and came back missing her uterus. A pious, well-educated (eventually earned her Ph.D in Botany), smart-as-hell woman (if you’re ever in a spaceship and need to breathe, her name is on the patent of your air scrubber) with the indescribable gall to be someone we (and I use the term loosely) didn’t want to ‘breed.’

    Honestly, I’m pretty close to Kat on this one too. Babies get legal rights when they’re separate entities.

    (And yes, I’d actually support removing the additional murder charge for killing viable fetuses in utero as a part of the commission of another crime. I personally think it should be a modulating factor like a hate crime addition – if it happens, and you can prove that it was intended to happen that way for that reason, then it should have an impact on the degree of sentencing, but it should not be a separate sentence in and of itself.)

    living human beings have no right to consume illegal narcotics.

    I’m an idiot for needing someone to explain to me why this is.

    As far as I can tell, it’s a tautology. You’ve got no right to do illegal things, because illegal things are the things we’ve determined you’ve no right to do.

    That said, the reasoning behind said tautology at the moment seems to be twofold – partly people think it’s wrong (generally for ill-defined or contradictory reasons), and partly there’s potential harm to others to be had. I personally feel like the former is silly and the latter can be handled within the framework of existing laws. Take what you want for yourself, but if you bring harm to others, your ass is on the line for that harm. See also: drunk driving.

    Of course, one may attribute these things to a third set of reasoning, which is that it benefits those in power to have these laws in place. At the meso level (police, etc.) I think that’s exactly the case – people with a moderate amount of power like broad sweeping strokes because it means that they can get you with one thing if they can’t get you with another.

    At the macro (gov’t/”society”) and micro (individual) levels, though, I think that the reasoning tends to fall more into the “…but it’s wrong/scary/evil/dirty” realm. Nice people drink fancy drinks and sniff fancy clean white powders, or get expensive drugs from their physicians; bad people smoke or inject things and contribute to the economies of countries we don’t like.

    …aaanyway, none of this is the papers I have due, so I’m gonna scoot.

  34. It’s why I prefer that most well-meaning people keep their impulses channeled in ways other than the law.

    That sentence damn near converted me to libertarianism.

  35. my personal wish towards population control would be a sterlization vaccine that could be reversed when the woman (or man, whichever way it works out) decided they wanted to breed.

    Guy: “Why, of course I’ve had the shot, baby.”

  36. My question is why did they wait almost 2 years before arresting her? And I don’t mean they should have arrested her; she should be in treatment for addiction at the most, but if this women is a danger to society- if they think her drug use is harmful to others, why wait 22 months to “stop” her from “killing” again? What have they learned in 22 months that they didn’t know then? Seems like a witch hunt.

    And as for “no right to consume illegal narcotics,” our country’s history is paved with misguided laws that have indeed denied rights to people. Just because a law exists, doesn’t mean there isn’t a right that it abates.

  37. There’s a real danger that happens when people mean well.

    Katherine Coble, I think I understand what you mean here, but I would like to offer a slightly different take. I’m currently studying eugenics in school, and one thing that strikes about the ‘well-meaning’ people to whom you refer is that their good intentions weren’t really directed toward the people they were sterilizing. Oh, they often paid the welfare of their victims due lip service, but the point of the sterilizations was to stop the ‘unfit’ from breeding. The idea was to eliminate them from society. So the authors of these policies ‘meant well,’ alright, but only toward a very narrow band of the population. Everyone else was expected to die off. So to suggest that the eugenics movement– forced sterilization and all– was the product of ‘good intentions’ requires that one understand just for whom the ‘good’ was intended.

    I shouldn’t even have to point out the inherent ethnic, class-based, and racial bias built into the determination of who was or was not ‘unfit.’ Magniloquence’s comment speaks to that. But I suppose it is historically befitting of this turn in the discussion that when I went over to the Scene, the faces I saw staring at me under the tag “Scumbags of the Week” just happen to be poor negroes with criminal records.

  38. I wonder when the US going to start prosecuting men who smoke (and damage their sperm) or elderly men who father children (again, sperm damage). Or prosecuting me, if I had a kid, because I would be pregnant while fat? Or because I’d be passing along a significant risk of cancer? Kid dies at 30-something of cancer, I get prosecuted?

    That two-year wait to prosecute is really, really scary.

  39. And once you get to the point where we’re investigating sperm damage and miscarriage/spontaneous abortion/menses, well, that opens all sorts of things up. Tight pants? Plays soccer? Clumsy? Masturbate a lot (all the potential babies!)? Noooooo!

    blah. Disclaimer: this post would be bringing the funny if I were capable of putting together coherent sentences at this hour. Or, at least, it’d be trying to.

  40. Pingback: One More Thing, On Drugs and Babies « Women’s Health News

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