# I pit the fetal personhood statute of Wisconsin for jailing a pregnant woman for no good reason **URL:** \ **Category:** The BBQ Pit\ **Created:** [October 25, 2013, 12:33pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200 "2013-10-25T12:33:01Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 25, 2013, 4:33pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/21 "2013-10-25T16:33:09Z")
> [@RitterSport](#): > > She didn’t have a child. For example, if she had chosen to abort, she wouldn’t have been charged with murdering a child or conspiring to commit the murder of a child. True. But the law does explicitly protect her unborn child in this instance. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [October 25, 2013, 4:50pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/22 "2013-10-25T16:50:32Z")
> [@Bricker](#): > > True. But the law does explicitly protect her unborn child in this instance. Hence this pitting of this personhood statute, I suppose. It conflicts with the Supreme Court’s view of the personhood of a fetus. It seems odd to me that you can be in trouble for endangering the fetus, but not for killing it. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [October 25, 2013, 4:57pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/23 "2013-10-25T16:57:47Z")
> [@Bricker](#): > > True. But the law does explicitly protect her unborn child in this instance. Do you mean the fetus? ---
**Author:** ![steronz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steronz/32/11765_2.png) [@steronz](https://boards.straightdope.com/u/steronz)\ **Post date:** [October 25, 2013, 4:59pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/24 "2013-10-25T16:59:29Z")
> [@Bricker](#): > > Finally – are you saying that the law should be crafted as the result of studies? What should be the procedure if studies contradict one another? Should our elected leaders be replaced by academics? Let’s just say that if there were a public referendum on whether this _specific_ law should be repealed, the opinion (based on science) of medical associations like ACOG would sway my vote. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 25, 2013, 5:07pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/25 "2013-10-25T17:07:01Z")
> [@Bricker](#): > > Is Suboxone a prescription drug? > > Was she taking it under a doctor’s care – that is, did she have a prescription? > > Was she willing to enter into a doctor’s care? > > I am thinking the answers to those questions are yes, no, and no. But according to the article, the law _“grants courts authority over the fetus of any pregnant woman who “habitually lacks self-control” with drugs and alcohol “to a severe degree” such that there is “substantial risk” to the unborn child.”_ The article states that Beltran was not using drugs at the time of her medical examination or her hearing. She had been taking Percocet in the past and had used Suboxone to get off Percocet but was no longer taking either drug. (The drug testing Beltran took reportedly substantiate what she said.) She did not have a prescription for the Suboxone but the clinic offered her one, which she declined as she felt she no longer needed it. But this is a moot point anyway as the law does not distinguish between prescribed and unprescribed drugs. So it appears that it’s not an issue of whether or not the law was valid or even a good idea. It appears that Beltran did not violate the law as it is written. ---
**Author:** ![Malacandra](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Malacandra](https://boards.straightdope.com/u/Malacandra)\ **Post date:** [October 25, 2013, 5:07pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/26 "2013-10-25T17:07:31Z")
> [@RitterSport](#): > > Hence this pitting of this personhood statute, I suppose. It conflicts with the Supreme Court’s view of the personhood of a fetus. It seems odd to me that you can be in trouble for endangering the fetus, but not for killing it. I guess the law, in its wisdom, allows you to kill it, but not to saddle it with ongoing problems for the rest of its life. Makes a kind of sense, if you don’t insist on saying “While it’s in her body she can do what she likes to it”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 25, 2013, 6:41pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/27 "2013-10-25T18:41:24Z")
> [@RitterSport](#): > > Hence this pitting of this personhood statute, I suppose. It conflicts with the Supreme Court’s view of the personhood of a fetus. Not really, no, it doesn’t. In fact, the Supreme Court said: > [@](#): > > And third, the State has legitimate interests from the pregnancy’s outset in protecting the health of the woman and the life of the fetus that may become a child. _Gonzales v. Carhart_, quoting _Planned Parenthood of Southeastern Pa. v. Casey_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 25, 2013, 6:44pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/28 "2013-10-25T18:44:18Z")
> [@Little\_Nemo](#): > > But according to the article, the law _“grants courts authority over the fetus of any pregnant woman who “habitually lacks self-control” with drugs and alcohol “to a severe degree” such that there is “substantial risk” to the unborn child.”_ Yes. And here’s a woman that lacked control enough to stop using opiates without resorting to the illegal use of a prescription drug, self-administered without medical oversight. That’s certainly not enough evidence to convict her. But it’s equally certainly enough evidence to provide probable cause that she fell within the statute’s ambit. > [@](#): > > She did not have a prescription for the Suboxone but the clinic offered her one, which she declined as she felt she no longer needed it. But this is a moot point anyway as the law does not distinguish between prescribed and unprescribed drugs. > > So it appears that it’s not an issue of whether or not the law was valid or even a good idea. It appears that Beltran did not violate the law as it is written. The clinic did not offer her a prescription. They offered her a doctor’s care. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [October 25, 2013, 7:00pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/29 "2013-10-25T19:00:40Z")
> [@Bricker](#): > > Not really, no, it doesn’t. > > In fact, the Supreme Court said: > > _Gonzales v. Carhart_, quoting _Planned Parenthood of Southeastern Pa. v. Casey_. “…may become a child.” means to me that it is not currently a child. Since it’s also not a corporation, it doesn’t seem to have personhood status (yet). That’s the conflict I see between personhood statutes and the Supreme Court. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 25, 2013, 7:30pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/30 "2013-10-25T19:30:19Z")
> [@Bricker](#): > > Yes. And here’s a woman that lacked control enough to stop using opiates without resorting to the illegal use of a prescription drug, self-administered without medical oversight. > > That’s certainly not enough evidence to convict her. But it’s equally certainly enough evidence to provide probable cause that she fell within the statute’s ambit. No, I feel you’re misreading the law. There’s a crucial difference between “lacked control” and “lacks control” - it’s only a couple of letters but they’re important. The law gives the court the power to intervene if a pregnant woman is using drugs now. It does not give the court the power to intervene just because a pregnant woman has used drugs in the past. There is no objective evidence to support a belief that Beltran was going to take any drugs during the remainder of her pregnancy. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 25, 2013, 7:37pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/31 "2013-10-25T19:37:05Z")
> [@Bricker](#): > > The clinic did not offer her a prescription. They offered her a doctor’s care. According to the article, Beltran was told to take Suboxone as part of that doctor’s care. And she declined twice. The testing indicated she had not been taking Percocet and she had stop taking Suboxone and did not want to go back on it. So what evidence can you produce that Beltran lacked control over her drug use at the time the court made its decision? ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [October 25, 2013, 9:01pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/32 "2013-10-25T21:01:58Z")
> [@RitterSport](#): > > “…may become a child.” means to me that it is not currently a child. Since it’s also not a corporation, it doesn’t seem to have personhood status (yet). That’s the conflict I see between personhood statutes and the Supreme Court. You’re missing the forest for the trees, in all the major abortion rulings including Roe, the Supreme Court acknowledges there is a State interest in protecting the well being of the fetus. In Roe itself the majority opinion acknowledges that this interest exists from the very earliest parts of pregnancy, but that prior to the third trimester that interest cannot trump the mother’s right to privacy and essentially her right to an abortion (and that is why abortion must be generally legal in the first/second trimester.) Casey modified the matter a bit, by for example abandoning the strict trimester system of Roe (which was basically based on medical knowledge/reality of the time) and instead saying that the point during a pregnancy when the State’s interest in protecting a fetus actually _trumps_ some of the woman’s rights where previously it would not, was at the point of “fetal viability.” That’s a harder cat to skin, though, and if you look most States keep the trimester laws they wrote up after Roe instead of getting into the messier issue of when exactly a fetus is viable outside the mother’s body. It doesn’t matter whether or not the SCOTUS calls a fetus a person, they’ve said the State has an interest in protecting both the life and well being of the fetus. It’s also not correct (to the thread in general) to refer to the right to counsel as a “Miranda” right. Miranda establishes that you need to be given notification of your rights prior to custodial interrogation, and if that is not done the statements you make and evidence derived from them in said custodial interrogation are not admissible in court. It’s called a “Miranda warning” because it is based on the case _Miranda v. Arizona_, the case that established that the State must provide counsel to assist in your defense when you’re charged with a crime was _Gideon v. Wainright_. For whatever reason no one ever calls that a “Gideon” right or whatever, but it doesn’t make sense to call it a “Miranda right.” Finally this requirement has typically only been held to be the case in criminal proceedings where you face incarceration. If you do not face incarceration, or the proceeding is not criminal, you may not be entitled to an attorney under current law. It can vary from State to State, for example in some States non-payment of child support is seen as a form of civil contempt. The State is not required to prove its case against you in a criminal trial, and you are not entitled to an attorney to represent you–and the punishment could in fact end up being incarceration. But since it is a civil process, you aren’t entitled to an attorney. Other States, their Supreme Courts have held that you are entitled to an attorney under those circumstances, and some have even held that it isn’t to be a civil contempt hearing at all but that the State must conduct an actual criminal trial when you don’t pay child support (Tennessee’s Supreme Court has ruled thus, for example.) But this woman was, as best I can tell, going through a civil proceeding so it’s quite possible barring rulings or laws within her State, she had no right under the Federal Constitution to have an attorney provided for her defense. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [October 25, 2013, 9:31pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/33 "2013-10-25T21:31:25Z")
> [@Bricker](#): > > She was, according to the state, placing her child in medical risk by the unsupervised self-administering of a prescription medication for which no doctor had assessed her suitibility or dosage, and the state was acting to remove her child from that risky situation. The ostensible risk is not nearly as obvious as “the state” (and, I think you, as well, believe). For example, I urge you to look at [this New York Times piece regarding this case](http://www.nytimes.com/2013/10/24/us/case-explores-rights-of-fetus-versus-mother.html?pagewanted=2&_r=0&partner=rssnyt&emc=rss) (i.e. University of Wisconsin fetal-medicine specialist Dr. Cresta Jones’s statements at the top of page two of the article). ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [October 25, 2013, 11:40pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/34 "2013-10-25T23:40:16Z")
> [@Bricker](#): > > Although she was read her Miranda rights, presumably to make admissible anything she might say while in custody, she wasn’t charged with a criminal offense. She was the subject of a “CHIPS” petition – a CHild In Need of Protective Services. She was, according to the state, placing her child in medical risk by the unsupervised self-administering of a prescription medication for which no doctor had assessed her suitibility or dosage, and the state was acting to remove her child from that risky situation. That may be what the state said, but that’s not what happened. The unborn child was not removed from the situation. The mother was arrested, which means put into involuntary custody. If they were only acting to remove the child, they would have had to have removed said child from her body. That’s the whole point of fetal viability–a woman has control over her fetus until the point where it can survive on its own, because she has the right to evict the fetus from her body. They treated this like a criminal offense, not a civil one. So she should have the rights afforded to her as if she were a suspected criminal. That is what she is arguing, and I sincerely hope she wins–even though I don’t have much faith in our justice system to care about the big picture anymore. And, BTW, the line for when you breach confidentiality is immediate danger. This was definitely not the case here, as the dangerous part of the withdrawal was over by the time the two weeks had passed. The unborn child was not in immediate danger from this woman’s actions, so her personal freedom should not have been taken from her. This isn’t just something I’ve decided. It’s pretty much what is taught as the reason behind breaking confidentiality in the first place. Immediate danger is it. If she had said that she planned to go back on drugs, then you could argue that was pertinent information that put the unborn child at risk. But she did not, so there was nothing there. And, if she had been given a lawyer to argue for her own rights in this situation, she might have been able to argue this. But she was not. She was instead effectively arrested without even the basic protections a suspect should have. And she is right to try to get this fixed. No sane person should be able to be incarcerated without access to a lawyer. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 26, 2013, 1:20am UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/35 "2013-10-26T01:20:02Z")
The fact is that the state can often do a lot of things when some legal ground is broken. It can exercise a lot of powers until court precedents are set on where the limits are. I’m guessing that laws which confine a pregnant woman in order to protect the fetus are a pretty new area and that therefore there hasn’t been a lot of legal rulings on what the constitutional protections are. This case will probably be one of the cases that define the standards. But, as I’ve written in previous posts, I don’t think Wisconsin even met its own self-created standards in this particular case. The decision was apparently based on a recommendation of a doctor who never met Beltran and there are apparently factual errors in the report she made regarding Beltran’s situation. Wisconsin would be smart to settle this out of court and wait for a better case to take to trial. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [October 26, 2013, 3:42am UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/36 "2013-10-26T03:42:37Z")
They should consider immediate removal of custody. ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [October 27, 2013, 5:39pm UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/37 "2013-10-27T17:39:02Z")
Well, if the fetus is a person that any pregnant woman who does anything remotely life threatening should be arrested for attempted murder. And all miscarriages should be subject to prosecution for murder. ---
**Author:** ![sisu](https://avatars.discourse-cdn.com/v4/letter/s/df705f/32.png) [@sisu](https://boards.straightdope.com/u/sisu)\ **Post date:** [October 28, 2013, 2:17am UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/38 "2013-10-28T02:17:29Z")
> [@Charredcasm](#): > > Do you mean the fetus? Thank you, it is not an unborn baby. It is potentially if everything goes to plan maybe might be a baby one day. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [October 28, 2013, 2:38am UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/39 "2013-10-28T02:38:56Z")
[QUOTE=RitterSport] It seems odd to me that you can be in trouble for endangering the fetus, but not for killing it. [/QUOTE] Actually, while IANAL it seems reasonable to me personally that the personhood or rights of a fetus are determined by the pregnant woman’s choice, at least in the early stages of pregnancy. A pregnant woman wants a first-trimester abortion? That’s her right, and it overrides any theoretical fetal personhood or state interest in protecting fetal life. A pregnant woman wants to carry her pregnancy to term? That’s her right, and it implies endorsement of her fetus’s personhood and/or the state’s interest in its welfare. If she wants to turn this fetus into a baby, then the state is entitled and duty-bound to protect it from harm, even from harm inflicted by the woman’s own actions. Mind you, I still think the particular case and the particular law described by the OP sound pretty fucked up, and this was not the right way to go about trying to protect an unborn child. But the general principle that it’s okay for a pregnant woman to kill a fetus by terminating her pregnancy, but not okay for a pregnant woman (or anybody else) to endanger the life or health of a fetus she **doesn’t** want to abort, is not illogical or self-contradictory in my book. In fact, we see similar rationales in the case of non-human pets: you can legally choose to have your pet humanely put down, but that doesn’t mean that you can’t get in trouble for neglecting or abusing a pet. If you choose to keep it, you’re thereby acknowledging the legal requirement to provide it with a certain standard of care. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [October 28, 2013, 3:07am UTC](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200/40 "2013-10-28T03:07:40Z")
> [@iiandyiiii](#): > > [Here](http://usnews.nbcnews.com/_news/2013/10/24/21117142-shackled-and-pregnant-wis-case-challenges-fetal-protection-law?lite) is the link. > > In short, the woman told the clinic during a pre-natal visit that she was getting over a prescription drug addiction, using medication specifically designed for that purpose. She had no insurance, so she got the medication from a friend. > > Two days later, she was arrested. The judge appointed no lawyer for her, but her fetus got a lawyer. She was ordered to spend 90 days in drug treatment. > > So I pit the stupid law, the stupid legislature and governor that made it, and the unethical clinic that told the police medical information she gave them. > > Pregnant women should not have to worry that being honest with a doctor could get them in legal trouble. And courts should not allow the supposed interests of a fetus trump the rights of the mother. This sounds a lot like the plot-setup of [_Citizen Ruth,_](http://en.wikipedia.org/wiki/Citizen_ruth) except that the judge in this story has a slightly different attitude. [Previous page](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200.md?page=1) [Next page](https://boards.straightdope.com/t/i-pit-the-fetal-personhood-statute-of-wisconsin-for-jailing-a-pregnant-woman-for-no-good-reason/672200.md?page=3)