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Posted on January 27, 2010 at 9:35 AM

How far can a court, and by extension the state, go to protect the health and well-being of the unborn? In Florida, it would appear–much further than they have ever gone before.


A Florida court crossed the line by forcing Samantha Burton to be hospitalized to prevent her from smoking during her pregnancy. State courts have forced mothers who are pregnant to be involuntarily tested, hospitalized and bedridden to prevent them from engaging in a wide range of unhealthy behaviors in the past–most notably the use of illicit drugs like crack, cocaine, and alcohol.

Burton, who entered the hospital at 25 weeks pregnant for premature labor, was forced by court order to stay in the hospital, on the grounds that “state has a right” to ensure that children receive medical treatment which is necessary for the preservation of life and health”, said a Leon Circuit Court judge.

Now, never mind that Burton had two children at home who ALSO needed caring for that this involuntary hospitalization prevented. And never mind that at 25 weeks her fetus is not a CHILD (in my view)–this is Schiavo country, after all. And never mind that bed rest is not medical treatment nor is having a mother go into nicotine withdrawal.

With all of those caveats, Burton claimed she was not a heavy smoker and had been having prenatal care throughout her pregnancy. So exactly, what was the state protecting this fetus from exactly?

Sadly, Burton’s baby was stillborn just a few days later. Why? We’ll never know.

But this leaves open the real question: with what real evidence did they make this claim? If in fact this case were to set a precedent, then all women who are light to moderate smokers, who are receiving prenatal care who are experiencing premature labor had better steer clear of the hospital for fear of incarceration in their local hospital until their child is born.

Worse yet, if you drink coffee, have eaten a bite of fish, or even looked twice at a piece of blue cheese, you are suspect as well. If you don’t live in Florida, don’t think you are safe, don’t forget that this is just the logical extension of incarcerating women suspected of being on crack to protect “crack babies” which started in South Carolina 11 years ago (see Ferguson v. City of Charleson or Larry Gostin’s piece on the subject).

It is clear, at least based on the facts here, that the Florida court exceeded its power to protect the welfare of a child and has set a frightening precedent. Let’s hope that the appellate court will overturn the lower court’s decision and leave pregnant women free to make their own, albeit healthier, decisions.

Summer Johnson, PhD

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