Having a glass of wine will be child abuse if Roe is overturned

Why does The Fulcrum feature regular columns on health care in America?

U.S. health care spending grew 9.7 percent in 2020, reaching $4.1 trillion — 19.7 percent of the gross domestic product. Over the long term this is clearly unsustainable. If The Fulcrum is going to fulfill our mission as a place for informed discussions on repairing our democracy, we need to foster conversations on this vital segment of the economy. Maximizing the quality and reducing the cost of American medicine not only will make people's lives better, but will also generate dollars needed to invest in education, eliminating poverty or other critical areas. This series on breaking the rules aims to achieve that goal and spotlights the essential role the government will need to play.

Pearl is a clinical professor of plastic surgery at the Stanford University School of Medicine and is on the faculty of the Stanford Graduate School of Business. He is a former CEO of The Permanente Medical Group.

The Supreme Court’s leaked decision to overturn Roe v Wade, if finalized, would eliminate the constitutional right to an abortion, thereby handing over to states a choice that has been guaranteed to women for nearly 50 years.

Sign up for The Fulcrum newsletter

Such a decision would not only cause major medical harm, but it would also turn tens of millions of women into instant criminals.

As a physician and health care leader, I side with the 80 percent of doctors who support the right of women to make choices about their own bodies. Medically, I concur with the scientific rationale provided in the Supreme Court opinions of Roe (1973) and Casey (1992) that fetal viability (when the child is “potentially able to live outside the mother’s womb”) establishes human life.

What’s been underappreciated in the debate over abortion are the criminal implications that would be created by defining human life at conception. Given the laws on the books, and those scheduled to go into effect should the Supreme Court overturn Roe, women in 22 states would be immediately in violation of child-abuse laws. I don’t believe doing so is what the Supreme Court justices intend or what the people of those states are expecting. But that is what will occur should the current draft become final.

To quote the governor of Oklahoma, who recently signed into law the nation’s strictest abortion ban: “From the moment life begins at conception is when we have a responsibility as human beings to do everything we can to protect that baby’s life and the life of the mother.”

Obviously, exposing fetuses to alcohol and the harmful chemicals in cigarette smoke would violate this prescription. Will law enforcement in the states that define human life at fertilization start prosecuting and potentially jailing any pregnant mother who smokes or drinks alcohol?

If a fetus is a living human, then smoking while pregnant would be equivalent to supplying cigarettes to a minor, punishable in most states by a large fine and possible jail time. Added to those penalties is the possibility of applicable child-endangerment laws. After all, nicotine dangerously reduces oxygen supply while smoke inhalation sends carbon monoxide directly to the fetus, both highly damaging. Prenatal heart defects, cleft lip and even miscarriage are just a few of the well-known consequences of smoking or breathing in second-hand smoke during the early part of fetal development. If such behaviors were to result in the death of a fetus, state prosecutors could see fit to charge parents with manslaughter or negligent homicide.

A similar concern applies to alcohol consumption. Currently, no states criminalize alcohol use during pregnancy, but supplying alcohol to a minor is illegal in every state. In many of them, it’s a felony when the crime results in serious injury or death. Self-reported studies reveal more than 1 in 9 women in the U.S. drink while pregnant. Among those of childbearing age, the prevalence of binge drinking is highest in many red states like Nebraska, Montana and North Dakota — places that are slated to institute abortion bans immediately following the ruling on Roe.

If it is determined that life begins at conception, so does the possibility of the enforcement of child-protection statutes. Any action taken by a pregnant woman that’s deemed harmful to the fetus could be child abuse, no different than if she were to intentionally harm a newborn, toddler or teenager. Research has shown that smoking and drinking in pregnancy negatively impact fetal development. The best approach to helping pregnant women abstain from alcohol and cigarettes are support groups and effective medical treatment programs.

For nearly a decade, attorney Lynn Paltrow has documented cases of pregnant women who’ve been arrested, tried and imprisoned for violating a range of anti-abortion laws, including examples of over-zealous law enforcement prosecuting women for potential harm to developing fetuses. The current Supreme Court draft would further empower such police actions.

I urge the Supreme Court justices to reconsider their preliminary opinions. As written the ruling would not only risk harm to the health of women but criminalize current law-abiding individuals. If the Supreme Court overturns Roe and allows states to define human life as beginning at fertilization, many unwarranted, unexpected and unfair prosecutions surely will follow.