The most vexing questions facing judges today are debated among judges privately but rarely discussed publicly.
But judges joined attorneys, physicians, religious leaders and philosophers during last week's Justice in the 21st Century Conference in discussing such perplexing issues as:- Should it be a crime for a woman to give birth to an infant addicted or impaired by the substance abuse of its mother during pregnancy?
- Should a woman be incarcerated for consuming alcohol when pregnant?
- How far should the state go in regulating parents for the sake of their living and unborn children?
Judge Judith Billings of the Utah Court of Appeals moderated the unusual debate. She made it clear that judges were permitted to speak freely and that the opinions participants expressed would not necessarily represent the judgment they would exercise if a real situation presented itself. The cases discussed were hypothetical.
Case 1: Betsy Brown, four months pregnant, is caught shoplifting. A pre-sentence report states that Betsy has a drug addiction, jeopardizing the health of her baby. Normally, the judge would give her six months probation and a fine. But the judge orders her to serve five months in jail, stating that the sentence is to protect the unborn child from Betsy's drug abuse.
From an attorney's perspective, Elizabeth T. Dunning said that Betsy's situation represented the "insidious side of fetal protection." Betsy is not being punished for shoplifting but for a gender-related status. Would a man who used cocaine and was picked up for shoplifting also be sentenced to jail?
The Rev. Francis Mannion of the Cathedral of the Madeleine responded that "intervention by the state has already collapsed." He said he can't imagine using incarceration for the purpose of protecting an unborn child.
Representing the concerns of the medical field, Dr. Neil K. Kochenour, University of Utah Medical Center, said there is "justification for protective detention of this woman." Medical officials have good reason to insist on every affirmative measure to protect the health of a mother and the successful delivery of a child, he said.
Justice Michael D. Zimmerman of the Utah Supreme Court said the state has a "compelling interest in the fetus . . . It can decide it's OK to lock up all drug addicts who are pregnant." Once the woman became pregnant, she became subject to the will of the Legislature, he said.
"Appalled" by Zimmerman's opinion, Professor Margaret Battin of the University of Utah philosophy department said the state is "entitled to protect the health of a future person but not of a fetus."
Case 2: Heather, who has a long history of alcohol abuse, becomes pregnant. Her doctor advises her of the extraordinary threat to her child of Fetal Alcohol Syndrome - but she simply can't keep away from alcohol. The doctors ask the county attorney to arrest Heather to protect her unborn child.
When asked if prenatal alcohol abuse should be admissible in terminating parental rights, Judge Sharon P. McCully, 3rd District Juvenile Court, said in this hypothetical case she would admit drug abuse as evidence against a parent.
Saying he has been faced with situations like Heather's many times, Kochenour said incarceration is an extremely dangerous option. Futhermore, harm to the fetus from alcohol is a potential but not a medical certainty.
Billings suggested that a law making it illegal to consume alcohol when pregnant implies a woman has a legal obligation to be an "ideal incubator."
If that becomes the law, should a woman who is diabetic and can increase the health of her child by maintaining glucose control be guilty of a crime if she doesn't maintain her health? Kochenour asked.
Concluding the debate, Billings said there "is not a single answer" to these complex legal matters that will continue "perplexing us for a time to come."