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There is an additional concern among foes of legal intervention. They fear that the real goal in these cases may be an unspoken one: an end run around the U.S. Supreme Court's landmark abortion case, Roe v. Wade. That 1973 decision found that the rights of the mother, rather than the fetus, are primary. Says Leslie Harris of the A.C.L.U.: "Those who want to rush in and criminalize the behavior of women are pushing a different agenda than prenatal care. If they can persuade the courts that a woman who chooses to carry a child to term has obvious legal obligations, how could she at the same time have the right to abort the fetus?"
One fact that is not in dispute is the desperate lack of medical facilities to help pregnant women with drug problems. In California, for example, there are only five full-time drug-treatment programs that accept pregnant women, and waiting lists are up to six months long. Some doctors are concerned that by threatening to prosecute pregnant drug users, officials will end up driving away even those women who could be assisted. "This sends a clear message to the women most in need of prenatal health, that it is dangerous for them to get help," says Dr. Ira Chasnoff, president of the National Association for Perinatal Addiction Research and Education. "It's a punitive approach that is being taken out of frustration by the legal and medical communities."
Nonetheless, there seems to be substantial public support for the notion that a woman should be held accountable for her actions during pregnancy. A Gallup poll conducted for Hippocrates magazine last year found that 48% of those who responded agreed that a woman who smokes or drinks during pregnancy should be legally liable for damage to her infant.
With no end in sight for the current epidemic of drug use, it appears that pregnant women will increasingly be held accountable for behavior that jeopardizes their babies' health. "These cases are really mounting," says Harvard law professor Kathleen Sullivan, "and prosecutors are going to go wild until the courts stop them." Despite criticism of his actions, Winnebago County state's attorney Paul Logli, who is prosecuting the manslaughter and drug charges against Green, stands by his policy. Says he: "This is not a fetal-rights case or a pro-choice case or a pro-life case. We're dealing with a child who was born and lived two days."