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Encroaching on the Rights


A Nurses Role in the American Trend of Encroaching on the Rights of Pregnant Women Deena Sao Middlesex Community College Nursing Issues Janette Pherson April 9, 2009

Encroaching on the Rights


In recent years, the rights of pregnant women have been pitted against the rights of babies in legislatures across America. The precautions that can be taken on behalf of an unborn baby are legitimate. The rights of pregnant women are also legitimate. The controversy lies when the two conflict. Two areas in which this conflict has erupted is HIV testing and drug testing. This is an area that greatly touches the lives of nurses because they are the ones who usually do the HIV and drug testing. Their roles are determined by the state law and facility policy. However, being knowledgeable about this subject is vital for speaking up when policy changes are on the table. Their opinion as a medical professional is highly regarded in legislatures and dinner tables across America. HIV Testing In 2006, the CDC published new guidelines, recommending opt-out testing for all pregnant women (Hansfield, Branson, Lampe, Janson, 2006) Right now twenty two states have opt-out testing of pregnant women; twenty eight have opt-in (“HIV testing for”, 2008). This change in guidelines increased the number of women who were tested in Arkansas from 57% to71%(“HIV testing among”, November 2002). So long as testing is clearly explained and no pressure exerted, there is no loss of Constitutional rights. However, it should be noted, that without a signature, informed consent is not provable. The World Health Organization recommends opt-out testing, but vehemently opposes compulsory testing (Carter, 2007). In the words of Malaysian AIDS Council President, Prof Dr Adeeba Kamarulzaman: “The 3C’s should always be used as a gold standard for testing: consent, counseling and confidentiality” (Carter, 2009). In the United States there are only two segments of the population who have mandatory HIV

Encroaching on the Rights


testing forced upon them: prisoners and post partum mothers. Ten states require newborn screening of any baby born to a mother with unknown HIV status (“HIV testing for”, 2008). However, newborn screenings can only tell the HIV status of the mother. Not the newborn. The following states have this law: Connecticut, Illinois, Mississippi, Nevada, New Jersey, New York, North Carolina, South Carolina, South Dakota, and Wisconsin (“HIV testing for”, 2008). If we take the constitutional rights out of the equation; and only measure the value of the infant life, the argument for mandatory testing still falls short. In its current form this law is absurd, given that transmission prevention occurs mostly before birth and mandatory testing is occurring after birth. The difference is a 2% transmission rate, as opposed to a 12% one (“HIV testing among pregnant women”, 2002). Changing this law to a mandatory prenatal testing is not the solution either though, as a study in the Annals of Internal Medicine showed that the number of babies spared HIV infection from mandatory screening would actually be less than the number of babies who would die from lack of prenatal care, deterred by the mandatory screening (Nakchbandi, Longenecker, Ricksecker, Latta, Healton, and Smith,1998). Given the success of opt out screening, the argument for infringing on the constitutional rights of women with mandatory testing is weak. Drug Testing Drug testing is another area which has sparked debate. One example is the bill that was introduced in the Tennessee legislature in February of this year: SB 1065. On the surface, it looks like a reasonable protection for babies of drug and alcohol addicted mothers.

Encroaching on the Rights


“Pregnant women who meet certain criteria, as determined by the department‌ shall be tested for alcohol and drugs in order to encourage them to seek immediate treatment for an alcohol-related or drug-related problem (Sen. Res. SB1065, 2009)â€?.

A closer look at the drug testing criteria shows the list to be long and indiscriminate. It includes the following: (1) No prenatal care; (2) Late prenatal care after twenty-four (24) weeks gestation; (3) Incomplete prenatal care; (4) Abruptio placentae; (5) Intrauterine fetal death; (6) Preterm labor of no obvious cause; (7) Intrauterine growth retardation of no obvious cause; (8) Previously known alcohol or drug abuse; or (9) Unexplained congenital anomalies. (Sen. Res. SB 1065, 2009) Most women who fall under these categories are not drug users. In fact, most women who would be subject to this law will already be suffering from a death of their baby, a premature birth, or a birth defect. Enforcing drug testing under these circumstances is unnecessarily cruel. Charging Women with Fetal Harm It's not many bills that can bring the pro-life and the pro-choice movements together, but SB 459 did. This bill, introduced to the Missourri legislature in February of 2009, provides criminal penalties for women who abuse drugs while pregnant. Planned Parenthood and the Missouri Catholic Conference both testified against this bill. The prochoice community opposes this bill for the obvious reason that extending rights to fetus can lead to restricted abortions. The pro-life community opposes this bill because

Encroaching on the Rights


prosecuting drug users will lead to more abortions. Even more concerning than the abortion implications, is the encroachment on the rights of pregnant women. When all of the facts are weighed, this measure is, clearly, a mistake. It will lead to more abortions and less prenatal care. Prenatal care is a valuable tool in creating healthy pregnancies. Pitting medical professionals against pregnant women will lead to distrust and less prenatal care, especially amongst drug users, who need the most medical attention. It is a fourth amendment right violation. The fourth amendment protects against unlawful search and seizure. Testing pregnant women without consent and leading to prosecution is a Constitutional violation. This was the interpretation of the Supreme Court in Ferguson v. City of Charleston, 532 U.S. 67 (2001) It focuses on punishment, not treatment There is no evidence that an increased focus on punishment will decrease the number of drug addicted babies. “Punitive measures taken toward pregnant women, such as criminal prosecution and incarceration, have no proven benefits for infant health (“Committee on substance abuse”, 1990)”. In fact, evidence shows that it deters treatment. In 1997, after the South Carolina Supreme Court ruled that pregnant women who use drugs could be prosecuted, drug treatment programs in that state saw a dramatic decline in women seeking treatment. (“What’s wrong”, 2006). It establishes a dangerous precedent. If the law holds pregnant women responsible for unintentionally harming their babies as a result of a drug addiction, the

Encroaching on the Rights


courts will be forced to rule that all other unintentional harm is prosecutable. The list of those things is endless … not wearing a seatbelt, drinking alcohol, eating food with aspartame or eating feta cheese, horseback riding, taking fertility drugs resulting in a multiple pregnancy. Smoking would be the biggest court dilemma because smoking causes more fetal harm than drug addictions do (McLemore, 2005). Obviously we can’t be putting 10% of our pregnant population in jail for smoking. Should pregnant women be given a “pass” on their drug addiction simply because they are pregnant? Absolutely not. They should be prosecuted for the illegal crime they are committing, under the current laws. There is no need to create new laws in this scenario, jeopardizing the future rights of all pregnant women. Drug testing still results in many false positives. There are many common substances that can cause false positives on a drug test. The tests for methamphetamines and opiods are particularly vulnerable to false positives. To get a true result, there must be a second, more rigorous, test done. Unfortunately this is not required of most hospitals. Most hospitals err on the “side of the safety of the newborn” by reporting any positives they get to child protective services. Since positive drug tests often result in removal of the baby from the custody of the mother, a life-altering, traumatic experience, one would hope that it is only done in cases of absolute certainty. Unfortunately that is not always the case. There are already protective measures in place to diagnose infants addicted to drugs. Medical professionals have the right and the obligation to test babies

Encroaching on the Rights


who show signs of drug addictions. Babies born addicted to drugs already receive treatment and intervention. Conclusion Nurses have the privilege of providing care for pregnant women. It is our duty to encourage trust between the client and the medical community. The most important thing we can do for the health of a fetus is support the health of the mother. We are in the front lines of the battle between the rights of the fetus and the rights of women. We are often the ones doing the actual drug and HIV testing on mothers and babies. We have an obligation to do our job as state and hospital policy mandates. In that regard, our power is limited. There are plenty of other ways for nurses to take a stand, using our influence. For instance, we can influence hospital policy to keep the highest of standards. One way to do this is to make sure our hospital uses and enforces a chain of custody system to ensure accurate sample testing. We can also fight to have their hospital do the necessary second round of drug testing to eliminate false positives. We can use our first-hand knowledge to educate the public and persuade legislators to do what is right.

Encroaching on the Rights


References Carter, M. (2007, May 30). WHO/UNAIDS endorse opt-out HIV testing. In aidsmap news. Retrieved April 1, 2009, from A78695CF-9F4D-421B-92F8-209EB5B15BC3.asp Committee on Substance Abuse. (1990). Drug exposed infants. American Academy of Pediatrics, (86), 639,341. CF, H., & AY, L. (2008, August). HIV/AIDS knowledge and risk behaviour in Hong Kong Chinese pregnant women. Journal Of Advanced Nursing, 43(3), 238-245. Retrieved January 14, 2009, from MEDLINE database. Ferguson v. Charleston, No. 99—936 (U.S. Mar. 21, 2001), Hansfield, H. H., MD, Branson, B. M., MD, Lampe, M. A., MPH, & Janson, R. S., MD (Eds.). (2006, September 22). Revised recommendations for HIV testing of adults, adolescents, and pregnant women in health-care settings. MMWR, 55. Retrieved from CDC Web site: rr5514a1.htm Higgins, P., Clough, D., & Wallerstedt, C. (1995, September). Drug-taking behaviours of pregnant substance abusers in treatment. Journal of Advanced Nursing, 22(3), 425-432. Retrieved March 19, 2009, HIV testing among pregnant women --- United States and Canada, 1998--2001. (2002, November 15). MMWR, 51. Retrieved February 28, 2009, from CDC Web site: HIV testing for mothers and newborns. (2008, February). Kaiser Family State Health Facts. Retrieved March 2, 2009, from comparetable.jsp?ind=563&cat=11 Mandatory HIV testing does more harm than good [Press Release]. (n.d.). Retrieved April 9, 2009, from Malasian AIDS Council Web site: McLemore, M. (2005, October). Any exposure to tobacco smoke during pregnancy is risky. Clinical Journal of Oncology Nursing, 9(5), 513-513. Retrieved April 8, 2009, doi:10.1188/05.CJON.513-514

Encroaching on the Rights References Nakchbandi, Longenecker, Ricksecker, Latta, Healton, and Smith. (1998, May). A decision analysis of mandatory compared with voluntary HIV testing in pregnant women Annals of Internal Medicine, (128) 760 - 767. Senate Resolution. SB 1065, 106th Leg., 1st Legis. Sess. (Tenn. 2009), Senate. Resolution. 459, 95th Leg., 1st Legis. Sess. (Mo. ), pdf-bill/intro/SB459.pdf. S, N., R, R., E, W., & W, L. (2000, August). HIV infected women and prenatal care utilization: barriers and facilitators. AIDS Patient Care And Stds, 14(8), 411-420. Retrieved February 8, 2009, from MEDLINE database. What's wrong with making it a crime to be pregnant and have a drug problem? (2006, March 9). Retrieved April 9, 2009, from National Advocates For Pregnant Women Web site: Wilbourne, P., Wallerstedt, C., Dorato, V., & Curet, L. (2001, March). Clinical management of methadone dependence during pregnancy. Journal of Perinatal & Neonatal Nursing, 14(4), 26-45. Retrieved April 6, 2009, from Academic Search Premier database.


A Nurses Role in the American Trend of Encroaching on the Rights of Pregnant Women  

The ethics paper I wrote for my nursing issues class. Also a subject I am passionate about.

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