California case tests legal power of doctor's orders

IF Pamela Rae Stewart did what she is accused of doing -- abusing drugs during her pregnancy -- then she did wrong. A mother's failure to protect and nurture her unborn child is reprehensible. But when this California woman's baby died shortly after birth -- allegedly as a result of maternal drug-taking -- the state didn't charge her with moral turpitude, but with failing to follow her doctor's orders.

Prosecutors are relying on a state statute that holds parents legally responsible for a child from the moment of conception. (Up to now, this law has been used almost exclusively to bring action against those who fail to pay child support.)

Ms. Stewart now is scheduled to go on trial in December for alleged fetal abuse as well as ignoring her physician's dictum to stay off her feet, refrain from sexual intercourse, take no ``street drugs'' or narcotics, and seek medical help in a crisis. If convicted, she faces a year in jail and a $2,000 fine.

This case is commanding much public attention for several reasons. Firstly, it is believed to be the first criminal prosecution of a woman on these charges.

But among other things, it raises broader questions about privacy rights, criminal liability of mothers and expectant mothers who ignore professional medical advice, and the power of the state to prosecute parents who do not obey -- or subscribe to -- prescribed methods of child care.

Worth noting is that the litigation occurs under a twin national spotlight of the crackdown on drug abuse and a continuing controversy over abortion rights.

The former is a top White House priority. And some proposed Reagan reform legislation is being sharply criticized by civil rights groups as overly broad and an intrusion on individual rights. There are those who believe that the political atmosphere is right for the prosecution -- and perhaps conviction -- of a Pamela Rae Stewart.

There is also evidence that those who oppose abortion -- and have so far been unable to get it outlawed in the courts -- are using this case to make a point.

In fact, an official of the Right to Life Council in the Southern California county in which Stewart has been charged, has drawn a clear analogy between abortion and fetal abuse.

``If that [abusing drugs during pregnancy] is ruled a prosecutable offense, then what about the woman who has salt solution injected into her womb for the purpose of an abortion?'' James Knoblock asks. ``It would be madness to rule that taking cocaine, for example, and then harming the infant is prosecutable but injecting salt to kill it isn't,'' he adds.

Speakers for the American Civil Liberties Union see other ramifications of this case that relate to state control and individual freedoms.

They raise questions regarding forced prenatal care -- even for those who cannot afford it. And they ask if every woman with a drug or alcohol problem who bears a child is then subject to possible prosecution.

And there are other salient issues. Is ``failing to follow a doctor's orders'' really a criminal offense? And if it is -- and the doctor's orders unfortunately result in a death -- is the physician then vulnerable to prosecution?

There are liability laws that cover malpractice and ``wrongful death.'' But medical practitioners who have acted in good conscience are seldom prosecuted -- nor should they be.

Even more broadly, does not one have the right to choose alternatives to medical treatment -- such as spiritual healing -- for himself as well as for his children?

The First Amendment of the United States Constitution, by virtue of its so-called ``establishment'' and ``free exercise'' clauses prohibits government interference with religious practices. And in accord with this, most states recognize the right of parents to utilize prayer rather than medical treatment for their children.

Pamela Rae Stewart is a grieving mother who has lost a child. She should be consoled -- not prosecuted.

Although she may have acted irresponsibly, there doesn't appear to be any evidence that her actions in regard to her unborn child were willful or intentionally damaging. If she does have a drug problem, she should be given the opportunity for rehabilitation.

Any parent who has lost a child deserves to be treated with compassion. In the absence of deliberate criminal behavior or clear abuse or neglect, prosecution of those in such circumstances is inappropriate for an enlightened society.

A Thursday column