FEATURES:
Clinton's Cocaine Babies

By Charles Molony Condon

Why Won't the Administration Let Us Save Our Children?

N othing could be more heart-breaking than the sight of a baby born with an addiction to cocaine. There is very little doctors and nurses can do to ease the pain of these innocent newborns, whose mothers' use of hard, illegal drugs during pregnancy constitutes nothing less than blatant child abuse.

Walk into the neonatal unit of any hospital in America, and you will see crack- cocaine babies. Some cry and shake uncontrollably. They refuse to take food. Many die.

And those who survive are far more likely than other children to be sentenced to lives of behavioral problems, birth defects, and learning disabilities.

Nationwide, one in 10 children born has been exposed to cocaine in the womb. This condition affects 350,000 babies a year. Our society can address this problem effectively. We can significantly reduce this type of child abuse. Unfotunately, the policy of the Clinton administration is to protect, not the children, but the "rights" of the mothers to escape the consequences of their actions.

Several years ago, when I was serving as a circuit solicitor in South Carolina, I became aware of the growing problem of crack-cocaine babies at Charleston's Medical Unversity of South Carolina (MUSC). My office worked with the hospital to aggressively confront pregnant women with the consequences of their drug use. Over a five-year period, we presented all pregnant mothers who tested positive for cocaine use with a choice: Either seek drug treatment or face arrest and jail time.

This became one of the first "crack-baby" prevention programs in the nation. And the program worked. Scores of women agreed to enter rehabilitation and stayed off drugs for the remainder of their pregnancies. Before-and-after statistics present a clear picture. Before the sanctions took effect, 24 pregnant mothers a month tested positive for cocaine. Virtually none of them was willing to seek help voluntarily. Then, beginning in 1989, when we launched a tough amnesty program, the number testing positive for cocaine dropped to five or six a month. Prenatal visits as well as live births at the hospital stayed the same. Other states were looking at our success as a model.

Tragically, the cocaine-baby program, which was clearly saving lives, was effectively shut down by the Clinton administration. Under the president's direction, a swarm of federal officials came to Charleston making unfounded allegations of discrimination and accusing the hospital of violating the "privacy rights" of the addicted mothers. The Clinton administration warned us that a private civil-rights suit was pending, and threatened to cut off $54 million in federal assistance, or about 60 percent of the facility's annual budget. Last year, the hospital finally relented, ending the successful intervention program.

Now, once again, the babies cry out in agony. And once again, hospital staff with no legal recourse must watch pregnant women knowingly cause neurological damage to their unborn children. MUSC nurse Shirley Brown expressed the frustration eloquently: "You just have to sit around with your hands tied and watch them destroy a baby." Indeed she is right. If this is what President Clinton has in mind when he calls for a return to individual and community responsibility, then this administration faces a profound moral crisis.

Administration officials and representatives of the American Civil Liberties Union (ACLU) called the cocaine-baby program punitive, discriminatory, and invasive. In fact, it was none of the above.

By the late 1980s, nurse Brown and her staff noticed an increasing number of pregnant women coming to the hospital--not for prenatal care, but because of hemorrhaging or other acute problems related to their pregnancies. In the course of treatment, many of these women tested positive for drug use, usually cocaine. Thus the program grew out of a deep concern among the hospital staff for the welfare of both mother and child.

At first, the hospital tried to educate the women about the damage they were causing to themselves and to their unborn babies. Sadly, hospital workers could not convince many of the expectant drug-addicted women to enter a drug-treatment program. Most wouldn't even return for any type of prenatal care at all. The women--mostly poor and uneducated--received free counseling. They were offered free drug treatment and free prenatal care, but few participated in the program voluntarily.

At the same time, the delivery and treatment of crack babies was putting a tremendous strain on hospital resources, as well as on the moral sensibilities of hospital personnel. Normal neonatal delivery costs can be as low as $500 per baby, but the costs of cocaine babies and the intense postnatal care they require have increased tremendously. The hospital has seen bills reach $750,000. Most are born to welfare mothers, so Medicaid and the hospital were picking up the bill. According to the General Accounting Office, a single cocaine baby can run up a lifetime tab of $1 million in medical and educational costs.

At the time we launched the cocaine baby program in Charleston, I was circuit solicitor. Last year, I was elected attorney general for South Carolina, and now view the problem from a statewide perspective. Hospitals across our state see drug-damaged babies with growing frequency. In every major city in the country, hospitals have units devoted to crack mothers and crack babies. But no one dares to forcefully address the causes of the problem. We are merely watching it happen and paying an increasingly high price in dollars and human suffering. We saw an opportunity to make a difference.

During the operation of the cocaine-baby program in Charleston, everyone concerned was brought to the table--social workers, people from Charleston County Substance Abuse, drug-rehabilitation specialists, law-enforcement officials, hospital officials, and my office, which was willing to prosecute when necessary. We all agreed on one principle: We needed a program that used not only a carrot, but a real and very firm stick.

Those who argued most forcefully for the cocaine-baby program were people who dealt with drug addiction every day: the rehabilitation specialists. They told us that "unless you have sanctions in place, unless you understand the basic irresponsibility of these drug-addicted women, it won't work."

Working closely with Chief Reuben Greenberg of the Charleston Police Department, we set up an amnesty program with sanctions for those who don't abide by the rules. Whenever a prenatal patient tested positive for drugs, hospital staff first counseled the mother about what she was doing to her unborn baby. They presented her with a letter from the solicitor's office explaining that she faced arrest and prosecution (crack cocaine use is a felony in South Carolina) if she refused treatment. The solicitor's office then promised to drop all charges if the woman successfully completed a drug- treatment program. We saw this as a child-abuse prevention program with a goal of producing a healthy child.

We had solid legal grounds to act in this manner, especially in the third trimester of the pregnancy. During the final trimester, the fetus is regarded as viable, that is, capable of sustaining life on its own, and is therefore granted significant protections under both federal and state law. Indeed, the viable fetus is a person under the law. In this legal context, we offered pregnant women immunity from prosecution, free medical services, and free access to a program of drug rehabilitation. All we asked of them in return was to enter the program in good faith and to stop abusing their unborn children with illegal drugs.

Politically correct resolutions by the American Medical Association and the American Pediatrics Association denounced the policy as punitive and unwise. The National Institutes of Health also sent down some officials, who made the incredible claim that the hospital was conducting coercive experiments on pregnant women. Then the Clinton administration, ideologically driven by the absurd notion that a woman's privacy rights overrule a mother's most basic responsibility to her own child, would not allow us to protect the lives of the babies or their self-destructive mothers. Donna Shalala, Secretary of Health and Human Services, sent an investigative team from the department's ethics division. One HHS official, without offering any evidence, claimed the program had "a chilling effect on minority pregnant women seeking prenatal health care."

Of course, the cocaine-baby program was not punitive. The program was not designed to put people in jail. It was a humanitarian effort to save lives through tough, decisive action under urgent circumstances. In fact, the women involved in the program almost invariably avoided jail.

Most of the pregnant women who tested positive for crack cocaine (after they understood their options) agreed to enter the drug program. The small number who refused the program were indeed arrested, but nearly all of their cases were dismissed because the women quickly agreed to enter the program once they saw we were serious. Only two continued to refuse help, and they were ultimately placed on probation. The cocaine-baby program was not a punitive "lock-up" program, but an amnesty program. And it was working.

Also, there is absolutely no evidence that it scared anyone away from prenatal care. Remember, very few of these women came to the hospital in the first place to take advantage of prenatal services. They came because of urgent medical problems related either to their pregnancy or to their addiction.

Opponents of our cocaine-baby program continually failed to understand that prosecutorial action, like a thermostat, can be constantly adjusted. Charges can be dropped at any time. We can add conditions.

The system has a great deal of flexibility that can be used to motivate irresponsible people to take responsible action. Many public defenders (though they are not likely to admit it publicly) thought the cocaine-baby program was a great idea.

Cocaine addicts need a strong motive to mend their ways. And most drug and law-enforcement officials also agree. A federally funded research survey showed that about 30 percent of those who enter public drug-treatment programs do so only because of direct or indirect legal pressure. The Office of National Drug Control Policy noted in a 1992 report that "the criminal justice system can steer offenders toward drug treatment as a condition for deferred prosecution."

The Clinton administration, however, seemed utterly unconcerned with common sense or practical solutions to a problem that is literally destroying the lives of adults and infants. Within a matter of weeks, HHS also sent investigators from its Office of Civil Rights. They alleged that the program was discriminatory toward blacks. Marie Chretien, a regional manager in the Office of Civil Rights, claimed in a letter to the hospital that its substance-abuse policy "may result in an adverse disproportionate impact on African- American women."

It is true that most of the women treated were black. The hospital serves a primarily indigent population, and most of the patient population is black. The South Carolina Drug Prevalence Study showed blacks were more likely to use cocaine than whites.

Ask Police Chief Greenberg, who is also African American, if this policy was discriminatory. He would be among the first to tell you that cocaine use is much more common in South Carolina among blacks than whites--and that the black community was benefiting most from the prenatal program. "[The program's opponents] don't care about the race issue. They're just using this as a tactic," Greenberg says. "I was glad that somebody was finally doing something to help kids in the black community. It was giving kids a chance who otherwise would not have anything close to an equal playing field. At least at the point of birth, that child ought to be given the best opportunity for a full and productive life."

In spite of all this, the HHS civil-rights office threatened in a letter last June to cut off federal money to MUSC unless it backed away from its aggressive treatment program. "It is the government's obligation to ensure that federal funds do not support a program which discriminates," Chretien wrote in the letter. "This obligation entails making a formal determination of whether there is a violation of the Title VI regulation--and if negotiations for voluntary compliance fail, the initiation of administrative enforcement proceedings to terminate federal financial assistance."

What continues to amaze me, as the state's chief law-enforcement officer, is the groundlessness of the discrimination charge. In October 1993, the liberal, feminist Center for Reproductive Law and Policy filed a civil suit against the hospital alleging that its policy was racially discriminatory, and thus a violation of the Equal Protection Clause of the 14th Amendment. The New York-based center, an offshoot of the ACLU, asked a federal judge to issue an injunction against the hospital to suspend the drug-testing program. The judge declined, finding no basis for the discrimination charge.

It's no coincidence, by the way, that shortly after the feminist group failed in its lawsuit, investigators from the Clinton administration swooped down on the Medical University. I am convinced their plan was coordinated with HHS officials. So is the hospital. "It was obvious to us there was collusion between the center and all the federal agencies that came down on us," says the university's president, Dr. James Edwards.

Whether HHS officials would have followed with their own lawsuit is unclear. Almost certainly they could not have won in court. But they didn't need to. The hospital, dependent on federal funding, never had a chance. HHS agents made an ex parte decision that the program was discriminatory. And so they exercised the federal version of the golden rule--that is, they've got the gold, so they make the rules.

The Clinton administration was willing to withhold millions of dollars from the Medical University, stop all of its Medicaid assistance, shut down its children's hospital and its cancer center, discontinue dozens of medical services from radiation oncology to pediatric surgery, close down its 558 beds, and force the hospital to turn away its patients--all to end a program that offended the liberal sensibilities of Donna Shalala and Bill Clinton. A gun was held to the hospital's head, and for the protection of all the other patients, the hospital had to agree to give up.

Unfortunately, this saga isn't over yet. The Office of the Solicitor and virtually everyone else involved in the hospital's prenatal drug policy is being sued by the Center for Reproductive Freedom on behalf of five women who tested positive for cocaine.

They want $3 million. It's a complicated suit, but it boils down to a claim that the program violated their right to privacy. In fact, the so-called constitutional right to privacy does not protect the results of a drug screen, especially not in this case.

First of all, you don't have a right to use crack cocaine; it's a felony. Second, all of the women knew about the amnesty program--there were public-service announcements about it, the women voluntarily came to the only hospital in the state that sponsored it, they were counseled about the consequences of testing positive, and they all signed consent forms before being screened.

Medical personnel are held legally accountable for the health of both mother and unborn child throughout the pregnancy. In fact, malpractice insurance exists to support the obligations of primary-care providers in just such cases. If a fetus is damaged by inadequate, mistaken, or negligent medical practice, the hospital would quickly face lawsuits. So how is it that we have no legal means to keep mothers from seriously damaging or destroying their own babies? "If the mother is not going to be held responsible," says nurse Brown, "then I don't think any nurse or physician giving obstetrical care should have to be held liable."

The Clinton administration apparently believes that infants have no rights at all until the umbilical cord is cut. But the U.S. Supreme Court has never said that the states do not have a compelling interest in protecting the health of the unborn in the third trimester when they can live outside the womb. Indeed, case law in South Carolina and elsewhere suggests that society does have certain obligations to the unborn child, certainly at very advanced stages of development. South Carolina courts have interpreted "person" to include a viable fetus.

We put tremendous resources into prosecuting child-abuse cases because of the great damage done to children, and we make no apologies for that. The cocaine-baby program we started in South Carolina was, most of all, a child-abuse prevention program, protecting the smallest and the most innocent of children.

President Clinton and his messengers appear to be fundamentally unconcerned with the hundred of thousands of cocaine-addicted women who stagger into the delivery units of hospitals across the land. The only remedy they offer to the horribly damaged children who result from this madness is to increase the flow of Medicaid dollars, provided by taxpayers, to pay a price so large that it is literally impossible to calculate. And the greatest frustration of all is knowing that this increasingly expensive tragedy can be prevented. One of the most basic responsibilities a mother has is to her child. If a mother injected cocaine into the tiny arm of her infant, causing permanent brain damage or death, certainly that mother would be arrested and prosecuted.

Yet that is exactly what addicted mothers do when they consume cocaine throughout their pregnancy. In South Carolina, we tried to do something about it. The program we created was working. Now it is no more. And as long as powerful federal bureaucrats continue to manipulate federal funding to serve a bizarre agenda that is deaf to the cries of damaged babies, there is nothing more we can do.

Why is the Clinton administration stopping us from protecting our children?