In the family law area, decisions that parents make can have unintended consequences that have not been thoroughly considered. The same is true for decisions made by judges in cases that are before the court. As a substitute Judge in the 1980’s, I heard a contested custody case between grandparents of a child. They were both seeking custody because neither parent of the child desired to be its parent and from the evidence were not capable of being his caregiver.
The evidence was that both sets of grandparents would be loving, capable, and caring caregivers of the child. Why they could not agree on how to do that is beyond me, as the parents did not care. One set of grandparents, however, had urged the child’s mother to obtain an abortion because they felt that the parents would not be interested in or capable of raising the child.
The other grandparents attempted to use that against the grandparents that had advocated for the abortion. As it was in the best interest of the child that all the grandparents be involved in his life, I was able to make a decision that made that happen while not satisfying either set of grandparents.
As a new juvenile and domestic relations judge in the early 1990’s, I was faced with a variety of cases that were impacted by the Crack Cocaine epidemic that spread across the country. We had juveniles charged with possession and distribution of drugs and a detention center that was so full that our sheriff was transporting some to Southwest Virginia to the only available detention home.
We also had women who were mothers of children and who were also pregnant who came before the court on civil petitions of abuse and neglect of their children. Drug usage was a major contributing factor in these cases. We were able to help them with treatment programs, if they wanted them, to address their addiction but not always. We also had pregnant women who were court involved for other reasons through our adult family criminal court jurisdiction.
In Virginia, during my time on the bench, a fetus did not have legal standing until it was born. Despite my desire to help some mothers to get treatment and stop poisoning their unborn child with drugs, excessive use of alcohol, and tobacco, no one would bring a case for consideration.
From my reading of the news articles and some of the draft opinion from Justice Alito, I see that those states that ban abortions may be creating for themselves some unintended consequences. They are collateral legal issues about which may not have given much thought.
With the Supreme Court finding that a fetus is a person, it has rights. So, what behaviors by the mother will negatively impact the fetus, and how will those states that prohibit abortions classify those behaviors in the criminal and civil arenas and how do they intend to take action and under what circumstances to impose the will of the state on the mother?
Will a pregnant woman who takes illegal drugs be subject to being charged with distribution of those drugs to the fetus? If there is a state that allows for medical marijuana and recognizes the fetus as a person, will the mother be allowed to take the marijuana when the child does not need it? Will the children born of these women be taken away from them as abused and neglected children and placed in state custody with the additional trauma to these children, their parent (s), and the cost to federal and state taxpayers?
We know that the excessive use of alcohol and tobacco during pregnancy impacts the health of the unborn child and can cause considerable damage to the child’s brain development and general health. Will the mother be subject to civil claims by the fetus or on its behalf by the state or the father of the child for the costs to treat, train, and care for the damaged or injured child that is born? Will the mother be able to be criminally charged as she delivered substances to the fetus that are legal for her but illegal for the fetus to receive? Will the state confine the mother in jail or a treatment facility at significant cost during her pregnancy to ensure that the child will not be receiving illegal drugs or other legal but harmful substances through the mother?
I see ads on television for different legal drugs and have noticed the warnings that women who intend to become pregnant or are pregnant should not take the drug. As the drug may or may not be life saving for the mother, how the state law may read about abortions and the woman’s right to address her health issues could impact whether the mother-to-be can legally take the legal drug that helps her but harms the fetus.
With some states there appears to be legislation that requires the identification of the doctor that prescribed a drug related to an abortion. Would he or she be subject to such identification requirements if the drug were needed by the pregnant woman but detrimental to the health and well-being of the fetus?
What about a pregnant woman who fails to wear a seat belt and is in a car accident where the fetus is injured or killed. Would she be able to be charged with battery or negligent homicide, even if the car accident were not her fault? Would there be civil liability on her and the insurance company that insures her car for her negligence because she did not wear the seat belt that is required by state law?
Another question I have is whether a woman who goes to another state for a legal abortion can ever return to her home state where an abortion is illegal. Would her home state still be able to prosecute her for having the abortion by simply passing a law that made it a crime to go to another state to obtain an abortion? Would the father of the child be able to have a civil claim against the woman who carried the fetus for what would be in the home state an unlawful death of the fetus?
The proposed decision by Justice Alito or some modification that ends the right to an abortion under Roe v. Wade and subsequent U.S. Supreme Court decisions might be claimed to be a victory by some. I think that it could well be a disaster for those states that want it and the people that live there.
Thanks for reading. I welcome your thoughts.
Judge Rideout is the former Chief Judge of the Alexandria, VA Juvenile and Domestic Relations District Court (1989-2004). From 2004 until the present he has consulted in different states to support their efforts to improve their child welfare systems. From 2016 to early 2021, he was the Ward 1 Commissioner on the Cambridge City Council. Throughout his career, he has been an advocate for improving the lives of children in his and other communities. He can be reached at firstname.lastname@example.org .