{dissenting). Although I dissent, I do not approve the moral quality of Angela M.W.'s conduct. I do not, under any circumstances, sanction the use of cocaine by a pregnant woman, who has been repeatedly warned of the risks to her fetus, at any time during her pregnancy. Nor, on the other hand, am I here to criticize her for giving in to what may well have been the unyielding demands of her addiction.
I write separately only after having answered in the affirmative the "searching question whether [this dissent] is likely to serve the law by extracting from the shadows the problems left unstated and the theories that should eventually control." Roger Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. Cm. L. Rev. 211, 218, (1957), reprinted in RUG-GERO J. Aldisert, Opinion Writing, 171 (1990).
The majority narrows the principal issue to a question of statutory construction: Whether a viable fetus is included in the definition of "child" in § 48.02(2), Stats., and, hence, within the jurisdiction of the juvenile court. Notwithstanding my disagreements with the majority's thorough and scholarly analysis in support of its conclusions, I do agree with its dispassionate approach of avoiding a religious, philosophical or biological discussion of when a "life" begins.
HH
The basic principle espoused by Waukesha County is that Angela M.W.'s use of cocaine during pregnancy is fetal abuse. Since Wisconsin does not have a statute dealing with fetal abuse, Waukesha County argues that fetal abuse is equivalent to child abuse under § 48.13, Stats.
*573The fetal abuse-child abuse polemic is the crucial argument used to justify state intervention in maternal conduct. The argument is attractive. Since parents cannot violate their duty to care for their children, even at the expense of personal religious value, then mothers should not be able to refuse care necessary for the fetus. This is the prenatal equivalent of child neglect or abuse. However, lurking beneath the facade of this argument are insidious and alarming implications. "Fetal neglect" implies that there is some legally cognizable duty to the fetus. Although a child is a "person" physically separate from its mother, the fetus is inseparably tied to its mother and is not a "person" as used in the Fourteenth Amendment. Thus, what the state must do to end "fetal neglect" — physically invade the maternal barrier — is entirely different than what it may do to end child neglect. The analogy drawn between the two issues is erroneous. [Footnotes omitted.]
James J. Nocon, Physicians and Maternal-Fetal Conflicts: Duties, Rights and Responsibilities, 5 J. L. & Health 1,31-32 (1990-91).
The majority holds that § 48.02(2), Stats., is ambiguous because reasonable minds would differ as to whether the statutory definition of a "child" applies to a viable fetus in a CHIPS proceeding. The majority concludes that a viable fetus is a "person" within the definition of a "child" in § 48.02(2). It finds support for this conclusion in three sources: (1) certain Wisconsin cases that have considered "fetal rights"; (2) the legislature's enactment of the juvenile code; and, (3) Roe v. Wade, 410 U.S. 113 (1973), and its progeny. Majority op. at 550.
*574A.
The common law and common sense lead me to conclude that the statute is not ambiguous on its face or as applied. Section 48.02(2), STATS., defines a "child" to mean "a person who is less than 18 years of age." This definition sets eighteen years of age as the ceiling on the exclusive jurisdiction of the juvenile court, but it also sets the day of birth as the floor on that jurisdiction. In deciding that the juvenile court lacked subject-matter jurisdiction over a juvenile who committed an offense the day immediately preceding his eighteenth birthday, one court has written: "[A]t common law a person reaches his or her next year in age at the first moment of the day prior to the anniversary date of his or her birth." In re Edward, 441 A.2d 543, 543 (R.I. 1982). Therefore, under the common law the birth event is significant because that is the time from which the common law calculates age. Common sense requires the same result. In everyday affairs, age is measured from the time of birth, not conception, not quickening and not viability, and one cannot be a "child" by definition until he or she has been born and his or her age has begun to accrue. See In re Valerie D., 613 A.2d 748, 760 (Conn. 1992).
The statutory definition of a "child" is unambiguous on its face and as applied. A "child," subject to the exclusive jurisdiction of the juvenile court, is any being from the moment of the birth event until his or her eighteenth birthday. Ambiguity is created when it is held that there is no floor to the definition of a "child" and the juvenile court can have jurisdiction over a fetus in útero. The ambiguity is in the uncertainty as to when the jurisdiction is triggered. If jurisdiction is triggered when the fetus becomes viable, there is no fixed time when this event takes place. Viability is generally *575defined as that state of fetal development when the fetus is able to maintain life outside of the womb. See Lawrence J. Nelson, Brian P. Buggy, and Carol J. Weil, Forced Medical Treatment of Pregnant Women: "Compelling Each to Live as Seems Good to the Rest,” 37 HASTINGS L.J. 703, 715 (May 1986) [hereinafter Nelson I]; see § 940.15(1), STATS. This is not a fixed event like a birth; for each fetus it will depend upon its development and whether artificial support is required. This is not an observable event like a birth; for each fetus it will depend upon the judgment of attending physicians and expert witnesses.
Rather than be certain about its jurisdiction, the juvenile court will have to conduct a hearing to gather all of the relevant evidence, weigh the credibility of the expert witnesses and make a medical judgment that the fetus has reached the stage of development called "viability" before it can make the legal judgment that it has jurisdiction. On the other hand, the unambiguous application of § 48.02(2), Stats., to trigger jurisdiction upon the fixed and observable event of birth removes all uncertainty.
B.
I am not persuaded by the majority's argument that under the rationale of Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967), a viable fetus is accorded status as a person under the CHIPS statutes to protect its physical safety or life. Majority op. at 557-58. I am persuaded by the discussion in Roe, 410 U.S. at 161, about the law's reluctance to bestow "legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth." In discussing states that permit parents to recover for the wrongful *576death of a stillborn child, the Supreme Court wrote, "Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life." Id. at 162.
One commentator writes that the law of property,1 torts2 and wrongful death statutes suggest several conclusions that can be drawn about the fetus. Nelson 1,37 Hastings L.J. at 738-39; see Lawrence J. Nelson & Nancy Milliken, Compelled Medical Treatment of Pregnant Women; Life, Liberty and Law in Conflict, 259 JAMA 1060, 1062-63 (1988) [hereinafter Nelson II]. First, although it is certain that the fetus is not a person under the law, the law undeniably recognizes that the fetus has certain rights — inheritance—and is entitled to certain tort protections if born alive — recovery for prenatal injuries. Second, the legal rights given to a fetus are largely determined by the purposes of the particular law in question, rather than by a particular philosophical view of fetal "personhood." The commentator completes his analysis by concluding that "the variable legal treatment of a fetus is explained and *577justified by the particular social policies underlying different areas of law." Nelson I, 37 Hastings L.J. at 739. He points out that the law is not being pernicious or arbitrary; rather, the law "simply reflects social values and policies taken into account by lawmakers." Id.
I conclude that those Wisconsin cases which impose limited legal duties upon persons toward a fetus and grant limited legal rights to a fetus cannot be read to confer full legal status upon a fetus. Rather, each case must be carefully examined to identify the social values and policies of the law that is being promoted.
C.
I do not read Roe and its progeny to support the conclusion that the State may act to promote its interests in the potential of human life by intervening to protect the fetus in the event of harmful behavior by the mother. Majority op. at 558. There is a Latin maxim that can be applied: Nemo enim aliquam partem recte intelligere possit antequam totum itérum atque iterum perlegerit.3 Roe and its progeny are cases that considered a woman's right to an abortion and the authority of the states to reasonably restrict that right. Roe's recognition of an important and legitimate state interest in the potential of human life must be read against the backdrop of the issue before the Supreme Court. I believe that the Supreme Court carefully limited this important and legitimate state interest:
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then *578presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. [Emphasis added.]
Roe, 410 U.S. at 163-64.4
Waukesha County relies on Jefferson v. Griffin Spalding County Hosp. Auth., 274 S.E.2d 457, 460 (Ga. 1981), and its interpretation of Roe that "the state has an interest in protecting the lives of unborn, viable children." I believe that Waukesha County is wrong when it argues that Roe supports the intervention of the state and the compulsory detention of a mother for the sake of the health and well-being of the fetus. Equally wrong is a derivation of Waukesha County's argument that because a woman has waived her right to an abortion after carrying the pregnancy beyond the point of viability, the state can force her to accept treatment for the benefit of the fetus.
This misinterpretation of the law set forth in Roe is probably the most common and serious oversight made in the debate about maternal-fetal conflict. While it is true that Roe acknowledged the state's compelling interest in the fetus at viability, it *579placed an essential limit on the exercise of this interest by expressly permitting a woman to obtain an abortion even after fetal viability if "it is necessary to preserve (her) life or health." Thus, it is incorrect to assert that Roe grants the state unrestricted authority to protect the viable fetus or to prohibit abortions after viability. Furthermore, Roe simply permits, but does not compel, states to forbid abortions after viability when the mother’s life or health is not thereby compromised. In addition, Roe says nothing about whether the state may force treatment on a woman to promote fetal health.
Nelson II, 259 JAMA at 1062.5
Nelson goes on in this article to examine other cases in the same genre as Roe: Doe v. Bolton, 410 U.S. 179 (1973); Colautti v. Franklin, 439 U.S. 379 (1979); and Thornburgh v. American College of Obstetricians *580and Gynecologists, 476 U.S. 747 (1986), overruled by Planned Parenthood v. Casey, 505 U.S. 833 (1992). He reaches a conclusion that is critical of Waukesha County's argument; Nelson asserts that "when the health interests of a woman and her fetus conflict, the state appears to be constitutionally bound to place the woman's interests above the fetus'."6 Nelson II, 259 JAMA at 1062.
The discussion of Roe and its progeny is not meant to be a distraction from the narrow issue in this case. Rather, these cases are instructive on the resolution of the maternal-fetal conflict created whenever the state seeks to intervene during a pregnancy for the best interest of the fetus. Because these cases focus on attempts of the state to restrict a woman's right to an abortion — in violation of her privacy rights, Roe, or in violation of her liberty interest, Casey — the impact of the County's arguments premised on the State's profound interest in the potential of life justifying intervention into a woman's pregnancy is substantially lessened. These cases establish that the state's profound interest in the potential of life is not absolute *581and the rights of the mother must be carefully considered and jealously guarded.
I — I HH HH
I dissent because I believe that the issue in this case presents so many unknown consequences that this court should have declined to engage in the statutory interpretation that results in fetuses being brought under the jurisdiction of the juvenile court. A court which seeks the truth through the adversarial process is ill-equipped to make public policy in the sensitive areas surrounding maternal-fetal conflicts.
I dissent because I believe that the legislature is better equipped to explore the burdens that the decision to extend the jurisdiction of the juvenile court to a fetus in útero would have on women as a group without being unduly swayed by the lamentable facts of a single case. "A separate state statute directed toward improving the health of newborns could address the complex legal and moral issues surrounding inadequate prenatal care more effectively than could a court attempting to apply a preexisting statute designed for a different purpose." Note, Developments — Medical Technology and the Law, 103 Harv. L. Rev. 1519,1575 (1990).
In a comprehensive and well-written opinion declining to approve the surgical sterilization of a severely retarded adult female, Chief Justice Nathan J. Heffernan set out in detail the reasons why courts are so ill-equipped to address social issues of statewide concern.
This case demonstrates that a court is not an appropriate forum for making policy in such a sensitive area. Moreover, irrespective of how well tried a case may be — and we consider the instant one to have *582been well presented and carefully considered — there are inherent limitations in the factual posture of any case which make the extrapolation of judicially made policy to an entire area of such a sensitive nature as this risky indeed. The legislature is far better able, by the hearing process, to consider a broad range of possible factual situations. It can marshal informed persons to give an in-depth study to the entire problem and can secure the advice of experts in the field of psychology, psychiatry, sociology, and medicine, as well as in the field of law, to explore the ramifications of the adoption of a general public policy which will give specific imprimatur to the courts to order sterilization in well defined circumstances.
Eberhardy v. Circuit Court, 102 Wis. 2d 539, 570-71, 307 N.W.2d 881, 895 (1981).
Chief Justice Heffernan found support for the supreme court's unwillingness to act in such a sensitive area from Justice Frankfurter:
Courts are not equipped to pursue the paths for discovering wise policy. A court is confined within the bounds of a particular record, and it cannot even shape the record. Only fragments of a social problem are seen through the narrow windows of a litigation. Had we innate or acquired understanding of a social problem in its entirety, we would not have at our disposal adequate means for constructive solution. The answer to so tangled a problem... is not to be achieved by ... judicial resources ....
Id. at 571, 307 N.W.2d at 895-96 (quoted source omitted). The court also found reassurance in the words of Benjamin Cardozo who was considered a judicial activist and who believed that courts should blaze trails where necessary to protect human rights:
*583The judge, even when he- is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains. [Citations omitted.]
Id. at 571, 307 N.W.2d at 896 (quoted source omitted).
In a comparable situation, the Court of Appeals of Arizona affirmed the order of a trial court dismissing criminal prosecution against a woman for child abuse based on her use of heroin during pregnancy. The Arizona court believed that it was better to defer to the legislature:
[A]s many of the policy arguments advanced by petitioner and respondent demonstrate, the legislature is in a better position than this court to determine whether a woman's prenatal conduct is more appropriately addressed through education, medical and rehabilitative treatment, social welfare, criminal statutes, or some combination of these approaches.
[T]he legislature is composed of regularly elected members, subject to the electoral will of the population of their respective districts, and thus the legislature is more attuned to the will of the public on public policy than are the courts. . . . [T]he legislature conducts public hearings in a nonadversarial manner, and is more able to explore all prospective aspects of a situation that may factually occur when it creates a crime. This court, however, is limited to *584ruling solely on the specific issue in the single case before it, and we base our decision on the facts as developed by adversarial parties as applied only to the limited issues preserved for review. [Alteration in original; citations omitted].
Reinesto v. Superior Court, 894 P.2d 733, 737-38 (Ariz. Ct. App. 1995).
From the beginning this case was been well-prepared, skillfully presented and carefully considered; however, much is missing from the record. We do not have the benefit of evidence or arguments from numerous groups representing medicine, medical ethics, psychology, psychiatry, sociology and medicolegal ethics. I would expect that these groups would provide meaningful input on the questions of whether the State should intervene in the area of the maternal-fetal relationship; the prevalence of maternal deficiencies during pregnancy; the effects on the fetus of a mother disregarding medical advice; the effects on the physician-patient relationship; the potential for creating a maternal-fetal adversarial relationship; whether intervention will improve or worsen prenatal care; and, a host of other problems. Even if we were to take judicial notice of the treatises in these areas, we still would know very little of the short-term and long-term impact of our decision on society as a whole and on childbearing women specifically. As this court and the juvenile court are dependent upon the opinions of expert witnesses, it appears to me that our exercise of judicial discretion in this case is "unguided by well thought-out policy determinations reflecting the interest of society," as well as of the mother and the fetus. Eberhardy, 102 Wis. 2d at 569, 307 N.W.2d at 895.7
*585Exigent circumstances do not justify disregarding the ramifications of extending the jurisdiction of the juvenile court to a fetus in útero. Exigent circumstances do not justify disregarding the role of the legislature and the careful study and deliberate debate this issue requires. In this case, Angela M.W. is reported to be more than thirty-six weeks pregnant; there is evidence that the fetus is exposed to the greatest risk of harm in the first trimester when the fetus is the most sensitive to "adverse maternal behavior like cigarette smoking, occasional use of alcohol, and environmental pollution." Nocon, 5 J. L. & Health at 20.8 It *586is conceivable that any damage to the fetus has already occurred and Angela M.W.'s detention is of no medical usefulness.
IV.
I do not believe that I have used hyperbole in Part II of this dissent by partially cataloging the ramifications of intervention in the maternal-fetal conflict. Other courts and the American Medical Association (AMA) have extensively discussed the negative consequences of intervention in response to the harmful behavior by a pregnant woman.
The Illinois Supreme Court explored the repercussions of recognizing a tort cause of action, by a newborn, against a mother for injuries suffered in the womb.
It is clear that the recognition of a legal right to begin life with a sound mind and body on the part of a fetus which is assertable after birth against its mother would have serious ramifications for all women and their families, and for the way in which society views women and women's reproductive abilities. The recognition of such a right by a fetus would necessitate the recognition of a legal duty on the part of the woman who is the mother; a legal duty, as opposed to a moral duty, to effectuate the best prenatal environment possible. The recognition of such a legal duty would create a new tort: a cause of action assertable by a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries.
It is the firmly held belief of some that a woman should subordinate her right to control her life when she decides to become pregnant or does become pregnant: anything which might possibly harm the developing fetus should be prohibited and *587all things which might positively affect the developing fetus should be mandated under penalty of law, be it criminal or civil. Since anything which a pregnant woman does or does not do may have an impact, either positive or negative, on her developing fetus, any act or omission on her part could render her liable to her subsequently born child. While such a view is consistent with the recognition of a fetus' having rights which are superior to those of its mother, such is not and cannot be the law of this State.
A legal right of a fetus to begin life with a sound mind and body assertable against a mother would make a pregnant woman the guarantor of the mind and body of her child at birth. A legal duty to guarantee the mental and physical health of another has never before been recognized in law. Any action which negatively impacted on fetal development would be a breach of the pregnant woman's duty to her developing fetus. Mother and child would be legal adversaries from the moment of conception until birth.
Stallman v. Youngquist, 531 N.E.2d 355, 359 (Ill. 1988).
Although the Illinois Supreme Court is speaking in terms of duty and breach of duty, its conclusions are equally applicable to a CHIPS proceeding under the juvenile code. In this case, the fetus is alleged to be abused or neglected because Angela M.W. "neglects, refuses or is unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the [fetus]." Section 48.13(10), Stats. This statutory language is nothing more than a codification of the basic duties a parent has to a child. It does not matter whether there is a tort action for injuries *588suffered in the womb or a juvenile court action alleging a fetus is the subject of abuse or neglect; judicial intervention will create an adversarial relationship between the mother and the fetus, and after birth, there will be an adversarial relationship between the mother and the newborn.
This adversarial relationship is of concern to the AMA Board of Trustees which points out that state intervention will "emphasize conflict between the pregnant woman and her fetus, which does not encourage a healthy relationship between the pregnant woman and her future child." Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women (AMA Board of Trustees Report), 264 JAMA 2663, 2669 (1990) [hereinafter AMA Board of Trustees]. The AMA believes that prenatal education and treatment along with an emphasis on voluntary cooperation between a woman and her physician will facilitate a more emotionally positive relationship between the mother and the newborn. Id.
The AMA Board of Trustees expresses concern that state intervention will create a counterproductive adversarial relationship between the woman and her physician. It is concerned that intervention will precipitate a general distrust of physicians if it becomes known that a particular physician or physicians are willing to override the pregnant woman's expectation of confidentiality. It theorizes that it is reasonable to assume that intervention will deter pregnant women from seeking contact with those persons who might initiate intervention.9 Id. at 2667. The AMA Board of *589Trustees fears that the potential consequences of intervention will discourage a woman from seeking prenatal care or dissuade her from providing accurate information to her physician for fear of self-incrimination. "This failure to seek proper care or to withhold vital information concerning her health could increase the risks to herself and her baby." Id. at 2669 (quoted source omitted).
In its report the AMA relates that intervention will impact unfairly on pregnant women from minorities and lower socioeconomic positions.10 Id. at 2665. "A woman's socioeconomic position may further affect her ability to carry out her moral responsibility to provide reasonable care in preserving fetal health. The women most likely to be prosecuted for exposing their fetuses to harmful substances are those from lower economic levels." Id. at 2668.11
The AMA Board of Trustees' report discusses the distinction between moral and legal responsibilities and the unknown problems and burdens that could be *590created by legally enforcing a moral responsibility.12 The report explains the implications for intervention on the physician's ethical obligations.13 The AMA is worried because there is no mechanism to prevent inconsistent applications for intervention. According to the report, intervention in maternal-fetal conflict will create impermissible legal obligations for the physicians.14 The AMA also theorizes that intervention will *591have a negative impact on "informed consent." Id. at 2665.
Nelson, an attorney and lecturer in medical ethics, has identified the potential impact of intervention:
A policy that would permit the courts or the police to intervene in the activities of pregnant women that arguably place their fetuses at some risk of harm must be considered in light of its potential effectiveness and what its enforcement would require. Every action a pregnant woman takes has a potential impact on her fetus, including the simplest and most common activities of daily living: eating, drinking, sexual intercourse, and physical activity .... In addition, women may expose their fetuses to potential harm when they work, due to occupational hazards. Consequently, an effective public policy designed to prevent fetal harm would require extensive monitoring of and possible interference with each of these activities. This would entail an unprecedented social intrusion into the homes and private lives of pregnant women and their families.
The only plausible justificátion for a policy with such tremendous impact on the lives and civil liberr ties of pregnant women would be overwhelming.. need. However, it is far from clear that such need exists. Common clinical experience shows that it is an unusual woman who does not do everything within reason for the best interests of her fetus. In fact, clinicians are often impressed with the medical risks and life-style restrictions voluntarily assumed by pregnant women to ensure a good outcome of their pregnancies. In short, situations in which fetuses may die or be born damaged as a direct result of maternal behavior are likely to be rare. This being so, the price of intervention to women's *592liberty and privacy seems too high. [Emphasis added.]
Nelson II, 259 JAMA at 1065.
The AMA discusses several legal considerations. First, it rejects the adoption of any legal duty on the part of a pregnant woman, who forgoes her right to terminate the pregnancy, to bring the child into the world as healthy as is reasonably possible. It rejects this duty because it would include restrictions that may significantly limit a woman's freedom of action. Second, it declines to accept any policy that implies that once a pregnant woman who does not take affirmative steps to end the pregnancy forfeits her constitutional rights to bodily integrity and privacy.15 The AMA argues that such a policy — pregnancy is an automatic waiver of constitutional rights — is a state-created penalty for choosing to bear a child. Finally, the AMA points out that the right to procreate is constitutionally protected and cannot be penalized by the state.16 AMA Board of Trustees, 264 JAMA at 2669.
*593V.
The purpose of the discussion of the potential problems with state intervention in the harmful behavior of pregnant women was to focus on issues which cannot be adequately raised, studied, debated and decided in the adversarial arena. The issue is too complex for the courts because it extends beyond the parties in this action. The decision to extend juvenile court jurisdiction to the fetus in útero must be made in the legislature because:
[t]he philosophical question confronting society is whether it wishes to enforce a policy that would entail on an unprecedented scale serious invasions of a woman's privacy, restriction of her civil liberties, and interference with her religious and personal beliefs. In a secular society such as ours that embraces no particular moral point of view and that attempts to encompass groups with widely divergent views on how persons should live their own lives, individuals are required to forgo "the temptation to impose by state force (their) own view of proper private morality."
Nelson II, 259 JAMA at 1065.
For these reasons, I respectfully dissent.
"[Pjroperty law does not confer the full rights of per-sonhood upon the fetus. Instead, it creates a means of fulfilling the intentions of testators by protecting the right of a fetus to inherit property upon live birth." Lawrence J. Nelson, Brian P. Buggy, and Carol J. Weil, Forced Medical Treatment of Pregnant Women: "Compelling Each to Live as Seems Good to the Rest," 37 Hastings L.J. 703, 730 (May 1986) [hereinafter Nelson I].
"Judicial recognition of a live-born child's right to recover damages for tortious prenatal injury does not mean that courts recognize unborn fetuses as persons with full legal rights. Instead, this practice focuses on the need for compensation of a living person wrongfully injured rather than on the legal status of the fetus." Nelson I, 37 Hastings L.J. at 733.
"No one can rightly understand one part before he has again and again read the whole."
One commentator writes that even though the United States Supreme Court has recognized that the well-being of the fetus is a legitimate state interest, it "has not declared that interest superior to the mother's due process rights. Roe is still the rule on this point and refuses to elevate the common law interests in the fetus to a constitutional right." James J. Nocon, Physicians and Maternal-Fetal Conflicts: Duties, Rights and Responsibilities, 5 J. L. & HEALTH Í, 16 (1990-91).
I find support for Nelson’s conclusions in Planned Parenthood v. Casey, 505 U.S. 833, 872 (1992), where the lead opinion explains Roe's trimester framework:
Roe established a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman's health, but not to further the State's interest in potential life, are permitted during the second trimester; and during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake. [Emphasis added.]
In Casey, the Supreme Court abandons this trimester framework in favor of an undue burden analysis that the plurality believes will protect the central right recognized in Roe and accommodate the state's profound interest in potential life. Casey, 505 U.S. at 878. In doing so, the plurality makes it clear that unnecessary health regulations on the exercise of the right to an abortion would be an undue burden. Id. Casey reaffirms that the state's profound interest in potential life cannot override the preservation of the health of the mother. Id.
To understand this conclusion, it is necessary to know the premises relied upon by the author. The first premise is his suggestion that "abortions after fetal viability cannot be totally forbidden by the state because the woman's interest in the preservation of her life and health is superior to the state's 'compelling interest' in the preservation of viable fetal life." His second premise is that the central holding of Colautti v. Franklin, 439 U.S. 379 (1979), is that "statutes that require a trade-off between the woman's health and fetal survival are unconstitutional." Lawrence J. Nelson & Nancy Milliken, Compelled Medical Treatment of Pregnant Women; Life, Liberty and Law in Conflict, 259 JAMA 1060,1062 (1988) [hereinafter Nelson II].
The American Medical Association Board of Trustees finds that courts are not the proper forum to resolve maternal-*585fetal conflicts. "[C]ourts are ill-equipped to resolve conflicts concerning obstetrical interventions. The judicial system ordinarily requires that court decisions be based on careful, focused deliberation and the cautious consideration of all facts and related legal concerns." Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women (AMA Board of Trustees Report), 264 JAMA 2663, 2665 (1990) [hereinafter AMA Board of Trustees]. The AMA Board of Trustees suggests that judges will not be familiar with the policy concerns and the immediate deadlines and intense pressures of a request for intervention will likely result in hasty decisions. Id.
The report of the AMA Board of Trustees includes thoughtful discussions on intervention when a pregnant woman refuses medical treatment and intervention in response to harmful behavior by a pregnant woman. I find the report to be comprehensive and well-reasoned. I am satisfied that the AMA Board of Trustees' concerns and recommendations apply equally to both issues. The legal ramifications of the concerns of the AMA Board of Trustees are discussed in Nelson II, 259 JAMA 1060.
The AMA believes that the detention of pregnant women will be of limited value "since a considerable amount of damage could be done to the fetus before a woman even realized she was pregnant." AMA Board of Trustees, 264 JAMA at 2667.
In this case, Angela M.W.'s physician diagnosed her use of cocaine as child abuse and he reported his diagnosis to the State as required by § 48.981(2), Stats.
The AMA summarizes the initial findings of one study that in 81% of the instances in which a court-ordered intervention was sought, the woman was from a minority. AMA Board of Trustees, 264 JAMA at 2665.
According to the AMA, the intervention will overlook the other severe life stresses that may contribute to a pregnant woman's substance abuse. Compared to nonabusers, female substance abusers have more dysfunction in their families, suffer from higher levels of depression, anxiety, sense of powerlessness, and have low levels of self-esteem and self-confidence. Seventy percent were sexually abused as children; 83% had chemically dependent parents; 70% reported being beaten and 10% were homeless. AMA Board of Trustees, 264 JAMA at 2668. Intervention will ignore these stresses in favor of the fetus; intervention will treat the fetus and not the mother; intervention will not improve the mother's parenting skills.
For example, in Lausier v. Pescinski, 67 Wis. 2d 4, 226 N.W.2d 180 (1975), the Wisconsin Supreme Court held that there was no authority for a court to legally enforce the moral duty of aiding a sibling by the donation of a kidney.
Another commentator has also discussed the ethical dilemma for physicians,
[TJhe obstetrician is the mother's advocate. Clearly, all legal and ethical duties flow to the mother, and it is critical to focus upon the physician-patient relationship when controversy occurs. Decisions by physicians that force their patients into undesired treatment breach their fiduciary duties, especially those to prevent injustice.
In addition, compelled medical care also violates traditional norms of ethics and law. Nevertheless, the physician may be a fetal advocate, especially since there is an ethical obligation to promote fetal health. However, fetal advocacy does not mean that the state can coerce a doctor under penalty to follow this obligation as if it were a legal duty. Although it is correctly assumed that a well informed woman will desire to protect the fetus, this does not mature into an inherent fetal "right" to such protection. This is because the pregnant woman, like any other adult, has the essential right to accept or reject medical recommendations based on their personal priorities and values.
Nocon, 5 J. L. & Health at 19.
"A physician's role is as a medical adviser and counselor. Physicians should not be responsible for policing the decisions that a pregnant woman makes that affect the health of herself and her fetus, nor should they be liable for respecting an informed, competent refusal of medical care." AMA Board of Trustees, 264 JAMA at 2666.
One author concludés that a pregnant woman who decides to carry her fetus to term has not waived her right to conduct the labor and delivery in a manner she desires. Nocon, 5 J. L. & Health at 20.
The report of the AMA Board of Trustees contains the following observation,
[L]egally enforcing a pregnant woman's moral obligation to the fetus creates a burden or penalty on pregnancy itself. The right to bear a child is constitutionally protected. Forcing a pregnant woman to undertake a health risk or to accept an invasive procedure against her will burdens her decision to have a child.
AMA Board of Trustees, 264 JAMA at 2664.