The boy is one year old now, "a bright, cheerful little kid" living in a foster home with "sparse" contact from his mother, says his court-appointed guardian.

A year ago, the two were inseparable - he in his mother's womb.When her physician reported that the pregnant woman's cocaine use endangered her 36-week-old fetus, a Waukesha County Children's Court judge ordered the mother into custody for the protection of the baby.

The clash of rights - those of the viable fetus and those of its mother - are at the heart of a ground-breaking state Supreme Court case that is scheduled to be argued Wednesday in a Milwaukee County courtroom.

The state Appeals Court, on a 2-1 vote, upheld the Waukesha County judge's decision.

The case has attracted the attention of more than a dozen national and state advocacy groups, from those against abortion to those protective of women's and children's rights.

Those who agree with the judge's decision say it is a common-sense reading of Wisconsin's child protection law because a viable fetus is a child, and the state has the responsibility to protect children from abusive parents.

Those filing friends-of-the-court briefs on that side include The American Center for Law & Justice, the child advocacy group National Association of Counsel for Children and Milwaukee County District Attorney E. Michael McCann.

Those who disagree say that a fetus is not a child and has no rights, and that placing a woman into custody without due process violates her constitutional rights. They also warn that, if upheld, the decision will have a chilling effect on pregnant women who could shun prenatal care rather than take a chance on punishment for risky behavior.

On that side are the American Civil Liberties Union, the National Organization for Women, Planned Parenthood and the American Public Health Association, among others.

Angela M.W. (her full identity is protected under juvenile court rules) was 24 when her doctor reported her for child abuse after she tested positive for cocaine use throughout her pregnancy last year. She had refused her doctor's advice to stop the abuse and seek treatment, and she had skipped prenatal appointments as her delivery date grew closer.

On Sept. 6, 1995, four weeks before the baby was due, the Waukesha County corporation counsel obtained a court order allowing sheriff's deputies to detain the fetus - and by necessity, the mother - at Waukesha Memorial Hospital. Under that threat, the woman voluntarily admitted herself to an inpatient drug treatment program where she remained until the baby was born Sept. 27.

The baby has remained in foster care since birth. Earlier this year, after another court hearing, a judge found the child was in need of protection from its mother and set conditions under which the mother could regain custody. If conditions aren't met, the county could try to end her parental rights.

William J. Domina, the Waukesha County assistant corporation counsel who first sought the order, said this case isn't about a woman's right to choose abortion, a right already established under the landmark federal case Roe vs. Wade.

"But choice has a consequence, and that's this case," Domina said. "I really think it is the next step in the consequences of choice, an evolution of Roe vs. Wade. It's taken 25 years because of the polarized conversation and hysteria" around the abortion debate, he added.

And unlike recent publicity over criminal prosecutions of pregnant women - including a Racine County woman charged with attempted homicide by trying to drink her unborn child to death - "this is not a who-should-be-blamed case. It's a child protection case," Domina said. "My job, really, fundamentally, is to protect kids, regardless of the policy implications for women."

But the constitutional question of incarcerating someone without due process, and the policy implications for pregnant women, has drawn Sara Mandelbaum, a staff attorney with the Women's Rights Project of the American Civil Liberties Union, to the mother's defense in the case.

"Women have a right to decide to bear children," she said. "That's a constitutional liberty. Once having made that decision, a woman does not relinquish her right to liberty. And the state interest in potential life does not mean the state can trample on the rights of pregnant women and treat them as invisible.

"It's an important case. If the lower court decision is upheld, it really raises the specter of the pregnancy police monitoring the behavior of pregnant women," she said.

A legal brief supporting that position notes that a Wisconsin task force concluded one in four pregnant women put babies at risk from alcohol consumption, one in four from use of tobacco, and one in 10 from use of cocaine or other illegal drugs.

If the case is upheld, it reads, "Pregnant women who smoke, or live with a smoker, or maintain a poor diet, or fail to take medications could be subjected to an order of protective custody to ensure that they change their behavior and provide a `safe environment in the womb' for their fetus."

Kathryn Kolbert, vice president of the Center for Reproductive Law and Policy, which represents a number of national health and women's rights groups, called Waukesha County's measure "an extreme, extreme example of punishment."

"The more you objectify the fetus as a person and give the person rights that are independent and ignore the fact that the fetus is carried by a woman, the more you undermine a woman's right to decide," Kolbert said.

"Women and men every single day of the year do things that are unhealthy," she said. "They drink too much, smoke too much, don't get enough exercise. Some of those women will be pregnant. If we allow government to penalize us for doing unhealthy behaviors, just because we're pregnant, we've given them almost limitless power to penalize women in a variety of contexts.

"That's a slippery slope we don't want the government to go down," she said.

Waukesha County's side is supported by the American Center for Law & Justice, described by spokeswoman Patricia Bast Lyman as a "religious freedom, pro-life, sanctity of family" advocate founded in 1990 by Pat Robertson.

"Frankly, we've put aside our overall agenda" for this case, she said. "If Waukesha County wins this case, not one abortion clinic will close."

She said: "Opponents are arguing that (a mother's) right to kill a child also gives her the right to any level of abuse of the child. That is the abortion-on-demand philosophy. This case isn't about establishing that life begins at conception. It's about common-sense intervention of the state on behalf of the most helpless member of society."

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Waukesha County's Domina and Milwaukee County's McCann both said there has not been a similar case involving cocaine-abusing women in Wisconsin. Domina called the custody approach "a mechanism of last resort" and one that requires substantial proof, such as a doctor's testimony.

"The reason we haven't seen this is that medical people have not reported it," McCann said. "I'm really hopeful the (Supreme Court's) decision will address these issues."

Domina said, "By and large, I think people are waiting for this case to conclude."

(Distributed by Scripps Howard News Service.)

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