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"AN ARGUMENT THAT GOES BACK TO THE WOMB": THE DEMEDICALIZATION OF FETAL ALCOHOL SYNDROME, 1973-1992.

On May 31, 1977 Americans met Melissa--the first child with FAS (fetal alcohol syndrome) to appear on network television news, in this case, the NBC Evening News with David Brinkley. Named in 1973, FAS is a pattern of birth defects that occurs in approximately 3 per 1000 to 1 per 2000 live births in the United States as the result of heavy maternal alcohol use during pregnancy. [1] Clinically, it is defined by pre and postnatal growth retardation, head and facial abnormalities, and central nervous system disorders; organ system problems are also frequent. Many experts believe that alcohol is "probably the most common cause of mental retardation in the United States and may be responsible for up to 5% of all congenital abnormalities." [2] A conservative estimate of the cost of FAS in the United States is $250 million per year, with lifetime institutional care for those with mental retardation accounting for the bulk of the expense. [3]

Melissa was not only mentally retarded, she also exhibited all the other features of those with FAS. Dr. Kenneth Lyons Jones, co-author of one of the first studies of FAS and one of the leading researchers in the field, described Melissa to the television audience:

She's very, very small, her head is small, she has microcephaly which means that her head is very small. She also has short palperable fissures or small eye slits, and she is mentally deficient. [4]

In this recitation, during which the camera closed in on Melissa, Americans not only received a brief lesson in the clinical diagnosis of FAS, many saw for the first time what an FAS child "looked like." The day after this segment aired, the National Institute on Alcohol Abuse and Alcoholism (NIAAA) and the National Council on Alcoholism (NCA) made a public announcement. Women who had more than two drinks a day during pregnancy, they advised, risked giving birth to deformed and/or retarded babies. Both the ABC and CBS evening news broadcasts reported this announcement. [5]

Kenneth Lyons Jones, the medical expert who described Melissa, continued to publically discuss FAS, appearing in 1992 on "Nightline" with Ted Koppel. The show opened with a teaser about "an argument that goes back to the womb," promising that the evening would offer the portrait of a killer who was "brain damaged as a fetus, abused as a child." This was followed by the film clip of Jones taken from part of a clemency video sent to California Governor Pete Wilson on behalf of convicted double-murderer Robert Alton Harris. Jones, who recommended that the death penalty not be imposed, is heard to say "his mother was a chronic alcoholic." [6]

The medical experts in the video failed to convince Wilson to halt the execution. Wilson responded with a lengthy statement deploring prenatal alcohol abuse as "nothing less than child abuse through the umbilical cord" and detailed his own efforts to combat and prevent substance abuse by pregnant women. Yet, he concluded, "As great as is my compassion for Robert Harris the child, I cannot excuse or forgive the choice made by Robert Harris the man." The clemency appeal foundered on Wilson's belief that

we must insist on the exercise of personal responsibility and restraint by those capable of exercising it. If we excuse those whose traumatic life experiences have injured them--but not deprived them of the capacity to exercise responsibility and restraint--we leave society dangerously at risk. [7]

FAS, Wilson seemed to say, did not diminish Harris' capacity to understand the consequences of his actions--a determination clearly at odds with that of the medical experts. Robert Alton Harris died in the gas chamber at San Quenrin on the morning of April 21, 1992, becoming the first individual executed in California since 1967.

Between its naming in 1973 and the 1990s, when it began to be cited in appeals from death-row inmates, FAS was demedicalized. That is, physicians gradually lost the cultural authority to frame its public meaning. Under the leadership of government officials and legal professionals, and in response to growing public mistrust of the medicalization of deviance, FAS came to be understood not as a cluster of precisely delineated symptoms, but as a social deformity that expressed the moral failings of mothers and marked their children as politically marginal and potentially dangerous. Critical to this refraining of FAS was its identification with a racial minority--Native Americans, its interpretation as an expression of maternal/fetal conflict, and its economic and social costs. Yet, the history of FAS in the late twentieth century is nor so much about race, gender, or fetal politics per se as it is about how these issues contributed to its demedicalization. In charting this demedicalization I will explore the po pular portrayals of FAS as well as the competition among professional groups to shape its meaning. I begin by defining medicalization and demedicalization and then turn to a chronological account of the framing of FAS. [8]

Demedicalization

Demedicalization is not the opposite of medicalization--each is a distinct and highly contentious historical process. Medicalization refers to the acquisition by physicians of the power to define as sickness behaviors and afflictions that had once been interpreted in religious, legal, or moral terms. It involves the power to direct the treatment of individuals and to direct the society in which they live. Historians place the beginning of medicalization within the scientific revolution of the seventeenth century and see its culmination in the twentieth as physicians gained professional autonomy and took control of a vast network of institutions, including hospitals, medical schools, dispensaries, and asylums. Medicalization thus configured and was shaped by the social, political, and economic reorganization of western society, involving such developments as industrialization, urbanization, secularization and the transformation of social welfare by the rise of modern capitalism. [9]

Medicalization was (and remains) a highly contested and uneven process, with equivocal results. The power that accrued to the medical profession was used to label the socially marginal as sick, to shroud in the mantle of science racial and gender hierarchies, and to justify abusive interventions and limitations on individual rights as "treatment." Yet, it was also used to explain and sometimes to attack social inequality, as health became an index of well being, and as the provision of health services served at times as a proxy for other more dramatic social interventions. Medical authority was never absolute--the claims of medical professionals were posited against the claims of other professionals and interest groups--and therefore the medicalization of social problems always encountered challenges. Consequently the phenomenon of medicalization refers to a historical trend rather than an event.

Demedicalization is also a historical process, symbolizing the diminishing cultural authority of medicine and the yielding of the power to diagnose social ills to other professions and authorities. The sources of demedicalization are numerous and entangled. In the early 1970s, according to historian David Rothman, medical decision making at the bedside faced ethical challenges, government regulation, legal sanctions, and censure from patient activists, all of which lessened physician authority. [10] The emergence of a new economics of health care delivery and of government entitlement programs has also transformed the process of diagnosis. Moreover, demedicalization in the case of particular diagnosis--such as that of homosexuality as a mental disorder or pregnancy as an event requiring extensive medical management--has been instituted by those rejecting the sickness designation given to them. The shrinking of what sociologist Renee Fox terms the "jurisdiction of medicine and its practitioners" is another as pect of demedicalization, which Fox argues is part of a cultural shift that situates health promotion as an individual rather than a professional or social responsibility. [11] Finally, demedicalization is also a political and a social process, reflecting the interests of particular groups in returning definitions of deviance to the legal arena, the moral realm, and the court of public opinion.

Critics of medicalization charge that it permits each individual's failure to fulfill social expectations to be explained in terms of accidents of birth, heredity, environment, and biopathology, and without reference to moral deficiency. Ultimately, they argue that such a process confers absolution on all, not through divine forgiveness, but through the creation of a diagnosis that becomes what one popular writer termed a "get-out-of-jail-free card." [12]

FAS offers a case study of the process of demedicalization. Its meaning shifted, within a relatively brief period, from that of a syndrome diagnosed by doctors to an alleged social construction deployed to excuse the misdeeds of individuals who claimed to be afflicted. It did so, in part, because politicians, agents of the criminal justice system, and members of the media captured from physicians the responsibility for framing this syndrome. To say that FAS has been demedicalized is not to assert that it has been purged from diagnostic manuals, nor is it meant to imply that doctors now hesitate to make this diagnosis. Rather, it is the explanatory power of the diagnosis that is eroding, as individuals with FAS are often classified as "bad," rather than as meriting special consideration on account of their condition.

1973-1977: Discovering the Offspring of Alcoholic Women

The term "fetal alcohol syndrome" first appeared in a 1973 article in the British medical journal Lancet by Kenneth Lyons Jones and David W. Smith. The article followed an earlier publication by Jones, Smith, and several others in their Seattle research team which described the shared anomalies of eight unrelated children whose mothers were chronic alcoholics. [13] Subsequent surveys of the medical literature found earlier studies that supported their conclusions, most critically a 1968 account by French researchers describing 127 offspring of alcoholic women who clearly exhibited the signs of what was later termed FAS. [14] Epidemiological studies funded by the N1AAA as well as reports from researchers throughout the world would later confirm the assertion that alcohol was a teratogen--a substance that caused congenital, structural, and functional pathological changes during embryonic or fetal development. [15]

As a scientific discovery, FAS posed many questions for researchers. Could the claims of Jones and Smith and others be replicated? If studies of larger populations confirmed their findings that ethanol (rather than other substances in alcoholic beverages) was a teratogen, by what means did it act? Was the damage dose related? Was timing of exposure (trimester of pregnancy) a significant variable? Did damage depend on the genetic susceptibility of the fetus? Did factors such as the age or race of the mother, or number of previous pregnancies play a role in the expression of the syndrome? Were there co-factors, such as smoking, poor maternal nutrition, mineral or vitamin deficiencies that affected the expression of the syndrome or its severity?

Clinicians and the public, on the other hand, had only two questions: should pregnant women drink alcohol and if so, how much could they safely drink? Clearly, generations of healthy children had been exposed to alcohol in utero with no perceivable harm. As one woman noted in a 1989 interview "I have three very bright, beautiful children, and three gorgeous grandchildren. I drank wine all the time when I was pregnant." [16] But had she in fact put her children at risk or was FAS found only in the offspring of severely alcoholic women? If, as the NIAAA/NCA warning suggested, even alcohol in moderation posed some degree of risk, then in terms of the population exposed, ethanol ranked as the most significant developmental toxicant known." [17] Furthermore, the population at risk was expanding, as increasing numbers of women were drinking alcohol and among them, a growing number were developing alcohol-related problems. [18]

The discovery of FAS in the 1970s coincided with the growing visibility of female alcoholism, with evidence of its increasing prevalence, especially among younger women, and with expanding government concern. In 1976 Newsweek reported that over 40 states had established task forces on women alcoholics in the previous two years and that the NIAAA had been ordered to give special consideration to women. [19] The media were also paying more attention. Popular magazines aimed at female readers began publishing uplifting stories of women who overcame their dependency on the bottle, while movies depicted "fallen women" who, through psychiatric treatment or attendance at Alcoholics Anonymous (AA) meetings, regained their self respect and their families. [20] On evening news broadcasts as well, accounts of women who abused alcohol were added to the revolving menu of alcohol-related stories which included those on underage drinking, drinking on the job, and drunk driving. In 1976 CBS covered Senate subcommittee heari ngs on women alcoholics, while a segment on NBC chronicled daily life in an in-patient treatment facility for alcoholic women. [21] In these accounts, FAS sometimes received a brief mention.

The connection between alcohol abuse and FAS proved scientifically significant but, like the subject of alcohol itself, culturally ambiguous. The NBC segment on Melissa, for example, was followed by a Pabst beer commercial, a potent reminder of the vital role the alcoholic beverage industry plays in American culture and in the economics of television broadcasting. [22] Alcohol was legal, popular, heavily advertised, widely consumed, and produced by an industry employing large numbers of workers earning considerable revenues, paying significant amounts into federal and state coffers, and spending large sums lobbying for favorable legislation at the state and federal level. [23] Weighing the problems caused by alcohol abuse against the enjoyment of and profit from alcohol had never been easy political calculus; the addition of information about FAS did little to change the computation.

As the public learned about FAS it did so not only in the context of growing attention to female alcoholism, but within a framework of explanation that evolved from earlier encounters with teratogens, particularly thalidomide, rubella ("German" measles), and nicotine. In the early 1960s images of European children born with missing or shortened limbs as the result of prenatal exposure to the sleeping aid thalidomide flashed across the nation's television screens, newspapers, and magazines. Americans breathed a sigh of relief that the drug had not been licensed for domestic use, but many learned for the first time that rather than protecting the fetus, the womb could be a dangerous place. Reinforcing this message was a 1964 rubella epidemic which resulted in the births of 20,000 damaged infants--many of them deaf, blind, microcephalic, or otherwise severely mentally retarded--to women infected during the first trimester of pregnancy. [24] Subsequently other teratogens would be discovered and the public inform ed about their dangers, including the fact that cigarette smoking by pregnant women resulted in lower infant birth weights and higher perinatal mortality. [25] Not surprisingly then, one of the first popular articles to discuss FAS--"Martinis and Motherhood"--made explicit parallels among alcohol, thalidomide, and nicotine. [26]

The thalidomide tragedy and the rubella epidemic not only readied the public to understand the potential ramifications of alcohol abuse in pregnancy, these very public encounters with teratogens helped pave the way for the legalization of abortion as a "therapeutic option." Supporters of abortion rights had argued that the procedure permitted compassionate parents to prevent the birth of severely damaged offspring. [27]

Just six months after the Supreme Court ended all state laws outlawing abortion, the first report on malformations among the offspring of chronic alcoholic mothers appeared. Not surprisingly, therapeutic abortion was seen as one solution to the problem of alcohol-damaged fetuses. In August 1974 the Lancet published a letter from an American physician asking, "Would Dr. Jones and his associates tell us specifically if they now recommend abortion of 'severe chronically alcoholic' pregnant women?" In reply Jones and Smith stated

As we indicated, the risk of adverse outcome of pregnancy of severe chronic alcoholic pregnant women is of sufficient magnitude (43%) to merit serious consideration of early termination of pregnancy by such women. This is a consideration for these women, and we feel they should be given every opportunity to make a decision relative to abortion with as many facts as are now available. [28]

Discussion of abortion as a means of preventing the births of FAS babies extended well beyond the medical literature. Time magazine matter-of-factly reported that doctors were warning prospective mothers to stop drinking heavily if they planned to become pregnant and "to consider having abortions if they became pregnant while addicted to alcohol." An article in U.S. News and World Report carried a similar statement. [29] In announcing the 1977 warning about pregnancy and alcohol issued by the NIAAA, ABC news anchor Barbara Walters stated: "The more alcohol consumed, the greater the risk. One obstetrician warned that the dangers of drinking during pregnancy are so serious, therapeutic abortion for alcoholic women may be advised." [30]

As political opposition to abortion mounted, physicians (as well as reporters and news anchors) became more reticent. In 1981 a colleague of Jones and Smith wrote in the Journal of the American Medical Association (JAMA) that clinic patients were informed about the hazards of alcohol abuse in pregnancy and the need to stop drinking. "Therapeutic abortion" he wrote, "is often discussed as an option, but it is not actively recommended." [31] Subsequently, the subject ceased to be discussed in the medical literature. Abortion became a heavily contested and deeply divisive political subject. Opponents returned to the Supreme Court and won the right for various state-level restrictions on access and began promoting a Human Life Amendment to the United States Constitution that would grant political status to the fetus. The louder these abortion and fetal rights debates grew, the quieter the discussion of abortion as a means of preventing of FAS became. Finally, silence fell.

While public discussion of abortion as a solution to FAS largely ceased, deliberations over the amount a pregnant woman could drink remained relatively animated. In the years immediately following the discovery of FAS, doctors maintained that alcohol could be used in moderation. One, quoted in Harper's Bazaar in 1977, reminded readers that full-blown FAS occurred in the babies of mothers who drank 10 to 15 ounces a day during pregnancy. While admitting that some studies showed the effects of small amounts of alcohol, the doctor concluded, "I would venture a guess that moderate amounts of drinking during pregnancy are insignificant in terms of harm done to the baby. By moderate, I mean an ounce to an ounce and a half of alcohol or less a day." [32] Similarly, the 1977 edition of Benson's Handbook of Obstetrics and Gynecology, a popular medical textbook, allowed for an occasional alcoholic beverage, such as one cocktail a day before dinner. The biggest hazard identified with such a habit was excessive weight g ain from the calories in the drink. [33] But as more scientific information about FAS was gleaned by researchers and as health officials recast FAS as a public health problem, the advice began to change. By 1983 the Benson textbook deemed avoidance of alcohol "best," an occasional beverage "okay," and it cautioned that "excessive intake may cause Fetal Alcohol Syndrome." [34] Within a relatively short period, FAS had gone from a medical discovery to a medical problem. In this same era, it began to evolve from a medical problem to be "solved" by offering abortions to a relatively small group of alcoholic women to a public health problem to be managed by advising all women to moderate or eliminate their drinking during pregnancy.

1977-1986: The Crusade to Warn

Concern with women's alcohol problems, knowledge about threats to the fetus, research findings, and media attention together made FAS more visible in the late 1970s and early 1980s. These factors, in turn, helped transform FAS from a medical condition diagnosed by doctors and dealt with through effective management of pregnant women into a public health problem that required educating women not to drink during pregnancy. In this era, the drinking behavior of all women of childbearing age came to be scrutinized and the resources spent to educate women not to drink were seen as benefitting the entire community--by lowering public expenditures for dependent care--rather than just preventing damage to individuals.

Ironically, scientific uncertainty propelled the movement to advise pregnant women not to drink. Neither clinicians nor laboratory-based scientists could determine a level below which alcohol caused no harm to fetuses because each individual fetus varied in its genetic susceptibility to alcohol. Thus, despite a paucity of evidence indicating that low to moderate use of alcohol caused FAS, an emerging cadre of experts argued for complete abstinence. [35] By enlarging the definition of the population at risk from the offspring of chronic alcoholic women who drank heavily in pregnancy to the offspring of any woman who might have taken a drink at any time following conception, public health activists created a mandate to warn.

Alarm bells first sounded in the spring of 1977 when the NCA and the NIAAA issued their joint statement, a portion of which declared that the "pregnant woman who has six or more drinks a day--upwards of 3 ounces of alcohol--runs a significant risk of producing a child with birth defects." [36] This was at a time when evidence suggested that cases of FAS occurred among the offspring of women whose alcohol intake amounted to "eight to ten drinks or more per day." [37] Both organizations, however, chose to play it safe, cautioning that "a daily intake of two to six drinks may also cause damage." [38]

Following the official announcement, the movement to warn rapidly assumed the elements of a crusade. It became a righteous cause, an attempt to engage followers of all social classes, to enlist politically powerful knights to lead the troops, and to formulate a rhetoric suffused with chivalry and emotional fervor that suggested a holy war to protect the unborn. FDA Commissioner Donald Kennedy led the charge. In 1977 he wrote to the Department of the Treasury's Bureau of Alcohol, Tobacco and Firearms (BATF), asking that they consider placing warning labels on alcoholic beverages. In a letter to the Bureau, he stated "Quite frankly, if the FDA retained jurisdiction ... it would waste no time in commencing proceedings to require warning labels." The BATF, however, chose to maintain its regulatory prerogative. [39] In 1978 Senator Strom Thurmond of South Carolina moved to take the question of labeling out of the fiefdom of regulatory agencies and make it a matter of federal law by introducing legislation to requ ire warning labels on alcoholic beverages. [40] After passing in the Senate by a 2-1 margin it failed in the House of Representatives. In a compromise maneuver, Congress ordered the BATF to study the question. As the agency prepared to consider the matter, an avalanche of letters began pouring in from opponents mobilized by the beverage industry. [41]

While government officials assumed the mantle of crusading knights, alcoholic beverage manufacturers stepped into the role of infidels. Under siege at the time from supporters of ingredient labeling and facing additional attacks from both the Senate and the Federal Trade Commission for their advertising practices, industry representatives fought back. Through effective lobbying and an ability to demonstrate to at least some officials that moderate drinking caused little or no harm, they fended off bottle labeling for eleven years. An early victory came in 1980, when the BATF decided against warning labels. Citing the fact that moderate drinking had not been shown to cause FAS, the agency opted instead for a program of radio and television announcements and school-based educational efforts to be funded by the beverage industry. [42]

Rebuffed on bottle labeling, government and private supporters of FAS warnings persisted in their efforts to reach consumers. In 1981 Acting Surgeon General Edward Brandt issued an advisory cautioning pregnant women and those trying to become pregnant to avoid all alcohol. [43] Subsequently, during Senate subcommittee hearings on alcoholism and drug abuse in 1982, Brandt and Senator Gordon Humphrey engaged in a pas de deux reiterating the warnings. It concluded with Senator Humphrey asking rhetorically:

So the perception is that fetal alcohol syndrome or any of the effects associated with drinking while pregnant are not limited to heavy drinkers but even to those who consider themselves just occasional or social drinkers, is that correct?

Brandt answered "That is correct." [44]

Among the reasons for the growing interest in FAS was an increased awareness of its costs and of the magnitude of the problem. As clinicians developed diagnostic standards for evaluating suspected cases, they found the syndrome to be more prevalent than previously recognized. As public health officials added up the dollars spent on FAS, they found it more costly than first acknowledged. According to physician and alcohol expert Sheila Blume, the estimated cost for treating babies with FAS in 1980 was $14.9 million. [45] Such figures underscored the presumptive value of investing in health education, an approach that appeared to offer a thrifty means of averting what many had taken to calling a preventable tragedy.

In this regard, the public health crusade echoed a parallel movement to convince people not to drink and drive and, more broadly, to reorient alcohol control efforts away from efforts to assist those with the most severe drinking problems and toward efforts to control drinking more broadly--an approach referred to as harm reduction. [46] However, in terms of individual behavior, refraining from drinking when one might conceive or be pregnant required a far longer period of restraint than simply staying off the road when intoxicated. Additionally, the public was convinced that drinking and driving were a deadly combination that threatened the collective good. Few, however, had seen the effects of drinking during pregnancy, or believed that FAS threatened the public's overall wellbeing. An even more difficult barrier to applying the drunk driving analogy to drinking while pregnant resided in the legal realm. It was a crime to drive while intoxicated; it was not a crime to become pregnant after drinking or to d rink after becoming pregnant.

In lieu of passing laws against drinking and conceiving, state and local government leaders enlisted in the crusade to warn by promoting health education. Women in the Georgia legislature, for example, offered an appropriation for FAS research, while in Maine a law on warning posters passed the legislature (although it met with a gubernatorial veto). [47] New York City enacted the nation's first local legislation regarding warning posters; in 1983 signs went up in the city's bars, restaurants and package stores. [48]

In the court of public opinion public health officials began to hold sway. School programs on substance abuse began to incorporate warnings on FAS. [49] Television evening news coverage of alcohol research and of women and alcohol nearly always included a sentence or two reminding viewers that alcohol was known to cause birth defects. When an October 1984 article in JAMA maintained that even moderate alcohol consumption could cause growth retardation in the fetus, all three major networks covered the story on their evening news broadcasts. On the ABC Evening News, anchor Peter Jennings and medical editor Dr. Tim Johnson discussed the findings for almost two minutes. Johnson reported that the journal's editor had written an editorial saying women should not drink during pregnancy. Jennings responded with a question: "Well, we have undoubtedly just scared a lot of women who are pregnant and drinking now. What about them?" Johnson replied with a brief discussion of risk and then offered his own opinion: "What t hey're saying, I think, is: it is not worth taking any chance at all, even small, and I go along with the advice. When you can plan for it you should not drink at least during those nine months of pregnancy. " [50]

Magazine articles had offered this advice for some time, warning women that unless they abstained they could never be sure they were not putting their fetus at risk. [51] In many instances, alcohol appeared on a long list of well known dangerous substances that pregnant women were told to avoid, such as opiates, marijuana, barbiturates, tobacco, and over-the-counter and prescription medications. Whether the inclusion of alcohol among such substances diluted or heightened the potency of the warning is uncertain. The articles which discussed alcohol exclusively seemed designed to magnify women's fears, reminding that any misstep could result in a tragedy. Will an occasional "social cocktail" affect the unborn child, asked Good Housekeeping's medical columnists in 1978. Answering their own question, they replied: "We don't know. If you take a drink, you're betting it's harmless. Is it worth the risk?" [52] A year later, another piece in the same magazine went even further:

Abuse of alcohol and some drugs during pregnancy is also linked to minimal brain dysfunction (MBD) in the child. Five to seven million school-age children are estimated to suffer from MBD, which causes learning difficulties in youngsters with normal intelligence and may contribute to antisocial and delinquent behavior. [53]

The specter of alcohol use, rather than abuse, hung over America's pregnant women beginning in the late 1970s. For those who had already given birth, pronouncements such as the one above suggested that children's troubles in school or anti-social attitudes could be attributed to their pregnant mother's drink before dinner.

For some, the warning that a single slip could condemn a child to a limited life undoubtedly contributed to the decision to cease drinking during pregnancy. For others, the warnings came too late and only provoked guilt among those who gave birth to babies with FAS and blame for those who did not voluntarily express remorse. For example, an article in the New York Times entitled "A Disabled Baby, A Mother With Guilt" detailed how two "FAS mothers" learned to cope with the handicapped children they bore and to "live with the guilt that their drinking was responsible for their child's birth defects." Another article recounted the situation of a woman who attributed her son's heart problems and less-than-normal IQ to a night of binge drinking and her failure to understand what her doctor meant by drinking "a little" during pregnancy. [54] In each instance, the problem was defined both in terms of the child's birth defects and the fact that a woman had failed to heed medical advice and public health warnings. Fr aming the effects of alcohol in this way laid the groundwork for the demedicalization of FAS by making the behavior of the mother, rather than the condition of the child, a central concern.

The crusade to warn succeeded in getting the message out to women that they ought not to drink while pregnant and that if they did, they might afflict their offspring with FAS. However, as increasing numbers of women halted their drinking during pregnancy, a troubling sign materialized: some seemed impervious to the message. Fueling this perception was the erupting moral panic over the birth of so-called "crack babies," particularly in the African-American community. When prosecutors began arresting pregnant and newly parturient minority women who abused illegal drugs, the question arose--what about those who drank?

1986-1990: The Discourse of Law and Responsibility

The public health crusade succeeded in making drinking during pregnancy deviant behavior, but it could nor contain the definition of deviance within a medical framework that termed the alcoholism of pregnant women a disease. The ongoing political debates over the meaning of addiction and about fetal rights would spur the demedicalization of FAS, transforming it from an individual tragedy into evidence of wilful misconduct by women.

Between 1986 and 1990 the public discourse on FAS moved into the court-room. The rhetoric of rights and responsibilities began to infuse discussions of FAS, replacing a discourse of warning with one of crime and punishment. A growing sense that FAS was caused by the moral deficiencies of poor, minority-group mothers helped fuel this transformation, as reports that FAS hit hardest in Native American communities reconfigured the public's perception of the condition. While the transformation of FAS from a medical to a public health problem had been a small step down the path of demedicalization, its refraining as a criminal justice concern constituted a giant leap.

The period of blame crested as the crusade to warn achieved many formal measures of success, including passage of the 1988 Alcoholic Beverages Labeling Act, discussion of FAS in medical textbooks, school health education about FAS, and regular warnings about alcohol and pregnancy in the media. [55] As of 1989 all alcoholic beverages sold in the United States bore an official government warning: 1--According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects. 2- Consumption of alcoholic beverages impairs your ability to drive a car or operate machinery, and may cause other health problems.

Evidence suggests that even before bottle labels appeared, the message had gone out and had been heard by many. Overall rates of alcohol consumption during pregnancy were falling. But paradoxically, the prevalence of FAS appeared to be increasing, with recorded rates rising fourfold between 1979 and 1992. The improved ability of physicians to diagnose FAS probably inflated the figure, as did the fact that beginning in 1989 birth certificates were standardized nationally to include check-boxes for reporting FAS. [56] Scrutinized more closely, the data reveal a sharp divergence in drinking practices. Alcohol consumption rates remained steady among young pregnant women who smoked, were unmarried, bad low levels of education, or were otherwise at risk of poor pregnancy outcome; they declined among older, highly educated, nonsmoking, married women. In short, light drinkers who were at very low risk of having alcohol affected children heard the warnings and changed their behavior; heavy drinkers at higher risk had not. [57] Attention now turned to these women--who began to be censured, rather than cautioned.

Hailing the Senate's adoption of the labeling legislation, Richard M. Narkewicz, the President of the American Academy of Pediatrics, remarked that "Alcohol problems are rampant in America today, and our innocent children are paying the price." [58] While invoking a discourse of innocence (which was simultaneously being deployed to win assistance for children who were HIV-positive or cocaine-exposed), Narkewicz left unspoken its corollary: the need to reveal and punish the guilty.

First to be targeted were the manufacturers of alcoholic beverages. Traditionally, tort law protected alcoholic beverage manufacturers from the duty to warn under the "good whiskey" argument which stated that "Good whiskey is not unreasonably dangerous merely because it will make some people drunk ..." However, several cases in the 1980s breached this defense and opened the door to "failure-to-warn" lawsuits brought by the parents of children with FAS, as well as by other individuals injured through their drinking. [59] In 1989, the first of these, Thorp v. James A. Beam Distilling Company, came to trial, with the Thorps seeking one million dollars to pay for the lifetime care of their alcohol-damaged son Michael. They argued that the distillers had failed to warn about the dangers of drinking during pregnancy. [60]

The trial opened with Kenneth Lyons Jones testifying that Michael Thorp suffered from FAS. Evidence suggests that Jones bad long wanted to pursue beverage manufacturers. Three years earlier, at a national conference on substance abuse and pregnancy, he had protested the policy of charging substance abusing mothers with criminal penalties, remarking:

If we're talking about suing people, we should be suing the alcohol industry. They're the ones who are not warning people about the dangers of alcohol and the unborn baby. They've known about it for years, and they've been making millions and millions of dollars on it and walking free. [61]

The Thorp lawsuit gave him a chance, but testimony quickly turned from the misdeeds of Jim Beam to those of Michael's mother.

The media's judgments of Candace Thorp proved to be a significant and ominous sign both for her and for others who wished to make the beverage industry responsible for the support of FAS children. Newspapers covering the trial were soon revealing unflattering details about Thorp's past. A thirty-nine-year-old chronic alcoholic, three-time divorcee, and the mother of other children suffering from low IQs and retarded socialization--children who had been taken from her custody both by family members and by the state several times--Thorp proved to be an unsympathetic and for the purposes of the case, unbelievable, figure. [62] Cross examination revealed she was drinking a fifth of Jim Beam a day when she became pregnant and continued to do so throughout her pregnancy. While Thorp testified that she could and would have stopped drinking had she been warned, lawyers for the defendant introduced evidence to the contrary. They documented that she been told to stop drinking on many occasions by family members and by professionals. Further, they demonstrated that she heard warnings about FAS during a 21 day in-patient treatment for alcoholism. [63]

The defendant walked a fine line. Attorneys representing Jim Beam refused to admit in court that drinking during pregnancy could cause birth defects. At the same time, they worked hard to persuade the jury there was sufficient public knowledge of the health hazards of alcohol use in pregnancy for Thorp to have known not to indulge and that she chose not to stop drinking. As the Chief Executive Officer of Jim Beam stated on the witness stand, Thorp would not have stopped drinking even if the bottle was labeled with a "skull and crossbones." [64]

After four days of deliberations, the jury reached the same judgement. "Everybody knew that the label would not have done any good," a juror noted. [65] FAS mothers, the juror might have added, made bad plaintiffs. According to researchers they were typically women with three or more children, who were heavy smokers and who were likely to abuse other drugs. In addition, many had lost custody of other children due to abuse, neglect, and/or an inability to care for them because of medical problems stemming from their alcoholism. [66]

The media's attention to Thorn's defeat and their focus on her personal failings overshadowed a critical feature of the case: jurors did not find the medical experts' description of FAS entirely creditable. They seemed to doubt whether Michael Thorp's developmental problems stemmed solely from his mother's use of alcohol during her pregnancy. "There were a lot of other factors," one juror stated in comments to the press. "1 think the feeling was that Michael did not have a good home life." Another reported that the jury "found it difficult to judge the extent to which the mother's drinking was responsible for Michael's retardation and physical handicaps." [67] On the one hand, the jury may not have learned enough about FAS. On the other, perhaps it found the testimony of the chairman of Jim Beam convincing. He argued that "virtually nothing could convince him that a link exists between alcohol consumption by a pregnant woman and birth defects in her child." Finally, the jury may have believed defense asserti ons that Michael Thorp's problems stemmed from malnutrition, stress, smoking, or heredity. [68] Whatever the reasons for their individual and collective judgements, it is notable that the jurors did not believe Michael Thorp's defects stemmed entirely from the effects of alcohol in utero. To medical professionals, the stigmata of prenatal alcohol exposure may have been visible; to the general public, Michael Throp bore the signs of bad mothering. The line between congenital and social deficiencies proved hard to draw.

The medical definition of FAS, this suggests, was unraveling, as the syndrome began to be viewed not simply as a cluster of physical deformities and mental deficits found in individual children exposed to alcohol in the womb, but as evidence of maternal misbehavior. Moreover, public and legal attention was shifting from determining how to prevent future cases of FAS to considering how to punish those responsible.

Shortly after the Jim Beam case, Michael Dorris published The Broken Cord (1989), his prizewinning account of the life of his adopted son with FAS. While the book (and ABC movie adaptation) did much to publicize the syndrome and its impact within particular Native American communities and helped many parents realize what was "wrong" with their children, it further fixed the blame on mothers. [69] Initially, Dorris and his wife, novelist Louise Erdrich, enlisted in the crusade to warn and demonstrated all the fervor of new converts. During an interview, Erdrich alleged that the "one-glass-of-wine-a-day permissiveness of first-time yuppie mothers is still sufficient to cause brain damage in the fetus." [70] Together, Dorris and Erdrich campaigned at the state and federal level for labeling laws, pushed for expanded public education, gave money to support FAS prevention programs, and argued that liquor companies had a "moral responsibility" to fund FAS research. [71] Dorris also took care to avoid painting a si mple picture of victims and victimizers. Trained as an anthropologist, Dorris explained endemic alcoholism in some Native American communities in terms of historical circumstances, contemporary social dislocations, and even biological theories. He made clear in his book and in interviews that FAS did not represent an Indian problem per se," explaining he simply wrote about what he knew and where he had "interest and access." [72]

Dorris' work, coupled with data from federal agencies and media interest in the problem of Native American alcoholism, pushed the discourse in a different direction than he had perhaps intended. While Dorris focused much of his book on the plight of his son, data collected by the Federal Centers for Disease Control (CDC) made clear that FAS took a terrible toll in Native American communities ravaged by alcohol and that intervention was needed. According to a CDC report, from 1981 to 1986 the incidence of FAS among Whites was .9 per 10,000 births, among Blacks it was 6 per 10,000 births, and among American Indians it was 29.9 per 10,000 births. [73] In the media, FAS began to be characterized as an "Indian problem," and as an expression of the social pathology of reservation life. After the Anchorage Daily News won a Pulitzer Prize for its series "A People in Peril", other journalists and television news reporters went charging onto reservations to pursue the story. On five consecutive evenings, the NBC eveni ng news broadcast "Tragedy at Pine Ridge," with one segment entirely devoted to FAS that included a scene with a pregnant Native American woman drinking beer. At one point in the segment a physician is shown arguing that "women who can't control their drinking during pregnancy should have protective custody during the pregnancy for nine months" [74] Similar statements - appeared in response to the newly discovered problem of mothers addicted to "crack" cocaine. [75]

Not infrequently, in these accounts opinions sometimes substituted for facts. An editorial in the Boston Globe, for example, cited workers involved with children's programs on one Sioux reservation who estimated "almost half the infants and young children they see show symptoms of fetal alcohol syndrome." [76] In the Thorp case, Jones, a physician trained in dysmorphology--a branch of clinical genetics concerned with the diagnosis and interpretation of patterns of structural defects--diagnosed the syndrome. On the reservation and elsewhere, the diagnosis of FAS was being made by lay people. Some had undoubtedly become familiar with the physical features that characterized individuals with FAS, others probably inferred a diagnosis from the fact that the child's mother drank heavily. But they clearly lacked the professional training to make this judgement. The presumed ability of non-medical professionals to "diagnose" FAS based on knowledge of maternal drinking was a manifestation of its ongoing demedicalizat ion--a sign that medical expertise was no longer needed to see FAS or, perhaps, to define its effects. Equally important was the fact that presentations of the syndrome typically focused on the alcoholic mother. Despite the efforts of Alcoholics Anonymous (AA) and of the American Medical Association (AMA) to make alcoholism a disease, it had never ceased to be viewed as a personal failing either by the public or by public officials. [77]

For alcoholic mothers, growing doubts about the concept of alcoholism as a disease, the explosion of "crack mother" stories in the media, and the ongoing political efforts to grant legal status to fetuses proved to have profound implications. Their drinking came to be judged as prenatal child abuse. [78] Michael Dorris made this argument when raging at the alcohol dependent woman who bore his adopted son, wondering if she might have been locked up and prevented from drinking:

If she had come after him with a baseball bat after he was born, if she had smashed his skull and caused brain damage, wouldn't she have been constrained from doing it again and again? Was it her prerogative, moral or legal, to deprive him of the means to live a full life? [79]

Dorris vacillated on the question of whether pregnant women who refused to stop drinking should be jailed, raising the subject in his book and remarking that others had gone so far as to call for the forced sterilization of women who had blighted the lives of several children and continued to imbibe. [80] He knew that some Native American communities had the right, under tribal law, to take these steps, but he recognized that the problem of FAS could not be solved by incarcerating mothers and that effective treatment programs were needed. In an interview with a Boston Globe reporter in 1989, he remarked, "In all of the Indian Health Service, as far as I know, there is absolutely no treatment program specifically tailored for pregnant women at risk of having FAS babies." [81] He conceded in another interview that medical authorities opposed creating a special legal category for pregnant women. [82] Yet he wavered between wanting to warn women and wanting to criminalize those who did not listen. In 1990, in an editorial in Newsweek, he raised the question:

But what happens when public education doesn't work as a deterrent, when a pregnant woman herself is a victim of FAS or prenatal crack and therefore cannot understand the long-term disastrous consequences upon the life of another resulting from when she drinks or inhales?

The choices, he acknowledged were difficult:

The conflict of competing priorities--of protecting immediate civil liberties versus preventing future civil strife--is incredibly complex, with no unambiguously right or easy answers. But as a nation it's unconscionable to delay the debate. [83]

Tellingly, Dorris titled his editorial "A Desperate Crack Legacy." In the late 1980s public attention had turned from FAS babies on reservations to African American crack babies in the neonatal units at inner city hospitals.

A tidal wave of fear washed over the public as the media reported on the wild, damaged, and dangerous children emerging from the wombs of their cocaine-addicted, lower-class African American mothers. Scare stories drowned out the voices of researchers who acknowledged that cocaine, while capable of causing severe, expensive and sometimes deadly complications in pregnancy, labor, and delivery, was not teratogenic, it had no lasting effects on the intellectual and physical development of individuals exposed in utero. [84] Nevertheless, the "crack crisis" had an enormous influence on public perception of FAS mothers and children. The portrayal in the media of crack as an African American problem and FAS as a Native American problem made prenatal substance abuse an issue of race and class. This, in turn, helped transform public perceptions of prenatal substance abuse from a medical problem to a criminal justice concern. In some jurisdictions prosecutors moved to bring criminal charges against women who gave birt h to infants exposed to controlled substances, typically crack cocaine, or who "delivered" cocaine to their infants after birth--via the umbilical cord. Others called for preventive detention of drug abusing pregnant women. [85] Women drinking while pregnant also faced arrest, with four states requiring that children born with FAS be reported to authorities. [86]

Debates over criminal liability for fetal endangerment encompassed several issues. Did fetal protection policies jeopardize reproductive freedom? Was it fair to mete out criminal punishments to women unable to find assistance in overcoming their addictions? Did a child have a right to begin life free of prenatal injury? Had the state an obligation to protect viable fetuses as "citizens" even if doing so reduced women to "fetal containers" and denied them rights of liberty, privacy, and equal protection? [87] The legal theory from which prosecutors derived the concept of maternal criminal liability for fetal harm lay, ironically, in the Supreme Court's ruling on abortion. The court's use of viability as a standard for permitting state intervention in abortion decisions was seen by some as granting legal protections to fetuses at the time of viability. At the time of viability, some legal theorists and prosecutors argued, fetuses had a claim to state protection from maternal behaviors that might prevent them f rom being born healthy. Whether this meant that ingestion of alcohol during pregnancy would give rise to criminal liability remained unclear. [88] In the overwhelming majority of cases, it was women who used illegal substances who faced arrest. However, on several occasions authorities arrested women for drinking during pregnancy.

In 1990 newspapers followed the arrest of a Wyoming woman, Diane Pfannenstiel, who was charged with felony child abuse for drinking while pregnant. Pfannenstiel sought admission to a hospital after being battered by her husband and, while there, had her blood alcohol measured. According to some accounts, she had one child with FAS. The court eventually dismissed the charges for lack of evidence of fetal injury. [89] Two years later, the CBS evening news detailed the arrest of Nebraskan Deborah Arandas for binge drinking while pregnant and for felony child abuse. Arandas, the reporter noted, had already given birth to two children diagnosed with FAS. [90] More recently, Deborah Zimmerman of Madison, Wisconsin was charged with attempted homicide for drinking while pregnant. [91] In these cases, as in those of women arrested for illicit drug use during pregnancy, the issue was framed as one of the state protecting innocent fetuses from the acts of bad mothers.

Pregnancy policing, as this came to be called, threatened the autonomy of medical practitioners as well as the rights of individual women. As a result, the AMA spoke out against the plan to compel women to follow medical advice by threatening them with detention or the loss of their children. [92] In 1990, its Board of Trustees argued that doctors should not have a legal duty to seek court-ordered obstetrical interventions. Incarceration for the purpose of preserving fetal health might, the Board believed, prove counterproductive by scaring some women away from medical treatment and also because prisons were ill equipped to deal with the needs of pregnant inmates. Nonetheless reluctant to close the door on all possible interventions, the committee left room for the "exceptional circumstances in which treatment posed insignificant or no health risk to the woman, entailed a minimal invasion of her bodily integrity, and would clearly prevent substantial and irreversible harm to the fetus. Without giving example s of such cases, they argued that should such situations occur, they might justify, but not compel, intervention. [93]

Beneath concerns about the effects of policing lay fears about liability. Would doctors be judged negligent and held liable for failing to seek court orders compelling the incarceration of women who refused to stop drinking or smoking crack? Could courts force physicians to provide treatments designed to change the behavior of pregnant women? The AMA and many of the physicians it represented did not wish to learn the answers to these and other related questions. As vigilant defenders of professional autonomy, the organization found itself compelled to champion the autonomy of potential patients as well. An article in Patient Care published a few years before the AMA report suggests that doctors had already begun to think in terms of self protection. In addition to telling patients to abstain from alcohol, tobacco, caffeine, and other drugs, the authors suggested doctors obtain proof of their efforts. "If a patient refuses to adhere to one of your recommendations, consider having the patient sign a form docum enting your entreatment and her noncompliance," they urged. The reason: "the form convinces patients of the issue's gravity and it also can help alleviate your liability." [94]

As medical researchers continued to study the mechanism and effects of alcohol exposure in utero, including the constellation of behavioral deficits in those who had been exposed, the public discourse about FAS focused increasingly on the subject of blame. While alcoholic beverage manufacturers and physicians worked to strike themselves off the list of those who might be held liable for the birth of an child with FAS, mothers remained vulnerable. More important in terms of the ongoing demedicalization of FAS was the fact that the discourse had shifted from the effects of alcohol to the consequences of women's behavior. Moving the debate from the medical realm into the legal arena ultimately diminished the power of medical authorities.

The legal discourse on FAS reached a crescendo in the late 1980s in the midst of the crack panic, as partisans lined up to argue their interpretations of maternal/fetal politics, individual autonomy, social responsibility, and the obligations of liquor manufacturers as they played out upon and within the body of the pregnant woman. In the background, however, another theme began to sound. As the public learned that women giving birth to drug and alcoholexposed babies were not the innocent martini drinkers who failed to read warning labels, but the denizens of the ghetto and the reservation, a new realization dawned: perhaps their children were not tragic victims, but the next generation of perpetrators.

1990s: From Victims to Victimizers--the Death Row Debates

In a 1989 article in the Washington Post conservative writer Charles Krauthammer described the threat of the "bio-underclass, a generation of physically damaged cocaine babies whose biological inferiority is stamped at birth." Echoing early twentieth-century advocates of colonies for the unfit, Krauthammer proposed the creation of colonies for substance abusing mothers:

We can either do nothing, or we can pass laws saying that any pregnant woman who takes cocaine during pregnancy will be sent until delivery to some not uncomfortable, secure location (boot camp, county jail, house arrest-the details are a purely technical matter) where she will be allowed everything except the liberty to leave or to take drugs. [95]

While alcoholic women were not swept up in this particular rhetorical whirlwind (perhaps because alcohol was a legal substance), they began to be understood in similar ways and stigmatized as the destroyers of children or the creators of a bio-underclass. In the final refraining of FAS, individuals diagnosed with the condition came to be seen as victimizers rather than victims.

Press accounts of "adoption nightmares" that ended with lawsuits against agencies that withheld information about medical problems--and especially FAS--helped to spur this transformation. [96] A 1994 story in the Columbian, a Washington state newspaper, for example, told the story of a child who assaulted family members, was thrown out of foster placements, damaged property, and mutilated animals. His adoptive parents filed suit charging the state, which had placed the boy with them, with fraud for withholding information about his status. Their attorney had won an earlier million-dollar victory for one couple and had ten other cases in the pipeline. [97] Legal victories may have aided both families and children, explaining aspects of their lives that were otherwise unaccountable, letting them seek appropriate medical and psychological assistance, preventing family ruptures, and compensating families for the extra expenses they incurred in raising a special needs child. Nevertheless, the newspaper stories a bout these cases had the effect of suggesting that toxic children--virulent carriers of the social pathologies of their mothers--were being placed without warning in the homes of innocent families.

The adoption horror stories proved to be merely a prelude; the finale played out on death row. In this setting, claims of convicted individuals that they suffered from FAS, often presented as an extenuating circumstance at the time of sentencing or during clemency appeals based on diminished capacity, were looked upon with suspicion. In the denouement of the FAS story, political leaders, judges, and law enforcement officials recast FAS one final time, from a congenital condition to a "devil-made-me-do-it-defense" cynically employed to allow hardened criminals to escape the consequences of their actions. [98]

Appeals based on a diagnosis of FAS were made before and after the Harris case. For defense attorneys, the idea that the genesis of the crime lay in actions that occurred before birth had tremendous appeal. As one remarked in an interview:

I really like (the argument), philosophically, because it makes the defendant totally blameless. It's a terrific question. How could anyone on a penalty jury or a judge hold a person responsible for something that happened prior to birth? [99]

But judges and juries, in most cases, held individuals responsible. In 1990 the state of Virginia executed convicted murderer Richard Boggs, despite arguments that he suffered from brain damage from FAS. [100] In California, Charles Gaston, a convicted murderer, did manage to obtain a life sentence rather than the death penalty because of FAS. Speaking from prison, he discussed his condition on the network news show 20/20, along with an FAS researcher who examined his baby picture and said "If you look at a little baby picture of this guy, you go, 'well that's fetal alcohol syndrome.' There's just no question about it ..." [101] After the Harris case, claims continued to be made and rejected. In May 1997, Texas executed Terry Washington, a convicted murder who was mentally retarded as the result of FAS. [102] In many of these cases, the diagnosis was offered by attorneys, not physicians, perhaps because no funds were available to pay expert witnesses.

The Harris case played a critical role in casting FAS as a last-ditch diagnosis used to exculpate the guilty. It received enormous media attention, in part because Harris' death in the gas chamber marked the renewed use of the death penalty in California and signaled that executions were moving out of their largely southern venue. In addition, the intricacies of the case, which involved the sentencing judge in the plea for clemency, and many years of claims, appeals, and last minute stays-of-execution, kept the story in the public eye.

While on parole for a voluntary manslaughter conviction, Harris murdered two 16 year old boys in 1978 and received a death sentence the following year. At the time of his trial, medical knowledge of FAS was largely confined to the medical arena, and his lawyers did not bring information about his condition before the jury. Between his conviction and execution, a number of legal issues came forward on appeal, including the failure of the courts to consider Harris' mental disorders. In 1971 he had been diagnosed with an organic disorder and was subsequently found to exhibit FAS. [103] In many of the televised news reports of the legal steps that led to his execution, reporters referred to his counsel's claim that he had lacked competent psychiatric help at the time of trial, that his mental disorders had not been considered, and that "his mother drank heavily while pregnant and his father beat him." [104] When state and federal appeals ended, the defense team asked California Governor Pete Wilson for clemency. They obtained a statement from former California Supreme Court Justice Frank Newman, who had earlier voted to affirm the death sentence, asking for mercy based on medical evidence that had not been fully heard at the time of trial or by any appeals court. A 22-minute videotape included in this appeal contained statements from Ann Streissguth and Kenneth Lyons Jones, two of the "discoverers" of FAS who diagnosed Harris as having FAS. [105] As described earlier, their appeal failed because the governor rejected their fundamental argument--that Harris suffered from a condition which diminished his ability to understand the consequences of his actions.

Almost twenty years after publication of the initial article defining FAS, a work that set in motion a huge research apparatus, supplied the momentum for a federal crusade to warn women against drinking during pregnancy, and furnished the evidence for forcing alcoholic beverage manufacturers to place warning labels on bottles, Jones and his colleagues found their expertise rejected along with their diagnosis. Public sympathy for the victims of FAS had, in many instances, turned to public scorn for their mothers and then to fear of those with the syndrome. As prenatal substance abuse became the national scourge, the offspring of substance abusers, the so-called "bio-underclass," came to be seen not as physically and mentally diminished, but as the masters of their own fates and the perpetrators of great social wrongs. The medicalization of FAS--the claim by medical experts that those afflicted were incapable of fully understanding the consequences of their actions and were therefore to be excused from assumin g full responsibility for their acts--had been slowed or, perhaps, halted. Demedicalization began.

In its brief history FAS had many definitions: medical problem, public health concern, symbol of maternal misdeeds, evidence of moral decay within particular communities, and finally a desperation tactic employed by death penalty opponents. Each definition overlaid, but did not fully obscure, the previous one. Notably, the medical argument that alcohol was a teratogen found public acceptance. The claim that FAS existed as a legitimate diagnosis was not questioned. Rather, the social meaning of FAS eventually derived not from the judgements of medical experts alone but via the negotiations of others--some of whom explicitly rejected physicians' interpretation of the consequences of the syndrome. Central to the refraining of FAS from a medical problem to social problem was the fact that FAS became public currency traded by politicians, lawyers, and public health advocates for various ends. And as it passed from hand to hand, the imprint of the medical community that had first engraved it into the public record began to fade.

Department of History

Camden, NJ 08102

ENDNOTES

I wish to thank Caroline Acker, Laurie Bernstein, John Burnham, David Courtwright, Ron Roizen, Sarah Tracy, Arleen Tuchman, members of the Chester Avenue Seminar: Regina Bannon, Len Braitman, George Dowdall, Sally Griffiths, Emma Lapsansky, Adele Lindenmeyr, Cindy Little, Randall Miller, and Marian Roydhouse, and members of the Seminar on the Culture and Politics of Reproduction at the Center for the Critical Analysis of Contemporary Culture, particularly Cynthia Daniels, John Gillis and Meredith Turshen, for their comments on earlier drafts of this paper. Special thanks to Eric Schneider for reading and commenting on multiple drafts.

(1.) Gerard N. Burrow and Thomas F. Ferris, eds., Medical Complications During Pregnancy 4th ed. (Philadelphia, 1984), p. 586. Alcohol-related birth defects have been long identified in the medical and popular literature and were historically defined as the result of paternal intoxication at the time of conception. The effects of chronic maternal alcohol abuse in pregnancy did not begin to be examined until the mid-nineteenth century. Ernest L. Abel, Fetal Alcohol Syndrome (Oradell, NJ, 1990), pp. 1-11.

(2.) William M. Barron, Marshall D. Lindheimer and John M. Davison, eds., Medical Disorders During Pregnancy 2nd ed. (St. Louis, 1995), p. 467.

(3.) Ernest L. Abel and Robert J. Sokol, "A Revised Estimate of the Economic Impact of Fetal Alcohol Syndrome [review]," Recent Developments in Alcoholism 9(1991): 117-25.

(4.) David Brinkley, NBC Evening News, 31 May 1977, Media Services Videotape, Nashville, Vanderbilt Television News Archives, (hereafter VTNA).

(5.) Barbara Walters, ABC Evening News, 1 June 1977, VTNA; and Walter Cronkite, CBS Evening News, 1 June 1977, VTNA.

(6.) Ted Koppel, Nightline, 15 April 1992, VTNA.

(7.) "Excerpts from Wilson's Message on Clemency," San Francisco Chronicle, 17 April 1992, Lexis/Nexis Online Services (hereafter LNOS).

(8.) On the concept of framing see Charles E. Rosenberg and Janet Golden, eds., Framing Disease: Studies in Cultural History (New Brunswick, 1992).

(9.) For an overview of the development of American medicine see Paul Starr The Social Transformation of American Medicine (New York, 1982). While historians define medicalization as a process inextricably linked to the development of modern western society, sociologists focus on the meaning of medicalization and particularly its links to definitions of deviance. The classic sociological analysis is Peter Conrad and Joseph W. Schneider, Deviance and Medicalization: From Badness to Sickness (St. Louis, 1980) which consists of case studies of medicalization. See also Naomi Aronson, "Science as a Claims-Making Activity: Implications for Social Problems Research," in Joseph W. Schneider and John I. Kitsuse, eds., Studies in the Sociology of Social Problems (Norwood, N.J., 1984), pp. 1-30; and Joseph R. Gusfield, "On the Side: Practical Action and Social Constructivism in Social Problems Theory," in ibid., pp. 31-51.

(10.) David J. Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York, 1991).

(11.) Renee C. Fox, "The Medicalization and Demedicalization of American Society," Daedalus 106 (1977): 9-22.

(12.) "Nowadays the word 'abuse' is the get-out-of-jail-free card, a card that has been overplayed, thus further hurting those who genuinely have been abused." Rob Morse, "Low-life Achievement Awards," San Francisco Examiner, 10 February 1994, LNOS. Notably, Morse's nominations for best excuse of the previous year included "One: Beavis & Butt-Head made me do it. Two: I was abused as a child (optional: and I had fetal alcohol syndrome)." For other analyses of this phenomenon see Alan M. Dershowitz, The Abuse Excuse: And Other Cop-Outs, Sob Stories, and Evasions of Responsibility (Boston, 1994); and James Q. Wilson, Moral Judgement: Does the Abuse Excuse Threaten Our Legal System? (New York, 1997).

(13.) Kenneth Lyons Jones, et al, "Pattern of Malformation in the Offspring of Chronic Alcoholic Mothers," Lancet 2 (1973): 1267-71. Uncertain as to whether the ethanol itself or other substances in alcoholic beverages caused the deformities, the authors nonetheless demonstrated that the physical signs of what they termed FAS could be distinguished from those indicating maternal malnourishment. Additionally, they documented that FAS appeared in children of varying races and social backgrounds, and that it was not a genetic condition. See also Christy Ulleland, et al, "The Offspring of Alcoholic Mothers," [abstract] Pediatric Research 4 (1970): 474. For the history of American FAS research see Peter L. Petraikis, Alcohol and Birth Defects: The Fetal Alcohol Syndrome and Related Disorders (Washington, D.C., 1987), p. ix. The term "fetal alcohol syndrome" appeared in Kenneth L. Jones and David W. Smith, "Recognition of the Fetal Alcohol Syndrome in Early Infancy," Lancet 2 (1973): 999-1001.

(14.) Paul Lemoine, et al. "Les Enfants de Parents Alcooliques. Anomalies Observees. A Propos de 127 Cas." Ouest Medical 21(1968): 476-82. After retiring from practice, Lemoine followed up the cases he discussed in his l968 report. See P. Lemoine, and Ph. Lemoine, "Avenir Des Enfants de Meres Alcooliques (Etude de 105 Cas Retrouves A L'Age Adulte) et Quelques Constations d'Interet Prophylactique," Annales de Pediatrie 39 (1992): 226-35. This report is discussed in Alexander Dorozyaski, "Maternal Alcoholism; Grapes of Wrath," Psychology Today 26 (1993): 18.

(15.) In 1974 the NIAAA funded four major prospective studies on maternal alcohol use and pregnancy outcome. Researchers found that excess maternal alcohol use correlated with a variety of adverse outcomes. See, for example, Ann P. Streissguth, et al, "The Seattle Longitudinal Prospective Study on Alcohol and Pregnancy," Neurobehavioral Toxicology and Teratology 3 (1981): 223-33; and Henry L. Rosett, Eileen M. Ouellette, and Lyn Weiner, "A Pilot Prospective Study of the Fetal Alcohol Syndrome at the Boston City Hospital. Part I. Maternal Drinking," Annals of the New York Academy of Sciences 273 (1976): 118-22. Studies of alcohol as a teratogen in other species are reviewed in Carrie L. Randall, "Alcohol as a Teratogen in Animals," Alcohol and Health Monograph No. 2 (U.S. Public Health Service: Washington, D.C., 1982), pp. 291-307.

(16.) 1989 interview with Phyllis Pedrizzetti, Italian Americans in the West, Library of Congress Folklore Collection, Washington, D.C.

(17.) James L. Schardein, Chemically Induced Birth Defects 2nd ed. rev. (New York, 1993), p. 620.

(18.) In 1975 3 percent of adult females were estimated to be either alcoholics or problem drinkers. NIAAA, Third Special Report to the U.S. Congress on Alcohol and Health (June 1978), pp. 9-10. A 1993 publication gave the figure of 6 percent. Anne E. Bernstein and Sharyn A. Lenhart, The Psychodynamic Treatment of Women (Washington, D.C., 1993), p. 93. Prevalence figures on alcoholism in women indicated that the male to female ratio was declining in the 1970s and 1980s as measured by admissions to mental hospitals, use of community resources, and cirrhosis mortality statistics. Notably, these are measures designed to assess rates of male alcoholism and thus it is difficult to pinpoint precisely how many women were alcohol abusers and how rates changed over time. Eileen M. Corrigan, Alcoholic Women in Treatment (New York, 1980), pp. 9-11.

(19.) "Women Alcoholics," Newsweek 88 (15 November 1976): 73.

(20.) See, for example, "The Shocking Facts About Women and Alcohol," Good Housekeeping 185 (September 1977): 207-8. On alcoholic women in film see Robin Room, "Alcoholism and AA in US films, 1945-62," Journal of Studies on Alcohol 50 (1989): 368-83; Norman K. Denzen, Hollywood Shot by Shot: Alcoholism in American Cinema (New York, 1991), pp. 69-94; and Melinda Kanner, "Drinking Themselves to Life, or the Body in the Bottle: Filmic Negotiations in the Construction of the Alcoholic Female Body," Catherine B. Burroughs and Jeffrey David Ehrenriech, eds., Reading the Social Body (Iowa City, 1993), pp. 156-84.

(21.) Walter Cronkite, CBS Evening News, 29 September 1976, VTNA.

(22.) Brinkley, NBC Evening News, 31 May 1977.

(23.) On alcoholic beverage manufacturers as part of the "minor vice-industrial complex" see John C. Burnham, Bad Habits: Drinking, Smoking, Taking Drugs, Gambling, Sexual Misbehavior and Swearing in American History (New York, 1993), p. 21. Data on the alcoholic beverage industry and its contribution to the economy can be found in Thomas M. Nugent, Standard and Poor's Industry Surveys: Alcoholic Beverages and Tobacco 23 January 1997, pp. 1, 12; and Scott Heil and Terrance W. Peck, eds., Encyclopedia of American Industries vol. 1 (Detroit, 1998), pp. 113-33.

(24.) Worldwide there were 8,000 thalidomide births as compared to 20,000 children damaged by rubella in the United States in 1964. Nevertheless, the thalidomide episode played a more powerful role in stimulating teratological research, prompted the Kefauver-Harris Drug Amendments of 1962, and induced the Food and Drug Administration to issue its Guidelines for Reproduction Studies for Safety Evaluation of Drugs for Human Use. Schardein, Chemically Induced Birth Defects, pp. 63, 29.

(25.) On the discovery and analysis of the effects of tobacco on fetuses prior to the discovery of FAS see Winea J. Simpson, "A Preliminary Report on Cigarette Smoking and the Incidence of Prematurity," American Journal of Obstetrics and Gynecology 73 (1957): 808-15; C. R. Lowe, "Effect of Mothers' Smoking Habits on Birth Weights of Their Children," British Medical Journal 2 (1959): 673-76; Brian MacMahon, Marc Alpert, and Eva J. Salber, "Infant Weight and Parental Smoking Habits," American Journal of Epidemiology 82 (1965): 247-51; and Mary B. Meyer and George W. Comstock, "Maternal Cigarette Smoking and Perinatal Morality," American Journal of Epidemiology 96 (1972): 1-10.

(26.) "Martinis and Motherhood," Newsweek 82 (16 July 1973): 93.

(27.) Kristin Luker, Abortion and the Politics of Motherhood (Berkeley, 1984), pp. 80-81, 85-91.

(28.) R. Sturdevant, "Offspring of Chronic Alcoholic Women" [letter] and Kenneth Lyons Jones and David W. Smith [reply] Lancet 2(1974): 349. Elsewhere the authors stated: "this frequency of adverse outcome in the offspring of alcoholic women is sufficiently high to merit serious consideration of early pregnancy termination for the chronically alcoholic woman." Kenneth Lyons Jones, et a1, "Incidence of Fetal Alcohol Syndrome in Offspring of Chronically Alcoholic Women," [abstract] Pediatric Research 8 (1974): 166. German medical authorities took this same position, while a group of French physicians proposed hospitalization and detoxification of pregnant alcoholic women. See J.R. Bierich, et al, "Uber das Embryofetale Alkohol-Syndrom," European Journal of Pediatrics 121 (1976): 155-177, cited in Ph. Dehaene, et al "Le Syndrome d'Alcoolisme Foeral dans le Nord de la France," Revue de l'Alcoolisme 23 (1977): 145-58.

(29.) "Liquor and Babies," Time 106 (14 July 1975): 36; and "Alcoholic Babies," U.S. News and World Report 80 (17 May 1976): 43.

(30.) Walters, ABC Evening News, 1 June 1977. Others discussed sterilizing alcoholic women of childbearing age who had given birth to FAS children and who could not give up drinking. Sophie Pierog, Oradee Chandavasu and Irving Wexler, "The Fetal Alcohol Syndrome: Some Maternal Characteristics," International Journal of Gynecology and Obstetrics 16 (1979): 412-15.

(31.) Sterling K. Clarren, "Recognition of Fetal Alcohol Syndrome," Journal of the American Medical Association 245 (1981): 2436-39.

(32.) Nancy Hughes Clark, "Birth Defects: How to Prevent Them," Harper's Bazaar 110 (July 1977): 86-87, 108-9. See also Geraldine Carro, "Mothering, Pregnancy No-No's, Substances that May Be Risky to Your Baby," Ladies Home Journal 94 (September 1977): 24; and "These Drugs Could Harm Your Unborn Baby," Good Househeeping 180 (March 1975): 79.

(33.) Ralph C. Benson, Handbook of Obstetrics and Gynecology 6th ed. (Los Altos, 1977), p. 117. In some cases physicians prescribed alcohol in large quantities to prevent premature labor. However, by the l980s the use of alcohol for tocolysis, as this is called, ended and other substances began to be employed.

(34.) Ralph C. Benson, Handbook of Obstetrics and Gynecology 8th ed. (Los Altos, 1983), p. 140.

(35.) See, for example, James H. Hanson, "Reproductive Wastage and Prenatal Ethanol Exposure: Human and Animal Studies," in Ian H. Porter, and Ernest B. Hook, eds., Human Embryonic and Fetal Death (New York, 1980), p. 222.

(36.) "Pregnant Drinkers," Newsweek 90 (1977): 72; Walters, ABC Evening News, June 1 1977; and Cronkite, CBS Evening News, 1 June 1977. The media sometimes confused 3 ounces of ethanol (six drinks) per day, with 3 drinks per day (1.5 ounces of ethanol), which may have added to public misunderstanding and possibly a heightened fear of the effects of moderate drinking.

(37.) For an analysis of the evidence about light drinking and the confusion of the categories of binge drinking and light drinking see Genevieve Knupfer, "Abstaining for Foetal Health: The Fiction that Even Light Drinking Is Dangerous," British Journal of Addiction 86 (1991): 1063-73.

(38.) Cited in "Alcohol and Fetuses," U.S. News and World Report 83 (1977): 50.

(39.) "FDA Presses for Alcohol Warning Label," Washington Post 23 November 1977, LNOS. In Brown-Forman Distillers Corp. v. Matthews, Western District of Kentucky, the judge ruled that Congress implicitly exempted alcohol labeling authority from the Food, Drug and Cosmetic Act and that the BATF therefore had authority over this matter. The FDA request to appeal this ruling was rejected by the White House Office of Management and Budget. See R. Jeffrey Smith, "Agency Drags Its Feet on Warning to Pregnant Women," Science 199 (1978): 748-49; and "Protests Foam Up Over Labeling Rules," Business Week 2410 (1975): 23-4.

(40.) For a summary of the legislative efforts see Howard M. Leichrer, Free to Be Foolish: Politics and Health Promotion in the United States and Great Britain (Princeton, 1991), pp. 174-77. Thurmond, he points our, had been introducing health warning label bills since 1969.

(41.) William Rice, "A Spirited Response to Warning Labels," Washington Post 26 March 1978, LNOS reports that during a 2-month comment period the BATF received 2,832 letters. Ultimately, over 3,000 comments were received, largely from those opposed to labels (2,772 of the total). Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, "Progress Report Concerning the Advance Notice of Proposed Rulemaking on Warning Labels on Containers of Alcoholic Beverages and Addendum," (Washington, D.C. 1979), pp. 3-4.

(42.) "BATF Decides Against Warning Label," Science 203 (1979): 858-59. The article notes that the BATF rejected "the advice of the FDA, the NIAAA, the Institute of Medicine," as well as some of its own advisors and several associations for the mentally retarded. Amitai Etzioni, one of the three consultants chosen by the BATF to examine the labeling question, explained his rejection of labeling in "Caution: Too Many Health Warnings Could Be Counterproductive," Psychology Today 12 (December 1978): 20-22.

(43.) "Motherly Advice: Don't Drink While Pregnant," Time 118 (3 August 1981): 81. The Surgeon General's warning provoked debate when Henry Rosett, Director of the Fetal Alcohol Education Program at Boston University Medical Center, suggested the danger from light drinking had not been demonstrated and should not be overstated, because "exaggeration could decrease credibility about the adverse effects of heavy drinking." Michael J. Conlon, "Researcher Warns Against Heavy Drinking By Pregnant Women," UPI, 9 September 1981, LNOS. In a letter to the editor of the New York Times, the Chairman of the National Council on Alcoholism took issue with Rosett, stating "We cannot say whether there is a safe amount of drinking or whether there is a safe time during pregnancy ... Because of the possibility of risk, and in order to be totally safe, a woman should not drink at all during her pregnancy." John R. Doyle, "Pregnancy, Alcohol and the Safe Way--Letter to the Editor," New York Times 29 September 1981, LNOS.

(44.) United States 97th Congress, Senate Committee on Labor and Human Resources, Subcommittee on Alcoholism and Drug Abuse. Hearing. 21 September 1982. Following the hearings Humphrey wrote an editorial recounting the testimony of experts and warning women not to drink while pregnant. Gordon J. Humphrey, "Preventing Alcohol-Related Birth Defects," UPI, 12 December 1982, LNOS.

(45.) In New York State the estimated cost of caring for infants born with alcohol-related birth defects in 1978 amounted to $155 million in lifetime care. Sheila B. Blume, "Drinking and Pregnancy: Preventing Fetal Alcohol Syndrome," New York State Journal of Medicine 81 (1981): 92. Elsewhere Blume translates the costs in terms of prevention, noting that preventing a single FAS birth "can save society over $150,000." Sheila B. Blume, What Can You Do to Prevent FAS: A Professional's Guide (Minneapolis, 1992), p. 2. During 1986 hearings before the House Select Committee on Children, Youth and Families, an estimate of $3.236 billion was given for the total costs of FAS to society, including the provision of special services and the loss of productivity. United States 99th Congress, House Select Committee on Children, Youth and Families. Hearings, 21 May 1986.

(46.) See, for example, Kettil Bruun, et al, Alcohol Control Policies in Public Health Perspective (Helsinki, 1975); and Harold D. Holder and Michael D. Stoil, "Beyond Prohibition: The Public Health Approach to Prevention," Alcohol Health and Research World 12 (1988): 292-97.

(47.) "Wednesday in the Georgia General Assembly," UPI Regional News, 4 March 1981, LNOS; and Nancy Griffin, "Governor Vetoes Alcohol Warning Signs," UPI Regional News, 20 April 1984, LNOS.

(48.) Michael Goodwin, "Council Bill Warns on Drinking During Pregnancy, " New York Times, 16 November 1983, LNOS. Other cities followed. Los Angeles passed a law requiring retailers to post warning signs in 1986. Ted Vollmer, "County OKs Posting of Warnings on Alcohol," Los Angeles Times, 1 October 1986, LNOS.

(49.) One widely distributed manual was Association for Retarded Citizens, Preventing Fetal Alcohol Syndrome and Other Alcohol Related Birth Defects; Teacher's Manual, High School Edition (Arlington, TX, 1987).

(50.) Peter Jennings, ABC Evening News, 11 October 1984, VTNA.

(51.) See, for example, Paula Adams Hillard, "Alcohol and Pregnancy," Parents 59 (Match 1984): 122, 124; Judith S. Stern, "Alcohol: Mixed Blessing," Vogue 175 (June 1985): 137, 139; and Betty Watts Carrington and Freda Bush, "Mother-to-be, Baby-to-be," Essence 10(1984):.

(52.) Ronald Gots, et al, "Having a Baby-1978," Goad Housekeeping 186 (1978): 71.

(53.) "Drugs and Pregnancy," Good Housekeeping 188 (April 1979): 75. The term "minimal brain dysfunction" was later replaced by "attention deficit disorder."

(54.) "A Disabled Baby, A Mother With Guilt," New York Times 31 July 1983, LNOS; and Jerry Cheslow, "Remorse Over a 'Drinking Binge,'" New York Times 19 June 1988, LNOS.

(55.) Public interest and lobbying by health professionals and public support for the measure may have helped to secure passage of the legislation. A Gallup poll indicated that 8 in 10 surveyed favored the legislation and that 75 percent of those questioned favored equal time for health and safety warnings on broadcast advertisements for alcoholic beverages--an issue Congress would later begin to study. Joyce Barrett, [untitled] States News Service, 21 April 1988, LNOS. Passage of the law, some suggest, occurred with the tacit support of the alcoholic beverages industry, which potentially stood to be exempted from state tort liability claims because of a court ruling that federally mandated cigarette labeling preempted state court actions. In the Cippolone case, a federal court determined that the requirement of a warning label under federal law preempted state court claims by individuals against cigarette manufacturers. As a result, alcoholic beverage manufacturers might have been advised that they could ben efit similarly from a federally imposed duty to warn. Until internal documents from the beverage manufacturers are made available, it will be impossible to determine if manufacturers indeed chose this approach and ceased opposing the labeling act. On the Cippolone ruling and its influence on the Alcoholic Beverages Labeling Act see Eileen N. Wagner, "The Alcoholic Beverages Labeling Act of 1988, A Preemptive Shield Against Fetal Alcohol Syndrome Claims?" Journal of Legal Medicine 12 (June 1991): 167-200; Carter H. Dukes, "Comment: Alcohol Manufacturers and the Duty to Warn: An Analysis of Recent Case Law in Light of the Alcoholic Beverage Labeling Act of 1988," Emory Law Journal 38 (1989): 1189-1221; Rhondetta Goble, "Fetal Alcohol Syndrome: Liability for Failure to Warn-Should Liquor Manufacturers Pick Up the Tab," Journal of Family Law 28 (1989-90): 71-85; and Clarke E. Khoury, "Warning Labels May Be Hazardous To Your Health: Common-Law and Statutory Responses to Alcoholic Beverage Manufacturers' Duty to Wa rn," Cornell Law Review 75 (1989-90): 158-191. Subsequent legislative efforts regarding FAS are summarized in Kathleen Stratten, Cynthia Howe and Frederick Battaglia, eds., Fetal Alcohol Syndrome: Diagnosis, Epidemiology, Prevention and Treatment (Washington, D.C., 1996), pp. 24-25, Table 1-2 "Congressional Bills Related to Fetal Alcohol Syndrome (FAS) or Women and Alcohol." Additional reasons for passage were industry fears about having to respond to different state labeling requirements--which was a possibility after California passed labeling legislation--and the fact that drug abuse had a high political profile during the 1988 election. The federally-mandated warning label ultimately reflected the interests of the industry insofar as it excluded specific warnings mentioning such things as cancer and liver disease, and because it overrode state-mandated warnings. Leichrer, Free to Be Foolish,

(56.) "Birth Certificates as a Source for Fetal Alcohol Syndrome Case Ascertainment--Georgia, 1989-1992," Mortality and Morbidity Weekly Report 44 (1995): 251-53.

(57.) "Update: Trends in Fetal Alcohol Syndrome--United States, 1979-1993" Mortality and Morbidity Weekly Report 44 (1995): 249-51; "More Pregnant Women Abstain From Liquor," New York Times 16 January 1984, LNOS; B. Bower, "Alcohol Abuse Grows Among Pregnant Poor," Science News 136 (7 October 1989): 230; and Mary Serdula, et al, "Trends in Alcohol Consumption by Pregnant Women, 1985 through 1988," Journal of the American Medical Association 265 (1991): 876-879. Contradictory evidence suggesting that alcohol use in pregnancy was higher among employed women with 16 or more years of education was reported at a later date. U.S. Dept of Health and Human Services, National Institute on Drug Abuse, Notional Pregnancy and Health Survey: Drug Use Among Women Delivering Livebirths, 1992 (Rockville, MD, 1996), p. 10

(58.) "U.S. Senate Unanimously Approves Alcohol Warning Labels," P.R. Newswire, 17 October 1988, LNOS.

(59.) Section 4022A Restatement (Second) of Torts contains the "good whiskey" statement. Courts ruled that a jury could hear Hon v. Stroh brought by the widow of a 26-year old man who died of pancreatitis induced by heavy beer consumption because the public did not understand that alcohol consumption could result in pancreatic disease. A second case, Brune v. Brown Forman Corp., regarding the death of an 18 year old woman from acute alcohol poisoning after consuming a bottle of tequila, was also permitted to proceed to trial. In 1992 the plaintiffs were awarded $1.5 million. Texas County 214th Jud. Dist. Ct., No 85-5537-F (9-92) These cases are discussed in Wagner, "Alcoholic Beverages Labeling Act."

(60.) The other cases were Howard v. Potter Distilleries, Inc.; Anheuser-Busch Inc.; Stroh Brewery Co.; California Cooler Co.; and Penn v. Heublein Inc.; Heileman Brewing Co. See also: "Product Liability: Who Injured This Child?" Time 123 (6 May 1989): 71; and "Distillers and Breweries Face Law Suits on Birth Defects," New York Times 6 December 1987, LNOS; and Andrew Blum, "Alcohol Marketing Under Attack: Must Drinkers Be Warned of Risks?" National Law Journal (6 September 1988): 3.

(61.) Jones is quoted in Jim Schachrer, "Criminal Penalty for Mothers Wrong, Experts Say," Los Angeles Times, 22 October 1986, LNOS. A representative of the wine industry responded to this and to the call for a bottle labeling bill and for moving jurisdiction from the BATF to the FDA with the apt comment: "What we have here is the politicization of the fetal alcohol syndrome issue." Jones' testimony in the Throp trial is discussed in Stephanie Nichols, "Doctor Blames Alcohol for Boy's Birth Defects," UPI Regional News, 25 April 1989, LNOS.

(62.) Harold Thorp, the boy's father, proved equally unsympathetic to jurors. A sixty-five year old alcoholic, he had met his future wife in a bar just a month before their marriage. See Andrew Wolfson, "Birth-Defect Suits May Spell Trouble for Liquor Industry," Courier Journal 24 April 1989, LNOS; Nichols, "Doctor Blames Alcohol;" and Joni H. Blackman, "A First-Of-Its-Kind Case Looks at Who Should Pay Price for Mother's Drinking," Los Angeles Times 4 May 1989, LNOS.

(63.) Stephanie Nichols, "Mother Says She Would Have Quit Drinking for Baby's Sake," April 28, 1989 UPI Regional News, LNOS; and Blackman, "A First-Of-Its-Kind Case."

(64.) Timothy Egan, "A Worried Liquor Industry Readies for Birth-Defect Suit," New York Times 21 April 1989, LNOS. A social psychologist also testified that alcoholics would not be deterred by warning labels. Stephanie Nichols, "Expert Testifies that Heavy Drinkers Would Ignore Warning Labels," 8 May 1989, UPI Regional News, LNOS.

(65.) Terry Finn, "Jury finds Distiller Not Negligent for Birth Defects," 17 May 1989, UPI Regional News, LNOS.

(66.) Clarence D. Coleman and Janice S. Vaughn, "Medical and Social Constraints to Preventing the Fetal Alcohol Syndrome," Urban Health 10 (1981): 36.

(67.) Finn, "Jury finds Distiller Not Negligent."

(68.) Blackman, "A First-of-a-Kind Case;" and Nichols, "Doctor Blames Alcohol."

(69.) On an episode of the television show 20/20 Dorris read excerpts from some of the over 1000 letters he had received from others who had children with FAS. The segment also featured an interview with a woman who figured Out her child's condition after reading The Broken Cord. Hugh Downs and Barbara Walters, 20/20 ABC News, [Transcript] 27 November 1992, LNOS.

(70.) Charles Trueheart, "Marriage for Better or Words: The Dorris-and-Erdrich Team, Creating Fiction Without Friction," Washington Post, 19 October 1988, LNOS. Similar sentiments were expressed in the television broadcast "Bill Moyers' World of Ideas: The Broken Cord with Louise Erdrich and Michael Dorris," [video] (Public Broadcasting System, 1977).

(71.) Trueheart, "Marriage for Better or Words," and Deirdre Donahue, "Alcohol and the Unborn: An Adoptive Dad Pours Out the Anguish: Even Love Can't Undo Early Damage," USA Today, 8 August 1989, LNOS.

(72.) Mervyn Rothstein, "Louise Erdrich, Partner in a Conspiracy to Write," New York Times, 13 October 1986, LNOS.

(73.) "Leading Major Congenital Malformations Among Minority Groups in the United States, 1981-1986," Journal of the American Medical Association 261 (1989): 205-9. FAS was not among the top 15 causes of congenital defects for Hispanics or Asians and no rate was given for these categories. For additional findings on the high rates of FAS in Native American communities, see C. Duimstra, et al "A Fetal Alcohol Syndrome Surveillance Pilot Project in American Indian Communities in the Northern Plains," Public Health Reports 108 (1993): 225-29. The highest reported rate of FAS was in northern France. See Dehaene, "Le Syndrome d'Alcoolisme," p. 156.

(74.) Nancy Butterfield, "Native Perspectives," Gannett News Service, 7 December 1979, LNOS, makes this point, noting the NBC series on the Pine Ridge reservation, the Albuquerque Journal's series "Drunk City, USA," and the Philadelphia Inquirer series, "Defeat at Standing Rock."

(75.) Drew Humphries, Crack Mothers: Pregnancy, Drugs and the Media (Columbus, 1999). Television coverage of maternal cocaine and/or crack use peaked in the years from 1988 to 1991. Drew Humphries, "Crack Mothers at Six: Prime-time News, Crack/Cocaine, and Women," Violence Against Women 4 (1998): 54-61.

(76.) "An American Tragedy," Boston Globe 22 July 1989, LNOS

(77.) A critical rejection of the disease model came in 1988 when the Supreme Court held in Traynor v Turnage and McKelvey v Turnage that the Veterans Administration (VA) could deny educational benefits to two men who failed to use them during the ten years allotted to them for this purpose. The men claimed their alcoholism prevented them from using the benefits and wanted their access to them restored; the VA defined their alcoholism as "willful misconduct." Robert Cooke, "A Disease or Not?: Since the High Court's New Ruling, Shrill Debate Has Erupted Over Alcoholism: Are Drinkers Bad or Sick, Culprits or Victims?" Newsday, 3 May 1988, LNOS. Subsequent rejections of the disease model included the 1990 Americans with Disabilities Act (ADA), which offered limited rights to recovering alcoholics, but amended the 1979 amendment of the Rehabilitation Act of 1973 to deny protections to those who did not overcome their addiction. See "Groups Waging Last-Ditch Battle for Rights of Addicts and Alcoholics," Alcoholism and Drug Abuse Week 1 (October 1989): 1, LNOS; and "Bush Expected to Sign Bill Preserving Recovering Persons' Rights: Americans with Disabilities Act," Alcoholism and Drug Abuse Week 2 (July 1990): 27, LNOS.

(78.) For the legal construction see Burton IV, Charles Robert, "Fetal Drug or Alcohol Addiction Syndrome: A Case of Prenatal Child Abuse?" Willamette Law Review 25 (1989): 223-242. On the link between fetal abuse and fetal alcohol syndrome see Jean Reith Schroedel and Paul Peretz, "A Gender Analysis of Policy Formation: The Case of Fetal Abuse," Jornal of Health Politics, Policy and Law 19 (1994): 335-360; and Helen Keane, "The Toxic Womb: Fetal Alcohol Syndrome, Alcoholism, and the Female Body," Australian Feminist Studies 11(1996): 263-275.

(79.) Michael Dorris, The Broken Cord (New York, 1989), p. 165.

(80.) Dorris, The Broken Cord, p. xvii.

(81.) Christine Robb, "Mending the Broken Cord: Michael Dorris Talks of His Afflicted Son's Struggles," Boston Globe, 10 August 1989, LNOS.

(82.) Michael Darris, "Fetal Alcohol Syndrome; The Sobering Facts About the Nations Number One Preventable Birth Defect," Parents 65 (November 1990): 240.

(83.) Michael Dorris, "A Desperate Crack Legacy," Newsweek 115 (25 June 1990): 8

(84.) Humphries, Crack Mothers.

(85.) Marney Rich, "A Question of Rights Birth and Death Decisions Put Women in the Middle of Legal Conflict," Chicago Tribune, 18 September 1988, LNOS.

(86.) Mary Ann Theiss, "Legal Issues and the Rights of Infants and Children," in Keeta DeStefano Lewis, ed., Infants and Children with Prenatal Alcohol and Drug Exposure: A Guide to Identification and Intervention (North Branch, MN, 1995) p. 335.

(87.) Dawn E. Johnsen, "The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection," Yale Law Journal 95 (1986): 599-625; Judith Kahn, "Of Woman's First Disobedience: Forsaking a Duty of Care to Her Fetus--Is this a Crime?" Brooklyn Law Review 53 (1987): 807-43; Molly McNulty, "Pregnancy Police: The Health Policy and Legal Implications of Punishing Pregnant Women for Harm to their Fetuses," New York University Review of Law and Social Change 16 (1988): 277-319; Kathleen Nolan, "Protecting Fetuses from Prenatal Hazards: Whose Crimes? What Punishment," Criminal Justice Ethics 9 (1990): 13-23; Paul A. Logli, "Drugs in the Womb: The Newest Battlefield in the War on Drugs," Criminal Justice Ethics 9 (1990): 23- 9; Wendy K. Mariner, Leonard H. Glantz, George J. Annas, "Pregnancy, Drugs, and the Perils of Persecution," Criminal Justice Ethics 9 (1990): 30-41; Lynn M. Paltrow, "When Becoming Pregnant is a Crime," Criminal Justice Ethics 9 (1990): 41-7; Phillip E. Johnson, "The ACLU Philosophy and the Right to Abuse the Unborn," Criminal Justice Ethics 9 (1990): 48-51.

(88.) See, for example, Patricia A. King, "The Judicial Status of the Fetus: A Proposal for Legal Protection of the Unborn," Michigan Law Review 77 (1979): 1647-87; Gerard M. Bambrick, "Developing Maternal Liability Standards for Prenatal Injury," St. John's Law Review 61 (1986-87): 592-614. Bambrick argued that while women who ingested excessive amounts of alcohol could be held criminally liable, it was less certain whether occasional drinking would give rise to criminal liability.

(89.) Joan Beck, "Womb Not a Haven for the Babies of Women Who Drink," Chicago Tribune, 8 February 1990, LNOS; and "Woman Once Charged With Abuse of Fetus Gives Birth," UPI, 18 June 1990, LNOS.

(90.) Connie Chung, CBS Evening News, 4 August 1992, VTNA.

(91.) For a debate on the case, see Nancy Grace and Timothy Lynch, "At Issue: Individual Rights, Is the Prosecution of 'Fetal Endangerment' Illegitimate?" American Bar Association Journal 82 (December 1996): 72-73. For other cases, see Joan Little, "Woman Jailed After Baby is Born Intoxicated ... Charges May Be First in Missouri, Officials Say," St. Louis Post-Dispatch, 26 November 1991, LNOS; and Mark Hayward, "Bail Requirements Hit in Unborn Child Case. Facts on Mothers Who Drink During Pregnancy," Union Leader (Manchester, NH), 15 August 1996, LNOS.

(92.) On the question of civil commitment of alcoholic women, see James M. Wilton, "Compelled Hospitalization and Treatment During Pregnancy: Mental Health Statutes as Models for Legislation to Protect Children from Prenatal Drug and Alcohol Exposure," Family Law Quarterly 25 (Summer, 1991): 149-70; and Jan L. Holmgren, "Legal Accountability and Fetal Alcohol Syndrome: When Fixing the Blame Doesn't Fix the Problem," South Dakota Law Review 36 (1991): 81-103. For cases in which alcoholic parents had their parental rights terminated, see Janet L. Dolgin, "The Law's Response to Parental Alcohol and 'Crack' Abuse," Brooklyn Law Review 56 (1991): 1213-68; and Rosemary Shaw Sackett, "Terminating Parental Rights of the Handicapped," Family Law Quarterly 25 (1991): 253-98.

(93.) American Medical Association, Board of Trustees "Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women," Journal of the American Medical Association 264 (November 1990): 2663-2670.

(94.) Joan M. Bengtson, et al, "Managing the Uncomplicated Pregnancy; Includes Related Information on Chorionic Villus Sampling and Bendectin," Patient Care 21 (December 15, 1987): 56. For a further analysis of medical liability, see Sandra Bolton, "Maternal Drug Abuse as Child Abuse," Western State University Law Review 15 (1987-88): 281-295.

(95.) Charles Krauthammer, "Children of Cocaine," Washington Post, 20 July 1989, LNOS. For a recent discussion see Abigail Trafford, "Should Women Who Use Drugs While Pregnant Be Locked Up?" Washington Post, 18 August 1998, LNOS.

(96.) Dianne Klein, "Adoption Gone Awry: Psychotic Child Disrupts a Household," Washington Post, 5 January 1988, LNOS; Dianne Klein "Beautiful Little Monica, 8 Years Old, Has a Past She Cannot Escape," Los Angeles Times, 29 May 1988, LNOS; and Marci J. Blank, "Note: Adoption Nightmares Prompt Judicial Recognition of the Tort of Wrongful Adoption: Will New York Follow Suit?" Cardozo Law Review 15 (1994): 1687-1743.

(97.) Bruce Westfall, "Adoptive Parents Sue State," Columbian, 27 December 1994, LNOS.

(98.) The term "devil-made-me-do-it defense" was used by Michael Baker, a San Diego police detective and father of one of the victims of Robert Alton Harris. See "Harris Suffered Abuse from Father; Abandoned," Houston Chronicle, 21 April 1992, LNOS.

(99.) The attorney is quoted in Tony Saavedra, "Killer Harris's Strategy May Catch On; If Fetal-Alcohol Defense Brings Clemency, It May Open the Floodgates," Orange County Register, 14 April 1992, LNOS.

(100.) "Virginia Executes Man for Murder," New York Times, 21 July 1990, LNOS; and Tim Cox, "Boggs put to Death," UPI, 20 July 1990, LNOS.

(101.) Downs and Walters, 20/20, 27 November, 1992.

(102.) Robert Elder, Jr. "Disturbing the Peace; When It Comes to Criminal Justice, Texas Is Like a Whole Other Country," Texas Lawyer, 12 May 1997, LNOS. Most of those claiming diminished capacity due to FAS were not making a simultaneous claim to diminished capacity due to mental retardation.

(103.) The other issues raised in appeal were in regard to legal concerns, including whether pretrial publicity had made for a hostile and prejudicial jury, whether the death penalty process in California was fair, whether there was racial and gender bias in death penalty cases, and whether gas chamber executions were constitutional. For a summary of the case as presented by his attorney, see Charles M. Sevilla, "Commentary: Why the Robert Harris Case Has Taken So Long; Process: The Case Owes Its Long Journey to Several Factors: The Clogged Court System, The Complexity of the Case and the Life-or-Death Nature of the Outcome," Los Angeles Times, 12 April 1992, LNOS. On Harris and FAS see: Alexander Morgan Capron, "Fetal Alcohol and Felony," Hastings Center Report 22 (1992): 28-29. According to Capron, data from the Federal Bureau of Prisons contained information suggesting that Harris was not capable of premeditated killing, a necessary condition for charge on which he was tried.

(104.) See, for example, Robert Reinhold, "The Curse of the Statehouse," New York Times, 3 May 1992, LNOS.

(105.) Dan Morain, "Video Plea Made to Save Harris; Crime: In Tape Sent Out by ACLU, Experts Say the Killer Was Abused As a Child and Has Brain Damage. They Ask Wilson for Clemency," Los Angeles Times, 21 March 1992, LNOS.
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