Julie J. Zitella, Protecting
Our Children, A Call to Reform State Policies To Hold Pregnant
Drug Addicts Accountable, 29 J. Marshall L. Rev. 765 (Spring
This article provides an overview of the problem of cocaine
abuse and its effects on a fetus. In addition, this article
overviews criminal liability on drug addicted mothers as well as
prevention as a solution. The author believes that
criminalization is not an effective deterrent because
drug-addicted mother is not a reality-based individual. She is
controlled by her addiction and is unable to do what she knows is
best for herself and her child. Ideally, the most important and
effective method of dealing with cocaine use by pregnant women is
Prevention through programs which are not designed as a
punitive measure nor as a method to put women in jail. The author
proposes that state legislatures adopt a version of a crack
prevention program . The mission of the state program should be
to provide a safe hole for the children with their biological
family by requiring aggressive treatment and rehabilitation.
Services such as drug treatment, health care and family support
assistance would be mandatory. These types of programs seeks to
protect the best interests of the child and is not designed to
scare mothers away from seeking prenatal care, it simply
encourages a mother to take responsibility for the child. I agree
with the author that states must do more than seek to punish a
mother who abuses alcohol or drugs. When a mother is
incarcerated, more than her freedom is affected. Numerous
considerations must be factored into a judicial decision to
incarcerate a pregnant woman.
Carol Gosain, Protective
Custody for Fetuses: A Solution To The Problem of Maternal Drug
Use? Casenote on Wisconsin Ex Rel. Angela v. Kruzicki, 5 Geo.
Mason L. Rev. 799 (Summer 1997).
This article describes the problems of maternal cocaine use.
In addition, the article addresses Wisconsin ex rel. Angela v.
Kruzicki and the issue of protective custody of fetuses. In
the referenced case, the juvenile court issued a protective
custody order. The order directed the fetus be placed in the
protective custody of the County Sheriff's Department and taken
to the local hospital for inpatient treatment and protection. The
mother argued that the term "child" in the Wisconsin
child abuse and neglect statutes did not include a viable fetus.
The court concluded that reasonable minds could differ as to the
meaning of the word child, and that the Wisconsin Supreme Court
had already defined the word person to include a fetus under a
wrongful death statute. As to personal jurisdiction, the court
further reasoned that the order worked its custodial effect on
Angela not because the juvenile court has asserted control over
her, but because Angela and her fetus are physically and
The author concludes that because commitment of maternal drug
abusers promotes both maternal and fetal health, Courts should
find this a suitable alternative. Civil commitment statutes are
superior because child abuse statutes frequently contain vague
standards that permit the state a great deal of discretion. Such
statutes violate due process rights. States should rely instead
on existing commitment statutes, or commitment statutes directed
at pregnant women, so that the conduct that will result in
confinement is limited and known. Such civil commitment statutes
achieve the same results without violating the woman's
constitutional rights. I agree with the author in her conclusions
that civil commitment statutes are superior to incarceration
through criminal child abuse statutes. The Constitution and its
protections remain intact when dealing with civil commitment.
Child protective statutes were not written with the intent of
restricting women's physical liberty and states that utilize them
to incarcerate a pregnant woman stretch the bounds of the
Peggy Hora and Barrie Becker, Judicial
Considerations When Sentencing Pregnant Substance Abusers, 35
NO. 2 Judges' J. 3 (Spring 1996).
This article explores the effects of judicial sentencing of
pregnant substance abusers. Judges react to this type of criminal
defendant in various ways. Some have attempted to protect fetal
health be incarcerating women defendants who would not otherwise
serve time behind bars. Others have gone out of their ways to
find appropriate community-based drug treatment programs into
which these women can be diverted or sentenced in lieu of going
to jail. Still others have chosen to disregard women defendant's
pregnant and drug-dependant status and treat them no more harshly
or leniently than other defendants.
Some judges translate concerns for the health and well-being
of the fetus into particularly harsh sentences. A lack of
appropriate treatment alternatives may contribute to such
decisions. The authors recommend that before judges make
decisions that affect pregnant women, it is crucial for them to
understand two important issues. First, what medical experts know
about the effects of various drugs on fetal health and child
development. Second, how much is not known about the effects of
various drugs when used during pregnancy. It is important that
judges consider that the pregnant woman may not receive adequate
medical care behind bars. Custodial medical care and services are
often inadequate and drugs are still readily available inside
jails and prisons. Judges can consider the physical health of a
convicted person in many states and in the federal sentencing
guidelines. Therefore, maternal and fetal health should be
evaluated in every case. The authors advocate treatment programs
as an alternative to prison programs. However, in the absence of
accessible, appropriate and effective treatment options, a
punitive approach toward pregnant women is all that is left.
Therefore, more treatment options and facilities must be made
accessible to pregnant women in every community.
I agree with the authors of this article. Judges tend to be
more harsh on pregnant women out of concern for the fetus.
However, we can not treat pregnancy as a crime. Drug use is a
disease---a disease that can be treated if appropriate options
and facilities exist. A sentencing judge must be aware of each
pregnant woman's individual needs and must make sentencing
decisions only after being fully informed of the woman's health
Stacey L. Best, Fetal Equality?
The Equality State's Response To The Challenge Of Protecting
Unborn Children, 32 Land & Water L. Rev. 193 ( 1997).
The article focuses on the effects of illegal drug and alcohol
use on unborn children and the approaches society in general, and
the legal community in particular, have taken and those
approaches they could take to deal with this problem. In general,
society's response toward mothers who use alcohol and drugs while
they are pregnant has been punitive. The author argues that there
are however two fundamental problems with this punitive approach.
First, there are studies which indicate that research has not
clearly show that exposure to the drug cocaine to a fetus causes
lasting damage. Second, a significant number of women are unaware
that they are pregnant for the first 60 days when agents can
cause miscarriage and major and minor birth defects.
The author addresses the Fourteenth Amendment Right to Privacy
in the following manner. She argues that once a decision not to
abort has been made, the state does have an interest in
protecting the health of the fetus. Moreover, there is no
fundamental right to use drugs or alcohol. In addition, the
author stresses that incarceration is the least effective
alternative because women receive little or no prenatal care in
prison or jail. The threat of criminal prosecutions can also
serve to deter women from seeking any prenatal care. Criminal
prosection pits the woman's self protective instinct against her
The author argues that government intervention is far more
intrusive than promoting and financing increased awareness of the
effects of drug and alcohol use and increasing treatment
programs. It is up to society as a whole, and not the legal
system to develop a solution. I agree with the author in that
public policy supports the integrity of the family, and working
within existing systems, such as education and health care, to
remedy the problem. I however, disagree with the author's
argument that the first fundamental problem with the punitive
approach indicates that research has not clearly shown that
exposure to cocaine causes lasting damage. Numerous studies would
refute her conclusion. In addition, to focus on such a
speculative "problem" with the punitive approach
belittles the problem.
Vernellia R. Randall, Taking a
Community Approach To Preventing The Creating of a Biological
Underclass, Families and Communities in Partnership, Chapter
4, p. 43.
The author focuses on the creation of a biological underclass
caused by Fetal Alcohol Syndrome (FAS) and the need for
prevention. As a result of FAS 3 out of every thousand babies are
born mentally, emotionally and behaviorally retarded. However,
the tragedy goes beyond the individual. FAS imposes significant
economic costs on the community as a whole. FAS stricken
individuals form a self-generating, renewable, biological
underclass. Such an underclass impacts the entire community. In
addition, FAS is completely preventable.
FAS creates a biological underclass. Such individuals, because
of biology, do not have the same access to mobility or equal
health care access. In addition, it is the behavioral and
judgment problems that make FAS affected persons likely to have
children likewise affected with FAS. Therefore, a cycle of
dysfunction is created. Therefore, society as a whole must
interrupt the cycle. This interruption must focus on prevention
and not on fetal rights or maternal rights models. These model
approaches ignore the cumulative effect that individual decisions
have on the ability of a community to survive. Such approaches
are too "me-oriented." A community health approach is
the only approach that is nonadversarial. Its goal is optimal
health for all its individual members. The best way to prevent
FAS is for the woman to never abuse alcohol. Such prevention
efforts are primary interventions. Such primary preventions
include education. Secondary prevention is also appropriate, such
as pre-natal care, and tertiary prevention would include a
mechanism to force people who are unwilling to obtain care to get
the health care they need. An appropriate community health
approach allows all three prevention levels as necessary, and
recognizes that all three must be in place to be effective.
I agree with the author that it is up to the community as a
whole to stop the cycle of dysfunction. Too much emphasis is
placed today on the individual without looking to the broad
effect on the community and society as a whole. Everyone is
involved and everyone is effected. Therefore, it is up to the
community to develop a plan of prevention and to implement a
three-tiered prevention model for a health community.
Stephanie Hainer Ojeda, Whitner
v. State: Expanding Child Abuse and Endangerment Laws to Protect
Viable Fetuses From Prenatal Substance Abuse, 99 W. Va. L.
Rev. 311 (Winter 1996).
The author in this article overviews Whitner v. State.
Most courts have refused to allow the prosecution of a mother for
prenatal drug use. However, on July 15, 1996, the Supreme Court
of South Carolina became the first high court in the nation to
determine that a woman can be criminally liable for conduct
during pregnancy that endangers the life of her fetus. In Whitner,
the Court held that the word "child" as used in the
abuse and endangerment statute would include viable fetuses.
Whitner, the Mother-Defendant, argued that the application of the
child endangerment statute to her situation would violate her
constitutionally-protected rights of privacy and due process.
Ultimately, the Court concluded that the child abuse and
endangerment statute encompasses viable fetuses and the Whitner
had in fact endangered her child's life by ingesting
crack-cocaine in her third trimester of pregnancy. Accordingly,
substance addicted pregnant women in South Carolina may now be
prosecuted for child endangerment if her fetus has reached
viability. The author notes that the landmark decision, however,
is unlikely to change a pregnant woman's self abuse. Despite Whitner,
imposing criminal sanctions on the mothers of these children is
not the answer. The only effective way to reach a woman's
behavior during pregnancy is through education, drug treatment,
and prenatal care, not through criminal prosecution.
I agree with the author's critical analysis in that criminal
sanctions alone are not the answer to change a pregnant drug
addicts' behavior. However, I do feel that there will be
instances where a criminal or civil action may need to be taken
against a mother who will not stop abusing drugs. Sometimes
voluntary plans for treatment just don't work!
Cynthia L. Glaze, Combating
Prenatal Substance Abuse: The State's Current Approach and The
Novel Approach of Court-Ordered Protective Custody of the Fetus,
80 Marq. L. Rev.793 (Spring 1997).
The author of this article discusses the issue of
court-ordered protective custody of a fetus. In September, 1995,
the state of Wisconsin took a novel approach toward protecting
potential life from subsequent medical problems. The approach was
the assertion of civil child neglect and the request for
court-ordered protective custody of a viable fetus whose mother
has tested positive for controlled substances during pregnancy.
Therefore, the state was able to both punish the mother and
protect the health of the unborn fetus through protective custody
in a local hospital.
When reviewing criminal convictions, the courts consistently
have held that a fetus in not considered a child or person under
the applicable criminal statutes. The courts seldom consider the
state's compelling interest in protecting the fetus. However, as
the author observes, states that do consider the problem deserve
credit because the state is clearly acknowledging the problem is
seeking a way to hold these women accountable for their actions.
The author further notes that perhaps, by not affirming criminal
convictions, the courts are sending a message to the legislature
to specifically define the word "person" or
"child" in their respective statutes.
Although court-ordered protective custody may appear extreme
and unnecessary to some, the state has previously been granted
the power to confine an individual for the benefit of a third
person. Therefore, the author notes, it seems logical to allow
the state to protect an unborn viable fetus from the dangerous
controlled substances his or her mother may be ingesting. I agree
with the author in her contentions that it is essential for state
legislatures to create statutes which specifically incorporate a
viable fetus into the existing child protective custody statutes.
This is the logical first step to help drug addicted pregnant
Amanda E. Vedrich, Prosecuting Pregnant
Women: Should Washington Take The Next Step?, 21 Seattle U.
L. Rev. 133 (Summer 1997).
This article review the law as it stand in Washington in
dealing with pregnant substance abusers. As it currently stands,
no woman has been convicted in Washington for harm inflicted upon
her own fetus. Both statutory and case law allow for criminal
prosecution and civil actions against third parties who cause the
death of a viable fetus, by in all contexts exclude the mother
from liability or prosecution. The author argues that the problem
is that no current Washington statute defines the State's
interest in potential human life. Therefore, the Legislature must
create a statute which would allow the State to charge pregnant
women under the criminal law for intentionally harming a viable
fetus. The author also argues that the current methods used to
deter women from abusing drugs and alcohol during pregnancy, for
example voluntary treatment programs and education, have been
ineffective. In order for the education process to be effective,
it must be improved. The addition of the criminal statute would
be an attempt to make women more painfully aware of the
consequences of their drinking and drug use during
The author stresses that the most important goal is the need
to protect society, including the mother and the child.
Therefore, since education and encouragement of treatment are
ineffective, Washington State needs to amend its laws to begin
prosecuting these women. I agree with the author's
contentions that voluntary treatment and education is currently
ineffective. However, I do not abandon the idea that there is
still merit to them. I feel that prosecution works hand-in-hand
with education and treatment, and not as a replacement. We need
Regina M. Coady, Extending
Child Abuse Protection To The Viable Fetus: Whitner v. State of
South Carolina, 71 St. John's L. Rev. 667 (Summer 1997).
The author of this article argues that child abuse prosecution
must be extended to all viable "persons" whether their
physical locations are inside or outside of the womb. She
stresses that children are the most vulnerable members of society
and are guaranteed protection from child abuse inflicted upon
them by adults. Recently, in Whitner v. State of South
Carolina, the South Carolina Supreme Court held that a viable
fetus was a "person" within the meaning of the
Children's Code and could be the victim of criminal child neglect
just as any child could after birth. The article points out that Whitner
establishes a significant turning point in the direction of
greater fetal rights and serves as a model to which courts may
look in justifying future convictions.
The author argues that state intervention after viability
would prevent substantial harm to the fetus and long term effects
upon the child. Child abuse must not be distinguished based upon
when or where it takes place; it is the nature and effects of the
abuse that must be examined when assessing criminal liability.
The viability line maintains the separateness of the two areas of
law. Therefore, voluntary drug use that injures a viable fetus
must, therefore, also be punished criminally and society cannot
rely upon current drug laws alone. I agree that viability is the
line in the sand. Unfortunately, I think that Roe v. Wade
would disallow intervention before viability. Therefore, once
viability is established, protection of the fetus is essential to
the welfare of the child and of society as a whole. It is up to
legislature to clearly define "person" and
"child" in order to aid in the process.
Dorothy E. Roberts, Punishing
Drug Addicts Who Have Babies: Women of Color, Equality and The
Right of Privacy, 104 Harv. L. Rev. 1419 (May 1991).
This article explores how Black women and poor women have been
the focus of punishing pregnant drug addicts, and how these
prosecutions violate women's constitutional rights to autonomy
and freedom from invidious government standards for childbearing.
Here, the author argues that the punishment of drug addicts who
choose to carry their pregnancies to term violates their
constitutional rights to equal protection and privacy regarding
their reproductive rights. The majority of women that are charge
with criminal drug offenses after giving birth are poor and
Black. This occurs because such women are the least likely to
obtain adequate prenatal care, the most vulnerable to government
monitoring, and the least able to conform to the White,
middle-class standard of motherhood. The author therefore argues
that punishing such drug addicts who choose to carry their
pregnancies to term unconstitutionally burdens the right to
autonomy over reproductive decisions. Violation of poor Black
women's reproductive rights helps perpetuate a racist hierarchy
in our society. The author further argues that we must question
such a policy of concern for the dignity of the fetus. It is only
by affirming the personhood and equality of poor women of color
that the survival of their future generation will be ensured, and
this requires autonomy over their reproductive lives.
I agree that there is a disparate impact upon women of color
and poor women. However, to give women complete autonomy over
their reproductive lives (even after viability ) will not go to
furthering racial and economic equality. Only when these women
and communities reach an adequate level of health, can they begin
to break the cycle of disparate treatment. Adequate health comes
from prevention of intentional harm, including intentional harm
to a fetus. A healthy community is essential to attaining the
necessities of life (for example, jobs; wealth; status. . .) ,
therefore, we must look beyond the individual to society as a
whole. I do not agree that complete autonomy over reproductive
lives equals racial and economic equality. This overlooks how
important adequate health factors into breaking the cycle of
poverty and racial inequality.
Sandra Anderson Garcia, Ph.D., J.D., Drug
Addiction and Mother/Child Welfare, 13 J. Legal Med. 129
This article examines the rights claimed by pregnant women
whom are drug addicted, and rights that are claimed for the
fetuses. The article stresses that discretionary decision made
throughout a woman's period of contact with authorities plaques
the entire process. Her thesis states that if affected women and
children are to be best served, then decision makers must
thoroughly examine their views on addiction, and their
understanding of the dynamic interaction of rights, laws, and
practice. From the beginning of an addicted woman's help-seeking
behavior, a chain of reactions occurs to her, many of which are
discretionary decision based on particular views of the causes
and nature of addiction, which will largely determine her
fate--and fate it is!
Individual and agency responses to pregnant addicts are
undoubtedly affected by their answers to questions about
responsibility, obligation, and duty. Their policy and
discretionary decision will reflect their views. The task of
determining whether pregnant addicts should be held criminally
responsible for their conduct is difficult, and requires numerous
legal, moral, and ethical decisions, often within a framework
that is near void of any definitive answers. The pregnant addict
might find herself in criminal court, civil court, juvenile
court, or family court, facing hearings for a variety of actions.
The system is fragmented. Therefore, the system must be balanced
to better serve those who need the help. I agree with the author
in her contentions that bias begins between individuals and
between agencies. This flow continues until the fate of the woman
and her child is no longer under the control of others.
Discretionary decision makers at all these various levels receive
and intake a variety of information that forms and influences
their decisions. Therefore, we must make sure all decision makers
receive adequate and reliable information at all levels that is
free from prejudice and biases.
Bonnie I. Robin-Vergeer, The Problem
of the Drug-Exposed Newborn: A Return to Principled Intervention,
42 Stan. L. Rev. 745 (February 1990).
This article suggests that in fact the same factors relevant
to the decision to intervene on behalf of any neglected child
should guide coercive intervention on behalf of the drug-exposed
infant. The issue for the child welfare system must be whether
the particular drug-exposed infant is in imminent danger of
future harm. In reaction, the author proposes that all states
enact legislation requiring the administration of toxicological
screens by health care facilities to all newborns whose mothers
have a recent history of drug use, have failed to procure
prenatal care, or in cases in which the infant displays symptoms
of drug exposure. The author also stresses the focus on the harm
inflicted upon the child in utero, as if the child had been
battered, is clearly misplaced, except as it bears on the
mother's ability to care for her child in the future. The
mother's actions during pregnancy matter only insofar as they
shed light on the risk of harm to the born child. The child
welfare system cannot legitimately characterize as abuse to the
newborn the harms inflicted upon the fetus.
I disagree with the author in her beliefs that the decision to
intervene should focus on the risk of future harm to the child
and on the ability of his parents to provide for him. Future harm
alone overlooks the past harm already done, which is entirely
preventable. Her views are too after-the-fact. We must look at
prevention coupled with criminal and civil action to protect the
viable fetus in order to foster a healthier society as a whole.
We must be proactive, not merely reactive. Waiting for farm to
occur is reactive in nature and does not further the goal of
prevention drug abuse by pregnant addicts.
Margaret P. Spencer, Prosecutorial
Immunity: The Response To Prenatal Drug Use, 25 Conn. L. Rev.
393 (Winter 1993).
This article argues that governmental intervention is
appropriate to address both motivation to seek treatment and the
availability of treatment programs, in dealing with pregnant
addicts. Her suggestions is that intervention should involve the
criminal justice system and the social services system. The
criminal justice system, which is currently a
"disincentive" to prenatal care and drug treatment,
could become an "incentive" for the drug user to seek
care and treatment. This transformation is possible through the
use of prosecutorial immunity. Such immunity should be granted to
prenatal drug users for all offenses based on the evidence of a
drug-affected infant who participate in treatment programs. The
social services system should provide the user the
"means" by which to obtain this immunity, by expanding
and establishing prenatal and postpartum drug treatment
facilities. The economic costs associated with drug-exposed
infants provide a benchmark for the money that could be saved by
preventing prenatal drug use.
Governmental coercion is the effective response. The expectant
mother should have a strong incentive to participate in drug
treatment, which is prosecutorial immunity. She must be encourage
to select treatment and participate in available programs, or
else risk prosecution for her prenatal ingestion of drugs. I
agree with the author that criminal prosecution and immunity can
effectively be utilized with treatment programs to help alleviate
the problem of pregnant drug -addicts. This plan is
multi-faceted. It focuses on prevention and criminalization and
civil commitment as back-ups for women who refuse to utilize
prosecutorial immunity and seek treatment. The author recognizes
that additional funding is necessary to implement all the needed
treatment programs. She argues that the additional funding can be
obtained from law enforcement and funds received from drug
forfeitures. This makes sense that monies used to fund drug
treatment, should come from the same pool of funds that assists
in drug enforcement. I like her approach because it is
well-reasoned and is multi-faceted.
Deborah Appel, Drug use
During Pregnancy: State Strategies To Reduce The Prevalence of
Prenatal Drug Exposure, 5 U. Fla. J.L. & Pub. Pol'y 103
This article suggests some alternatives strategies for
reducing the prevalence of prenatal drug exposure. These
strategies go beyond mere criminalization. Few drug treatment
programs provide treatment to drug-dependent pregnant women.
Eighty percent of drug treatment programs are privately owned,
and government programs represent only 20 % of all services. Many
drug using pregnant women do not have private insurance and will
not be admitted to the privately owned drug treatment centers.
Few drug treatment programs that accept patients who are
receiving Medicaid will admit pregnant drug addicts. Therefore,
more treatment programs must be developed to treat the poor and
underserved women. In addition, because health care providers,
particularly obstetricians, lack the skills and adequate training
to identify pregnant drug users and understand the consequences
of prenatal drug use. This lack of education can result in the
failure to provide the necessary care to pregnant drug users.
Therefore, it is essential that all obstetricians be adequately
schooled in drug abuse and should be required to attend
continuing education classed that specifically deal with this
The author also stresses that public health care, child
welfare, and drug and alcohol abuse systems are fragmented and
therefore the addicts is unable to receive adequate medical care.
The pregnant addict is forced to interact with separate service
systems, all of which deal with a segment of the problem.
Therefore, the systems must be coordinated to effectively deal
with the pregnant addicts needs. I agree with all of the above
stated recommendations. The focus on prevention is essential to
dealing with the pregnant addict. Obviously, the current system
is inadequate and must be revamped to better deal with the
problem. I especially agree with the need to coordinate the
different systems in which the addict must maneuver.
Jane C. Murphy, Legal Images of
Motherhood: Conflicting Definitions From Welfare
"Reform", Family, and Criminal Law, 83 Cornell L.
Rev. 688 (March 1998).
This articles addresses the issue of motherhood and the
related issues of stereotypes and equal opportunity. The article
stresses that there is a narrow stereotype of mothers in America
and that any deviation pits a mother as a bad mother. The author
suggests that we must reconceptualize mothers and the adherence
to stereotypes must end. In addition lawmakers must rethink laws
The article addresses that criminal laws regulating a woman's
behavior from pregnancy on punishes any woman who deviates from
what the law perceives as their "natural capacity to nurture
and protect."1 This criminal regulation begins at pregnancy.
The author argues that criminal prosecutions suffers from
numerous flaws including disparate punishment of poor women of
color, disparate impact on women, and failure to recognize other
factors contributing to drug abuse and pregnancy. Such causes
include poverty and the lack of prenatal care or health
The author concludes that punishing pregnant substance abusers
criminally is not the most effective manner to protect the
unborn. She stresses that the answer lies in increased numbers of
treatment centers, improved social services, and better health
care. She believes that these types of laws punish women for
circumstances over which they have little or no control to
I agree with the author in her conclusions that circumstances
often affect the pregnant substance abuser. Society as a whole
must address this issue and criminalization of the
"victim" of these circumstances is not the best answer.
I also agree that there is a stereotype of a good mother in
American and that deviation (i.e. drug use while pregnant) brands
the mother or mother to be as bad mothers who need to be
punished. This is often a byproduct of society. Society seems to
be quick to rush to judgment and to find quick solutions to the
problems that it perceives as immediate threats to notions of
normalcy. However, long-term solutions are the only way in which
to deal with pregnant substance abusers. You can not separate the
problems. The drug abuse affects everyone in society financially
and socially, and long-term preventative solutions are the only
1. Jane C. Murphy, Legal Images of Motherhood: Conflicting
Definitions From Welfare "Reform", Family, and Criminal
Law, 83 Cornell L. Rev. 688, 713 (March 1998).
Page Mcguire Linden, Drug
Addiction During Pregnancy: A Call For Increased Social
Responsibility, 4 Am. U. J. Gender & L. 105 (Fall 1995).
In this article the author stresses the need for society to
deal with drug abuse by pregnant women as a social problem in
need of a social response. She propounds the staggering costs
associated with the effects of drug abuse during pregnancy. The
national cost of medical care for substance addicted infants in
1990 alone was estimated to be $504 million according to the
statistics cited in the article.1 Society is stuck with the end
result of paying for health care for these addicted infants and
children, therefore the only true solution to deal with the
problem is to treat it as a social issue.
The author explains that cultural feminists adhere to the
theory of a female-centered approach to the problem of drug
addicted mothers.2 Such theory has two main implications. First,
cultural feminists believe that society has an affirmative
obligation to aid pregnant women addicts. Second, in fulfilling
this stated obligation, society should act in a facilitative,
rather than in an adversarial manner. This requires that the
mother an fetus not be treated as two distinct entities with
adverse interests. In addition, the author argues that criminal
statutes used to incarcerated pregnant addicts are faulty because
they do not adequately fulfill society's stated duty to render
rehabilitative aid to pregnant addicts. In addition, the author
argues that civil commitment as an alternative to criminalization
alone cannot correct society's failure to provide pregnant
addicts with the physical, financial, and emotional aid necessary
for a health pregnancy. The author concludes by stressing the
need for a socially responsible solution that includes a
comprehensive health care system which necessarily includes
gender-sensitive drug treatment programs and prenatal care as
well as education and preventative measures.
I agree with the article in that women serve an important role
in society that our male counterparts will never experience or
match as to importance---child birth. Women serve the unique role
of giving birth to our next generation. This role is often
separated from the woman itself creating two distinct entities,
the woman and her fetus. However, I do not agree that we must
always view the fetus and woman as one. A child which will not be
aborted by a mother has a right to be born as healthy as possible
and free from voluntary and intentional harms. Drug useis an
intentional harm. I agree that drug addiction is a creature that
can control a woman as any other addict, however as women we have
the extra obligation of caring for the fetus that grows in our
bodies. Society in turn must support our special roles as mothers
and must support the healthy pregnancies of all women, especially
those most at risk including drug addicts. By supporting all
women through socially responsible solutions, can society as a
whole begin to benefit from a healthier, happier, more productive
1. Page Mcguire Linden, Drug Addiction During Pregnancy: A
Call For Increased Social Responsibility, 4 Am. U.J.
Gender & L. 105, 109 (Fall 1995).
2. Id. at 113-115.
Dawn Marie Korver, The Constitutionality
of Punishing Pregnant Substance Abusers Under Drug Trafficking
Laws: The Criminalization of a Bodily Function, 32 B.C. L.
Rev. 629 (May 1991).
This article addresses the issue of holding pregnant addicts
criminally responsible for the harm that their addictions cause
to their fetuses. This issue is addressed under the guise of
whether their addictions can be protected under the cruel and
unusual punishments clause of the eighth amendment.
The author announces that criminalization of maternal
substance abuse will not effectuate state goals of deterrence and
elimination. She argues that no such legislation against pregnant
drug abusers exists and no case law exists to interpret the
constitutionality of such legislation. Secondly, she stresses
that criminalization will not further a state's interests. The
practical effects of criminalization are often overlooked. She
argues that many commentators see addiction as a disease in need
of treatment, instead of punishment. In addition, it is believed
that many pregnant addicts will avoid prenatal treatment in order
to avoid the threat of prosecution. Therefore, she concludes that
a state which focuses on criminalization and not prevention
through education and treatment, then pregnant addicts will
continue to have drug-exposed infants.
I agree that many states and their respective citizens,
politicians, and legislators ignore the practical effects of
criminalization. The first answer when confronted with the issue
is to lock the pregnant addict up for the duration of her
pregnancy. However, this is not the best solution. This is a
quick-fix, short term answer. Addiction must be treated more as a
disease in need of treatment and less as an a crime in need of
Christine Hunt, Criminalizing
Prenatal Substance Abuse: A Preventative Means of Ensuring
The Birth of a Drug-Free Child, 33 Idaho L. Rev. 451 (1997).
This article suggests that the threat of criminalization of
drug addicted pregnant women is in and of itself not the sole
answer to the problem. However, the threat of criminal sanctions
is necessary to serve as a deterrent to maternal substance abuse,
with the end result being actual criminal punishment for any
pregnant addicts who is not deterred and continues to use drugs
instead of seeking treatment.
Criminal sanctions, according to the author, should be a last
resort. Mandatory drug treatment programs are the first step.
Such a program would protect the fetus from continued exposure to
drugs and would help the addict mother defeat her drug addiction.
However, if such an addict refuses to attend a mandatory
program, then criminal sanctions should be utilized to protect
the innocent fetus. The author believes that mandatory treatment
facilities are not the answer in and of themselves and must exist
in coordination with a strong deterrent such as criminal
sanctions. This deterrent must be strong enough to discourage
future misconduct. This is why, she argues, that civil commitment
is not a strong enough deterrent to have a coercive effect. In
conclusion, she argues that when treatment is the focus of a
statute, and not criminalization, then there will be a better
response by pregnant addicts.
I agree with the author in her contention that something more
than mere education must be done to deal with the problem of
pregnant drug addiction. When preventative measures have failed
and a pregnant woman is already addicted, then it is essential
that there be some coercive mechanism in place to deal with the
issue. This coercive mechanism should be a statute that focuses
on treatment of the problem with criminalization in place to act
only as a deterrent to continued abuse. The statute would only
criminalize the refusal of a pregnant woman to seek the mandatory
treatment that would help her and her fetus and would keep her
out of the criminal justice system.
Molly McNulty, Pregnancy
Police: The Health Policy and Legal Implications of Punishing
Pregnant Women For Harm to Their Fetuses, 16 N.Y.U. Rev. L.
& Soc. Change 277 (1987-/1988).
In this article, the author addresses the issue of fetal
rights and maternal rights as viewed in a social climate geared
toward suppressing personal autonomy in the name of fetal rights.
The article explains that our social climate has changes toward
punitive and coercive intervention in dealing with the pregnant
substance abuser. Public awareness of the effects of drug abuse
during pregnancy on a fetus has propounded the drive toward
punishing the pregnant addict.
The author points out that criminal sanctions, which have
arisen in the wake of this new social force, are unfair because
of the disparate impact they have on poor women of color who
often have little to no access to adequate drug treatment and/or
prenatal care. In addition, criminalization is not the answer, in
the view of the author, because it can serve as a deterrent to
seeking prenatal care and if criminal sanctions are imposed upon
a pregnant addict, her care while incarcerated would even be
worse not better. The article stresses that criminalization is
the least productive way to deal with a pregnant substance abuser
for the above stated reasons. Therefore, legislatures should
concentrate on improving prenatal health care by doing two very
important things. First, access to prenatal care facilities must
be increased for all women. Second, substance abuse treatment
facilities must be increased in volume who accept a pregnant
substance abuser, with care targeted toward their unique needs.
And, all of these facilities and programs must be available to
all women, regardless of ability to pay to be effective. To
facilitate these programs there would need to be an increase in
federal funding, and given the savings in treating drug-addicted
children, the money can certainly be found.
The author makes sound and reasoned arguments in favor of
improving the health care system and treatment facilities to
include pregnant women. This should be done at the outset instead
of focusing on criminalization. Criminalization, by itself, is
not going to solve the problem of prenatal drug abuse. Something
more must be done to solve this complex problem. And, as pointed
out before, society is on a band wagon that desires punishing the
"evil" pregnant mother who is abusing drugs and
overlooks treatment as an option. Long-term social commitment is
the only real solution to the problem and short-term, quick-fixes
are not going to remedy a problem that is socially rooted.