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Pregnancy, Maternal & Fetal Rights, and the Effects of Maternal Drug Abuse on Society

Annotated Bibliography

Melissa Duke Jones*
3rd Year Law Student
The University of Dayton School of Law
Spring 1998


Introduction

This annotated bibliography attempts to provide an overview of the effects drug and alcohol abuse by pregnant women on American communities as related to increased health care costs. Many different issues are represented in the annotated articles that follow, including: the effects of drug and alcohol abuse on the fetus, the cost of health care for such affected fetuses, criminalization and incarceration of drug and alcohol abusing pregnant women, civil commitment as an alternative to criminalization and alternatives to both, such as prevention. 

My conclusion is that without active and aggressive change in the way the legal system deals with pregnant substance abusers, there will be no way to effectively deal with the problem. The goal must be prevention. It is up to society to deal with the problem of the pregnant substance abuser because ultimately it is society's problem. Society is effected by the increased health care costs and educational expenses attributed to the affected fetuses that grow into affected children and adults. Therefore, prevention of substance abuse by pregnant women should be the focus, and not criminalization as an ineffective deterrent.


The following articles are included in this bibliography:
 

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).
 

Criminalizing Prenatal Substance Abuse: A Preventative Means of Ensuring The Birth of a Drug-Free Child, 33 Idaho L. Rev. 451 (1997).
 

Drug Addiction and Mother/Child Welfare, 13 J. Legal Med. 129 (June 1992).
 

Drug Addiction During Pregnancy: A Call For Increased Social Responsibility, 4 Am. U. J. Gender & L. 105 (Fall 1995).
 
 

Drug Use During Pregnancy: State Strategies To Reduce The Prevalence of Prenatal Drug Exposure, 5 U. Fla. J.L. & Pub. Pol'y 103 (Fall 1992).
 

Extending Child Abuse Protection To The Viable Fetus: Whitner v. State of South Carolina, 71 St. John's L. Rev. 667 (Summer 1997).
 

Fetal Equality? The Equality State's Response To The Challenge Of Protecting Unborn Children, 32 Land & Water L. Rev. 193 ( 1997).
 

Judicial Considerations When Sentencing Pregnant Substance Abusers, 35 NO. 2 Judges' J. 3 (Spring 1996).
 

Legal Images of Motherhood: Conflicting Definitions From Welfare "Reform", Family, and Criminal Law, 83 Cornell L. Rev. 688 (March 1998).
 

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).
 

Prosecuting Pregnant Women: Should Washington Take The Next Step?, 21 Seattle U. L. Rev. 133 (Summer 1997).
 

Prosecutorial Immunity: The Response To Prenatal Drug Use, 25 Conn. L. Rev. 393 (Winter 1993).
 

Protecting Our Children, A Call to Reform State Policies To Hold Pregnant Drug Addicts Accountable, 29 J. Marshall L. Rev. 765 (Spring 1996).
 

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).
 

Punishing Drug Addicts Who Have Babies: Women of Color, Equality and The Right of Privacy, 104 Harv. L. Rev. 1419 (May 1991).
 

Taking a Community Approach To Preventing The Creating of a Biological Underclass, Families and Communities in Partnership, Chapter 4, p. 43.
 

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).
 

The Problem of the Drug-Exposed Newborn: A Return to Principled Intervention, 42 Stan. L. Rev. 745 (February 1990).
 

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).
 



 


Annotations

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 1996).

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. 

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 biologically one. 

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 Constitution.



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 needs. 

 



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 maternal instinct. 

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 women. 


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 pregnancy. 

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 both. 

 



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 (June 1992).
 

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 (Fall 1992).
 

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 problem. 

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 governing mothers. 

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 care. 

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 change. 

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 answer. Endnote

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 next generation.

Endnote

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 punishment. 

 



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.


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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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 03/10/2010

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