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The relevance of illegality.

Once we acknowledge that women have moral obligations to the children they will bear, there is a temptation to think that these obligations should be made legal. If the coercive power of the state is justifiable involked to protect children from neglectful or abusive parents, why can't it be used against a woman whose behavior injures her child before it is born? Does not society have the right--or indeed the obligation--to intervene, coercively if necessary, to protect the not-yet-born child?

I believe this is a temptation that should be resisted. The reason is not that, prior to birth, fetuses lack legal standing. Coercive intervention is aimed at protecting, not the fetus per se, but the future child. If a woman decides not to abort, but to carry to term and bear a child, there will exist a child who may be harmed by what the woman does during her pregnancy. Society has a legitimate interest in the welfare of its children, both those existing today and those that will exist in the future. Future children have prima facie claims to be protected from injury inflicted prenatally.

However, there is no way to protect the future child except through the body of the pregnant woman, or by controlling her behavior during pregnancy. This distinguishes fetal protection from ordinary child welfare cases. Coercing the mother to protect the not-yet-born child poses serious threats to women's privacy and bodily autonomy. I will also argue that in most case it is unlikely to do much to protect the health and lives of children.

The first woman to be subjected to criminal prosecution for "fetal abuse" was Pamela Rae Stewart, a Californian who was charged with failing to provide her fetus with necessary medical care. She gave birth to a severely brain-damaged baby, who died a few months later. She had been diagnosed as having a complete placenta previa, and was instructed to take a prescribed medication to delay labor, to stay off her feet, to refrain from sexual intercourse, and to get to the hospital immediately should she begin bleeding heavily. The District Attorney alleged that the baby's death was due to her failure to follow these instructions and her use of amphetamines on the day of delivery.

Ms. Stewart offered a different version of the facts. She said that she didn't know about the placenta previa, that she only knew she had a breech presentation that would necessitate a cesarean section. She said she tried to keep off her feet, but that it was difficult with two little girls, aged three and five, to care for. She admitted using marijuana the day the baby was born, but not amphetamines, and suggested that the positive toxicology screen had been produced by the antihistamine she was taking for a cold.

These factual discrepancies were never resolved because the charges against Ms. Stewart were dropped on legal grounds. The prosecutor had wanted to charge her with child abuse, but could not because California courts had earlier ruled that fetuses were not covered by child-abuse statutes. So the district attorney, in what the defense characterized as a "fishing expedition," found a child-support statute that had been amended specifically to include the unborn--an emendation that was intended to allow pregnant women to collect for their prenatal care from the men who had impregnated them. Later the statute was amended again, on grounds of gender equality, to apply to both parents.

In dismissing the charges, the judge ruled that the statute was never meant to apply to the behavior of pregnant women, but was intended to compel parents to pay child support. It would violate due process, he said, to use a law made and always interpreted for one purpose for a completely different purpose. He recommended that the state legislature pass a more appropriate bill "protecting the life of the unborn child under certain narrowly defined conditions." Such a bill was introduced in the California legislature shortly thereafter, but it died in committee.

It is unlikely that criminal statutes punishing women for negligent or reckless conduct that harms their fetuses would be constitutional. "The current constitutional body of privacy law in general, and abortion law in particular, strongly suggests the existence of a maternal privacy interest that would be infringed by such statutes, thus requiring strict scrutiny by courts." [1] To pass the strict scrutiny standard, the harm that the statute presvents must be likely to occur and severe in nature, and the statute must use the least restrictive means of preventing such harm. Broad fetal-abuse statutes that are patterned on child-abuse statutes--those that make neglecting or abusing a fetus a crime but do not go on to specify what constitutes neglect or abuse--would be unconstitutionally vague. Virtually everything a pregnant woman does could affect her fetus. What she eats, how much she exercises, whether she works, where she works--the list is endless. Unless prohibited activities were specified in advance, a woman would have no way of knowing if ordinarily perfectly legal activities were criminal.

Perhaps it might be specified that only behavior explicitly ruled out by the woman's doctor would be prohibited. But failing to follow doctor's orders is not a crime, and it would be very dangerous if it were. What if a woman disagreed with her doctor about the wisdom of exercise, the right amount of weight to gain, or whether to have sexual intercourse during pregnancy? Some doctors are more conservative than others, and medical wisdom on these issues shifts. Not so long ago, doctors were prescribing DES to prevent miscarrieage, and forbidding their patients to gain more than fifteen pounds during pregnancy. The fact that doctors make mistakes is not the only reason to deny their orders the force of law. An additional concern is that such laws would deprive women of the right to make their own decisions about the management of their pregnancies, a right for which women have fought very hard in recent years.

What about laws prohibiting pregnant women from using alcohol or tobacco? Alcohol is a potent teratogen, which can cause irreversible damage to the body and brain of the developing fetus. Alcohol crosses the placenta, thereby raising the fetus's blood-alcohol level to equal that of the mother's. If the mother's blood alcohol reaches a certain level--the toxic threshold--the fetus is at risk. Heavy drinking during pregnancy, especially binge drinking, carries a 35 percent risk of subjecting one's baby to full-blown fetal alcohol syndrom. [2] Some researchers believe that even the children of moderate drinkers may have lifelong learning disability and behavioral problems. One study showed that one to three drinks daily during early pregnancy can result in a lowering of as much as five IQ points. [3] Tobacco is another legal substance that can cause serious damage to the unborn. Smokers' offspring are at higher risk for miscarriage, stillbirth, prematury, and low birth weight.

Laws that specifically prohibited pregnant women from using tobacco and alcohol would not be unconstitutionally vague. However, they would infringe on a woman's power to make decisions about how she will live her life during her pregnancy, and thus infringe on her privacy right. [4] It is far from clear that a law prohibiting all use of alcohol by all pregnant women could pass the strict scrutiny standard. For there is no evidence that an occasional glass of wine with dinner will damage the developing fetus. It's just that we cannot say that it won't. There is no established "safe" level of alcohol consumption. (One of the difficulties is that the fetus may be more vulnerable on certain days of pregnancy, so that having two drinks could be above the toxic threshold on day 33, but below it on day 39.) The safest, most prudent course is therefore total abstention. But it is far from clear that the state has the right to impose this standard on the behavior of pregnant women. It certainly does not impose it on parents generally. Parents can be indicted for child abuse or neglect, not when they deviate from the safest course of action, but only when they do not meet minimum standards of care. The risk to the fetus from light to moderate drinking is very low, while the documented harm (shorter attention span or a few IQ points) is hardly devastating. It does not seem, then, that a law prohibiting all pregnant women from drinking any alcohol could be proved to be the least restrictive means of protecting the health of future children.

It might be objected that the right to drink alcohol or smoke cigarettes is trivial, compared with the interest children have in being born free of incapacitating disabilities. I agree that a woman ought to weigh the possible risks to her not-yet-born child far more heavily than her own enjoyment of alcohol or tobacco. However, this does not necessarily entail total abstinence. Given the amount of risk, and the nature of the possible harm, having an occasional glass of wine is within the range of permissible discretion. More importantly, the risk that a woman may act imprudently does not justify taking the decision out of women's hands entirely. As a recent Note in the Harvard Law Journal argues:

More is at stake--the state in these situations is seeking to regulate the procreative aspects of particular decisions and thus the procreative process. In considering the constitutionality of fetal rights legislation, therefore, courts should assign greater weight to maternal decisional rights than they might at first perceive as appropriate, in order to protect the woman's right of procreative autonomy. [5]

From a medical or moral point of view, it makes no difference whether the potentially harmful substance is legal or illegal. The risks to fetal health from heavy smoking and drinking are probably comparable to the risks from shooting heroin or smoking crack. It seems arbitrary to prosecute women who use illegal drugs when use of legal drugs such as tobacco and alcohol may cause just as much, if not more, harm to the developing fetus. However, from a constitutional perspective, there is an important distinction between legal and illegal substances. Privacy rights can be infringed only when the behavior in question is legal. If a woman has no right to use cocaine, she has no right to use cocaine when pregnant. A statute that imposes additional penalties on pregnant women who use cocaine therefore does not deprive women of the right to choose. [6]

In addition to infringing on privacy rights, laws prohibiting pregnant women from using substances available to nonpregnant people might be thought to be discriminatory, since they impose a burden on women--who are the only people to get pregnant--that is not imposed on others. However, not all different treatment is discriminatory. Discrimination exists only when individuals are treated differently and there is no relevant difference between them. It would be discriminatory to forbid smoking by women, while allowing men to smoke, because gender is not rationally related to allowing or prohibiting smoking. It could be argued that pregnancy is a relevant difference, at least if the woman is going to term, because then she is going to have a child who could be harmed by her behavior.

A practical difficulty is that a law forbidding pregnant women to use harmful substances could not be invoked in advance of knowing which women were in fact going to term. Under Roe v. Wade, a woman has the right to choose abortion throughout the second trimester of pregnancy. There would be no basis for preventing a woman in her first or second still has the legal option of aborting. If she does abort, there will be no one who is harmed by her drinking. Ironically, the greatest harm to the fetus is probably caused by drinking early in pregnancy, precisely when it could not be legally prohibited.

One reason for thinking that statutes forbidding women to drink or smoke while pregnant discriminate against women is that similar statutes are never aimed at men, despite the fact that men too can impose health risks on their children by drinking or smoking. For example, a recent report in The New England Journal of Medicine maintained that children exposed to large amounts of tobacco smoke at home are more than twice as likely to develop lung cancer later in life than those who grow up in smoke-free households. [7] So far no one has proposed making it a crime for parents to smoke around their children, although a New York judge ruled that a parent's smoking habit is a legitimate consideration in determining which parent should gain custody in divorce and other proceedings. Not long ago an appeals court upheld a LaPlace, Louisiana, lower court's decision reducing a father's visitation rights because his smoking aggravated his child's bronchial problem, while a California superior court judge conditioned the grant of custody to a mother on the promise that she would not smoke in front of her five-year-old son. [8]

Alan Dershowitz comments that these cases raise the question whether the law will next forbid parents who are not in a child-custody dispute from smoking in the presence of their children. Dershowitz notes that custody disputes are commonly the opening wedge into state monitoring of families, because in such disputes judges must decide which parent will be better for the child. Despite the fact that all children would be better off with parents who don't smoke, under present law the state has little power to intervene to protect children from parents who are not seeking a divorce or custody. Why, Dershowitz asks, does the state tolerate behavior dangerous to children when it is committed by parents who are not seeking custody? Don't these endangered children deserve the protection of the state from parents who are abusing their health? "Of course they do," he responds. "But the price of state intervention into intact families would be very great." [9]

Thus, we allow parents to do things we wish they wouldn't do for the sake of the greater good of family privacy and integrity. A comparable argument can be made against criminalizing otherwise legal behaviors, such as drinking alcohol and smoking, during pregnancy. In any case, the difficulty of implementing such prohibitions would be considerable. Would bartenders be forbidden to serve drinks to pregnant women? How are they supposed to know which women are pregnant? Should they only refuse to serve obviously pregnant women? That seems arbitrary, since it is drinking in the first trimester that poses the greatest risk to the unborn. So maybe all women of childbearing age should be refused service. Surely, this is absurd. Rather than make decisions for women regarding how they will act during pregnancy, we should present women with the information they will need to make responsible decisions.

Le me turn now to criminal prosecutions of women whose babies were harmed, or exposed to the risk of harm, because they used illegal drugs during pregnancy. These prosecutions are definitely on the rise. More than sixty criminal proceedints against women for drug use during pregnancy have been instigated in nineteen states and the District of Columbia since 1987. [10] In most the charges were ultimately dismissed or dropped, sometimes before indictment. [11] Criminal charges can take a variety of forms. Perhaps the most creative is charging the woman under the same statute prosecutors routinely use against drug dealers: delivering drugs. Whereas drug use itself is typically a misdemeanor punishable by probation, especially in a first-offense case, delivering drugs is a felony in most jurisdictions. In Michigan it carries a mandatory minimum jail term of one year and a macimum of twenty years. In Florida it carries a maximum sentence of thirty years. [12] In July 1989 Jennifer Johnson of Florida became the first woman to be convicted of delivering cocaine to her newborn child through the umbilical cord. She was sentenced to one year in a rehabilitation program and fourteen years' probation.

By changing Johnson with delivering a drug to her newborn--not her fetus--the prosecution avoided the issue of the legal status of the unborn. However, many experts regard as dubious the theory that cocaine is passed through the umbilical cord just before it's clamped. One of the skeptics is Ira Chasnoff, the founder and president of the National Association of Perinatal Addiction Research and Education. He says, "Good ethics and good law have to be based on good science, and we just don't have that kind of data." [13]

Even if the scientific basis were more solid, the legal basis for these prosecutions would remain shaky. Applying existing drug laws to the prenatal cases ignores very real differences between the two situations. For one thing, the intent ordinarily necessary for a criminal charge is missing. A woman who uses drugs during pregnancy does not intend to give her child drugs. It is absurd to treat her like a pusher in a schoolyard. At most, she is guilty of reckless endangerment if she is aware of, but simply ignores, the risk to her baby from her drug use. The charge of reckless conduct probably applies in few cases, since such conduct implies a degree of voluntary risk-taking absent in most drug users. Moreover, some pregnant addicts may be ignorant of the extent of the risk their behavior poses to their babies. One woman gave birth to a jaundiced baby who weighed five pounds and couldn't keep his formula down. She smoked crack the night before she delivered, reportedly thinking it would help her relax and go into labor. "The baby was so far along that a couple of hits couldn't possibly hurt." [14] Such a woman does not intentionally or even recklessly harm her baby. At most, she is negligent in allowing her not-yet-born child to be exposed to harm from the drugs she takes.

Parents who are extremely negligent in the care of their children may be charged with child neglect or abuse. There have been several cases where mothers of babies who were born addicted were charged with child abuse. This is a less serious offense than the drug-delivery charge; in Florida, it generally carries a sentence of no more than sixty days. [15] So far, twelve states have expanded their definitions of child abuse to include fetal drug exposure. I have already suggested that such laws may be constitutional. Nevertheless, they make no sense from a public policy perspective.

First, what good would they do? It seems unlikely that laws making the use of drugs during pregnancy a crime would prevent women from taking drugs. If a woman is willing to risk criminal prosecution for drug use, why should she be deterred by additional penalties for harming her unborn child?

It may be objected that the same could be said of prosecuting women for postnatal child abuse. Obviously, people who abuse their children are not deterred by criminal sanctions. It is unlikely that laws prohibiting child abuse can have much deterrent effect, because most abuse is not deliberate or planned, but stems from inability to control frustration or anger. So, it might be said, why punish any child abusers? A possible answer is that some abusers deserve to be punished, regardless of deterrent effect, because they are able to control themselves. By the same logic, prosecutions might be justified in the case of some women who inflict prenatal abuse if they are aware that their voluntary and noncompulsive behavior poses serious risks to the health of the not-yet-born child, yet disregard these risks, causing the baby to be born seriously damaged. Perhaps a yuppie, recreational cocaine user would come into this category. Her behavior is immoral; why shouldn't she be prosecuted? I concede that prosecution in such a case would be justified. My fear is that it is unlikely that prosecution would be confined to such cases--if they exist at all. There is a real danger that fetal abuse statutes, even constitutionally acceptable ones, would be used primarily to prosecute uneducated and low-income addicts, who are less than fully responsible for their harmful behavior.

Another rationale for prosecution is that it is a way to pressure women to get into treatment. Tony Tague, a prosecutor in Muskegon County, Michigan, who has prosecuted a number of women whose newborns tested positive for crack cocaine, says, "When physicians make suggestions, it doesn't appear that's enough for them to seek treatment. The possibility of prosecution is a strong incentive." However, seeking treatment may not help a woman avoid prosecution. One woman who was indicted after she tried to get help with her drug problem says, "I feel betrayed. Everyone I talked to about my drug problem has been subpoenaed." [16]

While there may be some women who will not seek treatment without fear of prosecution, many pregnant addicts have found that there are no treatment programs for them. Wendy Chavkin of the Chemical Dependency Institute, Beth Israel Medical Center, says, "The important thing to remember about the Jennifer Johnson case is that this is a woman who tried to get treatment and was turned away." [17] It makes no sense to spend resources prosecuting women to force them into treatment, when there are not adequate programs for women who will voluntarily undergo treatment. Kary Moss of the American Civil Liberties Union asks, "Why is it that we have to make women criminals before we can get them drug treatmet," [18]

It might be argued that laws criminalizing drug use in pregnancy have an important symbolic function, even if they don't directly protect babies. They express society's outrage and convey the message that drug use during pregnancy is totally unacceptable. This is a legitimate function of law, but the social costs must be considered. The threat of prosecution may cause women to lie to their doctors about their drug use, thus effectively checking the doctor's ability to safeguard the baby's health. Dru users may even avoid hospitals and doctors altogether, for fear of being turned in to the authorities. In that case, the very purpose of such laws--to protect infants--would be subverted.

Despite the rhetoric, it does not seem that we as a society are serious about getting addicted women into treatment or protecting babies. Congress has mandated that states spend ten percent of their federal Alcohol, Drug Abuse and Mental Health Services block grant funds on the development and expansion of prevention and treatment programs for alcoholic and drug-dependent women, with special emphasis to be given to services for pregnant women. Yet most states have failed to comply with this mandate. [19] We cannot solve the problem of damaged babies with a "win the war on drugs" mentality. Instead, the problem must be treated with a comprehensive approach that includes funding drug treatment programs for pregnant women, and ensures that all pregnant women have adequate prenatal care. I believe that a close personal relation with a caring and nonjudgmental obstetrician--the kind of care middle-class women take for granted--would do more toward ending substance abuse, legal and non-legal, in pregnancy than any number of prosecutions or fetal abuse laws.


[1] Note, "Maternal Rights and Fetal Wrongs: The Case against the Criminalization of Fetal Abuse," Harvard Law Review 101 (1989):995.

[2] Elizabeth Rosenthal, "Pregnant Woman Drinks," New York Times Magazine, 4 February 1990, p. 61.

[3] A.P. Streissguth, H. M. Barr, P. D. Sampson, et al., "IQ at Age 4 in Relation to Maternal Alcohol Use and Smoking During Pregnancy," Developmental Psychology 25, no. 1 (1989):7-9.

[4] "Maternal Rights and Fetal Wrongs," p. 1000.

[5] "Maternal Rights and Fetal Wrongs," p. 1007.

[6] A bill was proposed in Louisiana that would make drug use during pregnancy a felony. Women's Rights Project, America Civil Liberties Union, Memorandum: Update of state legislation regarding drug use during pregnancy, 22 May 1990. Kary L. Moss of the Women's Rights Project of the ACLU informs me that the bill was not passed. To date, there are no laws making drug use during pregnancy a felony.

[7] Dwight T. Janerich et al. "Lung Cancer and Exposure to Tobacco Smoke in the Household," NEJM, 323, no. 10 (1990): 632-36.

[8] Amu Dockser Marcus, "Parent's Smoking Becomes Issue in Child Custody Cases," Wall Street Journal, 18 October 1990.

[9] Alan Dershowitz, "Custody with Smoking Ban," Albany Times Union, 22 October 1990.

[10] Jan Hoffman, "Pregnant, Addicted--and Guilty?" New York Times, Magazine, 19 August 1990.

[11] Tamar Lewin, "Drug Use in Pregnancy: New Issue for the Courts," New York Times, 5 February 1990.

[12] "Mother Who Gives Birth to Drug Addict Faces Felony Charge," New York Times, 17 December 1988.

[13] Hoffman, "Pregnant, Addicted--and Guilty?" p. 35.

[14] Hoffman, "Pregnant, Addicted--and Guilty?" p. 53.

[15] "Mother Who Gives Birth to Drug Addict Faces Felony Charge."

[16] Hoffman, "Pregnant, Addicted--and Guilty?" p. 55.

[17] Lewin, "Drug Use in Pregnancy."

[18] Hoffman, "Pregnant, Addicted--and Guilty?" p. 57.

[19] Women's Rights Project Memorandum, p. 11.

Bonnie Steinbock is associate professor of philosophy at the University of Albany/SUNY.
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Title Annotation:women's obligations toward their unborn children
Author:Steinbock, Bonnie
Publication:The Hastings Center Report
Date:Jan 1, 1992
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