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Punishing Women for Their

Behavior During Pregnancy:

An Approach That Undermines

the Health of Women and Children

Lynn M. Paltrow, J.D.

INTRODUCTION

For more than a decade, law enforcement personnel, judges, and

elected officials nationwide have sought to punish women for their

actions during pregnancy that may affect the fetuses they are carrying

(Gallagher 1987). Women who are having children despite substance

abuse problems have been a particular target, finding themselves prosecuted for such nonexistent crimes as “fetal abuse” and delivery of drugs

through the umbilical cord. In addition, pregnant women are being

civilly committed or jailed, and new mothers are losing custody of their

children even when they would be capable parents. Meanwhile, State

legislators have repeatedly introduced substance abuse and child welfare

proposals that would penalize only pregnant women with addiction

problems.

Some proponents of these efforts are motivated by the misguided

belief that they are promoting fetal health and protecting children

(Johnsen 1986, 1989; Pollitt 1990; Hoffman 1990, p. 11). Others hope

to gain legal recognition of “fetal rights”—the premise that a fetus has

separate interests that are equal to or greater than those of a pregnant

woman (Johnsen 1986, 1989; Pollitt 1990; Hoffman 1995, pp. 33, 57).

Recognition of such rights would require women to subordinate their

lives and health—including decisions about reproduction, medical care,

and employment—to the fetus.1 In fact, doctors and hospital officials

have already relied on this theory to seek court orders to force pregnant

women to undergo cesarean sections or other medical procedures for the

alleged benefit of the fetus.2 Some advocates of fetal rights have argued

that children should be able to sue their mothers for “prenatal injuries.”3

In some industries, employers have adopted “fetal protection” policies,
468

which bar fertile women of childbearing age from certain high-paying,

unionized jobs.4

Women’s and children’s advocates agree that women should engage

in behaviors that promote the birth of healthy children. Nevertheless,

they recognize that a woman’s substance abuse involves complex factors

that must be addressed in a constructive manner.5 Punitive approaches

fail to resolve addiction problems and ultimately undermine the health

and well-being of women and their children. For this reason, public

health groups and medical organizations uniformly oppose measures

that treat pregnant women with substance abuse problems as criminals.

Moreover, courts have repeatedly rejected attempts to prosecute women

under existing criminal laws for their prenatal actions, impose restrictions on women’s activities because they are fertile or pregnant, or

coerce women to undergo medical procedures to benefit their fetuses.

Some of these decisions have explicitly recognized that the fetal rights

theory poses a significant threat to women’s reproductive rights and the

best interests of children.

CRIMINAL PROSECUTION

Although no State has enacted a law that specifically criminalizes

prenatal conduct, prosecutors have used statutes prohibiting abuse or

neglect of children to charge women for actions that potentially harm

the fetus.6 Some also have argued that pregnant women “delivered”

drugs to “minor” children—fetuses—through the umbilical cord.7 In

addition, a mother’s or newborn’s positive drug test has led to charges of

assault with a deadly weapon (cocaine), contributing to the delinquency

of a minor, and possession of a controlled substance.8 In cases in which

infants tested positive and died soon after birth, women have been

charged with homicide or feticide.9 Some women even have been

prosecuted for drinking alcohol,10 failing to follow a doctor’s order

to get bed rest, or refraining from sexual intercourse during pregnancy.11

Estimates based on court documents, news accounts, and data

collected by attorneys representing pregnant and parenting women

indicate that at least 200 women in more than 30 States have been

arrested and criminally charged for their alleged drug use or other

actions during pregnancy (Paltrow 1992; Center for Reproductive Law

and Policy 1996.) The majority of women prosecuted have been lowincome women of color (Kolata 1990, p. A13), despite the fact that
469

most women who use illicit drugs while pregnant are white (Mathias

1995).12 According to one analysis, “[p]oor Black women have been

selected for punishment as a result of an inseparable combination of

their gender, race, and economic status” (Roberts 1991). Often, information indicating possible drug use has been provided to law enforcement officials by medical personnel—possibly in violation of constitutional and statutory guarantees of confidentiality.13 In many of the cases,

women have been pressured into pleading guilty or accepting plea

bargains, some of which involved jail time.14 However, women who

have challenged their charges have succeeded in almost every case in

reversing penalties imposed on them for their prenatal conduct.15 In

fact, every appellate panel and most trial courts to reach a final judgment on the use of existing criminal statutes to punish women for their

conduct during pregnancy have found that these prosecutions are

without legal basis, are unconstitutional, or both.16

Most courts reviewing criminal charges and guilty verdicts based

on a woman’s prenatal conduct have ruled on grounds of “statutory

construction”—the principle that criminal statutes must be strictly

construed in favor of defendants and that words such as “child” may

not be expanded to include fetuses. In cases in which women were

charged with violating child abuse laws, courts have consistently found

that those statutes cover only children already born, not fetuses.17 As

one judge noted, “[n]o appellate court in our nation has interpreted its

child abuse laws to apply to a woman who takes illegal drugs during

pregnancy.”18 Similarly, appeals courts have unanimously held that drug

delivery laws apply solely to circumstances in which drugs are transferred

between two persons already born.19 In evaluating unlawful possession

charges based only on a woman’s or newborn’s positive drug test, several

courts have held that drug use alone is not proof of the crime.20 Courts

also have refused to apply murder or feticide statutes in such cases,

concluding that those laws were never intended to punish a woman

for prenatal conduct affecting her fetus or to hold a woman criminally

liable for the outcome of her pregnancy.21

Criminal charges based on prenatal conduct also raise serious

constitutional concerns (Johnsen 1986; Paltrow 1993). In dismissing

these cases, some courts have recognized that the prosecutions violated

women’s rights to due process and privacy. Due process prohibits prosecutors and courts from interpreting or applying an existing law in an
470

unforeseeable or unintended manner. A number of courts have thus

found that the unprecedented application of statutes—such as child

abuse provisions—to prenatal conduct violates due process guarantees

because women did not have the required notice that such laws would

be applied to fetuses or prenatal conduct.22 Other courts have recognized that interpreting a child abuse statute to include prenatal conduct

would render the measure unconstitutionally vague because women

would not know what behavior would be criminal.23 As one appellate

court explained:

Many types of prenatal conduct can harm a fetus, causing

physical or mental abnormalities in a newborn. For example,

medical researchers have stated that smoking during pregnancy

may cause, among other problems, low birth weight, which is a

major factor in infant mortality. Drinking alcoholic beverages

during pregnancy can lead to fetal alcohol syndrome, a condition characterized by mental retardation, prenatal and postnatal

growth deficiencies, and facial [sic] anomalies.

A pregnant woman’s failure to obtain prenatal care or proper

nutrition also can affect the status of the newborn child. Poor

nutrition can cause a variety of birth defects . . . Poor prenatal

care can lead to insufficient or excessive weight gain, which also

affects the fetus. Some researchers have suggested that consuming caffeine during pregnancy also contributes to low birth

weight.

Environmental hazards, such as exposures to solvents used by

painters and dry cleaners, can cause adverse outcomes. The

contraction of or treatment for certain diseases, such as diabetes

and cancer, also can affect the health of the fetus.

Allowing the state to define the crime of child abuse according

to the health or condition of the newborn child would subject

many mothers to criminal liability for engaging in all sorts of

legal or illegal activities during pregnancy. We cannot, consistent with the dictates of due process, read the statute that

broadly.24

Prosecutions of women for their behavior during pregnancy also

implicate the right of privacy, which includes the right to decide
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whether to have a child, the right to bodily integrity, and the “right to

be let alone.”25 Thus, both coerced abortions and the imposition of

criminal penalties for going through with a pregnancy violate the right

to procreate. Several courts have already recognized that criminal

sanctions could compel women to terminate their pregnancies to avoid

arrest. As one court noted, “[p]rosecution of pregnant women for

engaging in activities harmful to their fetuses or newborns may also

unwittingly increase the incidence of abortion.”26 Some courts also have

held explicitly that application of drug delivery statutes to prenatal drug

use would unconstitutionally infringe on the broader right to privacy

that protects all people from improper State interference in their personal lives.27 As one court stated, “[b]ecause of the intrusion required

by this prosecution; namely, the state’s attempt to reach and deter

behavior during pregnancy, [the woman’s] privacy rights are seriously

threatened.”28 The court further found that the State could protect fetal

health through less restrictive means, “such as education and making

available medical care and drug treatment centers for pregnant

women.”29

Some courts that have overturned prosecutions based on prenatal

conduct have indicated that these punitive measures are also counterproductive or run contrary to public policy. One State high court has

observed that “rather than face the possibility of prosecution, pregnant

women who are substance abusers may simply avoid prenatal or medical

care for fear of being detected.”30 Similarly, another court concluded

that criminal prosecution of women for their conduct during pregnancy

fosters neither the health of the woman nor her future offspring; indeed,

it endangers both. Criminal prosecution cruelly severs women from the

health care system, thereby increasing the potential for harm to both

mother and fetus. Pregnant women threatened by criminal prosecution

already have avoided the care of physicians and hospitals to prevent

detection.31

CASE STUDY: CHARLESTON, SC 32

Most criminal charges filed against women for their behavior during

pregnancy are the result of an individual prosecutor who pursues one

or two cases (Hoffman 1995, pp. 33, 57). However, in 1989, the city

of Charleston, SC, went a step further and established a collaborative

effort among the police department, the prosecutor’s office, and a State
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hos-pital, the Medical University of South Carolina (MUSC), to punish

pregnant women and new mothers who tested positive for cocaine.

Under the policy, the hospital provided the city prosecutor’s office with

information on these pregnant and postpartum women. The prosecutor’s office then maintained detailed lists that contained a woman’s

name, drug test result, and other sensitive information, including

whether she “had AIDS” or had had an abortion. With the hospital’s

assistance, police arrested women days or even hours after delivery,

removing them from their hospital beds in handcuffs and, in some cases,

in shackles. Some women were taken to jail while still bleeding from

giving birth. Others were arrested and jailed while they were pregnant,

even though the prison could not provide prenatal care or drug treatment. When the incarcerated women went into labor, they were

returned to the hospital in shackles. One woman was handcuffed

to her bed during labor.

Approximately 6 months after the policy was instituted, it was

revised so that women would be threatened with arrest but also told that

they could avoid being charged if they immediately stopped using drugs

and entered the single drug treatment program available to them. At

the time, MUSC’s own inpatient treatment did not accept pregnant

women. The program that did enroll pregnant women failed to provide

services designed to meet the needs of pregnant and parenting women.

When MUSC’s facility was finally opened to pregnant women, the

policy forced some women to enter without receiving a civil commitment hearing or any other proceeding to protect their rights. One

woman, who was threatened with arrest if she did not immediately go

to MUSC’s program, was denied the use of a telephone to make arrangements for someone to meet her son after school. Another woman was

unable to comply with a nurse’s order that she enter MUSC’s 2-week

program because she had no one to care for her older children. Although she repeatedly explained her child care problem and requested

an outpatient referral, she was arrested because she could not go to the

inpatient treatment.

The prosecutor sought to justify the reporting and arrests by claiming that he was merely enforcing the State’s child abuse laws. Yet the

policy was implemented only at the State hospital, which serves a lowincome population that is predominantly African-American. At that

institution, the practice affected only certain patients. Nearly all the
473

women who were reported to the police and arrested were AfricanAmerican. Moreover, the hospital was using these women—without

their consent—in an ill-conceived experiment to test the hypothesis

that threats of prosecution would stop pregnant women from using drugs

and would improve fetal health. Contrary to the publicly stated goals of

the policy, the hospital’s own initial research and reports from women

affected show that the coordinated effort ultimately frightened many

pregnant women away from prenatal care and the little drug treatment

that was available. Those who did obtain medical attention at MUSC

were placed in the impossible position of choosing between inappropriate treatment and jail.

In October 1993 two women challenged the Charleston policy in

Federal court, alleging that it was racially discriminatory and violated a

number of constitutional guarantees, including the right to privacy in

medical information, the right to refuse medical treatment, and the right

to procreate.33 Three months later, the women filed a complaint with

the National Institutes of Health (NIH), asserting that MUSC had

engaged in research on human subjects without obtaining the necessary

institutional review and patient consent. The Office for Civil Rights

(OCR) of the U.S. Department of Health and Human Services subsequently began to investigate MUSC for possible violations of Title VI,

the Federal law that prohibits race discrimination by programs receiving

Federal funds. Apparently to avoid a full-scale inquiry, in September

1994 MUSC signed an agreement with OCR to discontinue most of the

policy.34 Later that month, the separate NIH investigation found that

MUSC had violated Federal regulations designed to protect human

subjects of research.35 The Federal lawsuit is still pending.

TERMINATION OF PARENTAL RIGHTS

OR TEMPORARY LOSS OF CUSTODY

Currently, only a few States have modified their civil child protection laws to mandate reporting to child welfare authorities or to define

child neglect to encompass cases in which a newborn is “physically

dependent on”36 or tests positive for37 an illicit drug. A few of these

States also require reporting of fetal alcohol syndrome or evidence of

alcohol use,38 and only one State mandates reporting a positive drug test

prior to birth.39 In some instances, such a report may trigger only an

evaluation of parenting ability and the provision of services; in others,
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it may become the basis for temporarily removing custody of the newborn (Wilford and Morgan 1993, pp. 34-47). One State specifically

prohibits the use of a single positive drug test as the basis for a report to

child welfare authorities,40 and several others prohibit basing criminal

proceedings solely on a positive toxicology.41 Another State, recognizing

that such reporting raises serious issues of doctor-patient confidentiality,

provides reporting to the health department for “service coordination,”

but only if the woman consents.42 Still another State provides that, if

a woman is informed, health care providers may test new mothers and

newborns for alcohol and other drugs but allows physician discretion in

determining whether abuse or neglect has occurred and reporting is

required.43

Nevertheless, many women across the country have had their

children taken away from them because of positive drug tests (English

1990; Chavkin et al. 1992; Hoffman 1990, p. 11). As in the criminal

context, women of color have been particularly vulnerable to losing

their children, even though most pregnant women who use drugs are

white. One study conducted in Pinellas County, FL, found that black

women were 10 times more likely than white women to be reported to

civil authorities if an infant was prenatally exposed to an illicit drug

(Chasnoff et al. 1990).

Although the government should clearly intervene to protect a

child from someone who cannot parent, a single positive drug test

should not be used as a substitute for an evaluation of parenting ability.

Drug tests are sometimes inaccurate, do not measure the severity of drug

dependence, and fail to predict parental fitness. Public health groups,

such as the California Medical Association and a division of the American College of Obstetricians and Gynecologists, oppose relying on such

tests, explaining:

Prenatal substance abuse by an addicted mother does not reflect

willful maltreatment of a fetus, nor is it necessarily evidence that

the mother will abuse her child after birth. A woman with a

substance abuse problem may genuinely desire to terminate the

use of such substances prenatally but may be unable, without

access to substance abuse treatment programs, to act on her

desire. However, after the child is born, the mother may be able

to provide the child with an adequate home environment. In
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the absence of tangible evidence that she will be unable to do

so, she should be permitted to raise her child, with the assistance

of family, friends and voluntary social services . . . . If a health

care provider or hospital social worker reasonably suspects from

a parent’s current behavior or past conduct that a child’s home

environment, including, but not limited to, the parent’s or

parents’ substance abuse, poses a danger, that person is authorized . . . to report the facts to a child protective agency for

further investigation . . . .44

Indeed, existing provisions of civil child abuse laws already mandate

reporting in those cases in which it is necessary and appropriate (English

1990, p. 3). However, when the law has allowed a drug test to be the

basis for requiring reporting, some women have lost custody of their

children based on false-positive test results.45 In one known case, a

positive test resulted from drugs administered by the woman’s doctor

during labor.46

State statutes mandating reporting a newborn’s positive drug test to

civil authorities have yet to be challenged. As for the reported court

opinions regarding prenatal application of civil child abuse statutes, all

apply to measures that were not specifically amended to include newborns exposed to drugs (Center for Reproductive Law and Policy 1996).

A majority of the lower court opinions have upheld termination of

parental rights or temporary loss of custody based on drug use during

pregnancy. However, the only two State Supreme Courts to address

this issue have explicitly refused to terminate a woman’s parental rights

solely because of her prenatal drug use.47

CIVIL COMMITMENT, EMERGENCY PROTECTIVE

CUSTODY, AND HARSHER SENTENCES

Only one State has specifically amended its laws to authorize civil

commitment of a woman who engages in the “habitual and excessive

use” of drugs during pregnancy.48 Yet pregnant women in other States

continue to face attempts to civilly commit them for the sole purpose

of protecting their fetuses from some potential harm (Chavkin 1991).

According to constitutional requirements for civil commitment statutes,

there must be at least clear and convincing evidence that an individual

is mentally ill and dangerous to herself or others before she may be
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committed to a treatment facility for some limited period.49 Efforts to

civilly commit pregnant drug addicts have been based on the claim that

a woman is a danger to an “other” person—the fetus. At least one court

has rejected the interpretation of the word “other” to include the fetus,

finding that to commit a woman “solely because she is, in the state’s

view, a danger to her fetus” violates her rights to liberty and equal

protection.50

Some officials also have attempted to treat the fetus as a “dependent

child” over whom the State could exercise jurisdiction through the

juvenile court system. In one proceeding, fetal rights advocates filed

a dependent child petition after a prosecutor found that a pregnant

woman did not fit the criteria for civil commitment and dropped efforts

to have her committed to a psychiatric facility. Although the juvenile

court declared the fetus a dependent child and ordered the mother

detained for the 2 months until birth, a State appellate court ultimately

held that a fetus is not a child for purposes of dependency laws.51

Finally, although rarely recorded in written opinions, some judges

have sought to use the sentencing phase of a criminal trial to incarcerate

a pregnant substance-dependent woman to protect her fetus (Becker and

Hora 1993; Becker 1991). For example, in a check-forging case, a judge

sentenced a woman to 6 months in prison, admitting that he gave her

jail time rather than the customary probation because she was pregnant

and had reportedly used cocaine.52 The judge stated that the length of

the sentence was necessary “to be sure she would not be released until

her pregnancy was concluded . . . because of . . . concern for the unborn

child . . . .”53 None of the sentences based on fetal protection has been

challenged in the courts.

LEGISLATIVE EFFORTS CONCERNING

SUBSTANCE ABUSE AND PREGNANT WOMEN

In numerous States, legislators have introduced measures that would

provide prosecutors and courts with explicit authorization to penalize

pregnant and parenting women with substance abuse problems. To

date, no State has expanded its criminal code to punish women who are

pregnant and use drugs, and only a handful have revised their civil child

protection laws to require reporting of a newborn’s positive drug test.54
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The failure to pass any criminal statutes and the limited adoption of

prenatal drug use as evidence of civil child neglect reflects, in part, the

overwhelming opposition by the medical community and recognition

of the extreme shortage of drug treatment for pregnant women.55 As a

result, States have been far more likely to pass legislation to set up task

forces to study the problem of substance abuse and pregnancy,56 establish

treatment programs or coordinate services,57 provide pregnant women

priority access to treatment,58 encourage health care practitioners to

identify substance-abusing pregnant women and to refer them to treatment,59 or mandate increased education—of the public or medical

providers—on substance abuse and pregnancy.60 Some States also have

passed measures to prohibit discrimination against pregnant women

seeking drug treatment,61 remove barriers to methadone treatment for

pregnant women,62 increase access to child care for pregnant addicts

seeking treatment,63 ensure that pregnant women in certain health

maintenance organizations can receive substance abuse treatment,64

and enhance criminal penalties for people who sell or give drugs to

pregnant women.65

The Coalition on Alcohol and Drug Dependent Women and Their

Children recommends the following legislative action to improve

maternal and child health:

• Provide that pregnant women may not be subjected to arrest,

commitment, confinement, incarceration, or other detention

solely for the protection, benefit, or welfare of her fetus or

because of her prenatal behavior. Any person aggrieved by

a violation of such a provision should be allowed to maintain

an action for damages.

• Provide that positive toxicologies taken of newborns at birth

may be used for medical intervention only, not for removal

without additional information of parental unfitness, which

assesses the entire home environment.

• Provide that child abuse reporting laws may not be triggered

solely on the basis of alcohol or drug use or addiction without

reason to believe that the child is at risk of harm because of

parental unfitness.
478

• Provide that alcohol and drug treatment programs may not

exclude pregnant women, and increase appropriations for

comprehensive alcohol and drug treatment programs.

• Utilize existing funds for the prevention and treatment of

alcoholism and drug dependency among women and their

families.

• Review agency services, and propose the coordination of related

programs between alcohol and drug treatment, social services,

education, and the maternal health and child care field in order

to improve maternal and child health.66

PUNITIVE APPROACHES FAIL

TO PROTECT CHILDREN

Leading public health organizations, including the American

Medical Association (AMA), American Academy of Pediatrics (AAP),

American Nurses Association, American Society of Addiction Medicine, National Association for Perinatal Addiction Research and

Education, National Council on Alcoholism and Drug Dependence,

and American Public Health Association, oppose the prosecution of

pregnant women who use drugs. These groups recognize that such an

approach undermines maternal and fetal health because the threat of

criminal charges and the fear of losing their children deter women

from seeking prenatal care and drug treatment. The U.S. Institute

of Medicine similarly asserts:

Pregnant women who are aware that their life-styles place their

health and that of their babies at risk may also fear seeking care

because they anticipate sanction or pressure to change such

habits as drug and alcohol abuse, heavy smoking, and eating

disorders. Substance abusers in particular may delay care

because of the stress and disorganization that often surround

their lives, and because they fear that if their use of drugs is

uncovered, they will be arrested and their other children taken

into custody (Brown 1988, p. 79).

Government and private researchers also have concluded that

punitive approaches frighten women away from needed care.67 One

Federal report found that “women are reluctant to seek treatment if
479

there is a possibility of punishment,” civil or criminal, noting that “some

women are now delivering their infants at home in order to prevent the

state from discovering their drug use.”68 Moreover, fear of being reported

to the authorities discourages women from communicating honestly

about their addiction problems to health care professionals who need

that information to provide appropriate medical care to both the woman

and her newborn.69

Many groups that are primarily concerned with the health and rights

of children, such as AAP, the Center for the Future of Children, and the

March of Dimes, also recommend against punitive approaches to substance abuse and pregnancy. As AAP has stated, “[p]unitive measures

taken toward pregnant women, such as criminal prosecution and incarceration, have no proven benefits for infant health.”70 In fact, studies

indicate that drug-using women who receive prenatal care have

healthier children (Racine et al. 1993).

In addition, prosecutions have focused particularly on women who

allegedly use cocaine during their pregnancies, reflecting a reliance on

exaggerated and inaccurate media reports on the “epidemic” of “crack

babies” (Reinarman and Levine 1989, p. 115) rather than sound medical

findings.71 Researchers have concluded that “available evidence from

the newborn period is far too slim and fragmented to allow any clear

predictions about the effects of intrauterine exposure to cocaine on the

course and outcome of child growth and development” (Mayes et al.

1992).

Moreover, the effect of substances on fetal development depends

on dose, timing and duration of exposure, genetic or other biological

factors, as well as other influences (Zuckerman 1991). As one court

noted when it refused to civilly commit a pregnant woman, “A hospital

simply cannot present clear and convincing evidence that [cocaine] use

during pregnancy, particularly during the third trimester of pregnancy,

is certain or even likely to cause fetal injury.”72 Thus, although reports

in the scientific literature provide ample ground for concern about the

potential health effects of cocaine use during pregnancy—and form

an appropriate basis for additional research—the data do not justify

prosecuting pregnant women and new mothers, committing them to

mental institutions, or automatically removing their children.73

Furthermore, focusing on cocaine ignores the potential impact

of other drugs, such as nicotine and alcohol. It is estimated that
480

2 to 4 percent of pregnant women have used cocaine and approximately

27 percent of pregnant women smoke cigarettes (Gomby and Shiono

1991). A meta-analysis of the effect of smoking during pregnancy

concluded that the use of tobacco products is responsible for an estimated 32,000 to 61,000 low-birth-weight infants born annually and

14,000 to 26,000 infants who require admission to neonatal intensive

care units.74 Currently, research does not shed much light on the subject

of which particular substances contribute to which later disability.

Polydrug exposure, impoverished home life, and chaotic communities

make it impossible to attribute developmental effects to one particular

drug. The research has not controlled for other important variables,

such as the role of the father, the mother’s personality, her health, and

her access to social supports (Kronstadt 1991).

ADDRESSING THE TRUE CRISIS:

LACK OF DRUG TREATMENT

Both the World Health Organization and the American Psychiatric

Association classify substance abuse as a disease.75 The AMA explains

that “addiction is not simply the product of a failure of individual

willpower. [It] is caused by complex hereditary, environmental, and

social factors” (American Medical Association Board of Trustees 1990).

Substance abuse is difficult to overcome, even for pregnant addicts who

are especially motivated to stop (Chavkin 1991, p. 1,559). Moreover,

according to experts, such factors as a history of abuse specifically

affect a woman’s drug use and thus raise important issues for treatment

(Kilpatrick 1990, p. 7). In one study, up to 74 percent of alcohol- and

other-drug-dependent women reported that they had experienced sexual

abuse.76 In another survey of pregnant women, 70 percent reported that

they had been beaten as adults.77 Many specialists in the field believe

that women who are abused self-medicate with alcohol, illicit drugs, and

prescription medication to alleviate the pain and anxiety of living under

the constant threat of violence.78

As the National Association for Perinatal Addiction Research and

Education points out: “These women are addicts who become pregnant,

not pregnant women who decide to use drugs . . . .”79 Their substance

abuse is best addressed through treatment, not punishment (Chavkin
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1990). One court that ruled against criminal prosecution of women for

alleged prenatal drug use also has acknowledged that treating addiction

during pregnancy as a disease and addressing the problem through

treatment rather than prosecution is the approach “overwhelmingly in

accord with the opinions of local and national medical experts.”80

Despite the fact that drug treatment programs tailored for pregnant

and parenting women help them overcome their addiction problems,

greatly improve birth outcomes, and are cost-effective, such programs are

extremely rare and overburdened.81 The 1991 U.S. General Accounting

Office report found that the most critical barrier to women’s treatment

“is the lack of adequate treatment capacity and appropriate services

among programs that will treat pregnant women and mothers with

young children. The demand for drug treatment uniquely designed for

pregnant women exceeds supply.”82

A 1989 study of 95 percent of the drug treatment programs in New

York City found that 54 percent refused to treat any pregnant women,

67 percent would not accept pregnant women on medicaid, and

87 percent refused to treat pregnant women on medicaid who were

addicted to crack cocaine.83 Although many programs now say they will

accept pregnant women, a review of drug treatment programs in Southern States found that pregnant women make up less than 1 percent of

the patients actually served.84 A recent survey also suggests that few

physicians or nurses detect substance abuse problems in pregnant women

or make referrals to treatment (Gehshan 1995). Even when programs

do accept women, there are numerous barriers to successful treatment.

For example, if a program does not provide child care services, that fact

“effectively precludes the participation of women in drug treatment”

(Chavkin 1989, p. A21). Similarly, despite significant evidence that

long-term (12 to 18 months) residential care may be the most effective

for chronic alcohol- or other-drug-dependent pregnant and parenting

women, such services are virtually nonexistent.85 Moreover, when

women are imprisoned during their pregnancies or shortly after giving

birth, they and their children are even less likely to receive appropriate

care. Putting women in jail—where drugs may be available (Malcolm

1989, p. 1) but treatment and prenatal care are not—jeopardizes the

health of pregnant women and their future children and does little to

solve the underlying problem of addiction.86
482

CONCLUSION

Punitive approaches to the problem of substance abuse during

pregnancy threaten the health of women and children and seriously

erode a woman’s right to privacy. Furthermore, they ignore the serious

shortage of drug treatment programs for pregnant and parenting women

and fail to address the overall lack of access to reproductive health care

services. Policymakers, legislators, and those who purport to care about

the well-being of women and their children must work to find better

ways to address the needs of women with alcohol and other drug abuse

problems. As the author of a recent study on the effectiveness of

mandatory treatment concluded, “the children of drug-using mothers

may be most effectively served by the development of available, efficacious, and welcoming services for women and families” (Chavkin 1991,

p. 1560).

NOTES

1. See infra notes 2, 3, 4.

2. See In re A.C., 573 A.2d 1235 (D.C. 1990) (en banc) (reversing

court-ordered cesarean section that contributed to the death of both

the fetus and the woman); Doe v. Doe, 632 N.E.2d 326 (Ill. 1994)

(courts may not balance whatever rights a fetus may have against

the rights of a competent woman; her choice to refuse medical

treatment as invasive as a cesarean section must be honored even

if the choice may be harmful to her fetus); Thornton and Paltrow

(1991).

3. See, e.g., Stallman v. Youngquist, 531 N.E.2d 355 (Ill. 1988) (child

cannot maintain lawsuit against mother for unintentional infliction

of injuries suffered while in the womb); Shaw (1984).

4. See International Union v. Johnson Controls, Inc., 499 U.S. 187

(1991) (“fetal protection” policy violated Title VII’s prohibition on

sex discrimination). See also Samuels (1995) and Williams (1981).

5. For example, a pregnant woman who is addicted to heroin faces a

catch-22. If she stops “cold turkey,” as some advocates urge, the

resulting withdrawal can cause fetal death. If she continues to use

heroin or if she switches to methadone, the child will still undergo

withdrawal because both substances are addictive for the newborn.

See Center for Substance Abuse Treatment (1993, p. 19).
483

6. See, e.g., Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993)

(affirming reversal of child abuse conviction finding that to construe the child abuse statute to apply to a woman’s prenatal conduct

would make the statute impermissibly vague and violate legislative

intent); Sherriff v. Encoe, 885 P.2d 596, 598 (Nev. 1994) (child

abuse statute inapplicable to a woman who used methamphetamines

during pregnancy; to hold otherwise would “open the floodgates to

prosecution of pregnant women who ingest such things as alcohol,

nicotine, and a range of miscellaneous, otherwise legal, toxins”);

Commonwealth v. Kemp, 75 Westmoreland L.J. 5 (Pa. Ct. C.P.

1992), aff’d, 643 A.2d 705 (Pa. Super. Ct. 1994) (affirming dismissal of charges of recklessly endangering another person or

endangering the welfare of a child against a pregnant woman who

allegedly ingested cocaine while pregnant; finding that neither

“child” nor “person” includes an unborn “fetus”).

7. See, e.g., Johnson v. State, 602 So. 2d 1288 (Fla. 1992) (reversing

a woman’s convictions for “delivering drugs to a minor” via the

umbilical cord); People v. Hardy, 469 N.W.2d 50 (Mich. Ct. App.)

(statute prohibiting delivery of cocaine to children was not intended to apply to pregnant drug users), leave to appeal denied, 471

N.W.2d 619 (Mich. 1991).

8. See, e.g., State v. Inzar, Nos. 90CRS6960, 90CRS6961 (N.C. Super.

Ct. Robeson Cty. Apr. 9, 1991), appeal dismissed, No. 9116SC778

(N.C. Ct. App. Aug. 30, 1991) (dismissing charges against a woman

who allegedly used “crack” during her pregnancy under statutes

prohibiting assault with a deadly weapon and delivery of a controlled substance because a fetus is not a person within the meaning

of the statutes); State v. Alexander, No. CF-92-2047, Transcript of

Decision (Okla. Dist. Ct. Tulsa Cty. Aug. 31, 1992) (dismissing

charges of unlawful possession of a controlled substance and unlawful delivery of a controlled substance to a minor brought against a

woman who ingested illicit drugs while pregnant, finding that the

presence of drugs in defendant’s system does not constitute possession and transfer of the drug through the umbilical cord is not

“volitional”).

9. See People v. Jones, No. 93-5, Reporter’s Transcript (Cal. Juv. Ct.

Siskiyou Cty. July 28, 1993) (dismissing homicide charges against

a woman whose newborn died allegedly as a result of prenatal drug
484

use, finding that legislative history did not support application of

murder statute to fetus’ death); Jaurigue v. Justice Court, No. 18988,

Reporter’s Transcript (Cal. Super. Ct. San Benito Cty. Aug. 21,

1992) (dismissing fetal homicide charges against a woman who

suffered stillbirth allegedly as a result of her prenatal drug use,

finding that neither legislative history nor the statute’s language

suggested that a mother could be prosecuted for murder for her

fetus’ death), writ denied, (Cal. Ct. App. 1992); State v. Barnett,

No. 02D04-9308-CF-00611 (Ind. Super. Ct. Allen Cty. Feb. 11,

1994) (notice accepting State’s motion to withdraw child abuse

charges and dismissing homicide charges brought against a woman

whose infant tested positive for cocaine and died shortly after its

premature birth).

10. See State v. Pfannenstiel, No. 1-90-8CR (Wyo. Cty. Ct. Albany Cty.

Jan. 5, 1990) (pregnant woman charged with child abuse for drinking alcohol); Little (1991, p. 3A) (a woman was charged with

second-degree assault and child endangerment after her son was

allegedly born with signs of fetal alcohol syndrome).

11. See People v. Stewart, No. M508197, Reporter’s Transcript, at 4

(Cal. Mun. Ct. San Diego Cty. Feb. 26, 1987) (pregnant woman

charged under a criminal child support statute for failing to follow

doctor’s advice to get bed rest, abstain from sexual intercourse, and

seek prompt medical attention when she experienced bleeding).

12. As Gehshan (1993, p. 1) concluded:

Newspaper reports in the 1980s sensationalized the use of crack

cocaine and created a new picture of the typical female addict:

young, poor, black, urban, on welfare, the mother of many children,

and addicted to crack. In interviewing nearly 200 women for this

study, a very different picture of the typical chemically dependent

woman emerges. She is most likely white, divorced or never

married, age 31, a high school graduate, on public assistance, the

mother of two or three children, and addicted to alcohol and one

other drug. It is clear from the women we interviewed that substance abuse among women is not a problem confined to those who

are poor, black, or urban but crosses racial, class, economic, and

geographic boundaries.

13. One Federal law provides that, except under limited circumstances,

“[R]ecords of the identity, diagnosis, prognosis, or treatment of any
485

patient . . . maintained in connection with the performance of any

program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is

conducted, regulated, or directly or indirectly assisted by any

department or agency of the United States, shall . . . be confidential

. . .” 42 U.S.C. § 290dd-2 (1995). See also Legal Action Center

(1991, 1994).

14. See, e.g., State v. Whitner, 92-GS-39-670, Transcript of Record,

(Pickens County, S.C., Court of G.S., April 20, 1992) (Guilty Plea

hearing); State v. Whitner, 93-CP-39-347, Transcript of Record

(Pickens County, S.C., Court of C.P., November 1, 1993)

(Postconviction relief hearing).

15. See, State v. Reinesto, 182 Ariz. 190, 894 P.2d 733. Order (Ariz. Ct.

App. March 14, 1995) (dismissing on special appeal, child abuse

charges against a woman based on her alleged use of heroin during

pregnancy); Collins v. State, No. 08-93-00404, slip op. (Tex. Ct.

App., Dec. 22, 1994) (dismissing injury to a child charges against

a woman who allegedly used drugs during pregnancy, finding that

applying statute to prenatal conduct violates due process); Sherriff v.

Encoe, 885 P.2d 596 (Nev. 1994) (holding that to interpret statute

criminalizing child endangerment to apply to a woman who used

methamphetamine while pregnant would be a radical incursion on

existing law); Commonwealth v. Kemp, 75 Westmoreland L.J. 5 (Pa.

Ct. C.P. 1992), aff’d 643 A.2d 705 (Pa. Super. Ct. 1994) (affirming

dismissal of charges of recklessly endangering another person or

endangering the welfare of a child against a pregnant woman who

allegedly ingested cocaine while pregnant; finding that neither

“child” nor “person” includes an unborn “fetus”); Commonwealth v.

Welch, 864 S.W.2d 280 (Ky. 1993) (affirming reversal of child abuse

conviction, finding that to construe the child abuse statute to apply

to a woman’s prenatal conduct would make the statute impermissibly vague and violate legislative intent); Johnson v. State, 602 So. 2d

1288 (Fla. 1992) (reversing a woman’s conviction for “delivering

drugs to a minor” via the umbilical cord); State v. Gray, 584 N.E.2d

710, 713 (Ohio 1992) (mother cannot be convicted of child endangerment based solely on prenatal substance abuse, finding that the

plain meaning of statute does not extend to fetuses or prenatal

conduct); People v. Morabito, 580 N.Y.S.2d 843 (Geneva City Ct.
486

1992) aff’d slip op. (Ontario County Ct. 1992) (dismissing child

endangerment charges against a woman who allegedly smoked

cocaine during her pregnancy, because the court may not extend

the reach of the statute to allow a fetus to be included within the

definition of “child,” and because public policy and due process

considerations militate against such prosecutions); State v. Carter,

602 So. 2d 995 (Fla. App. 1992) (affirming the trial court’s decision

to dismiss charges of child abuse against a woman who allegedly

used illicit drugs while pregnant); State v. Luster, 419 S.E.2d 32

(Ga. App. 1992), cert. denied, S92C1020 (June 4, 1992) (statute

proscribing delivery/distribution of cocaine did not encompass

prenatal transmission); State v. Gethers, 585 So. 2d 1140 (Fla. App.

1991) (dismissing child abuse charges on grounds that such application misconstrues the effect of the law and violates public policy of

preserving family life); People v. Hardy, 469 N.W.2d 50, (Mich. App.

1991), appeal denied, 471 N.W.2d 619 (Mich. 1991) (statute prohibiting delivery of cocaine to children was not intended to apply to

pregnant drug users); Reyes v. Superior Court, 75 Cal. App. 3d 214

(1977) (child endangering statute does not refer to an unborn child

or include a woman’s alleged drug use during pregnancy). See also

State v. Osmus, 276 P.2d 469 (Wyo. 1954) (criminal neglect statute

cannot be applied to the woman’s prenatal conduct). See also trial

court opinions: State v. Padgett, CC-94-2650 (Ala. Cir. Ct. Montgomery Cty. Aug. 14, 1995); Sullivan v. State, No. 93-CP-23-3223,

slip op. (S.C. Ct. C.P. Dec. 19, 1994) (granting postconviction

relief to a woman who pled guilty to child abuse for her use of

cocaine during pregnancy); Crawley v. Evatt, No. 94-CP-04-1280,

slip op. (S.C. Anderson Oct. 17, 1994) (granting habeas corpus

petition for a woman who pled guilty to child abuse after her

newborn tested positive for cocaine); Rickman v. Evatt, 94-CP-04-

138, slip op. (S.C. Anderson Sept. 9, 1994) (granting habeas corpus

relief to reverse conviction under the State’s child neglect law of a

woman who used drugs while pregnant); State v. Dunn, 93-1-00043-

2, Transcript of Record (Wash. Super. Ct. April 1, 1994) (dismissing

child mistreatment charges, finding that the legislature never

intended the child mistreatment statute to apply to a woman’s

prenatal conduct); State v. Crawley, 93- GS-04-756, slip op. (S.C.

Anderson Nov. 29, 1993) (quashing indictment under State child

neglect statute of a woman who allegedly used drugs while pregnant,
487

finding that the plain and ordinary meaning generally given to the

word “child” does not include “fetus”); Lester v. State, 93-CP-23-

2984 (S.C. Greenville Nov. 22, 1993) (granting postconviction

relief of a woman who pled guilty to child abuse charges based on

her use of drugs while pregnant); Tolliver v. State, No. 90-CP-23-

5178, slip op. (S.C. Greenville Aug. 10, 1992) cert. denied (S.C.

Mar. 10, 1993) (granting postcon-viction relief for a woman who

pled guilty to child neglect under a finding that application of

statute to a woman who used drugs while pregnant violated statute’s

plain meaning and legislative intent); State v. Jones, No. 93-5,

Transcript of Record (Cal. J. Ct. Siskiyou Cty. July 28, 1993)

(dismissing homicide charges against a woman whose newborn died

allegedly as a result of prenatal drug use, finding that the legislative

history did not support application of murder statute to the death

of the woman’s fetus); State v. Arandus, No. 93072, slip op. (Neb.

Dist. Ct. June 17, 1993) (quashing indictment on child abuse

because application of the statute to unborn children is not supported by legislative intent); People v. Jaurigue, No. 18988, slip op.

(Cal. Super. Ct. Aug. 21, 1992), writ denied, (Cal. App. 1992)

(dismissing fetal homicide charges against a woman who suffered

a stillbirth allegedly as a result of her prenatal drug use, finding that

neither legislative history nor the statute’s language suggested that

a mother could be prosecuted for murder for the death of her fetus);

State v. Alexander, No. CF-92-2047, slip op. (Okla. Dist. Ct. Aug.

31, 1992) (dismissing charges of unlawful possession of a controlled

substance and unlawful delivery of a controlled substance to a minor

brought against a woman who ingested illicit drugs while pregnant,

finding that the presence of a drug in the defendant’s system does

not constitute possession and that transfer of the drug through the

umbilical cord is not “volitional”); Commonwealth v. Wilcox,

No. A-44116-01, slip op. (Va. Dist. Ct. Oct. 9, 1991) (dismissing

child abuse charges against a woman who allegedly used cocaine

during pregnancy, finding that application of the statute to these

facts would extend it by means of creative construction to acts not

intended by the legislature); Commonwealth v. Smith, No. CR-91-

05-4381, slip op. (Va. Cir. Ct. Sept. 16, 1991) (dismissing child

abuse charges against a woman who allegedly used drugs during

pregnancy, finding that the child abuse statute is not intended to

apply to fetuses or to prenatal conduct); Commonwealth v. Turner,
488

No. 91-054382, slip op. (Va. Cir. Ct. Sept. 16, 1991); State v. Inzar,

Nos. 90CRS6960, 90CRS6961, slip op. (N.C. Super. Ct. Apr. 9,

1991), appeal dismissed, No. 9116SC778 (N.C. App. Aug. 30, 1991)

(dismissing charges against a woman who allegedly used crack

during her pregnancy under a statute prohibiting assault with a

deadly weapon and delivery of a controlled substance, finding that

a fetus is not a person within the meaning of the statutes); People v.

Bremer, No. 90-32227-FH, slip op. (Mich. Cir. Ct. Jan. 31, 1991),

appeal dismissed, No. 137619 (Mich. App. July 14, 1992) (dismissing

drug delivery charges on principles of statutory construction, due

process, and privacy, holding that the interpretation of the drug

delivery law to cover ingestion of cocaine by a pregnant woman

would be a radical departure from existing law); Commonwealth v.

Pellegrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990)

(right to privacy and principles of statutory construction, due

process, and separation of powers do not permit extension of drug

delivery statute to women who give birth to substance-exposed

newborns); People v. Cox, No. 90-53454 FH, slip op. (Mich. Cir.

Ct. July 9, 1990), aff’d, No. 131999 (Mich. App. Feb. 28, 1992)

(granting motion to dismiss, finding that drug delivery statute is not

intended to regulate prenatal conduct and that prosecution would

not be in the best interest of public health, safety, and welfare);

State v. Andrews, No. JU 68459, slip op. (Ohio C.P. June 19, 1989)

(child endangerment statute is not intended to apply to any situation other than that of a living child placed at risk by actions that

occurred after its birth); People v. Stewart, No. M508197, slip op.

(Cal. Mun. Ct. Feb. 26, 1987) (criminal child support statute that

explicitly covered “a child conceived but not yet born” is not

intended to impose additional legal duties on pregnant women);

Whitner v. State, 93-CP39347, slip op. (S.C. Ct. C.P. Nov. 22, 1993)

cert. granted (June 30, 1994) (granting postconviction relief to a

woman who pled guilty to child neglect based on her use of cocaine

during pregnancy), reversed Whitner v. State, No. 24468, 1996 WL

393164 (S.C. July 15, 1996) (interpreting the State’s child abuse

statute to apply to any behavior by a pregnant woman that risks

harm to a fetus); Petition for Rehearing filed July 25, 1996. See also

Dubler 1996.

16. See supra note 15.
489

17. See supra note 6.

18. Whitner v. State, 93-CP-39347, slip op. at 3 (S.C. Ct. C.P. Nov. 22,

1993), cert. granted, [no case number] (S.C. June 30, 1994).

19. See supra note 7.

20. See, e.g., State v. Padgett, Nos. CC-94-2650, CC-94-2651, slip op.

at 6 (Ala. Cir. Ct. Montg. Cty. Aug. 14, 1995) (positive drug

screen on a newborn provides “absolutely no evidence, direct or

circumstantial, to support the possession count”); State v. Thronsen,

809 P.2d 941, 942 (Alaska Ct. App. 1991) (defendant could not be

convicted of possession of cocaine in his body because he no longer

had control over the cocaine once he ingested or injected it); State

v. Vorm, 570 N.E.2d 109, 110 (Ind. Ct. App. 1991) (unless there is

additional evidence, the presence of cocaine metabolites in a urine

sample does not constitute prima facie evidence of knowing and

voluntary possession of cocaine); State v. Flinchpaugh, 659 P.2d 208,

211 (Kan. 1983) (“[o]nce a controlled substance is within a person’s

system, the power of the person to control, possess, use, dispose of,

or cause harm is at an end”); State v. Lewis, 394 N.W.2d 212, 217

(Minn. Ct. App. 1986) (mere presence of a controlled substance

in a person’s urine is insufficient circumstantial evidence to prove,

beyond a reasonable doubt, prior possession by defendant); State v.

Alexander, No. CF-92-2047, Transcription of Decision, p. 8 (Okla.

Dist. Ct. Tulsa Cty. Aug. 31, 1992) (crime of possession did not

occur “while defendant had knowledge of the presence of the drug

as she ingested it and knew or should have known that it would

pass to the fetuses,” because “she had no control or power over its

passage after ingestion”); Jackson v. State, 833 S.W.2d 220, 223 (Tex.

Ct. App. 1992) (test for drugs in bodily fluids does not satisfy the

elements for the offense of possession, nor can presence of residual

drugs in an infant be grounds for charging the mother with possession); State v. Hornaday, 713 P.2d 71, 75 (Wash. 1986) (once a

controlled substance is ingested into the body, it is no longer under

the person’s dominion and control for possession purposes). Only

one court has allowed a possession charge based on a newborn’s

positive drug test to proceed to trial. See Jackson v. State, 430 S.E.2d

781 (Ga. Ct. App. 1993), cert. dismissed, 436 S.E.2d 632 (Ga. 1993).

Appeal was impossible because the charges were dropped.

21. See supra note 9.
490

22. See, e.g., People v. Morabito, 580 N.Y.S.2d 843, 847 (City Ct. 1992),

aff’d, [no case number] (N.Y. Cty. Ct. Ontario Cty. Sept. 24, 1992).

23. See, e.g., State v. Reinesto, 182 Ariz. 190, 894 P.2d p. 733 (Ariz. Ct.

App. May 14, 1995).

24. State v. Reinesto, 182 Ariz. 190, 894 P.2d, p. 736 (internal citations

omitted).

25. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,

dissenting). See also Planned Parenthood v. Casey, 112 S. Ct. 2791

(1992).

26. Johnson v. State, 602 So. 2d 1288, 1296 (Fla. 1992). See also State v.

Gethers, 585 So. 2d 1140, 1143 (Fla. Dist. Ct. App. 1991); Commonwealth v. Pellegrini, No. 87970, slip op. at 9 (Mass. Super. Ct.

Plymouth Cty. Oct. 15, 1990); People v. Bremer, No. 90-32227-FH,

slip op. at 14 (Mich. Cir. Ct. Muskegon Cty. Jan. 31, 1991), appeal

dismissed, No. 137619 (Mich. Ct. App. July 14, 1992); People v.

Morabito, [no case number] slip op. at 4 (N.Y. Cty. Ct. Ontario Cty.

Sept. 24, 1992); Hand (1992, p. 1). (In February 1992, Martina

Greyhound was charged with reckless endangerment for allegedly

sniffing paint fumes while pregnant. After her arrest, she obtained

an abortion, and the charges were subsequently dropped.)

27. See, e.g., Commonwealth v. Pellegrini, No. 87970 (Mass. Super. Ct.

Plymouth Cty. Oct. 15, 1990); People v. Bremer, No. 90-32227-FH

(Mich. Cir. Ct. Muskegon Cty. Jan. 31, 1991), appeal dismissed,

No. 137619 (Mich. Ct. App. July 14, 1992).

28. Commonwealth v. Pellegrini, No. 87970, slip. op. at 7 (Mass. Super.

Ct. Plymouth Cty. Oct. 15, 1990).

29. See supra note 28, p. 8.

30. Johnson v. State, 602 So. 2d 1288, 1295-96 (Fla. 1992).

31. Commonwealth v. Kemp, 75 Westmoreland L.J. 5, 11 (Pa. Ct.

C. P. 1992), aff’d, 643 A.2d 705 (Pa. Super. Ct. 1994).

32. This case study is based on public court papers and published

articles, including: Jos and colleagues (1995), Marshall and coworkers (1995), Fumo (1994), Green (1994, p. B1), Hilts (1994a, p.

A12; Hilts 1994b, p. 67; Hilts 1994c, p. B9), Siegel (1994, p. 14),

and Sturgis (1993, p. 14); Plaintiffs’ Memorandum in Support of

Their Partial Cross-Motion for Summary Judgment and in
491

Opposition to Defendants’ Motion for Summary Judgment, Ferguson

v. City of Charleston, No. 2:93-2624-2 (D.S.C.).

33. See Ferguson v. City of Charleston, No. 2:93-2624-2 (D.S.C. filed

Oct. 5, 1993).

34. See Settlement Agreement between Medical Center of the Medical

University of South Carolina and Office for Civil Rights, U.S.

Department of Health and Human Services (Sept. 8, 1994) (on file

with author).

35. See letter from J. Thomas Puglisi, Ph.D., Chief, Compliance Oversight Branch, Division of Human Subject Protections, Office for

Protection From Research Risks, National Institutes of Health, to

Dr. James B. Edwards, President, Medical University of South

Carolina (Sept. 30, 1994) (on file with author).

36. See, e.g., Fla. Stat. ch. 415.503 (1995); Mass. Ann. Laws ch. 119,

§ 51A (Law. Co-op. 1995); Okla. Stat. tit. 63, § 1-550.3(A) (1995);

Utah Code Ann. § 62A-4a-404 (1995).

37. See, e.g., Ill. Comp. Stat. Ann. ch. 325, para. 5/3 (1995); Ind. Code

§ 31-6-4-3.1(a)(1)(B) (1995); Iowa Code § 232.77(2) (1995);

Minn. Stat. § 626.5562(2) (1995). A survey of State maternal/

child health and drug treatment agency directors found that other

States may, as a matter of policy, require reporting to child protective authorities of pregnant women or infants with positive toxicology results and/or define a positive result as evidence of child

neglect

or abuse (Chavkin et al. 1995).

38. See, e.g., Ind. Code § 31-6-4-3.1(a)(1) (1995); Utah Code Ann.

§ 62A-4a-404 (1995).

39. See Minn. Stat. § 626.5662(2) (1995).

40. See Cal. Penal Code § 11165.13 (1995).

41. See, e.g., Iowa Code § 232.77(2) (1995); Ky. Rev. Stat. Ann.

§ 214.160(5) (1995).

42. See Kan. Stat. Ann. § 65-1, 163 (1994).

43. See Ky. Rev. Stat. Ann. § 214.160 (1991).

44. Amicus Curiae Brief of California Medical Association and American College of Obstetricians and Gynecologists, District 9, at 3-4,

In re Adrianna May H., No. 3 Civil CO14203 (Cal. Ct. App. 3d
492

App. Div. filed June 17, 1993). See also Center for the Future of

Children (1991). (“[A]n identified drug-exposed infant should be

reported to child protective services only if factors in addition to

prenatal drug exposure show that the infant is at risk for abuse or

neglect.”)

45. See, e.g., Ana R., et al. v. New York City Department of Social Services, et al., 90-CIV-3863 (MGC) Class Action Complaint (U.S.

Dist. Ct. S.D. N.Y. June 7, 1990); see also Hoffman (1990, p. 11).

46. See supra note 45.

47. See Nassau County Dep’t of Social Serv. v. Denise J., No. 209, 1995

N.Y. LEXIS 4436, at *1 (N.Y. Nov. 30, 1995) (A finding of neglect

as to a newborn and a newborn’s older sibling may not be based

solely on the newborn’s positive toxicology for a controlled substance.); In re Valerie D., 613 A.2d 748, 765 (Conn. 1992) (Legislative history does not support application of civil child abuse statute

where child was born with positive toxicology and other symptoms

after mother had injected cocaine several hours prior to giving

birth.)

48. See Minn. Stat. § 253B.02 (1995). See also Steven and Ahlstrom

(1991) and supra note 44, p. 15.

49. See Addington v. Texas, 441 U.S. 418, 431-34 (1979). See generally

Garcia and Keilitz (1991) and Hafemesiter and Amirshahi (1992).

50. See In re Tanya P., No. 530069/93, slip op. at 1, 18-22 (N.Y. Sup.

Ct. N.Y. Cty. Feb. 24, 1995).

51. See In re Steven S., 178 Cal. Rptr. 525, 527-28 (1981); cf. State ex

rel. Angela M.W. v. Kruzicki, 541 N.W.2d 482 (Wis. Ct. App. 1995)

(upholding juvenile court’s authority to adjudicate a “child in need

of protection” proceeding involving a pregnant woman who allegedly used cocaine), cert. granted, No. 95-2480-W (Wisc. Jan. 23,

1996).

52. See United States v. Vaughn, 117 Daily Washington L. Rep. 441,

No. F-2172-88B (D.C. Super. Ct. Aug. 23, 1988).

53. See supra note 52.

54. See supra note 37.

55. See generally Mandelbaum (1994) and Marshall (1993); Wilford

and Morgan (1993).
493

56. See, e.g., Ky. Rev. Stat. Ann. § 222.021 (1995); La. Rev. Stat. Ann.

§§ 40:2018, 46:2511 (1995); N.H. Rev. Stat. Ann. § 132:19 (1994);

Okla. Stat. tit. 63, § 1-239 (1995); Wis. Stat. § 51.025. See also Or.

Rev. Stat. § 430.910 (1994) (assigning the Oregon Department of

Health the task of studying the problem of substance abuse in

pregnancy).

57. See, e.g., Conn. Rev. Gen. Stat. § 19a-4F (1994); N.H. Laws 182

(1994); Ohio Rev. Code Ann. § 3793.15 (1995); Or. Rev. Stat.

§ 430.925 (1994); Pa. Stat. Ann. tit. 71 § 553 (1995); Va. Code

Ann. § 2.1-51.15:1 (1995).

58. See, e.g., Ga. Code Ann. § 26-5-20 (1995); Kan. Stat. Ann.

§ 65-1,165 (1994); Mo. Rev. Stat. § 191.731 (1994).

59. See, e.g., Colo. Rev. Stat. § 26-4-508.2 (1995).

60. See, e.g., Del. Code Ann., tit. 16, § 190 (1995); Mo. Rev. Stat.

§§ 191.725, 191.727 (1994); R.I. Gen. Laws § 15-2-3.1 (1994).

61. See, e.g., Iowa Code § 125.32A (1995); Kan. Stat. Ann. § 65-1,165

(1994).

62. Or. Rev. Stat. § 430.560(2) (1994).

63. 1991 Me. Resolves Ch. 49 (HP 174/LD 259).

64. Md. Code Ann. Health-Gen. § 15-103(d) (1995).

65. See, e.g., Ill. Comp. Stat. Ann. Ch. 720, para. 507/407.2 (1995);

N.J. Stat. Ann. § 2C:35-8 (1994).

66. See Coalition on Alcohol and Drug Dependent Women and Their

Children (1991, p. 15). See also Thompson (1989); Gehshan

(1993), supra note 12.

67. See U.S. General Accounting Office (1991, p. 20); Poland and

colleagues (1993). (A survey of women’s attitudes regarding

punitive laws found that substance-abusing pregnant women would

go underground and avoid treatment for fear of incarceration.) See

also Center for Health Policy Research (1993, p. 78).

68. See U.S. General Accounting Office (1990, pp. 20, 37). Many

women’s treatment experts “contend that as stigma, rejection, and

blame increase, drug-abusing women’s feelings of guilt and shame

increase. This leads to lowered self-esteem, increased depression,

immobilization, and isolation. As societal stigma increases, willingness to enter treatment decreases.” See also Kumpfer (1991).
494

69. See Curry (1989). See also National Association for Perinatal

Addiction Research and Education (1990). (“If a woman does go

for prenatal care or delivery, she will be less likely to disclose her

drug or alcohol use to her health care provider if she believes she

will be subject to criminal prosecution. Thus, her doctor or nurse

will not have all of the information he or she needs to treat the

woman and her subsequently born child. Again, this will only serve

to impede the long-term goal of ensuring the health and well-being

of mothers and babies.”)

70. See American Academy of Pediatrics (1990). See also Center for

Substance Abuse Treatment (1993, p. 2), supra note 5. (“There is

no evidence that punitive approaches work.”)

71. As one recent article notes:

Expectations of universal and permanent damage to children

prenatally exposed to cocaine rest not on scientific findings but on

media “hype” fueled by selective anecdotes. For example, the early

reports of adverse effects of prenatal exposure to cocaine, including

neurobehavioral dysfunction, a remarkably high rate of SIDS

(Sudden Infant Death Syndrome), and birth defects, were initial

observations that constitute the legitimate first step in the scientific

process. However, these unreplicated findings were uncritically

accepted by scientists and lay media alike, not as preliminary, and

possibly unrepresentative, case reports but as “proven” facts . . . .

For example, the initial report of a high rate of SIDS was never peer

reviewed. The “fact” that prenatal cocaine exposure greatly increases the risk of SIDS continues to be disseminated in the lay and

medical media in spite of subsequent peer-reviewed studies that did

not confirm this finding. Even scholarly reviews and the introductions to scientific papers present a litany of adverse effects without

any methodologic critique or qualifications (Frank and Zuckerman

1993, pp. 298, 299, citations omitted).

72. See supra note 50, p. 23.

73. See Amici Curiae Brief of M. Douglas Anglin et al., Commonwealth

v. Kemp, 75 Westmoreland L.J. 5 (Pa. Ct. C.P. 1992), aff’d, 643

A.2d 705 (Pa. Super. Ct. 1994). See also Mayes and colleagues

(1992).
495

74. DiFranza and Lew (1995). (“Tobacco use is also annually responsible for an estimated 1,900 to 4,800 infant deaths, resulting from

perinatal disorders and 1,200 to 2,200 deaths from sudden infant

death syndrome.”)

75. See United States v. Southern Managment Corp., 955 F.2d 914, 921

(4th Cir. 1992).

76. Finkelstein and colleagues (1990, p. 244) (citing Wilsnack [1984]).

This finding is consistent with anecdotal reports, from programs

that specialize in treating pregnant addicted women, stating that

80 to 90 percent of their clients have been victims of rape or incest.

Leff (1990, pp. E1, E4); cf. Martin (1990, p. B1).

77. Regan and colleagues (1987). This same study indicated that

19 percent of the women had been severely beaten as children;

15 percent had been raped as children and 21 percent as adults.

Overall, 70 percent reported that they had also been beaten as

adults. See also Gehshan (1993), supra note 12. (One-third of

women interviewed cited abusive or violent relationships, which

prevented them from entering treatment sooner.)

78. Amaro and colleagues (1990), Randall (1990), Paone and Chavkin

(1993), Walker (1991, p. 106), and Finkelstein and colleagues

(1990, pp. 243-255), supra note 76.

79. National Association for Perinatal Addiction Research and

Education (1990).

80. State v. Luster, 419 S.E.2d 32, 35 (Ga. Ct. App. 1992), cert. denied,

1992 Ga. LEXIS 467 (Ga. June 4, 1992).

81. See Center for Substance Abuse Treatment (1995, pp. 5-15).

(Drug treatment costs significantly less than imprisonment and

reduces costs associated with medical care and welfare.)

82. U.S. General Accounting Office (1991, p. 4), supra note 67.

“One 1990 survey estimates that less than 14 percent of the

4 million women needing drug treatment receive such treatment.”

Center for Substance Abuse Treatment (1995, p. 1).

83. Chavkin (1990). See also Elaine W. v. Joint Diseases North Gen.

Hosp., 613 N.E.2d 523 (N.Y. 1993) (invalidating hospital policy

barring pregnant women from drug detoxification services in

absence of showing of medical necessity for such policy under New

York Human Rights Law); McNulty (1989).
496

84. Gehshan (1993, p. 3), supra note 12.

85. U.S. General Accounting Office (1990, p. 37), supra note 68.

86. According to Ellen Barry, Director of San Francisco’s Legal Services

for Prisoners with Children, “Incarceration of a pregnant woman is

a potential death sentence to her unborn child” (McNulty 1987-

88). See also Barry (1991).

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ACKNOWLEDGMENT

Andrea Miller provided extensive legal research and assisted the

author in text development.

AUTHOR

Lynn M. Paltrow, J.D.

Reproductive Policy Attorney

45 West 10th Street

New York, NY 10011

(212) 475-4218 (Tel)

lmpnyc@aol.com (E-mail)