A Jurisprudential Analysis of Government Intervention and Prenatal Drug Abuse

I. INTRODUCTION II. THE APPROPRIATENESS AND OBJECTIVES OF GOVERNMENT INTERVENTION A. Effects of Prenatal Drug Use B. Objectives of and Basis for Government Intervention C. Prosecutions under Existing Criminal Law D. New Legislation III. BALANCING THE INTERESTS OF THE STATE AND THE MOTHER-CONSTITUTIONAL CHALLENGES TO NEW LEGISLATION IV. ANALYSIS OF DUTIES AND CORRELATING RIGHTS A. Maternal Obligations and Duties B. Analysis and Critique of Hohfeld's Correlatives V. THE UTILITY AND SHORTCOMINGS OF CRIMINAL SANCTIONS VI. PROPOSAL FOR LEGISLATION THAT TREATS DRUG ADDITION AS A DISEASE VII. SIGNIFICANT ADVANTAGES OF THE PROPOSAL VIII. UTILITARIAN RECKONING IX. CONCLUSION I. INTRODUCTION Behold, thou shalt conceive, and bear a son; and now drink no strong wine or strong drink ... (2) This Biblical verse illustrates that the societal proscription against pregnant women drinking alcohol is centuries old. The recent tragedy is that substance abuse among pregnant women has dramatically increased to the point that prenatal alcohol and drug abuse is a serious public health problem. In 2001, the United States Supreme Court noted that the "problem of crack babies was perceived in the late 1980's as a national epidemic, promoting considerable concern both in the medical community and among the general populace." (3) According to a study released by the National Institute on Drug Abuse, five percent of the four million women who gave birth in the United States in 1992 used illegal drugs during their pregnancy. (4) "Studies have concluded that the problem is pervasive, affecting deliveries in both public health clinics and private obstetric practices, without regard for socioeconomic classifications." (5) The problem has captured the attention of medical professionals, legislators, prosecutors, journalists, and legal scholars. A number of law review articles discuss issues related to maternal substance abuse. The majority of these articles fall into two general categories. The first group emphasizes the harms of substance abuse and the need for criminal or civil commitment statutes to curb illegal drug use by pregnant women. (6) The second category of commentaries focuses on a woman's constitutional rights and the dangers of state intervention. (7) Many of the articles also address the issue of recognition of fetal rights and potential conflicts between the mother's rights and fetal rights. (8) Various authors oppose government intervention, cautioning that such intervention would lead to the recognition of fetal rights at the expense of women's right to privacy and personal autonomy. (9) This article takes a different approach in considering the problem of prenatal drug abuse. (10) After briefly discussing government intervention and constitutional issues, this article will consider the concept of duty and correlative rights. This discussion of duty and correlative rights suggests that the government can take measures to curb prenatal drug use without recognizing fetal rights. The article concludes with a discussion of the utility of criminal legislation as compared to public health legislation that treats drug addiction as a disease requiring treatment. As formulated, the proposal for public health legislation is not based on any concept of fetal rights. Instead, it is based on the recognition of societal interests, as well as the woman's needs. II. THE APPROPRIATENESS AND OBJECTIVES OF GOVERNMENT INTERVENTION A. Effects of Prental Drug Use An evaluation of government intervention to curb prenatal drug use requires a basic understanding of the effects of drug use by pregnant women. Given the maternal-fetal link, drugs such as cocaine directly and indirectly affect the fetus from conception to birth. …