The Status of Pregnant Women and Fetuses in US Criminal Law
Authors: Lisa H. Harris, Lynn Paltrow
Journal: JAMA (2003)

IN 2001 THE US SUPREME COURT RULED FOR THE FIRST TIME in a case directly related to the criminal prosecution of pregnant women for alleged fetal harm. In Ferguson v City of Charleston the Supreme Court considered whether women retain constitutional rights in pregnancy, specifically, the Fourth Amendment right to be free from unreasonable or warrantless searches. The court concluded that drug testing of pregnant women for the purpose of criminal investigation may not be conducted without a warrant or explicit consent, even when justified by the benign purposes of protecting fetuses and promoting drug treatment. This case addressed only the issue of evidence collection for criminal prosecution of pregnant women, not the more general question of whether prosecutions are permissible. Legal activity on this broader question has occurred at the state level for more than 2 decades. To date, no state legislature has adopted a law that creates unique criminal penalties for pregnant women who are addicted to, dependent on, or using drugs. This is consistent with longstanding Supreme Court decisions recognizing that addiction is an illness and that criminalizing it violates Eighth Amendment prohibitions against cruel and unusual punishment. Numerous court cases have arisen, however, as the result of individual prosecutions of pregnant women. When pregnant women are prosecuted for potential fetal harm, courts are asked to determine if existing criminal statutes can be expanded and applied to pregnant women’s behavior and health conditions. In order to clarify the status of pregnant women and fetuses in US criminal law, we examined written legal opinions in cases in which women were criminally prosecuted based on claims that their action or inaction risked fetal harm. We located cases by searching LexisNexis and Westlaw using the following terms: pregnant, pregnancy, drug(s), illegal drug(s), cocaine, heroin, alcohol, (meth)amphetamine, addiction, unborn child, prenatal, drug delivery, child, child abuse, fetus, fetal, homicide, feticide, maternal, perinatal, and neonatal. We searched only for published State Appellate or State Supreme Court opinions, as these cases set legal precedent. We also consulted with agencies and attorneys called upon to represent women when they are prosecuted. We found 22 opinions in 16 states, and 1 opinion in the military court system. Women were generally charged with 1 of 3 types of crimes: child endangerment/abuse; illegal drug delivery to a minor; or fetal murder/manslaughter. In all abuse cases, prosecutors equated a viable fetus with a child and argued that pregnant women’s drug use or addiction constituted child abuse. In all drug delivery cases, women were accused of trafficking drugs to the fetus through the umbilical cord. Some prosecutors, conceding that fetuses are not legal persons, argued that the drug “delivery” occurred in the moments after the infant was born, but before the umbilical cord was clamped and cut. In all murder and attempted murder cases, prosecutors again equated the viable fetus with a child and argued that existing murder laws applied to women’s actions. When questions arise about the meaning or application of a criminal law, the court’s first function is to determine and enforce the legislature’s intent. In all of the cases we examined, with the exception of those in South Carolina, courts declined to expand existing state laws to punish pregnant women based on claims of fetal rights, finding no evidence that legislatures intended existing laws to be used this way. Judges determined that the plain meaning of words like “child” does not include fetuses, that the terms “parent” or “guardian” do not include pregnant women in relation to the fetus, and that the word “delivery” does not include drug transmission through umbilical circulation. Courts pointed out that when legislatures intend to discuss a fetus, they use the word “fetus.” Some courts also held that judicially rewriting existing laws to make them suddenly applicable to pregnant drug-using women would violate constitutional due process principles of fair warning and notice. Several courts noted that such a revision to the law would make them unconstitutionally vague, permitting prosecution for a limitless number of situations, from smoking cigarettes to giving birth at advanced maternal age, to employment at a potentially hazardous job. Many courts also recognized that such expansion of the law could unwittingly encourage women to have abortions or to avoid seeking prenatal or addiction care. Only South Carolina’s high court has come to a different conclusion, interpreting the word “child,” in its criminal child endangerment statute, to include viable fetuses. By doing so, the court made its child endangerment statute applicable to pregnant women whose actions risk harm to a viable fetus, and created precedent for applying other South Carolina criminal laws to pregnant women as well. Even in South Carolina, where using drugs or being addicted to drugs during pregnancy has effectively been criminalized, pregnant women retain their Fourth Amendment freedom from unreasonable and warrantless searches. In Ferguson v City of Charleston the Supreme Court held that “performance of a diagnostic test [urine drug screen] to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an [unconstitutional] unreasonable search