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Laws about pregnant women
and substance abuse questioned
Business & Law Editor
CHAMPAIGN, Ill. —
In Wisconsin, an expectant woman can be taken into custody if police
believe her abuse of alcohol may harm her unborn child. In South Dakota,
pregnant alcohol and drug users can be committed to treatment centers
for up to nine months.
Under a legal theory known as fetal rights, more than 20 states have
enacted laws that target women for actions taken during pregnancy. What
began as legislation requiring hospitals to report an expectant mother’s
crack-cocaine use has expanded to laws that punish women for drinking
alcohol that may harm the fetus they are carrying.
Such efforts are “inherently flawed,” according to a University
of Illinois legal scholar. “Not only does a punitive approach
assume that a pregnant woman and her fetus occupy adversarial roles,
but it also fails to address addiction as the root of the problem,”
Erin N. Linder wrote in the University of Illinois Law
“Even more troubling,” Linder noted, “is the notion
that states can intrude into the lives of pregnant women when the conduct
at issue is a legal activity, such as the consumption of alcohol.”
Historically, a fetus had no rights under common law, but more than
20 states, including Illinois, have amended laws in recent years to
protect potential human life. The new statutes range from prosecution
for attempted murder against women who use alcohol or illegal drugs
during pregnancy to forced confinement and termination of parental rights.
In Wisconsin, for example, juvenile courts have the power to take protective
custody of a fetus, and pregnant women may be subject to criminal and
civil sanctions for “unborn child abuse.” Some proponents
have called for legislation to allow children to sue their own mothers
for “prenatal injuries.”
Ironically, according to Linder, jailing a woman for substance abuse
cannot reverse the damage already done to her unborn child. In the case
of alcohol, the worst damage takes place in the two-to-eight-week period
after conception, “when many women do not even realize they are
pregnant.” As a result, Linder continued, “statutory schemes
that seek to prevent FAS (fetal alcohol syndrome) by identifying pregnant
women who are abusing alcohol only prevent further damage to the fetus.”
The battle over fetal rights centers on the question of whether the
unborn should be classified as a person under the law. The Supreme Court
ruled in Roe v. Wade (1973) that the word “person” in the
14th Amendment does not include fetuses. Consequently, the unborn are
not entitled to constitutional protection.
The court, however, acknowledged that a viable fetus may enjoy protection
from non-constitutional sources, and states had the right to define
and protect the rights of potential human life where there was an “important
Following Roe, which overturned state laws banning or restricting abortions,
more than 20 legislatures altered the born-alive rule. This rule required
that a fetus had to be born alive before criminal charges could be brought
for any injuries suffered during gestation.
“As many states consider the protection of fetuses an important
state objective, more states began using criminal sanctions to protect
the health of the fetus, independent from the interests of the mother,”
In 1989, Jennifer Johnson became the first woman convicted for giving
birth to a drug-exposed fetus when a Florida court determined that Johnson
knowingly delivered a controlled substance to a minor. The Florida Supreme
Court reversed the conviction on the grounds that the drug delivery
status did not apply to the facts of Johnson’s case.
South Carolina became the only state to interpret its statutes to hold
that a viable fetus was a person and has prosecuted the largest number
of women in the country for prenatal drug abuse. The U.S. Supreme Court
has not taken up a review of the South Carolina laws.
Alcohol, as well as drug abuse, are serious health concerns for pregnant
women, according to Linder. The consumption of alcohol can result not
only in permanent brain damage, but cause developmental and behavioral
problems in children.
But many other activities – including smoking cigarettes, taking
over-the-counter medications and even exercising – can also harm
the well-being of a fetus.
While overall rates of alcohol use during pregnancy have declined somewhat
since 1995, alcohol use before pregnancy has not.
In as little as 15 minutes, water-soluble alcohol can pass through the
placenta membrane of a pregnant mother, causing the fetus’ blood
alcohol content to equal that of the mother. But unlike the mother,
the fetus is not able to quickly metabolize the alcohol and eliminate
it from its system. Instead, the toxin lingers within the placenta,
disrupting formation of the fetus by impairing fetal oxygen supply and
disrupting protein synthesis and hormone production.
Criminalizing the behavior of pregnant women does not solve their substance
abuse problems, according to Linder. In fact, the newly enacted harsh
penalties are likely to frighten women away from needed treatment, especially
low-income women who have so far borne the brunt of intervention by
juvenile courts and the police.
Advocates of fetal protection and health could better direct their efforts
by promoting education and treatment facilities for women. The dangers
of maternal alcohol use – and of binge drinking among women of
childbearing age – could be made part of high-school sex education
courses, she noted. In addition, health-care providers should be encouraged
to educate pregnant women about the dangers of alcohol and drug consumption.
“Ultimately,” Linder concluded, “government should
foster programs that recognize the unitary interests of a woman and
her fetus and seek to protect this unique biological relationship.”
A former editor at the Illinois journal, Linder now works at a Chicago
law firm. Her article is titled, "Punishing Prenatal Alcohol Abuse:
The Problems Inherent in Utilizing Civil Commitment to Address Addiction."