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 Review.
“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.” (Legal, maybe now. But I will strive to change that - author of blog.)
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 legitimate interest.”
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,” Linder noted.
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."