NCJ Number
134854
Journal
Journal of Juvenile Law Volume: 12 Dated: (1991) Pages: 1-15
Date Published
1991
Length
15 pages
Annotation
The number of women who use drugs or alcohol during pregnancy is estimated to be 11 percent, and States are incorrectly using both criminal and civil sanctions to regulate the behavior of drug-addicted women during pregnancy.
Abstract
In 15 States and the District of Columbia, criminal prosecutions have been initiated against women who allegedly committed felonies involving their fetuses. Some States legislate on the basis of fetal rights, while other States use criminal child abuse or civil child neglect statutes to punish pregnant women. Perhaps the most powerful tool States can use is the ability to deprive the mother of custody of her baby. A fetus, however, is not a person under the 14th amendment. Further, the prosecution of women based on their decision to continue their pregnancy violates fundamental rights to privacy in the area of procreation. The court must apply a strict scrutiny test and, in order for the State to infringe on privacy rights, there must be a compelling State interest. Yet, there is no stage at which a fetus has rights that can be enforced against the woman carrying it. Criminal sanctions may undermine the State's interest; women will turn away from seeking prenatal care or terminate their pregnancies for fear of criminal prosecution. Taking a woman's child away creates additional problems, since there is no guarantee that the State will provide a healthier and safer environment for the baby. Women who cannot control their drug or alcohol dependency must not be sanctioned for this behavior. Punishing addiction will not alter the pregnant addict's conduct or improve fetus health. Instead, a long-term commitment to treatment, education, and rehabilitation is recommended. Reproductive health care must be made more accessible and include abortion, sex, parenting education, prenatal delivery, and postnatal care. 115 footnotes