NARAL Pro-Choice Missouri : Issues : Fact Sheets

SUMMARY: While no one could possibly believe that it’s a good thing for a pregnant woman to use heroin, methamphetamine, cocaine, LSD, or alcohol while pregnant, this bill has two principal defects: (1) it treads toward “fetal personhood” provisions which undermine the rule of Roe v. Wade and otherwise invades procreative privacy; and (2) the criminal punishments probably are inefficacious and counterproductive.

Only the state of South Carolina, contrary to Roe v. Wade, has upheld a criminal conviction based on the pregnant woman’s substance abuse—but notably, South Carolina has no “fetal personhood” law, and prosecutors had to rely on South Carolina’s other criminal statutes to secure a conviction. No state in the union has a statute criminalizing substance abuse by pregnant women.

Without doubt, there is a reason that certain drugs are treated as “controlled substances.” 16 states treat substance abuse during pregnancy as child endangerment under civil child-welfare codes, and three states (Minnesota, South Dakota, and Wisconsin) consider it grounds to civilly commit the woman. S.B. 766 is directed to a woman who ingests controlled substances or alcohol while she knows that she is pregnant.[2] It would authorize prosecutions for child endangerment if a pregnant woman “chronically and severely exposes an unborn child” to a controlled substance or to alcohol. It would authorize prosecutions for child abuse if the woman “[k]nowing that she is pregnant, chronically and severely exposes an unborn child” to alcohol or to a controlled substance, and “such child, at birth, is demonstrably adversely affected by such exposure.”

I. S.B. 766 MAY BE INCONSISTENT WITH A WOMAN’S FOURTH AMENDMENT RIGHTS AND IS INCONSISTENT WITH A WOMAN’S FOURTEENTH AMENDMENT RIGHTS.

The United States Supreme Court has held that the University of South Carolina’s policy of testing pregnant women for cocaine use violates their Fourth Amendment right to be free of unreasonable search and seizures. Fergusonv. City of Charleston, 532 U.S. 67 (2001). The Court recognized that the purpose of the university’s policy was not to aid pregnant women in securing prenatal care, but to gather evidence for criminal prosecution. Thus, unless a woman consents to the “search” of her body and bodily fluids for drugs, her constitutional rights have been violated if she has been subjected to toxicity screening.[3] (It is conceivable that the prosecution could seek to frame its case entirely on the basis of testimonial evidence and thereby avoid the constitutional problem, but this would involve far less compelling evidence than tox screening.) En route to reaching its decision, the Court noted that criminalizing addictive behavior for pregnant women may harm rather than help the women and children such statutes purport to protect.

Not one state has a statute specifically and textually providing criminal penalties for women who abuse drugs or alcohol while pregnant, as S.B. 766 purports to do. Only one state, South Carolina, has successfully prosecuted a case in which a pregnant woman’s substance abuse in late-term pregnancy was punished as criminal child abuse under South Carolina’s general child abuse laws.[4] The conviction was upheld by the South Carolina Supreme Court in Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997), in which the court determined that a viable fetus is a “person” under South Carolina’s criminal child-endangerment statute and that “maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus” constitute criminal child abuse. The case is anomalous for good reason: it is inconsistent with Roe v. Wade.

In Roe, the Supreme Court rejected the proposition that a state may enact statutes based on its adoption of “one theory of life,” see 410 U.S. 113, 162 (1973), which granting legal status to the fetus does. In granting legal status to the fetus, the state would “override the rights of the pregnant woman.” 410 U.S. at 162. As the Court explained, except in narrowly defined circumstances, and except when the rights are contingent upon a later live birth, [5] “the unborn have never been recognized in the law as persons in the whole sense.” Id. Thus, the Court concluded that a fetus is not a “person” subject to the protections of the Fourteenth Amendment of the United States Constitution. Id.

In addition, the bill implicates other privacy concerns and other fundamental rights. Procreation has been recognized as a fundamental constitutional right of all citizens. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). The right to choose that is protected by Roe subsumes a cognate and connected right: the right to carry a pregnancy to term. See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2811 (1992) (Roe proscribes interference with a woman’s decision to become pregnant or to carry to term); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) (because “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment,” the school board could not force pregnant teachers to take unwanted maternity leave; women cannot be penalized for deciding to carry a pregnancy to term).

S.B. 766 would attempt to reach behavior during pregnancy. Leaving aside the trespasses on a citizen’s “right to be let alone,” Olmstead v. United States, 277 U.S. 438, 478 (Brandeis, J., dissenting), legislation of this sort may open Pandora’s Box. Adoption of the bill would set a precedent for later intrusions on pregnant women’s privacy. Since the fetus is physically a part of the woman’s body, her every action during pregnancy could be scrutinized for criminality. See generally Stallman v. Youngquist, 531 N.E.2d 355 (Ill. 1998). Does a pregnant woman who boards an airplane when she is in her third trimester endanger her fetus? Can a 12-weeks’ pregnant woman be forbidden from working around chemicals or operating a forklift? (The Supreme Court has held otherwise.) Can a woman who is at high risk for gestational diabetes be punished for dietary noncompliance that might dangerously increase the fetus’ heart rate? Can a pregnant woman who takes decongestants be pronounced a criminal? How about a woman who has one occasional glass of wine until her third trimester? How about a woman who smokes or who is continually exposed to secondhand smoke? What about a woman who consumes aspartame, which some medical researchers believe leads to attention deficit disorder and other behavioral disorders when children who were exposed to the chemical in vitro reach the ages of 8-10? How about pregnant women who overuse everyday products that contain bisphenol A—a chemical used to make lightweight plastics—that some medical researchers believe is harmful to fetal development? Such inquiries, and any punishments, would be difficult to reconcile with the Supreme Court’s directives.

II. PRESCRIBING PUNISHMENTS RATHER THAN TREATMENT TO SUBSTANCE-ADDICTED PREGNANT WOMAN CARRIES ITS OWN HOST OF PROBLEMS.

1. It may have the unintended effect of coercing some women to have abortions. Some courts have made this observation about meting out jail time to pregnant women who are substance abusers. See, e.g., Johnson v. State, 602 So. 2d 1288, 1296 (Fla. 1992) (“Prosecution of pregnant women for engaging in activities harmful to their fetuses or newborns may also unwittingly increase the incidence of abortion.”) Accord People v. Morabito, 580 N.Y.S.2d 843 (Ontario County Court, NY); People v. Bremer, No. 90-32227-FH (Mich. Cir. Ct. Jan. 31, 1991) (slip op.), aff’d, Op. No. 137619 (Mich. App. July 14,1992); Commonwealth v. Pellegrini, Cas. No. 87970 (Mass. Super. Ct. Oct. 15, 1990) (slip op.).

South Dakota’s policy of prosecution resulted in a coerced abortion. In February 1992, a pregnant woman sniffing paint fumes was charged with reckless endangerment. Twelve days after she was arrested, she had an abortion, and the charges were dismissed. Gail Stewart Hand, “Women or Children First?”, Grand ForksHerald (Jul. 12, 1992), at 1.

2. H.B. 92 sets up an adversarial regime between the woman and her fetus. If this relationship is to be sanctioned by the Missouri General Assembly, what is to stop the male who impregnated the woman, or the state, from bringing a civil action for maternal prenatal negligence? See Stallman v. Youngquist, 531 N.E.2d 355, 359-60 (Ill. 1998) (discussing this issue).

3. Medical and legal authorities agree that punishing women for prenatal substance abuse may be simply ineffective. As the American Academy of Pediatrics has concluded, “Punitive measures taken toward pregnant women, such as criminal prosecution and incarceration, have no proven benefits for infant health.” American Academy of Pediatrics, Committee on Substance Abuse, Drug-Exposed Infants, 86 Pediatrics 639, 641 (1990). See also U.S. Dep’t Health & Hum. Servs., Center for Substance Abuse Treatment, “Pregnant, Substance-Abusing Women, Treatment Improvement Protocol,” Series No. 2 (1993) (“[T]here is no evidence that punitive approaches work.”); Johnson v. State, 602 So. 2d 1288, 1295 n.6 (Fla. 1992) (“Punishment is simply not an effective way of curing a dependency or preventing future substance abuse”) (relying on AMA Board of Trustees, Legal Interventions During Pregnancy, 264 JAMA 2663, 2667 (1990)).

2. Medical and legal authorities recognize that the threat of prosecution may deter women from seeking treatment for their addiction and from seeking appropriate prenatal care. Two General Accounting Office[6] studies have so found.[7] Virtually every leading public health organization has published a policy or recommendation opposing the prosecution of pregnant women who use drugs, including the AMA,[8] The American Academy of Pediatrics,[9] the American College of Obstetricians and Gynecologists,[10] the American Public Health Association,[11] the American Society of Addiction Medicine,[12] the March of Dimes,[13] the National Association for Perinatal Addiction Research and Education,[14] the National Council on Alcoholism and Drug Dependence,[15] and various other medical associations and children’s advocacy groups. The courts have repeatedly cited the medical consensus as to the perverse social incentives policies like that embodied in S.B. 766 would provide. See, e.g., State v. Gethers, 585 So. 2d 1140, 1143 (Fla. App. 1991); Johnson v. State, 602 So. 2d at 1295.

[1] In the 2007 legislative session, H.B. 92 was introduced. Last session’s House counterpart was similar to S.B. 766 but was not as specifically drafted as is S.B. 766. S.B. 766 does not have the drafting deficiencies that made H.B. 92 unconstitutionally void for vagueness and an affront to constitutional due process “notice” requirements. S.B. 766 also does not purport, as did H.B. 92, to establish a strict-liability regime in all cases; rather, section 568.060 (3), establishing guilt for “the crime of child abuse,” requires that the child, at birth, “is demonstrably adversely affected by such exposure.” While it might be argued that the latter term is vague, it does require some relationship between the charged offense and the severity of the harm, which last session’s House bill on the same subject did not.

[2] The provisions of existing Missouri law codified as Rev. Stat. Mo. Sections 191.737 et seq., related to reporting child abuse and neglect, are not treated here.

[3] The Fifth Amendment right against self-incrimination may also be implicated.

[4] The cases rebuffing such prosecutions are legion. See, e.g. , Commonwealth v. Kemp, 643 A.2d (Pa. Super. Ct. 1994); Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993); Johnson v. State, 602 So. 2d 1288, 1297 (Fla. 1992); State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992); People v. Morabito, 580 N.Y.S.2d 843, 845-46 (1992); State v. Carter, 602 So. 2d 995, 996 (Fla. App. 1992); State v. Luster, 419 S.E.2d 32, 35 (Ga. App. 1992); State v. Gethers, 585 So. 2d 1140, 1143 (Fla. App. 1991); People v. Hardy, 469 N.W.2d 50, 52-53 (Mich. App. 1991); Reyes v. Superior Court, 75 Cal. App. 3d 214, 219 (1977). Slip opinions of trial courts are too numerous to catalog. All of these prosecutions involved application of general child-endangerment laws to maternal prenatal substance abuse.

[5] As illustrated by shifting and springing executory trusts, and the vaunted Rule Against Perpetuities with which professors of Trusts and Estates have tortured generations of law students.

[6] Now called General Accountability Office.

[7] See United States General Accounting Office Report to the Chairman, Subcommittee on Health and the Environment, Committee on Energy and Commerce, House of Representatives ADMS Block Grant, Women’s Set-Aside Does Not Assure Drug Treatment for Pregnant Women, GAO/HRO-91-80, at 20 (May 1991) (“The threat of prosecution poses yet another barrier to treatment for pregnant women and mothers with young children. These women are reluctant to seek treatment if there is the possibility of punishment, which may include incarceration.”) See also United States General Accounting Office Report to the Chairman, Committee on Finance, United States Senate, Drug-Exposed Infants, A generation at Risk, GAO/HRO-90-138 (June 1990), at 39 (finding that “some women are now delivering their infants at home to prevent the state from discovering their drug use”).

[8] AMA Board of Trustees Rep., Legal Interventions During Pregnancy, 264 JAMA 2663, 267 (1990) (“Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician’s knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment”); AMA, Treatment Versus Criminalization: Physician Role in Drug Addiction During Pregnancy, resolution 131 (“Therefore be it. . .resolved that the AMA oppose legislation which criminalizes maternal drug addiction”).

[9] American Academy of pediatrics, Drug Exposed Infants, 86 Pediatrics639, 641 (1990).

[10] ACOG Op. No. 55, Patient Choice: Maternal-Fetal Conflict (“Actions of coercion to obtain consent or force a course of action limit maternal freedom of choice, threaten the doctor-patient relationship, and violate the principles underlying the informed consent process.”)

[11] APHA Policy Statement No. 9020, Illicit drug Use by Pregnant Women, 8 Am. J. Pub. Health 240 (1990).

[12] American Soc. of Addiction Med., Policy Statement on Chemically Dependent Women and Pregnancy, A.S.A.M. (Sept. 1989), at 49 (“Criminal prosecution of chemically dependent women will have the overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increasing, rather than preventing harm to children and to society as a whole.”)

[13] March of Dimes, Statement on Maternal Drug Abuse 1 (1990).

[14] National Ass’n for Perinatal Addiction Research and Educ., Criminalization of Prenatal Drug Use: Punitive Measures Will Be Counterproductive (1990) (“[I]t appears likely that criminalization of prenatal drug use will . . . deter women who use drugs during pregnancy from seeking the prenatal care which is important for delivery of a healthy baby. . . . The threat of criminal prosecution alone will not deter women in most instances from using drugs during pregnancy. These women are addicts who become pregnant, not pregnant women who decide to use drugs and become addicts.”) (Emphasis added.)

[15] National Council on Alcoholism and Drug Dependency, Policy Statement, Women, Alcohol, Other Drugs and Pregnancy (1990).