Legislative Analysis of S.B. 459
A LEGISLATIVE ANALYSIS OF S.B. 459 (fetal personhood/fetal endangerment via pregnant woman’s drug use)
Prepared by Pamela L. Sumners, Esq. SUMMARY: While no one could possibly believe that it’s a good thing for a pregnant woman to use heroin, methamphetamine, cocaine, or LSD 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. ANALYSIS 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. 459 is directed to a woman who ingests controlled substances while she is pregnant.1 Unfortunately, nothing in the bill requires that the woman knew she was pregnant at the time of ingestion, and the bill purports to bring within its ambit unborn children from the moment of conception. Accordingly, the bill could punish a woman for endangering a fetus she did not even know about. - S.B. 459 MAY BE INCONSISTENT WITH A WOMAN’S FOURTH AMENDMENT RIGHTS AND IS INCONSISTENT WITH A WOMAN’S FOURTEENTH AMENDMENT RIGHTS.
To the extent that S.B. 459 would be enforced through a drug-testing policy, it could run afoul of the Fourth Amendment’s unreasonable search and seizure proscription. 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. Ferguson v. 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.2 (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 while pregnant, as S.B. 459 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.3 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, 4 “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. 459 would attempt to reach behavior during pregnancy and as early as the moment of conception. 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. - PRESCRIBING PUNISHMENTS RATHER THAN TREATMENT TO SUBSTANCE-ADDICTED PREGNANT WOMAN CARRIES ITS OWN HOST OF PROBLEMS.
In addition, S.B. 459 courts bad policy consequences. Among them: - 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 Forks Herald (Jul. 12, 1992), at 1. 2. 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)). 3.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 Office5 studies have so found.6 Virtually every leading public health organization has published a policy or recommendation opposing the prosecution of pregnant women who use drugs, including the AMA,7 The American Academy of Pediatrics,8 the American College of Obstetricians and Gynecologists,9 the American Public Health Association,10 the American Society of Addiction Medicine,11 the March of Dimes,12 the National Association for Perinatal Addiction Research and Education,13 the National Council on Alcoholism and Drug Dependence,14 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. For legal, medical, and public policy reasons, S.B. 459 should be rejected.
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