Fetal Abuse and American Law

III. Prosecution of Drug-Addicted Mothers in America

a. Criminal

        Over the past twenty-five years, more than one hundred women have been criminally prosecuted in the United States for fetal harm as a result of drug consumption during pregnancy.  In every state except South Carolina, these convictions were ultimately overturned on appeal for two primary reasons.  Many of the appellate court judges relied upon the principle that a fetus was not a person within the meaning of the law that prosecutors were relying upon.  Also, the umbilical cord was not a means of drug “delivery” as the term was envisioned by legislatures at the time of statutory enactment, and the separation of powers doctrine disallowed the judges and prosecutors from interpreting it as such.

        Concerns also arose among judges that prosecuting drug-addicted, pregnant mothers as criminals would further drive them away from the few medical resources available to them.  Furthermore, instead of prison, the most effective means of combating the maternal drug problem in America would be to create additional drug treatment resources.  In line with these beliefs, the State of Missouri expressly prohibited women from being criminally prosecuted for the harms caused to their children by prenatal drug exposure.

        After continuous defeats at the appellate level, the ambitions of the prosecutors came to rest in the mid-1990’s, and there was a time of inactivity regarding fetal protections.  However, by the late 1990’s, aggressive prosecutions were enacted in six states, seeking to prosecute these women for criminal homicide, attempted intentional homicide, manslaughter, and murder.  Often, doctors and nurses aided the prosecution.  In Ferguson v. City of Charleston, the United States Supreme Court held that the hospital staff’s drug testing of infants born to women suspected of child abuse was a violation of the women’s Fourth Amendment Constitutional rights.

        The first woman to be charged with murder was Regina McKnight in 1999, when her child was stillborn.  Regina was African-American, homeless, and addicted to crack-cocaine.  Upon the stillbirth of her child, the doctors tested both Regina and her child for drugs.  Cocaine metabolites were found in both.  Although the first trial ended as a mistrial, Regina was convicted and sentenced to twenty years in prison in the second trial.  On appeal, the defendant argued that the due process principle of legality had been violated by the homicide prosecution, but the Supreme Court of South Carolina upheld the conviction, stating that they had previously found a fetus to be a child for the purpose of other criminal prosecutions and that finding could permit a stillborn fetus to qualify as a child for the “homicide by child abuse” statute. In dicta, the court also concluded that a woman could be charged with child endangerment if she consumed drugs during her pregnancy because it was determined to be public knowledge that cocaine consumption was harmful and potentially fatal; so, to consume cocaine while pregnant does meet the mens rea requirement of acting with “extreme indifference to the value of human life.”  Regina was released in 2008, after serving nine years of her sentence, when the Supreme Court of South Carolina found that she had ineffective counsel who failed to introduce key evidence required to effectively challenge the mens rea and causation elements.

        During this period of the prosecutors’ active pursuit of homicide charges, women also began to be indicted for the child abuse and drug delivery crimes that had been previously held as being legally unsound.  The states who most actively pursued civil charges were Wyoming, New Mexico, Texas, Missouri, Alabama, Maryland, and New Hampshire.  As with the past attempts, however, these charges were ultimately dismissed or the convictions were later overturned.  The reasoning of the courts remained as it had been - the prosecutors were attempting to expand the meaning of delivery beyond the legislative intent, a fetus is not a child under the law, the legislature had not made the consumption of drugs by a pregnant women prosecutable, and, newly, toxicology tests of newborn infants were inadmissible by United States Supreme Court precedent in Ferguson. 

        In 2006, the Alabama legislature enacted a new criminal statute regarding the “chemical endangerment of a child.”  This statute was primarily enacted to criminalize the exposure of children to methamphetamines in the course of methamphetamine use or manufacture.  At the trial court level, prosecutors within the state have successfully applied the statute to women who consume drugs during their pregnancy approximately forty times, resulting in prison sentences of ten years to life.  Recently, at the end of the third quarter of 2011, the Alabama Criminal Appeals Court ruled that the “chemical endangerment” statute can be lawfully applied to the women who consume illegal drugs during their pregnancies.  An appeal to the Alabama Supreme Court is currently pending, according to defense attorney Carmen Howell. 

b. Civil

        More frequently than the aforementioned criminal prosecutions, civil suits have been brought against mothers who consumed drugs during their pregnancy, with the charges made on behalf of the fetus or newborn child. Currently, every state allows a suit for prenatal injuries to be brought against a third-party if the infant is born alive, most states permit wrongful death suits against a third-party for the death of a fetus prior to birth resulting from prenatal injury, and some states have even allowed loss of consortium claims to be brought when their unborn child is killed by the tortuous action of another.  However, throughout American history, a fetus has been unable to sue its own mother for prenatal harm, based upon the unique, symbiotic relationship found only between a mother and fetus. 

        The first case allowing a woman to be sued for her actions while pregnant occurred in Michigan with the case of Grodin v. Grodin.  The father of a child born with tooth discoloration was allowed by the Michigan Court of Appeals to sue the child’s mother for her consumption of Tetracycline while pregnant.  In determining this case, the court only analyzed the simple, factual question of whether a pregnant woman’s Tetracycline consumption constitutes a reasonable exercise of parental discretion.

        In contrast, the Illinois Supreme Court held in Stallman v. Youngquist, that a child who suffered prenatal injuries as a result of the mother’s car accident could not sue the mother for negligence.  Addressing the more complex and deeply rooted question of whether a pregnant woman owes a duty of care to her fetus, the Illinois Supreme Court stated that a pregnant woman’s every moment shapes the prenatal environment and effects the developing fetus, thereby making it impermissible to impose such a duty of care on a pregnant woman.  Four major concepts were identified as support for the Stallman decision.  First, actions prior to conception have the potential to affect a fetus, making it impossible to limit and define such a tort duty from pregnant woman to fetus.  Second, socio-economic differences affect access to healthcare, reproductive education, and the ability to promptly determine the existence of a pregnancy, making it impossible to develop an objective standard within which such a tort duty could be clearly defined.  Also, such a cause of action could result in “unprecedented intrusion into the privacy and autonomy” of mothers, an intrusion so severe that it should not occur at the hands of the common law but only by the legislature after due argument and consideration.  Finally, healthy babies are not created by tort liability imposed after birth on an individual basis but by better education about prenatal health before-the-fact.

c. Overview of Current Law and Fetal Personhood

        The United States’ Department of Health and Human Services (HHS) published new regulations in 2002 to expand the definition of “child” for the State Children’s Health Insurance Program from “an individual under 19 years of age” to “an individual under the age of 19 including the period from conception to birth.”  Although the purpose set forth by HHS was to ensure medical coverage for pregnant immigrant women, many argue that the true purpose was to create a legal precedent for the law to treat fetuses as persons.  Under the Bush Administration, HHS wanted to expand this proposition further in 2008, when the agency attempted to redefine birth control as a form of abortion, based upon their regulation stating that life begins at conception, so healthcare professionals would be legally able to opt out of the requirement to prescribe or dispense birth control or the morning-after pill.  The attempt was not wholly successful.

        In 2004, the Unborn Victims of Violence Act (UVVA), also known as Laci and Connor’s Law, was enacted by Congress, making it a separate crime to injure or cause the death of a fetus during the commission of another federal offense.  The UVVA defines an unborn child as “a member of the species homo sapiens, at any stage of development.”  Although the UVVA was enacted in response to the increased violence against pregnant women, many argue that the fetal harm should only allow for a more harsh penalty to be imposed, instead of removing the injured pregnant woman as a party to the suit.  It is also frequently argued that the statutory language is creating a means to sharply limit a woman’s access to abortion in the future.

        Finally, courts throughout the United States are stepping in more frequently to protect the unborn fetus as a person.  Courts have entered orders mandating medical cesarean sections.  Pregnant women have been civilly committed to hospitals, treatment centers, and jails in order to ensure that the drug use stops and to impose care upon the woman and her fetus.  In fact, more than thirty states permit the civil commitment of a person for the use of drugs and alcohol, while several of them expressly authorize such actions against pregnant women.  Furthermore, while a majority of states recognize advance medical directives as a means to govern one’s own medical care in the instance where a person becomes incompetent, sixty-six percent of those jurisdictions will not execute the advance medical directives of a pregnant woman, denying her the self-determination and advance medical planning that is made available as a right to all other competent adults.

IV. Legal Recognition of the Fetus as a Person

a. Legal Issues

        One of the primary questions that must be considered as we pursue the prosecution of pregnant drug-users is whether a legal duty exists from a mother to her unborn child.  I posture that such a duty does exist, just as a breathing child is wholly dependant on its guardians to provide for all its needs and cause no harm, so does an unborn child.  Once a woman has made the choice not to have an abortion or once the timeframe for obtaining a legal abortion has passed, whichever occurs first, a duty should be owed by the pregnant woman to properly care for the living being within her.

        Once a duty is realized, an additional question remains to be addressed.  First, what if the pregnancy was unplanned and is not recognized until after fetal harm has occurred?  No duty can be imposed where a reasonable person of like circumstances would not recognize that duty to have existed, so it logically follows that a mother’s duty to her fetus can not be imposed until a reasonable person in like circumstances would have known or should have known that the pregnancy existed.  

           Another legal concern is whether the prosecutions of pregnant mothers who consume drugs pass the Court’s test of intermediate scrutiny when considering cases of equal protection based upon gender discrimination?  To pass intermediate scrutiny, it must be shown that the challenged law furthers an important government interest in a way that is substantially related to that interest.  The courts have already held that the State holds a significant interest in the preservation of the life and health of its citizens, including the potential life of its citizens.  What remains to be answered is whether the prosecution of pregnant women who ingest substances which cause harm to their unborn fetus is substantially related to protecting the life and health of its citizens.  Knowing that the unborn child will become a citizen upon birth, it is possible to conclude that protecting the health of the fetus is equivalent to protecting the life of a citizen.

        Also, in conjunction with the holding of Planned Parenthood v. Casey, an analysis must be undertaken concerning whether such laws and prosecutions would create an undue burden on the pregnant woman by restricting her from the ability to do to her own body as she desires.  However, it is clear that the use of illegal drugs is against public policy, and the laws already in existence that prohibit the consumption of controlled substances would likely decide this question with ease: the consumption of illegal drugs is not a protected liberty interest.

b. Scientific Issues

        Although many scientific studies suggest that the use of some controlled substances cause permanent and irreparable damage to the fetus, many studies also suggest that such fetal harm may be greatly reduced after birth and as the child matures.  Therefore, it may be a safe conclusion that different substances effect the unborn fetus in different ways, and even when pregnant women consume the same substance, the effects upon the fetus may be highly variable based on multiple other factors, such as nutrition and access to prenatal care.  With such a large degree of variability and a lack of complete scientific understanding, are there significant grounds for prosecuting pregnant women for the consumption of illegal drugs?  It may be considered unsound to prosecute on a case-by-case basis, with prosecution based upon the actual harm suffered.

        Furthermore, some scientific studies have shown that drug use by the fathers near the time of conception may also cause fetal harm.  For example, cocaine has been shown to bind to a man’s sperm.  Although more studies on the issue are needed before a conclusion could be drawn, could a man who consumed cocaine within three days of impregnating a woman be prosecuted for causing fetal harm?  Would a duty exist for the man to not engage in unprotected sexual intercourse during such a period of time because a reasonable person would know that pregnancy was likely to occur if no contraception is utilized?  

        It is important to consider to what extent such scientific findings should be allowed to influence the American legal system.  For example, we must analyze how quickly laws would need to change once new scientific findings have occurred and the extent that such scientific findings must be proven to be deemed scientific fact.

V. Expansion of American Law to Include Fetal Abuse

a. Arguments Against Expansion

        1. The prosecution of women who consume drugs during their pregnancy will discourage pregnant women from accessing help for their drug problems due to a fear of losing their children.  However, if a duty is not owed to the fetus until the pregnancy is known to exist, a pregnant woman who seeks help upon learning of the pregnancy would not be punishable.  Also, the laws could contain exceptions for women who choose to seek help for their drug addiction.

        2. A single positive drug test does not necessarily indicate chronic drug use, but it only proves drug use within the drugs testable period before the body has wholly metabolized the controlled substance.  However, it is unlikely that a pregnant woman who does not suffer from an ongoing drug problem would choose to consume drugs only once at the end of her pregnancy.  Furthermore, even consuming illegal drugs one time during a pregnancy has the potential to cause harm to the fetus.  In addressing this problem, a rebuttable presumption of drug use could be said to exist, leaving the burden of proof on the mother to prove otherwise.  Depending on how the law is written, though, the amount of use may not be applicable to the prosecution.

        3. No uniform standards exist for the drug-testing of mothers and infants, which allows class and race to be prejudicial and influential factors in the medical staff’s decision to conduct such a test.  This potential problem is resolvable by following in the path of the Minnesota legislature and requiring that all pregnant women and newborns be drug-tested.

        4. Absent probable cause, the drug-testing of all pregnant women and infants is a violation of Fourth Amendment rights.  However, the Fourth Amendment is applicable in instances of criminal charges only.  Where mandatory drug-testing is implemented and utilized by the State, the resulting charges and consequences based upon the drug-test results could then only result in civil suits.  However, in severe instances, such as those resulting in death, a warrant could be legally and righteously obtained through the courts, thus allowing criminal charges to be brought forth for prosecution.

        5. The drug-testing of all pregnant women and infants violates the common law right to informed consent.  To overcome this obstacle, all pregnant women under the care of a physician and/or hospital must be informed of the legal requirement that all pregnant women and newborns be drug-tested without discrimination and be provided a consent form.  For those women who choose not to sign the consent form, a warrant can be obtained or additional monitoring systems can be implemented by the state.

        6. Social policy is to keep families together, and any state interventions should occur with the purpose of supporting family unity.  The protection of our children and of America’s future must take priority over keeping family units together.  Familial separation may be a necessary tool to keep children safe and provide the mother with the best opportunity to focus on herself and her own wellness, for the sake of her children and ensuring that her children will again be placed in her care.  When a family must be separated for the protection of the children, a treatment action plan should be created by the state in order to ensure the greatest likelihood of familial reunion.

        8. Many women who abuse drugs have a history of past victimization and abuse, making them more deserving of treatment than punishment.  Treatment and punishment can be obtained simultaneously.  We do not let other criminals go free of consequence because the have suffered past abuse and use drugs and alcohol to cope, and the rules should not be changed for drug-addicted pregnant women.  Oftentimes, punishment and consequences are the required means for a drug addict want recovery, and treatment is not effective if the addict does not want recovery for themself.

        9. Within the United States, parenting is a fundamental right.  But, there also exists a right to be free of harm caused by others.  Perfect parents do not exist, and everyone has their flaws.  However, not everyone is capable of being a parent and raising children in a safe and nurturing environment.  The fundamental right of being a parent will be supported by the treatment plans that are implemented to encourage the reunion of families, and will continue to only be removed in the most severe and desperate of circumstances.

b. Arguments For Expansion

        1. No reason is good enough to allow a child to needlessly suffer harm or injury.  Every citizen is deserving of the State’s protection of their welfare, no matter how young.  Children can not be subjected to abuse based on the excuse that their parent deserves compassion or that families should remain intact.  To allow child abuse is against social policy, too; as is allowing wrong-doers to face no consequence for their actions.

        2. Most drug abusers must hit their “rock bottom” before finding true recovery.  Removing their children from their care and imposing civil and criminal penalties may encourage the recovery process, thus creating the path for familial unity.

        3. A high correlation has been shown to exist between parental substance abuse and child abuse, especially since children born after prenatal exposure to drugs will often suffer in a manner that requires above-average parenting skills.  Effectively dealing with the increased medical, behavioral, and educational needs of a child who was exposed to drugs in utero requires increased time, attention, and patience that will likely not come naturally to a drug addict.

VI. Conclusion

a. Conflict between Abortion Law and Prosecution for Maternal Drug Use

        The right for a pregnant woman to obtain an abortion within the United States is a fundamental and vital right.  Some might say that the right to abort a fetus rests in direct conflict with the absence of a right to consume drugs while pregnant to the detriment of the fetus.  The legal ability to end a potential life without consequence does facially appear to be inconsistent with the inability to legally cause harm to a potential life.  When one considers homicide (the causing of one’s life to end) and battery (the causing of injury to one’s body), the general belief is likely that homicide is deserving of a more severe punishment than battery.  

        However, by American law and policy, abortion is not homicide because it is the ending of potential life, prior to reaching viability status.  Furthermore, abortion procedures are 99.9% effective.  Conversely, electing not to have an abortion is an active decision to deliver a potential life into actual life, which will more often than not result in a birth.  Once the decision has been made not to abort a pregnancy, choosing to participate in activities such as the consumption of controlled substances, which has a high likelihood of causing fetal harm, is an offense upon a being that is more likely than not to achieve actual life.

b. Resolution of the Conflict

        I argue that this creates only a superficial conflict.  One means for resolution of this conflict is to recognize that a woman’s legal right to an abortion within the United States ceases to exist upon viability of the fetus; so, the right to abort a pregnancy is not a limitless right without boundaries.  Furthermore, the decision not to abort a pregnancy is the conscious decision to create a life, which in turn should create a duty not to harm the life that is being created.

c. Moving Forward

        Although women who are stricken with drug addiction are deserving of compassion, and although it is our failed duty as a nation to make drug treatment and recovery an available and achievable option for all American citizens, children should not be required to endure further suffering as “proof” that they are deserving of a safe and nurturing environment.  

The recovery centers available today often do not assist pregnant women, due to liability concerns.  Also, they often do not allow a mother to reside at the treatment facility with her children, which hinders the decision of many poor mothers because they have no one else to care for their children while they receive treatment and they can’s stand the thought of placing their children with strangers.  If more options existed to meet these needs, the epidemic of drug-addicted babies may significantly decrease.  

        Children born with clear evidence of maternal substance abuse should be removed from the care of the mother and placed in an alternative home, either with extended family or in a foster situation. In such instances, the State should provide a treatment plan for the parent (including fathers, if the situation is fitting) as a guideline for what steps must be taken to recover guardianship.  The perfect parent does not exist, and so perfection can not be the standard for child guardianship.  However, every child deserves the best chance we can give them, and sometimes that chance lies outside of the parental home.

        Fetal abuse is equivalent to child abuse, and consumption of controlled substances during a pregnancy is equivalent to fetal abuse.  Children should be nurtured and protected from harm.  With these understandings, the prosecution of pregnant women who cause fetal harm through their consumption of illegal drugs should be acceptable and legal.  Many questions remain to be answered, and it rests upon the shoulders of the legislature to ensure that the legal policies and procedures that underlie such prosecutions create a system that falls in line with both public policy and social justice.

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