February 2, 2006
Laws about pregnant women and substance
By Mark Reutter, Business & Law Editor, firstname.lastname@example.org
CHAMPAIGN, Ill. — In Wisconsin, an expectant woman can
be taken into custody if police believe her abuse of alcohol may
harm her unborn child. In South Dakota, pregnant alcohol and drug
users can be committed to treatment centers for up to nine
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."
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
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
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
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
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
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
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
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
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
"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
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."