Academic

Here We Go Again - Prosecuting Pregnant Women Who Use Drugs

By David S. Cohen

This time it’s Alabama.  A new state law written to protect children from the fumes associated with methamphetamine manufacturing is being used to prosecute women who use drugs during pregnancy.  Of course, the theory of the prosecutions is that a fetus is a person/child, so drug use during pregnancy harms a child.

We’ve been here before.  A lot.  South Carolina is the only state in the country that has given judicial approval to these types of prosecutions; every other state court system to address it has found that these prosecutions are unconstitutional or beyond statutory authority.

The policy reasons to oppose these prosecutions are legion.  They deter women from getting drug treatment; they restrict reproductive freedom by incentivizing abortion; they are inevitably selectively enforced against the poor and minority; they remove the focus from the very real problem of lack of prenatal care for poor pregnant women; they take the attention off proven risks to fetuses such as fetal alcohol syndrome and tobacco use during pregnancy; they put hospitals and medical care providers in an adversarial relationship with their patients; they lead to absurd results, such as prosecuting women for not getting prenatal care or having a miscarriage; and so forth.

The medical, social work, legal, and advocacy communities have rallied to fight these laws in the past.  Let’s hope the same happens quickly in Alabama.

- David S. Cohen

Full post as published by Feminist Law Professors on February 15, 2008 (boomark / email).