Callie Thornton
Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines the Health of Women and Children
Lynn M. Paltrow, J.D. INTRODUCTION For more than a decade, law enforcement personnel, judges, and elected oficials nationwide have sought to punish women for their actions during pregnancy that may afect the fetuses they are carying (Galagher 1987). Women who are having children despite substance abuse problems have been a particular target, finding themselves pros- ecuted for such nonexistent crimes as “fetal abuse” and delivery of drugs through the umbilical cord. In addition, pregnant women are being civily commited or jailed, and new mothers are losing custody of their children even when they would be capable parents. Meanwhile, State legislators have repeatedly introduced substance abuse and child welfare proposals that would penalize only pregnant women with addiction problems. Some proponents of these eforts are motivated by the misguided belief that they are promoting fetal health and protecting children (Johnsen 1986, 1989; Polit 1990; Hofman 1990, p. 11). Others hope to gain legal recognition of “fetal rights”—the premise that a fetus has separate interests that are equal to or greater than those of a pregnant woman (Johnsen 1986, 1989; Polit 1990; Hofman 1995, pp. 33, 57). Recognition of such rights would require women to subordinate their lives and health—including decisions about reproduction, medical care, and employment—to the fetus.1 In fact, doctors and hospital oficials have already relied on this theory to seek court orders to force pregnant women to undergo cesarean sections or other medical procedures for the aleged benefit of the fetus.2 Some advocates of fetal rights have argued that children should be able to sue their mothers for “prenatal injuries.”3 In some industries, employers have adopted “fetal protection” policies,


which bar fertile women of childbearing age from certain high-payingunionized jobs.4 , Women’s and children’s advocates agree that women should engage in behaviors that promote the birth of healthy children. Nevertheles, they recognize that a woman’s substance abuse involves complex factors that must be addresed in a constructive manner.5 Punitive approaches fail to resolve addiction problems and ultimately undermine the health and wel-being of women and their children. For this reason, public health groups and medical organizations uniformly oppose measures that treat pregnant women with substance abuse problems as criminals. Moreover, courts have repeatedly rejected atempts to prosecute women under existing criminal laws for their prenatal actions, impose restric- tions on women’s activities because they are fertile or pregnant, or coerce women to undergo medical procedures to benefit their fetuses. Some of these decisions have explicitly recognized that the fetal rights theory poses a significant threat to women’s reproductive rights and the best interests of children. CRIMINAL PROSECUTION Although no State has enacted a law that specificaly criminalizes prenatal conduct, prosecutors have used statutes prohibiting abuse or neglect of children to charge women for actions that potentialy harm the fetus.6 Some also have argued that pregnant women “delivered” drugs to “minor” children—fetuses—through the umbilical cord.7 In addition, a mother’s or newborn’s positive drug test has led to charges of asault with a deadly weapon (cocaine), contributing to the delinquency of a minor, and posesion of a controled substance.8 In cases in which infants tested positive and died soon after birth, women have been charged with homicide or feticide.9 Some women even have been prosecuted for drinking alcohol,10 failing to folow a doctor’s order to get bed rest, or refraining from sexual intercourse during pregnancy.11 Estimates based on court documents, news accounts, and data colected by atorneys representing pregnant and parenting women indicate that at least 200 women in more than 30 States have been arested and criminaly charged for their aleged drug use or other actions during pregnancy (Paltrow 1992; Center for Reproductive Law and Policy 1996.) The majority of women prosecuted have been low- income women of color (Kolata 1990, p. A13), despite the fact that
most women who use ilicit drugs while pregnant are white read more
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