Academic journal article Columbia Journal of Gender and Law

In the Name of Fetal Protection: Why American Prosecutors Pursue Pregnant Drug Users (and Other Countries Don't)

Academic journal article Columbia Journal of Gender and Law

In the Name of Fetal Protection: Why American Prosecutors Pursue Pregnant Drug Users (and Other Countries Don't)

Article excerpt

For more than three decades, American prosecutors have been bringing criminal prosecutions against pregnant women based on their use of drugs while pregnant, with charges ranging from child abuse or neglect to murder. Almost all of these women are poor, and the vast majority are also women of color--many with histories of childhood sexual or physical abuse and mental disability. (1) In all but three states--Alabama, Kentucky, and South Carolina--such prosecutions have been declared unconstitutional or the resulting convictions have been overturned. (2) Nonetheless, prosecutions continue to be brought, in what can only be described as a crusade against pregnant women in the name of fetal protection. This Article seeks to answer two questions raised by this crusade. The first question is why--what's in it for the prosecutors who charge these women, particularly when they know that the prosecution will almost certainly be invalidated? The second question is a more cosmic, macro inquiry--what do these prosecutions tell us about the American criminal justice system when compared to the justice systems of other nations?

I. HISTORY OF PROSECUTIONS

The first criminal indictment against an American woman for using drugs during pregnancy was issued in 1977 in California, when Margaret Reyes was charged with two counts of felony child endangerment for her heroin use while pregnant. (3) However, the California Court of Appeals issued an order enjoining further prosecution, on the ground that the legislature did not intend to include "unborn children" within the meaning of the term child. (4) No further prosecutions were brought until the 1980s, when the pace of "fetal abuse" prosecutions picked up, as media attention to the myths of the "Crack epidemic"--as well as its sad reality--overtook the nation. Today, women in more than thirty states have been prosecuted for their use of alcohol and street drugs while pregnant. (5)

Dorothy Roberts, Dawn Johnsen, Laura Gomez, and Lynn Paltrow have written compellingly about prosecutions of pregnant women for endangerment of their fetuses. (6) Beginning in 1989 and continuing through the present, hundreds of American women have been charged with, and convicted of, crimes based on their use of alcohol and other drugs while pregnant, as well as other assertedly "selfish" conduct, such as refusing a Caesarean section. (7) Until the late 1990s, these charges were limited to less serious crimes such as child abuse, child endangerment, and delivery of drugs to a minor (via the placenta or the umbilical cord). (8) In all states but Alabama, Kentucky, and South Carolina, these convictions have been overturned, either because the reviewing courts determined that the state legislature had not intended the term "child" or "minor" to include a fetus, or because they judged that such prosecutions would only drive drug using women away from medical treatment and would not achieve the deterrent goals of the criminal law. (9)

Yet despite these clear rulings from the nations' judges, in the late 1990s prosecutors began to up the ante. Since 1996, women in Hawaii, Oklahoma, South Carolina, Utah, and Wisconsin have been charged with murder, attempted murder, or manslaughter based on their use of drugs while pregnant or other behavior alleged to have caused stillbirth, death, or other fetal harm. (10) A particularly egregious case involved Melissa Rowland, who was charged with murder by a Utah prosecutor after one of the twins she was carrying was stillborn and prosecutors learned that she had declined to have a Caesarean section after experiencing fetal distress. (11) South Carolina prosecutors have been the most zealous in the country, with many women convicted of child abuse based on their drug use since the mid1990s. At least four women have been charged with murder after their fetuses were stillborn. The most notorious case was that of Regina McKnight, a homeless, mentally retarded, and drug-addicted woman, who went into labor at thirty-seven weeks and delivered a stillborn child. …

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