Academic journal article The William and Mary Bill of Rights Journal

Re-Evaluating the Criminalization of in Utero Alcohol Exposure: A Harm-Reduction Approach

Academic journal article The William and Mary Bill of Rights Journal

Re-Evaluating the Criminalization of in Utero Alcohol Exposure: A Harm-Reduction Approach

Article excerpt


The right of women to self-govern their bodies and make informed decisions about continuing a pregnancy has long been recognized by the courts. Over forty years ago, Roe v. Wade1 clearly established legal protections and guaranteed women the right to terminate a pregnancy early in the reproductive process.2 Yet, Roe also confirmed that states have a legitimate interest and responsibility in protecting potential life;3 however, Roe did not adequately address the issue of protecting an earlyterm fetus against potentially harmful maternal behaviors in instances where an intent to carry to full term existed. Of course, the Court could not fully appreciate the fetal risk related to substance use at that time given that Fetal Alcohol Syndrome (FAS) and its symptomology would not be described until five months later.4 Though abortion remains a central issue in political debates, other policies have been introduced which would similarly shift autonomy away from pregnant women without comparable debate and public interest. A number of states are utilizing punitive policies, in an effort to protect the future citizenry, that will supposedly deter or prevent pregnant women from consuming alcohol.5 These states choose to criminally charge women who give birth to a child displaying alcohol-related birth defects or confine pregnant women who fail to cease their alcohol use.6

The impetus behind punitive maternal alcohol laws is readily apparent. Policymakers are designing regulations with the intent of limiting the morbidity associated with a major preventable health issue that critically impacts the healthcare, educational, financial, and criminal justice systems within their states. FAS is estimated to affect over 40,000 newborns each year, a number that grows significantly when related maladies such as alcohol-related birth defects and alcohol-related neurological deficits are included.7 Agreeing that the health of potential citizens is a legitimate governmental interest, we build on an earlier work supporting the constitutionality of these measures8 by assessing their overall utility. This Article challenges the assumption that punitive action will be effective in limiting fetal risk and demonstrates that these policies are likely causing more harm to women and their children than they ameliorate. As such, punishing pregnant women for alcohol consumption appears to be an imprudent measure inconsistent with the rationale behind it.

In order to depict the insufficiencies with extant punitive policies, this Article first introduces the reader to the etiology of alcohol-related fetal abnormalities and how alcohol's effects are largely contingent on dose, frequency, and gestational timing. Many argue that the majority of restrictive policies are ineffective because interventions are unable to affect alcohol consumption during the time at which the fetus is at greatest risk (the first trimester).9 Similarly, criminal prosecution is unfruitful, as any potential deterrent effect of punishment is diminished by the uncertainty that FAS is an inevitable result of occasional drinking and because of the limited number of prosecutions (totaling less than 500 in the United States from 1973-2005), even when a child is born with FAS.10 Once a number of unintended consequences are considered, such as pregnant substance users increasingly avoiding prenatal care, it becomes clear that punitive policies are inconsistent with a harm-reduction approach.11 While the risks of fetal harm from alcohol consumption are significant, punitive policies are unlikely to significantly lessen this burden and instead restrict liberties, isolate at-risk women, and jeopardize pregnancies via abstention from prenatal care. As such, policymakers are directed towards educational and supportive measures, such as priority access for pregnant women in substance abuse treatment centers.


A. The Etiology of Alcohol-Related Fetal Harm Through the Gestational Cycle

In order to effectively evaluate the legality and practicality of measures taken against maternal alcohol use within a harm-reduction approach, we must examine the detriments that maternal alcohol use may have on a fetus. …

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