Protecting Pregnant Women: A Guide to Successfully Challenging Criminal Child Abuse Prosecutions of Pregnant Drug Addicts
Stone-Manista, Krista, Journal of Criminal Law and Criminology
Use of illegal drugs by addicted women during their pregnancies poses a significant public health problem. (1) Since the late 1970s, state prosecutors seeking to punish these women for their drug use have made the problem a complex legal one as well. (2) Prosecutors bring criminal charges against pregnant women who use illicit drugs under a wide range of state statutes, including but not limited to those governing criminal child abuse, (3) criminal child mistreatment, (4) and attempted first-degree intentional homicide. (5)
State appellate courts have almost uniformly found that criminal prosecutions of pregnant women for the effects of their drug use on their fetuses are impermissible. (6) However, prosecutors around the country continue to bring these cases. (7) In September of 2007, a Missouri appellate court dismissed child endangerment charges brought against a woman who had used marijuana and methamphetamines during her pregnancy. (8) The court, applying canons of statutory construction, found that Missouri's child endangerment statute did not specifically prohibit conduct that had occurred during pregnancy and thus was harmful only to a fetus and not to a living child. (9) In 2007 and 2008, eight women in one Alabama jurisdiction (population 37,000) were prosecuted in an eighteen-month period for drug use during pregnancy. (10) The local prosecutor, referring to the need to protect "the child-to-be" from prenatal drug use, made use of a statute criminalizing "chemical endangerment of [a] child" that "was primarily intended to protect youngsters from exposure to methamphetamine laboratories." (11)
Consideration of legislative intent, and analysis of other rules of statutory interpretation, are among several grounds upon which state appellate courts have dismissed prosecutions of pregnant drug users. This Comment is intended to provide a general overview of these grounds, and of other methods which may be used by advocates for pregnant women to challenge these prosecutions. To that end, Part II of this Comment surveys state court decisions and scholarly analyses related to prosecutions of pregnant women, and identifies strategies that have proven successful in past cases. Part II also offers an in-depth case study of one successful challenge to a prosecution of a pregnant woman.
State prosecutors and pro-prosecution legal scholars justify these prosecutions with a wide range of policy arguments. Part III of this Comment analyzes and responds to many such justifications, providing arguments related to the failure of fetal abuse prosecutions to deter or prevent drug abuse during pregnancy, provide appropriate punishment to women deserving of such, or achieve improvements in maternal or fetal health outcomes.
Most state courts that have considered the permissibility of criminal child abuse or endangerment prosecutions of pregnant women have addressed the issue within the frameworks of statutory interpretation and legislative intent. (12) Part IV of this Comment analyzes these frameworks and their applications in this context. These prosecutions, brought under pre-existing statutes not written with the problem of prenatal drug exposure specifically in mind, must be distinguished from prosecutions brought under newly enacted state statutes instituting criminal penalties for pregnant women who use drugs. (13) Although the new laws pose significant problems of their own, this Comment focuses on criminal prosecutions brought under general statutes not aimed specifically at the conduct of pregnant women. Statutory interpretation challenges to the prosecutions of pregnant women under these generic child abuse statutes generally begin, and frequently end, with a consideration of the plain text of the given statute. (14) Other canons of statutory construction, such as the rule of lenity (15) and the advisement to avoid constitutional conflicts, (16) also weigh heavily in favor of the dismissal of charges against addicted pregnant women. …