Should Pregnant Women be Subject to Criminal Prosecution for
Activities that are Harmful to Their Fetuses?

By Elaine A. Lisko, Health Law & Policy Institute

Recent activities in a number of states have renewed the debate on whether women who abuse drugs or alcohol during their pregnancies should be subject to criminal sanctions. In South Carolina, the state supreme court ruled that Cornelia Whitner could be held criminally liable for using cocaine and thereby endangering her fetus. The court indicated that its holding applied to legal as well as illegal substances. In Wisconsin, criminal charges were brought against Deborah Zimmerman for her abuse of a legal substance (i.e., alcohol) during her pregnancy. Ms. Zimmerman is facing charges of attempted first degree intentional homicide and first degree reckless conduct. Prosecutors also have tried, without success, to bring criminal actions against substance-abusing pregnant women in Arizona, Florida, Georgia, Kentucky, Massachusetts, Michigan, Nevada, New York, and Ohio.

Legislators have also entered the fray. On June 13, 1997, the governor of Tennessee signed House Bill 1413, making it a Class A misdemeanor for child abuse where: (1) a woman consumes alcohol or illegal drugs during pregnancy with knowledge or the reason to know that such consumption may result in harm to her child; and (2) the child is born addicted to alcohol or drugs. Similarly, Hawaii is considering House Bill 3351 which makes the consumption of alcohol or illegal drugs during pregnancy, once the woman knows of the pregnancy, a Class C felony for endangering the welfare of a minor.

Opponents to the criminalization of a womanís conduct during pregnancy argue that it violates constitutional rights, including a womanís right to privacy and equal protection. More specifically, they contend that it interferes with a womanís right to procreate and to bodily integrity, because it punishes the woman who decides to continue her pregnancy and motivates the woman who wishes to avoid criminal prosecution to terminate her pregnancy. Thus, these laws could encourage abortion. Opponents of criminal prosecutions argue further that it discriminates against women in general, because it does not punish fathersí conduct that may also adversely affect the unborn child. Additionally, it discriminates against poor women of color in particular, because these are the women who are being prosecuted, notwithstanding the fact that substance abuse among women is similar regardless of race or class.

Opponents also contend that once the door to regulation of maternal behavior is opened, it may be difficult to close. As noted, the Whitner case does not draw a distinction between illegal and legal substances; and the Zimmerman case actually involves the prosecution of a woman for her use of a legal substance. This raises the question of whether a pregnant woman may be prosecuted for other legal but potentially harmful conduct, like smoking, failing to eat a proper diet, or not seeking adequate prenatal care.

Alternatives to criminalization include education and treatment. These options are being pursued by a number of states as is reflected in the following sample of state statutes:
State Statute Description
California Cal. Health & Safety Code § 11757.59 Provides for funding of residential and nonresidential alcohol and drug treatment programs for pregnant and postpartum women, which programs are to include medical services and non-medical services. 
Colorado Colo. Rev. Stat. §§ 25-1-212 & 25-1-213 Creates treatment program for high-risk pregnant women, which program shall make available counseling, treatment and numerous other services.
Connecticut Conn. Gen. Stat. § 17a-711 Provides for the establishment of a task force on substance-abusing women and their children, which is to make recommendations for the development and oversight of treatment programs.
Delaware Del. Code Ann. tit. 16, § 190 & tit. 24, § 1770 Requires public health and medical providers who treat, advise or counsel pregnant women to advise them of possible problems, complications and injuries that may result from their consumption of alcohol or illegal drugs.
Georgia Ga. Code Ann. § 37-7-2 Authorizes mental health board to develop criteria for providing priority in access to services and admissions to treatment programs for drug or alcohol dependant pregnant women.
Illinois Ill. Rev. Stat. ch. 20, para. 2310/55.54 Requires public health department to conduct education program to inform pregnant women of medical consequences of alcohol, drug and tobacco use and abuse.
Kansas Kan. Stat. Ann. § 65-1,161 Provides that educational materials and guidance is to be given to health care providers who treat pregnant women, including materials addressing the perinatal effects of the use of tobacco, alcohol and controlled substances.
Kentucky Ky. Rev. Stat. Ann. § 222.037 Provides for the establishment of additional pilot projects to demonstrate the effectiveness of various community services to prevent alcohol and substance abuse by pregnant women. Additionally, Section 214.160(5) of the Kentucky Revised Statutes prohibits the use of prenatal screening for alcohol or other substance abuse as prosecutorial evidence.
Louisiana La. Rev. Stat. Ann. §§ 2505 & 2514 Provides that the health and hospitals department shall establish a substance abuse treatment program for pregnant women and mandates that the council is to gather data and make recommendations on developing state policies to reduce the number of infants exposed to chemicals, including treatment programs.
Maryland Md. Code Ann., Health-Gen. § 8-403.1 Mandates that the alcohol and drug abuse administration shall develop a referral procedure to require state-run or state-funded treatment programs to accept pregnant or postpartum women on a priority basis.
Missouri Mo. Ann. Stat. §§ 191.727, 191.729,191.731 &191.733 Provides for the establishment of educational programs on the effects of cigarettes, alcohol and controlled substances on pregnancy and fetal outcome, grants pregnant women priority to substance abuse treatment facilities, and establishes a hotline for information on substance abuse treatment for pregnant women. Additionally, as in Kentucky, substance abuse information collected by health care providers in their treatment of pregnant women may not be used in any criminal prosecution (see Sections 191.737(5) and 191.743(4) of Missouriís Annotated Statutes).
Wisconsin Wis. Stat. § 51.42 Gives priority to pregnant women for government funded alcohol and drug abuse treatment services.