State responses to substance abuse among pregnant women.

With the U.S. Supreme Court considering a high-profile case involving the prosecution of pregnant substance abusers, policymakers and advocates once again are confronted with the decade-old question of how best to deal with pregnant women who use drugs. State laws now vary considerably in their approach to the problem, reflecting a deep division in public opinion. For many lawmakers, the issue comes down to the difficult task of balancing a woman's right to bodily integrity with society's interest in ensuring healthy pregnancies, and the question of whether punitive approaches will foster--or hinder--healthy outcomes for women and children.

On October 4, the U.S. Supreme Court heard oral arguments in Ferguson v. City of Charleston, a case brought by 10 women who were secretly tested for cocaine use while seeking routine prenatal care at a South Carolina public hospital. Women who tested positive were reported to local prosecutors and then arrested or threatened with arrest for criminal child abuse. The Court is considering whether the practice of testing pregnant women for drug use without either a warrant or consent and reporting them to law enforcement authorities violates their Fourth Amendment right to be free from unreasonable searches.

For many Americans, Ferguson is about much more than the technical application of Fourth Amendment protections; instead, it raises the question of how society can best deal with the agonizing problem of prenatal substance abuse--a problem that poses serious risks to both a pregnant woman and her fetus. This question has plagued state lawmakers since the late 1980s, and many remain at odds over how to approach the problem. Some states have attempted to criminalize prenatal drug use or treat it as grounds for terminating parental rights, while others have placed a priority on making drug treatment more readily available to pregnant women. But the issue--perhaps more than any other--vividly demonstrates the difficulty policymakers face in attempting to balance the autonomy and bodily integrity of pregnant women with society's interest in ensuring the birth of healthy children. For advocates of women's reproductive rights, it raises the question of whether the state can ever be justified in regulating a pregnant woman's behavior in the interest of protecting her fetus and whether such policies potentially undermine the legality of abortion.

State Activity

CRIMINAL LAW

While no state has enacted a law specifically criminalizing drug use during pregnancy, prosecutors have relied on a host of criminal laws already on the books to attack prenatal substance abuse. Women across the nation have been arrested and charged with a wide range of crimes, including possession of a controlled substance, delivering drugs to a minor (through the umbilical cord), corruption of a minor, and child abuse and neglect. Others have been charged with assault with a deadly weapon and manslaughter.

Women who have appealed their convictions to their state supreme court have prevailed in all but one instance. Typically, courts have overturned these convictions on the grounds that a fetus could not be considered a child or person under criminal child abuse statutes, or that the legislature did not intend for an existing criminal statute to apply to a pregnant woman and her fetus. Other courts have found such convictions to be unconstitutional violations of women's rights to due process (because the state applied the law in a way that could not be foreseen by the pregnant woman) and privacy. Only in South Carolina has the state supreme court, in the 1997 case Whitner v. South Carolina, upheld the conviction of a woman charged with criminal child abuse for using cocaine during pregnancy. In that case, the court held that a viable fetus is a "person" under the state's criminal child endangerment statute, and that "maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus" could constitute child abuse.