In an effort to bolster a fetus’s right to life and to strengthen the war on drugs, courts have been prosecuting women for using drugs while pregnant. This tactic, begun in the 1980s, is markedly controversial due to the limitations it places on the rights of pregnant women, the disregard for the causes of drug use during pregnancy, and its reliance on punitive measures to ensure the health of mothers and their children.
The criminalization of drug use during pregnancy has been gaining momentum since the 1997 case Whitner v. State in which a South Carolina woman who used cocaine while pregnant was convicted of child abuse. This case created precedent by ruling that viable fetuses could be deemed persons, and consequently be protected under child abuse laws. The state had previously been unsuccessful in convicting women who used drugs while pregnant on charges such as trafficking drugs to minors and involuntary manslaughter.
Individuals who support the criminalization of drug-using pregnant women often see this strategy as a preventive measure to protect the well-being of the fetus or as a means of retribution against women who jeopardized the health of their children during gestation. Additionally, this measure encourages the idea that pregnant women are principally responsible for the health of the children they carry.
Although this tactic has been successful in stereotypically conservative regions, it has generally fallen under strong disapproval. Critics assert that the criminalizing of drug-using pregnant women perpetuates a woman-as-incubator mentality and does not account for external factors that affect the health of a fetus, such as poor health care, intimate partner violence, and poverty-induced stress. Furthermore, although drug use cuts across all race and class lines, women who have been prosecuted for using drugs while pregnant are typically low-income-earning women of color.
Members of the public health community have also been concerned that the use of positive drug tests as grounds for prosecution will necessitate a close partnership between medical care providers and law enforcement. They deduce that medical professionals’ assistance in the arrests of drug-using pregnant women will lead those who are most likely to be in need of prenatal care to be reticent to visit a doctor for fear that they will be held responsible for pregnancy complications.
The movement to punish pregnant women for drug use has paved the way for heightened individual responsibility for other lifestyle choices made during a woman’s pregnancy. In addition to hundreds of drug charges since Whitner v. State, pregnant women have been charged with other potentially harmful behaviors such as drinking alcohol and not receiving an adequate amount of rest.
- Paltrow, L. M. (2000). Governmental responses to pregnant women who use alcohol or other drugs. Washington, DC: Women’s Law Project and National Advocates for Pregnant Women.
- Parks, K. T. (1998). Protecting the fetus: The criminalization of prenatal drug use. William and Mary Journal of Women and the Law, 5, 245–270.
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