In the name of fetal protection: why American prosecutors pursue pregnant drug users (and other countries don't).

• Author: Fentiman, Linda C.

For more than three decades, American prosecutors have been bringing criminal prosecutions against pregnant women based on their use of drugs while pregnant, with charges ranging from child abuse or neglect to murder. Almost all of these women are poor, and the vast majority are also women of color--many with histories of childhood sexual or physical abuse and mental disability. (1) In all but three states--Alabama, Kentucky, and South Carolina--such prosecutions have been declared unconstitutional or the resulting convictions have been overturned. (2) Nonetheless, prosecutions continue to be brought, in what can only be described as a crusade against pregnant women in the name of fetal protection. This Article seeks to answer two questions raised by this crusade. The first question is why--what's in it for the prosecutors who charge these women, particularly when they know that the prosecution will almost certainly be invalidated? The second question is a more cosmic, macro inquiry--what do these prosecutions tell us about the American criminal justice system when compared to the justice systems of other nations?

1. HISTORY OF PROSECUTIONS

   The first criminal indictment against an American woman for using drugs during pregnancy was issued in 1977 in California, when Margaret Reyes was charged with two counts of felony child endangerment for her heroin use while pregnant. (3) However, the California Court of Appeals issued an order enjoining further prosecution, on the ground that the legislature did not intend to include "unborn children" within the meaning of the term child. (4) No further prosecutions were brought until the 1980s, when the pace of "fetal abuse" prosecutions picked up, as media attention to the myths of the "Crack epidemic"--as well as its sad reality--overtook the nation. Today, women in more than thirty states have been prosecuted for their use of alcohol and street drugs while pregnant. (5)

   Dorothy Roberts, Dawn Johnsen, Laura Gomez, and Lynn Paltrow have written compellingly about prosecutions of pregnant women for endangerment of their fetuses. (6) Beginning in 1989 and continuing through the present, hundreds of American women have been charged with, and convicted of, crimes based on their use of alcohol and other drugs while pregnant, as well as other assertedly "selfish" conduct, such as refusing a Caesarean section. (7) Until the late 1990s, these charges were limited to less serious crimes such as child abuse, child endangerment, and delivery of drugs to a minor (via the placenta or the umbilical cord). (8) In all states but Alabama, Kentucky, and South Carolina, these convictions have been overturned, either because the reviewing courts determined that the state legislature had not intended the term "child" or "minor" to include a fetus, or because they judged that such prosecutions would only drive drug using women away from medical treatment and would not achieve the deterrent goals of the criminal law. (9)

   Yet despite these clear rulings from the nations' judges, in the late 1990s prosecutors began to up the ante. Since 1996, women in Hawaii, Oklahoma, South Carolina, Utah, and Wisconsin have been charged with murder, attempted murder, or manslaughter based on their use of drugs while pregnant or other behavior alleged to have caused stillbirth, death, or other fetal harm. (10) A particularly egregious case involved Melissa Rowland, who was charged with murder by a Utah prosecutor after one of the twins she was carrying was stillborn and prosecutors learned that she had declined to have a Caesarean section after experiencing fetal distress. (11) South Carolina prosecutors have been the most zealous in the country, with many women convicted of child abuse based on their drug use since the mid1990s. At least four women have been charged with murder after their fetuses were stillborn. The most notorious case was that of Regina McKnight, a homeless, mentally retarded, and drug-addicted woman, who went into labor at thirty-seven weeks and delivered a stillborn child. The South Carolina Supreme Court upheld her murder conviction and twenty year sentence, (12) although last year it vacated her conviction on the grounds of ineffective assistance of counsel. McKnight had spent eight years in prison by that time. (13)

   Three other women in South Carolina have been charged with homicide based on their use of drugs while pregnant. (14) In 2007 an Oklahoma trial judge sentenced Theresa Hernandez to fifteen years in prison after she pleaded guilty to the murder of her stillborn son based on her methamphetamine use while pregnant. (15) She was released from prison after serving nearly a year, on top of the two years that she spent in county jail awaiting trial. (16) Today, prosecutors around the country, but mostly in Southern or border states, continue to bring homicide or fetal endangerment charges against pregnant women who use drugs, even though any ensuing convictions are likely to be reversed on appeal. (17)

2. WHAT MOTIVATES PROSECUTIONS?

   Almost all appellate courts have rejected these convictions, and prosecutors' actions continue to be criticized as both counter-productive and poor public health policy because the prosecutions cannot deter the drug use of addicts and will instead drive drug using women away from treatment. (18) Nonetheless, the persistence of the criminal prosecutions of American women based on their conduct while pregnant suggests that the prosecutions are serving several important functions. Thus we come to the central question of why--what incentives are there for prosecutors to bring these cases? Why invest scarce prosecutorial resources in a case that one is almost certain to lose on appeal?

   1. Concerns about Fetal Harm: Risks & Realities

      At an individual level, prosecutors may choose to charge pregnant women as an attractive way to stake out a position in favor of "family values" while increasing their chances of reelection or selection for a higher office. (19) These prosecutions may also be consistent with public concerns about fetuses and children-at-risk because of parental actions. That juries continue to convict suggests that the public is anxious to denounce parental neglect, and that this anxiety can be expiated through the clear boundary-marking ceremony of a guilty verdict. (20)

      Of course, the fact that those who are prosecuted are almost all poor women of color (21) suggests the multi-faceted nature of that juror anxiety. Michael Tonry has written compellingly to suggest that conservative anticrime campaigns are important, cyclical means by which middle-class individuals distinguish themselves from racial and economic minorities through the scapegoating of those who are redefined as "the other." (22) Furthermore, these prosecutions, and support for them, demonstrate a misunderstanding of the nature and sources of fetal harm--a misunderstanding which dovetails neatly with stereotypes of racial and economic minorities.

      Approximately five to six percent of American women use illegal drugs during pregnancy, while estimates of alcohol use range from eleven to twenty-five percent. (23) Drug use is common across all ethnic groups and classes, although black women are about ten times more likely to be reported to prosecutors or child welfare authorities on suspicion of drug use. (24) Most scientists agree that drug use, broadly defined, during pregnancy can harm the newborn, but they disagree about both the severity and the permanence of such harm. (25) Generally speaking, scientific research has shown that poor birth outcomes have multiple determinants, with important factors including maternal poverty, poor nutrition, homelessness, a history of domestic violence, and lack of prenatal care. (26) These confounding variables make it extremely difficult to untangle the complex causal relationships between maternal drug use and other contributors to poor birth outcomes. It is therefore not only simplistic but also shortsighted to focus solely on drug use as the source of fetal and childhood harm. (27)

      Notably, a legal drug--alcohol--is agreed to pose the greatest risk to fetal and child development if there is significant in utero exposure. (28) Even women who consume moderate amounts of alcohol while pregnant may give birth to children with learning and attentional problems, as well as lower IQs. (29) As a result, there is debate about whether even minimal alcohol consumption during pregnancy is risky. (30)

      In contrast, the impact of other drugs on fetal development is far from clear. While some studies observed a causal relationship between maternal cocaine use and subtle neurological problems, (31) other studies found that most infants whose mothers used cocaine while pregnant were able to "catch up to their peers in physical size and health status by age 2." (32) A 2001 literature review concluded that a link between cocaine use during pregnancy and "major adverse developmental consequences in early childhood" had not been established. It further noted that it was impossible to separate out possible negative effects of cocaine exposure from those caused by in utero exposure to alcohol and tobacco. (33) Recent longitudinal research has shown even more clearly that cocaine exposure in utero has not caused the massive epidemic of "crack babies" described and predicted in the 1980s. (34) Instead, the data show that while such cocaine exposure can cause small differences in IQ and other subtle brain impairments, these effects are "less severe than those of alcohol and comparable to those of tobacco." (35) A recent study by British researchers found that pregnant women's use of tobacco and alcohol was correlated with a significantly increased risk of their children developing psychoses in adolescence. (36)

      Today, sensational reports about methamphetamine abuse frequently make headlines across the United States, and law enforcement officers and the...