A jurisprudential analysis of government intervention and prenatal drug abuse.

• Author: Fortney, Susan

1. INTRODUCTION II. THE APPROPRIATENESS AND OBJECTIVES OF GOVERNMENT INTERVENTION A. Effects of Prenatal Drug Use B. Objectives of and Basis for Government Intervention C. Prosecutions under Existing Criminal Law D. New Legislation III. BALANCING THE INTERESTS OF THE STATE AND THE MOTHER-CONSTITUTIONAL CHALLENGES TO NEW LEGISLATION IV. ANALYSIS OF DUTIES AND CORRELATING RIGHTS A. Maternal Obligations and Duties B. Analysis and Critique of Hohfeld's Correlatives V. THE UTILITY AND SHORTCOMINGS OF CRIMINAL SANCTIONS VI. PROPOSAL FOR LEGISLATION THAT TREATS DRUG ADDITION AS A DISEASE VII. SIGNIFICANT ADVANTAGES OF THE PROPOSAL VIII. UTILITARIAN RECKONING IX. CONCLUSION I. INTRODUCTION

   Behold, thou shalt conceive, and bear a son; and now drink no strong wine or strong drink ... (2) This Biblical verse illustrates that the societal proscription against pregnant women drinking alcohol is centuries old. The recent tragedy is that substance abuse among pregnant women has dramatically increased to the point that prenatal alcohol and drug abuse is a serious public health problem. In 2001, the United States Supreme Court noted that the "problem of crack babies was perceived in the late 1980's as a national epidemic, promoting considerable concern both in the medical community and among the general populace." (3) According to a study released by the National Institute on Drug Abuse, five percent of the four million women who gave birth in the United States in 1992 used illegal drugs during their pregnancy. (4) "Studies have concluded that the problem is pervasive, affecting deliveries in both public health clinics and private obstetric practices, without regard for socioeconomic classifications." (5)

   The problem has captured the attention of medical professionals, legislators, prosecutors, journalists, and legal scholars. A number of law review articles discuss issues related to maternal substance abuse. The majority of these articles fall into two general categories. The first group emphasizes the harms of substance abuse and the need for criminal or civil commitment statutes to curb illegal drug use by pregnant women. (6) The second category of commentaries focuses on a woman's constitutional rights and the dangers of state intervention. (7) Many of the articles also address the issue of recognition of fetal rights and potential conflicts between the mother's rights and fetal rights. (8) Various authors oppose government intervention, cautioning that such intervention would lead to the recognition of fetal rights at the expense of women's right to privacy and personal autonomy. (9)

   This article takes a different approach in considering the problem of prenatal drug abuse. (10) After briefly discussing government intervention and constitutional issues, this article will consider the concept of duty and correlative rights. This discussion of duty and correlative rights suggests that the government can take measures to curb prenatal drug use without recognizing fetal rights. The article concludes with a discussion of the utility of criminal legislation as compared to public health legislation that treats drug addiction as a disease requiring treatment. As formulated, the proposal for public health legislation is not based on any concept of fetal rights. Instead, it is based on the recognition of societal interests, as well as the woman's needs.

2. THE APPROPRIATENESS AND OBJECTIVES OF GOVERNMENT INTERVENTION

   1. Effects of Prental Drug Use

      An evaluation of government intervention to curb prenatal drug use requires a basic understanding of the effects of drug use by pregnant women. Given the maternal-fetal link, drugs such as cocaine directly and indirectly affect the fetus from conception to birth. (11) "By depriving the fetus of oxygen, cocaine use threatens fetal development." (12) Because cocaine freely crosses the placental barrier to the fetus and cannot re-circulate back across the placental barrier into the mother's bloodstream, the fetus may become much more severely addicted than the mother. (13) Malformations of urogenital, cardiac and central nervous systems can also result from gestational cocaine abuse. "Neurological problems caused by cocaine can permanently affect motor skills, reflexes and coordination." (14) Cocaine-addicted women experience complications during labor and delivery (15) and deliver infants pre-term (less than 37 weeks gestation). (16) These babies are born with lower birth weights, shorter body lengths, and smaller head circumferences as compared to drug-free babies. (17) Physicians consider these babies to be medically at risk. (18)

      After birth, the infants experience acute withdrawal from the drug. This withdrawal persists in a sub-acute form for four to six months after birth. (19) As a result of these complications, these infants need intensive medical care estimated to cost approximately $100,000 per infant. (20) A 1992 study estimated that the direct costs related to prenatal drug exposure were $387 million. (21) These figures do not reflect the costs of the long-term effects of prenatal drug exposure. (22)

   2. Objectives of and Basis for Government Intervention

      Prosecutors and others have articulated a number of reasons that justify government intervention to curb prenatal drug use. The most common reason given is to protect the unborn child of the addicted mother. (23) Presumably, early intervention such as commitment or incarceration might also protect the mother.

      A number of commentators and medical professionals have criticized this position, arguing that criminal legislation has the opposite effect of deterring women from obtaining prenatal medical care and treatment. (24) The critics argue that pregnant women will not seek medical care because they fear detection by physicians who are operating as agents of the state. (25) Nevertheless, some legislators and prosecutors still believe that actions to curb prenatal drug abuse serve community interests. In support of their position, they point to the extraordinary amount that the government pays for medical care for drug-dependent newborns. Apparently, public sentiment supports some form of government intervention, in particular criminalization. (26)

      To address the problem of prenatal drug use, the state might use various tools including prosecution, dependency proceedings, or civil commitment. (27) Prosecutors in the United States have already resorted to criminal prosecutions under existing laws. (28) They have also presented myriad proposals to address the problem, including the adoption of new criminal statutes.

      Regardless of the specific approach used, the government can rely on two sources of authority in taking action to curb prenatal drug use. First the government can use the doctrine of parens patriae. Second, state governments might exercise the police power preserved for the states under the United States Constitution.

      Parens patriae is an ancient doctrine that provides states with limited paternalistic power to protect individuals who lack capacity to act in their own interest. For example, parens patriae authority gives the state the power to enact child abuse laws, to transfer custody of a child from a parent to the state, to order treatment for a viable fetus in utero, and to compel a woman to submit to a caesarian section. In Prince v. Massachusetts the United States Supreme Court recognized that the state's parens patriae authority empowers the state to regulate the family in the public interest. (29) In noting that the state may guard the general interest in the youth's well being, the United States Supreme Court explained that the state has a wide range of power for limiting parental freedom and authority in situations affecting the child's welfare. (30)

      In addition to parens patriae, states utilize their police power to promote the public welfare and to prevent citizens from harming one another. (31) Speaking of the evils that impede the "healthy, well rounded growth of young people" the United States Supreme Court in Prince stated that legislation appropriately designed to reach such evils is within the state's police power. (32) The state has this authority notwithstanding the parents' claim to control the child. (33)

   3. Prosecutions under Existing Criminal Law

      Prosecutors have attacked maternal substance abuse using different approaches. Between 1985 and 1998 at least 240 women in the United States have been prosecuted for using illegal drugs while pregnant. (34) Generally prosecutors brought cases under existing child abuse and child endangerment laws. (35) Many cases were eventually dismissed because the courts have been "unwilling to stretch criminal child endangerment and child support statutes beyond their most obvious purposes--to protect only already born children ..." (36) The Supreme Courts of Kentucky, Nevada and Ohio have held that a mother cannot be convicted of child abuse or child endangerment for using drugs while pregnant. (37) In contrast to these decisions, the Supreme Court of South Carolina held that South Carolina's child abuse statute protects a viable fetus as a child. (38) In reaching this conclusion, the court interpreted the term "child" to include a viable fetus. (39) Furthermore, the court concluded that its interpretation of the word "person" to include a fetus was consistent with the legislature's intended purpose in enacting the child abuse statute. (40) The two women who were convicted challenged the court's interpretation seeking review by the United States Supreme Court. The Supreme Court refused to hear the case. (41)

      Other prosecutions have based cases on laws prohibiting the possession of drugs and the delivery of drugs to minors. (42) One conviction that received national attention was the case of Jennifer Johnson, who was convicted of violating the Florida statute prohibiting delivery of drugs to minors. (43) Such convictions based on existing laws have been...