Protecting pregnant women: a guide to successfully challenging criminal child abuse prosecutions of pregnant drug addicts.

• Author: Stone-Manista, Krista

1. INTRODUCTION

   Use of illegal drugs by addicted women during their pregnancies poses a significant public health problem. (1) Since the late 1970s, state prosecutors seeking to punish these women for their drug use have made the problem a complex legal one as well. (2) Prosecutors bring criminal charges against pregnant women who use illicit drugs under a wide range of state statutes, including but not limited to those governing criminal child abuse, (3) criminal child mistreatment, (4) and attempted first-degree intentional homicide. (5)

   State appellate courts have almost uniformly found that criminal prosecutions of pregnant women for the effects of their drug use on their fetuses are impermissible. (6) However, prosecutors around the country continue to bring these cases. (7) In September of 2007, a Missouri appellate court dismissed child endangerment charges brought against a woman who had used marijuana and methamphetamines during her pregnancy. (8) The court, applying canons of statutory construction, found that Missouri's child endangerment statute did not specifically prohibit conduct that had occurred during pregnancy and thus was harmful only to a fetus and not to a living child. (9) In 2007 and 2008, eight women in one Alabama jurisdiction (population 37,000) were prosecuted in an eighteen-month period for drug use during pregnancy. (10) The local prosecutor, referring to the need to protect "the child-to-be" from prenatal drug use, made use of a statute criminalizing "chemical endangerment of [a] child" that "was primarily intended to protect youngsters from exposure to methamphetamine laboratories." (11)

   Consideration of legislative intent, and analysis of other rules of statutory interpretation, are among several grounds upon which state appellate courts have dismissed prosecutions of pregnant drug users. This Comment is intended to provide a general overview of these grounds, and of other methods which may be used by advocates for pregnant women to challenge these prosecutions. To that end, Part II of this Comment surveys state court decisions and scholarly analyses related to prosecutions of pregnant women, and identifies strategies that have proven successful in past cases. Part II also offers an in-depth case study of one successful challenge to a prosecution of a pregnant woman.

   State prosecutors and pro-prosecution legal scholars justify these prosecutions with a wide range of policy arguments. Part III of this Comment analyzes and responds to many such justifications, providing arguments related to the failure of fetal abuse prosecutions to deter or prevent drug abuse during pregnancy, provide appropriate punishment to women deserving of such, or achieve improvements in maternal or fetal health outcomes.

   Most state courts that have considered the permissibility of criminal child abuse or endangerment prosecutions of pregnant women have addressed the issue within the frameworks of statutory interpretation and legislative intent. (12) Part IV of this Comment analyzes these frameworks and their applications in this context. These prosecutions, brought under pre-existing statutes not written with the problem of prenatal drug exposure specifically in mind, must be distinguished from prosecutions brought under newly enacted state statutes instituting criminal penalties for pregnant women who use drugs. (13) Although the new laws pose significant problems of their own, this Comment focuses on criminal prosecutions brought under general statutes not aimed specifically at the conduct of pregnant women. Statutory interpretation challenges to the prosecutions of pregnant women under these generic child abuse statutes generally begin, and frequently end, with a consideration of the plain text of the given statute. (14) Other canons of statutory construction, such as the rule of lenity (15) and the advisement to avoid constitutional conflicts, (16) also weigh heavily in favor of the dismissal of charges against addicted pregnant women. In addition, state appellate courts frequently consider whether it was the intent of the state legislature, in enacting a given statute, to allow prosecutions for actions of a pregnant woman before the birth of her child. (17)

   There are also a number of constitutional considerations at issue in the analysis of these prosecutions, as discussed in Part V of this Comment. One is the requirement of fair notice, a central prerequisite for criminal prosecutions that is based in the Due Process Clause of the Fifth and Fourteenth Amendments. (18) Courts have noted that applying a child abuse statute that does not clearly criminalize prenatal conduct to a pregnant woman violates constitutional due process requirements. (19) Advocates for pregnant women also argue that these criminal prosecutions violate the Fourteenth Amendment requirement that no State may "deny to any person within its jurisdiction the equal protection of the laws," (20) either because they represent violations of gender-based equal protection or because they have a biased intent and disparate impact on racial minorities. As other scholars have extensively considered this issue, (21) this Comment will not address it at length; nonetheless, advocates are reminded of its importance as a central line of constitutional challenge to prosecutions. This Comment also does not analyze the Fourth Amendment (22) barriers to these prosecutions, which have been addressed by the United States Supreme Court in Ferguson v. Charleston (23) and by many other commentators, (24) but advocates seeking to challenge criminal prosecutions of pregnant women should consider those issues as well.

   The purpose of this Comment, therefore, is to provide pregnant women and their advocates with a set of tools that may be used to challenge impermissible and unconstitutional criminal prosecutions brought against pregnant women under state child abuse or endangerment laws or similar statutes. After providing a historical overview, this Comment analyzes the policy arguments for and against these prosecutions. It then surveys past state appellate court decisions and discusses the various methods that advocates have successfully used to challenge prosecutions of pregnant women. This Comment concludes with a discussion of the constitutional implications of these prosecutions, focusing primarily on the violations of fair notice and equal protection requirements that are inherent in such cases.

2. BACKGROUND AND HISTORICAL OVERVIEW

   1. EARLY CASES AND GENERAL TRENDS

      In the late 1970s, state prosecutors began to prosecute pregnant women who used illegal drugs or alcohol under state child abuse or endangerment statutes, sometimes adding charges for drug trafficking or provision of drugs to a minor. (25) One of the first such prosecutions occurred in 1977, when the State of California charged a pregnant heroin user with felony child endangerment. (26) Although the defendant's twins had suffered withdrawal symptoms and other signs of heroin addiction as newborns, the California Court of Appeals held that the state child endangerment statute did not extend to conduct occurring before a child's birth. (27)

      In 1989, Jennifer Clarise Johnson was prosecuted under Florida law and convicted for delivering a controlled substance to minor children. (28) Johnson had used cocaine late in each of her pregnancies, and her conviction was upheld by the state district court on the theory that cocaine had passed from her system to her infant children after their birth but before the cutting of their umbilical cords. (29) The Florida Supreme Court subsequently overturned Johnson's conviction, holding that the Florida statute prohibiting delivery of controlled substances did not encompass delivery in this manner. (30)

      The first case in which a woman was charged with child abuse on the theory that her use of drugs or alcohol during pregnancy constituted abuse of her fetus arose in 1990. Twenty-nine-year-old Diane Pfannenstiel, who was pregnant and the victim of spousal abuse, sought help from a Wyoming organization offering aid to battered women. (31) She went to the hospital for treatment, where testing revealed the presence of alcohol in her system. (32) Pfannenstiel was then arrested and charged under a Wyoming statute prohibiting child abuse, defined as "the intentional or reckless infliction of injury on a child." (33) This case represented "the first time that a woman was charged with child abuse, rather than fetal abuse, before there was a live child, and for engaging in an entirely legal activity." (34) A state trial judge dismissed the charges after a lengthy preliminary hearing, because the prosecution could not prove that the fetus had in fact suffered any injury. (35)

      Mirroring the Pfannenstiel case, a recent prosecution of a woman in Alabama occurred when seven-months-pregnant Demetria Jones sought medical assistance at a Tennessee hospital, complaining of chest pains. (36) After tests revealed the presence of cocaine in her blood stream, she was arrested and taken to the county jail. (37) Jones was charged with "reckless endangerment with a deadly weapon," on the grounds that her cocaine abuse constituted use of a deadly weapon against her fetus. (38) Her infant was later born healthy and "tested negative for cocaine." (39) Commentators at the time argued that the prosecution sent "the message to pregnant women: Don't seek emergency medical care." (40) The same could be said of Diane Pfannenstiel's case, almost twenty years previously.

      As discussed below, state courts have generally held that prosecutions of pregnant women for criminal child abuse or endangerment (with a deadly weapon or otherwise) are impermissible. (41) Prosecutions based on state drug delivery statutes have also failed. For instance, the Nevada State Supreme Court held that the state child endangerment statute did not allow criminal charges to be brought for the transmission of...