Substance Dependency During Pregnancy: The Limits of the Law Kary L. Moss, JD American Civil Liberties Union Women's Rights Project New York, New York
Abstract This article surveys recent legal developments facing alcohol- and drug-dependent pregnant women and recommends strategies to improve their health and that of their children.
he incidence of fetuses exposed to drugs and alcohol in utero has generated increasing nationwide attention from the media, social service agencies, state prosecutors, state legislatures, and Congress. What is now clear is that women who use drugs during pregnancy are being singled out and punished for their behavior in ways that are unprecedented. The p h e n o m e n o n of punishing pregnant women for being "bad mommies" because they did not behave "properly" while pregnant is not new. In the past, courts have authorized cesarean sections against the mother's wishes 1-3 or have taken guardianship of a fetus away from the mother, 4 but these cases were rare. Today's drug problem, however, has provided a new context in which state intervention over the lives of pregnant women seems more acceptable because of the danger that excessive drug use can pose to the fetus. Some prosecutors, courts, and legislatures seem to believe that pregnant women may be punished and their rights curtailed because of "fetal rights." Yet if upheld in this context, states will be free to intrude on the lives of all pregnant women, even when they do not engage in illegal behavior.* The consequence will be to drive women away from health and prenatal care to the detriment of their health and that of their children. This article will review the recent developments in this area, including the most major criminal cases and state legislative efforts undertaken in the past year. The legal problems and implications of these developments will be explored and several alternative responses proposed.
T
PENALIZING PREGNANT WOMEN FOR DRUG USE In 1985, Pamela Rae Stewart was criminally charged in California under a child support statute for failing to follow her doctor's instructions while pregnant. 6-8 Stewart had given birth to a severely brain-damaged son who died approximately 6 weeks after birth. The national media focused on the allegation that she had used illegal drugs during her pregnancy, but the prosecution emphasized other aspects of her prenatal behavior. Although the San 120 MOSS:SUBSTANCEABUSEDURING PREGNANCY
*As one c o m m e n t a t o r observed: "It doesn't take a great intuitive leap once you start locking up people to protect the fetus to imagine getting to the point where a representative for the fetus has to be appointed every time a woman wants an abortion. ''s Adapted from Harvard Women's Law Journal, 1990, volume 13, page 278. Reprinted with permission. WHI Vol. 1, No. 3 Summer 1991
Diego Municipal Court dismissed the case in 1987 on the grounds that the statute did not cover the conduct alleged,* the case represents one of the first times that prosecutors applied a statute designed to protect children against a woman because of her behavior during pregnancy. With the burgeoning crack epidemic, prosecutors around the country have followed this example by applying novel legal theories to existing state statutes in an effort to prevent pregnant women from engaging in potentially harmful behavior.
Jennifer Johnson: Violation
of Women's Rights
On July 13, 1989, Jennifer Johnson became the first woman to be criminally convicted for giving birth to a drug-exposed infant, after she had given birth to two such infants over a 14-month period. 9,1° Johnson, who had used cocaine during her pregnancies, was charged under a Florida statute that makes delivery of drugs to a minor illegal. The prosecutor successfully argued to the court that Jennifer Johnson had delivered a derivative of cocaine through the umbilical cord to her child after "birth," during the 60 to 90 seconds before the cord was clamped. The court sentenced Johnson to 15 years; 1 year to be served on "community control," which is a form of intensive, supervised custody in the community, home, or noninstitutional residential placement. If it is violated, Ms. Johnson will be subject to specific sanctions. She was also sentenced to 14 years of probation and ordered to participate in a drug rehabilitation program, obtain a high school equivalency diploma, and not possess controlled substances, associate with those who possess drugs, consume alcohol, or enter a bar without the permission of her probation officer. She must perform 200 hours of community service and remain employed. If she becomes pregnant, she must enter a judicially approved prenatal care program. Johnson has appealed this verdict and the order denying her motion to dismiss. Defense attorneys have attacked this novel application of the delivery statute as violating Ms. Johnson's constitutional right to receive notice of the acts considered to be crimes. For example, prosecutors had never before applied the delivery statute to a woman who used drugs during pregnancy. Consequently, the prosecutors had to apply novel definitions of the term "delivery" that Johnson could not have known would become a basis for her conviction. Also, because the only evidence used against her was the positive toxicology of her newborn, a question existed as to whether it was cocaine that had been "delivered." Metabolized, cocaine is not the substance that the statute contemplates should not be delivered. In addition, the d e f e n s e a r g u e d that the conviction violates Ms. Johnson's right to procreate and right to autonomy in reproductive decision making, because a pregnant addict unable to overcome her addiction must choose to have an abortion or face criminal prosecution.t Moreover, the defense maintained that Johnson's right to medical privacy was violated when her statements to health care providers and her medical records became part of the prosecution's record. Since her conviction, there have been at least 50 more prosecutions of w o m e n who have given birth to drug-exposed infants. In most of these cases, states are applying criminal statutes without any regard for the constitutional rights of these women or the consequences that criminal prosecutors will have on women's willingness to obtain prenatal care and, thus, on the health of their children.
Other Cases The resolution of the Johnson case will affect the willingness of prosecutors from other states to use their criminal laws to prosecute pregnant and postWHI Vol. l, No. 3 Summer 1991
*Stewart, at 9-11. 6 The child support
statute was designed to assure financial support for children, not to control a mother's behavior during pregnancy. tProcreative rights and rights to reproductive decision making have been reco g n i z e d by the US S u p r e m e C o u r t under the doctrine of right to privacy. See Skinner v Oklahoma, 316 US 535 (1942) (overturning Oklahoma law that authorized involuntary sterilizations of felons convicted of crimes of moral turpitude); Griswold v Connecticut, 381 US 479 (1965) (recognized right of privacy in overturning law that prohibits use of birth control); Roe v Wade, 410 US 113 (1973) (right of privacy e x t e n d s to women's right to have an abortion).
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p a r t u m w o m e n . Since this article was prepared, a Superior Court in Massachusetts dismissed an indictment against a w o m a n w h o had been arrested for the crime of distributing cocaine to a person u n d e r 18 years because she allegedly ingested cocaine while pregnant. This statute was similar to that used to prosecute Jennifer Johnson. n The court dismissed the indictment on a n u m b e r of grounds. First, the court concluded that the state's interpretation of the drug delivery statute could not be applied to prenatal behavior w i t h o u t violating constitutionally protected right to due process, basic principles of statutory interpretation, and the separation of powers. Second, the court concluded that the application of the delivery statute impermissibly punished the d e f e n d a n t for her pregnancy, thus limiting a w o m a n ' s reproductive choice. Finally, the court declined to expand the statute's purview to apply to fetuses. This decision may affect the Florida appeals court w h e r e Johnson is still pending, as well as a case in Kentucky w h e r e a y o u n g w o m a n n a m e d Connie Welch was recently convicted for child abuse because she used oxycodone during her pregnancy. She is in jail p e n d i n g the appeal. Already, prosecutors in several states have used similarly novel interpretations of statutes to p r o s e c u t e w o m e n w h o u s e d d r u g s while pregnant. 12A3 In South Carolina, prosecutors have arrested at least 18 w o m e n , charging them with criminal neglect or distribution of drugs to minors, sA4 A n o t h e r w o m a n was a r r e s t e d in her s e v e n t h m o n t h of p r e g n a n c y a n d charged with possession and distribution based u p o n a positive drug test. She was placed u n d e r house arrest for the duration of her pregnancy. 15A6 Prosecutors have also arrested w o m e n in Alaska, 17 Connecticut, TM the District of Columbia, 19 Georgia, 2° Illinois, 21 Indiana, 22 Massachusetts, 1°,23 Ohio, 24-26 Texas, 27,28 and Michigan. n Illegal drug use is not the only behavior targeted. In January 1990, Diane Pfannensteil, a battered w o m a n w h o was pregnant, went to a hospital, from her local shelter, to obtain treatment after she had been beaten u p by her husband. 29 Pfannensteil was also an alcoholic; hospital personnel tested her and gave the positive result to a local district attorney w h o arrested her and charged her with criminal child abuse. The court dismissed the case but it should not be long before a n o t h e r prosecutor tries a similar theory. FAULTY ASSUMPTIONS
BEHIND THE PROSECUTION P R E G N A N T D R U G USERS
OF
These prosecutions are premised on e r r o n e o u s assumptions that will have disastrous effects on the lives of these w o m e n and their children. One assumption is that p r e g n a n t addicts are indifferent to the health of their fetuses or that they willfully seek to cause them harm. For example, South Carolina Circuit Solicitor Joe Watson d e f e n d e d the prosecutions in his state: "It sort of came to a focus w h e n we had three or four in a row . . . we decided to sit d o w n and see if we c o u l d . . , force these w o m e n to do something."14 Former United States Senator Pete Wilson stated in a Congressional discussion on the topic: "I recall a w o m a n n a m e d Cheryl . . . . It w a s n ' t until Cheryl's seventh drug-addicted child that she realized what she was doing to her children was bad. ,,3o H o w e v e r , it is not true that all of these w o m e n are insensitive to their children's needs. Real resource constraints often p r e v e n t them from securing treatment or p r o p e r care during their pregnancies.* Even w h e n w o m e n can secure treatment, they may still be constrained by the nature of the addiction process itself, which typically involves loss of control over use of a drug and continued involvement even when there are serious consequences.31,# 9 Drug d e p e n d e n c y and alcoholism also includes tolerance d e v e l o p m e n t . 3 1 , # 7-98 Thus, to treat p r e g n a n t addicts as indifferent is to m i s u n d e r s t a n d and oversimplify the addiction process.
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*For e x a m p l e , a l t h o u g h P a m e l a Rae Stewart w a s ordered by h e r doctor to stay off h e r feet, s h e simply could not do so because s h e w a s the p r i m a r y caretaker of h e r two children. Similarly, Jennifer J o h n s o n h a d s o u g h t d r u g treatm e n t d u r i n g her p r e g n a n c y b u t w a s u n able to obtain it in h e r area. There is n o evidence that the court considered this relevant. WHI Vol. 1, No. 3 Summer 1991
A second erroneous assumption is that drug treatment is available and pregnant women willfully seek to avoid it. For example, in 11l re Troy D.,32 a case in which a woman lost custody of her newborn after the newborn tested positive at birth for drugs, the court did not examine the availability of drug or alcohol treatment available to the defendant. Had it done so, it would have found that many treatment programs will not admit pregnant women because they fear liability or do not have services such as child or obstetric care. In New York, for example, according to Dr. Wendy Chavkin, a former Rockefeller Fellow at the Columbia University School of Public Health and former Director of Maternity Services for the City of New York, 54% of the 78 drug treatment programs refuse to treat pregnant women, 67% refuse to treat pregnant women on Medicaid, and 87% have no services available to pregnant women addicted to crack who are Medicaid eligible. 33 Fewer than half of those programs that accept pregnant women provide or arrange for prenatal care; only two programs make provisions available for clients' children, although lack of child care is a major obstacle to participation in drug treatment for many women. A third assumption is that prosecution will deter women from alcohol and drug use. Yet punitive measures will, in our experience, deter women from using the health-related services that will most benefit themselves and their children. Many national health organizations, such as the American Medical Association, American Society of Addiction Medicine, and National Association of Perinatal Addiction and Research and Education have all issued policies opposing prosecution for this reason.
Implications and Impact of These Prosecutions The problems posed by the institution of these cases have far-reaching implications for all women. First, when society chooses to punish pregnant women for their drug use, it opens the door to the placement of restrictions on women's behavior during pregnancy. However, restrictions could go as far as to require women to obey all of their doctor's orders while pregnant, including instructions to quit their job or to stay in bed for a period of months, as well as preventing pregnant women from smoking or drinking alcohol. These arguments could be extended to all fertile women of childbearing age, because research has shown that alcohol consumption can harm a fetus even before a woman realizes she is pregnant. One vivid example is the case, UAW v Johnson Controls, 34 in which an employer sought to exclude all fertile women, regardless of their childbearing intentions or sexual preference, from jobs in which exposure to lead could potentially harm a fetus. In its decision, the appeals court repeatedly portrayed women as fetal vessels, for whom employment and personal autonomy are secondary concerns.* The dissent estimated that the decision would affect 15 to 20 million industrial jobs for working w o m e n . t Of concern in all of these cases is the fact that behavior engaged in while pregnant is being singled out for criminal liability, whereas similar behavior engaged in by men or nonpregnant women remains immune. For example, men and nonpregnant women who arrive at a hospital are not asked if they have children, they are not tested for drug use, and their medical records are not turned over to police or child welfare authorities. Men are not required to avoid alcohol, a substance that has been shown to contribute to decreased infant birth weight. 36 Men are not required to subordinate their own interest for the sake of another: A father, for example, would not be required to donate a kidney to his dying daughter, 37 nor would he be charged with manslaughter for not running into a burning building to save his child. The importance, therefore, of these cases cannot be underestimated. They raise vital civil liberties issues that affect maternal and child health, WHI Vol. 1, No. 3 Summer 1991
*The majority w e n t into great detail on the h a r m that m i g h t be d o n e to a fetus exposed to lead on the job site, b u t the effect that its decision w o u l d have on the lives of w o m e n excluded from these positions w a s not discussed. tThis case w a s recently overturned by the United States S u p r e m e Court. 3s
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particularly for low-income women, who cannot afford prenatal care, and that importance extends into women's very right to equality.
STATE LEGISLATIVE RESPONSES In a predictable move, state legislatures have begun to modify child abuse and neglect statutes to allow for the automatic removal of children from their mother's custody if there is a positive drug test at birth or to require health officials to report women who use drugs during pregnancy to child welfare authorities or law enforcement officials. The effect of these new laws will be to discourage women who are alcohol or drug dependent, and in need of medical care, away from health care. This effect will fall hardest on poor women and women of color. In a number of jurisdictions, women in government-subsidized facilities are routinely tested for drug use when women who can afford private health care are not tested. One recent study of Pinnellas County, Florida, conducted by the National Association for Perinatal Addiction Research and Education, found that African-American women were ten times more likely to be reported to child abuse authorities than were white women. 3a These laws may not be in the best interests of children, given the current state of foster care in the United States. A program in Los Angeles found, for example, that the 13 children in the program who had been exposed to drugs in utero had been placed in a total of 35 foster homes before reaching the age of three. 39 When foster care resources are scarce, removing a child from the parent's custody without undertaking a more searching review of parental fitness may not best serve the interests of the child. Accordingly, positive test results should not trigger presumptions of neglect.
ALTERNATIVE RESPONSES TO INFANT ILLNESS AND MORTALITY
There are better ways to address the problems facing children who were exposed to alcohol or drugs in utero than by punishing their mothers and by abrogating their rights. The mother's and children's rights need not be adversarial. For example, drug and alcohol treatment programs should not be allowed to exclude pregnant women. In pursuit of this goal, the American Civil Liberties Union Women's Rights Project filed, in December 1989, the first in a series of cases on behalf of pregnant crack addicts and alcoholics who had been turned away from four private alcohol and drug treatment programs in New York City.* States can engage in measures that account for the health care needs of pregnant women who use drugs, and yet not drive pregnant women away from the health care system. Laws may provide for early treatment intervention and child care services for parents in need of alcohol or drug treatment, or prohibit use of positive test results as the basis upon which to prosecute women. Florida, for example, has passed a law providing that "no parent of such a newborn infant shall be subject to criminal investigation solely on the basis of such infant's drug dependency. ''4° In New York, Assemblywoman Gloria Davis introduced a bill in the state legislature in 1990 that would have prohibited the preventive detention of pregnant women and the use of any evidence obtained from a fetus in utero or from a newly born infant to demonstrate either parental unfitness or child abuse. 41 States and the federal gov-
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*Elaine W., et al v North General Hospital, et al (no index number). Copies of the complaint and briefs may be obtained from the ACLU W o m e n ' s Rights Project.
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e r n m e n t can allocate m o r e f u n d s to t r e a t m e n t p r o g r a m s , especially to those p r o g r a m s willing to h a v e child care.
CONCLUSION The " m a t e r n a l - f e t a l rights" issue is inseparable f r o m the issue of w o m e n ' s right to bodily integrity, liberty, a n d equality a n d f r o m the best interests of the child. W o m e n w h o recognize that they will not be able to obtain a d e q u a t e prenatal care or d r u g t r e a t m e n t as a result of their addiction m a y not be able to get an abortion because of restrictive abortion laws, a n d they still m a y be p r o s e c u t e d . O t h e r s m a y not w a n t to h a v e an abortion but will do so to avoid p r o s e c u t i o n . T h e h i g h l y c h a r g e d n a t u r e of the c o n t e x t - - d r u g - a d d i c t e d w o m e n giving birth to d r u g - e x p o s e d b a b i e s - - m a k e s it painful to d e f e n d these w o m e n . The specter of a n e w b o r n going t h r o u g h w i t h d r a w a l is horrible. Yet allowing this scene to feed o u r punitive i m p u l s e s is at a cost to the health of p r e g n a n t d r u g addicts, to their n e w b o r n s , a n d to ourselves. All of these cases are indicative of a b u r g e o n i n g health crisis that requires the attention of the health care c o m m u n i t y . It should not require the i n v o l v e m e n t of lawyers. Unfortunately, t o d a y it does.
REFERENCES 1. Kolder A. Court ordered obstetrical interventions. N Engl J Med 1987;316:1192. 2. Nelson L. Forced medical treatment of pregnant women: Compelling each to live as seems good to the rest. Hastings Law J 1986;37:703. 3. Rhoden N. The judge in the delivery room: The emergence of court-ordered cesarean. Calif L Rev 1986;74:1951. 4. In reA.C., 533 A2d 611 (DC 1987), reh'ggranted 539 A2d 203 (DC 1988). (DC Court of Appeals originally affirmed a trial judge's order to force a cesarean section on a terminally ill pregnant women over her objections, in spite of the danger to the woman's life.) 5. Lewin T. When courts take charge of the unborn. The New York Times, 9 January 1981;A14. 6. People v Pamela Rae Stewart, No. M 508197 (San Diego Mun Ct 1987). See Defendant's Memorandum of Points and Authorities in Support of Motion to Dismiss. Briefs are available from the ACLU Reproductive Freedom Project. 7. Warren J. Infant death case: Mother innocent of prenatal crime. Los Angeles Times, 27 February, 1987;pt. 1:3 (col. 3). 8. Field M. Controlling the woman to protect the fetus. Legal Med Health Care 1989;17:114, 118. 9. Salamone D. Cocaine mom gets 14 years of probation. The Sentinel, 26 August, 1989;25 (col. 1). 10. Appellant's Initial Brief, Jennifer Johnson v State, No. 89-1765 (Fla Dist Ct App brief filed December 28, 1989). 11. Commonwealth of Massachusetts v J. Pellegrini, No. 87890 (Super Ct of Mass, October 15, 1990). 12. People v K.H., File No. 89-2931-FY (60th District Court, County of Muskegon, arraignment on November 13, 1989). 13. Simon H. Policing pregnancy in the drug war. The Detroit News, 8 December, 1989, 15A (col. 1). 14. Henderson B. Mothers of infant addicts: Does prosecution help? The Charlotte Observer, 26 August, 1989;1A (col. 1). 15. Piazza B. Addicted baby's mother charged. Piedmont News, 16 August, 1989. 16. Zogg J. Three charged with neglect of drug-addicted infants. Piedmont News, 17 August, 1989. 17. Debate raised over "prenatal police patrols." The Alaska Republic, 7 December, 1989;C2.
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18. Singleton D. Mom to be is held. New York Daily News, 11 August, 1989;23. 19. United States v Vaughn, No. F-2172-88B (Super Ct of DC, Aug. 23, 1988). 20. State of Georgia v Con~, No. 14/403-04 (Super Ct of Crisp Cty, filed November 6, 1989). 21. Reardon P. Grand jury won't indict mother in baby's drug death. Chicago Tribune, 27 May, 1989;1 (col. 4). 22. Foster C. Fetal endangerment cases increase. Christian Science Monitor, 10 October 1989;8. 23. Commonwealth v Levy, No. 89-2725-2729 (Super Ct of Mass, motion to dismiss filed November 10, 1989). 24. Cox v Court of Common Pleas, Franklin City, No. 88AP 856 (Ohio Ct App, December 13, 1988). 25. State of Ohio v Andrews, No. JU 68459 (Ct CP of Stark County, Ohio, June 19, 1989). 26. State of Ohio v Gray, No. CR88-7406 (Ct CP of Lucas County, Ohio, July 13, 1989). 27. State of Texas v Rodden, No. 0373625R (Dist Ct for Tarrant City, filed June 1, 1989). 28. Crawford S. Legal system grapples with newborn addicts. The Dallas Morning News, 19 July, 1989, p 1A. 29. Pregnant woman is charged with child abuse for drinking. The New York Times, 22 January, 1990. 30. 135 Cong Record 9319, 9320 (1989) (Introduction of Drug Abuse During Pregnancy Prevention Act of 1989, introduced on August 1, 1989, by Senator Pete Wilson). 31. American Psychiatric Association. Diagnostic and statistical manual of mental disorders (rev. 3rd edition). Washington, DC: APA, 1987;166. 32. 215 Cal App 3d 889, 263 Cal Rptr 869 (Cal Ct App 1989). 33. Chavkin W. The New York Times, 17 July, 1989; A21 (col. 2). (A facility's ability to provide care for a woman's other children can also be the determining factor as to whether she undergoes treatment. Virtually no programs provide such care.) 34. 886 F2d 871 (7th Cir 1989). 35. International Union, United Automobile, Aerospace and Agricultural hnplement Workers of America, UAW et al v Johnson Controls, Inc., slip opinion number 89-1215, March 20, 1991. 36. Little R, Sing C. Father's drinking and infant birth weight. Teratology 1987;36:5965. 37. McFall v Shrimp, 127 Pitts Leg J 14 (Allegheny Cty, July 26, 1978). (Judge John Flaherty refused to order a man to donate bone marrow that might have doubled his cousin's chances of survival from aplastic anemia.) 38. National Association for Perinatal Addiction Research and Education (NAPARE) press release, 18 September, 1989. 39. Interim Hearings on Parental Substance Abuse and Its Effects on the Fetus and Children Before the Senate Select Committee on Substance Abuse, California Legislature, at 30 (1988) (statement of Carol Cole, child development specialist/teacher in the Preschool Educational Development Program at the Salvin Special Education Center, Los Angeles Unified School District). 40. Fla Stat Ann §415.503 (8) (a) (2). 41. Legislative Bill Drafting Commission 12099-03-0.
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WHI Vol. 1, No. 3 Summer1991
Abstract This article surveys recent legal developments facing alcohol- and drug-dependent pregnant women and recommends strategies to improve their health and that of their children.
he incidence of fetuses exposed to drugs and alcohol in utero has generated increasing nationwide attention from the media, social service agencies, state prosecutors, state legislatures, and Congress. What is now clear is that women who use drugs during pregnancy are being singled out and punished for their behavior in ways that are unprecedented. The p h e n o m e n o n of punishing pregnant women for being "bad mommies" because they did not behave "properly" while pregnant is not new. In the past, courts have authorized cesarean sections against the mother's wishes 1-3 or have taken guardianship of a fetus away from the mother, 4 but these cases were rare. Today's drug problem, however, has provided a new context in which state intervention over the lives of pregnant women seems more acceptable because of the danger that excessive drug use can pose to the fetus. Some prosecutors, courts, and legislatures seem to believe that pregnant women may be punished and their rights curtailed because of "fetal rights." Yet if upheld in this context, states will be free to intrude on the lives of all pregnant women, even when they do not engage in illegal behavior.* The consequence will be to drive women away from health and prenatal care to the detriment of their health and that of their children. This article will review the recent developments in this area, including the most major criminal cases and state legislative efforts undertaken in the past year. The legal problems and implications of these developments will be explored and several alternative responses proposed.
T
PENALIZING PREGNANT WOMEN FOR DRUG USE In 1985, Pamela Rae Stewart was criminally charged in California under a child support statute for failing to follow her doctor's instructions while pregnant. 6-8 Stewart had given birth to a severely brain-damaged son who died approximately 6 weeks after birth. The national media focused on the allegation that she had used illegal drugs during her pregnancy, but the prosecution emphasized other aspects of her prenatal behavior. Although the San 120 MOSS:SUBSTANCEABUSEDURING PREGNANCY
*As one c o m m e n t a t o r observed: "It doesn't take a great intuitive leap once you start locking up people to protect the fetus to imagine getting to the point where a representative for the fetus has to be appointed every time a woman wants an abortion. ''s Adapted from Harvard Women's Law Journal, 1990, volume 13, page 278. Reprinted with permission. WHI Vol. 1, No. 3 Summer 1991
Diego Municipal Court dismissed the case in 1987 on the grounds that the statute did not cover the conduct alleged,* the case represents one of the first times that prosecutors applied a statute designed to protect children against a woman because of her behavior during pregnancy. With the burgeoning crack epidemic, prosecutors around the country have followed this example by applying novel legal theories to existing state statutes in an effort to prevent pregnant women from engaging in potentially harmful behavior.
Jennifer Johnson: Violation
of Women's Rights
On July 13, 1989, Jennifer Johnson became the first woman to be criminally convicted for giving birth to a drug-exposed infant, after she had given birth to two such infants over a 14-month period. 9,1° Johnson, who had used cocaine during her pregnancies, was charged under a Florida statute that makes delivery of drugs to a minor illegal. The prosecutor successfully argued to the court that Jennifer Johnson had delivered a derivative of cocaine through the umbilical cord to her child after "birth," during the 60 to 90 seconds before the cord was clamped. The court sentenced Johnson to 15 years; 1 year to be served on "community control," which is a form of intensive, supervised custody in the community, home, or noninstitutional residential placement. If it is violated, Ms. Johnson will be subject to specific sanctions. She was also sentenced to 14 years of probation and ordered to participate in a drug rehabilitation program, obtain a high school equivalency diploma, and not possess controlled substances, associate with those who possess drugs, consume alcohol, or enter a bar without the permission of her probation officer. She must perform 200 hours of community service and remain employed. If she becomes pregnant, she must enter a judicially approved prenatal care program. Johnson has appealed this verdict and the order denying her motion to dismiss. Defense attorneys have attacked this novel application of the delivery statute as violating Ms. Johnson's constitutional right to receive notice of the acts considered to be crimes. For example, prosecutors had never before applied the delivery statute to a woman who used drugs during pregnancy. Consequently, the prosecutors had to apply novel definitions of the term "delivery" that Johnson could not have known would become a basis for her conviction. Also, because the only evidence used against her was the positive toxicology of her newborn, a question existed as to whether it was cocaine that had been "delivered." Metabolized, cocaine is not the substance that the statute contemplates should not be delivered. In addition, the d e f e n s e a r g u e d that the conviction violates Ms. Johnson's right to procreate and right to autonomy in reproductive decision making, because a pregnant addict unable to overcome her addiction must choose to have an abortion or face criminal prosecution.t Moreover, the defense maintained that Johnson's right to medical privacy was violated when her statements to health care providers and her medical records became part of the prosecution's record. Since her conviction, there have been at least 50 more prosecutions of w o m e n who have given birth to drug-exposed infants. In most of these cases, states are applying criminal statutes without any regard for the constitutional rights of these women or the consequences that criminal prosecutors will have on women's willingness to obtain prenatal care and, thus, on the health of their children.
Other Cases The resolution of the Johnson case will affect the willingness of prosecutors from other states to use their criminal laws to prosecute pregnant and postWHI Vol. l, No. 3 Summer 1991
*Stewart, at 9-11. 6 The child support
statute was designed to assure financial support for children, not to control a mother's behavior during pregnancy. tProcreative rights and rights to reproductive decision making have been reco g n i z e d by the US S u p r e m e C o u r t under the doctrine of right to privacy. See Skinner v Oklahoma, 316 US 535 (1942) (overturning Oklahoma law that authorized involuntary sterilizations of felons convicted of crimes of moral turpitude); Griswold v Connecticut, 381 US 479 (1965) (recognized right of privacy in overturning law that prohibits use of birth control); Roe v Wade, 410 US 113 (1973) (right of privacy e x t e n d s to women's right to have an abortion).
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p a r t u m w o m e n . Since this article was prepared, a Superior Court in Massachusetts dismissed an indictment against a w o m a n w h o had been arrested for the crime of distributing cocaine to a person u n d e r 18 years because she allegedly ingested cocaine while pregnant. This statute was similar to that used to prosecute Jennifer Johnson. n The court dismissed the indictment on a n u m b e r of grounds. First, the court concluded that the state's interpretation of the drug delivery statute could not be applied to prenatal behavior w i t h o u t violating constitutionally protected right to due process, basic principles of statutory interpretation, and the separation of powers. Second, the court concluded that the application of the delivery statute impermissibly punished the d e f e n d a n t for her pregnancy, thus limiting a w o m a n ' s reproductive choice. Finally, the court declined to expand the statute's purview to apply to fetuses. This decision may affect the Florida appeals court w h e r e Johnson is still pending, as well as a case in Kentucky w h e r e a y o u n g w o m a n n a m e d Connie Welch was recently convicted for child abuse because she used oxycodone during her pregnancy. She is in jail p e n d i n g the appeal. Already, prosecutors in several states have used similarly novel interpretations of statutes to p r o s e c u t e w o m e n w h o u s e d d r u g s while pregnant. 12A3 In South Carolina, prosecutors have arrested at least 18 w o m e n , charging them with criminal neglect or distribution of drugs to minors, sA4 A n o t h e r w o m a n was a r r e s t e d in her s e v e n t h m o n t h of p r e g n a n c y a n d charged with possession and distribution based u p o n a positive drug test. She was placed u n d e r house arrest for the duration of her pregnancy. 15A6 Prosecutors have also arrested w o m e n in Alaska, 17 Connecticut, TM the District of Columbia, 19 Georgia, 2° Illinois, 21 Indiana, 22 Massachusetts, 1°,23 Ohio, 24-26 Texas, 27,28 and Michigan. n Illegal drug use is not the only behavior targeted. In January 1990, Diane Pfannensteil, a battered w o m a n w h o was pregnant, went to a hospital, from her local shelter, to obtain treatment after she had been beaten u p by her husband. 29 Pfannensteil was also an alcoholic; hospital personnel tested her and gave the positive result to a local district attorney w h o arrested her and charged her with criminal child abuse. The court dismissed the case but it should not be long before a n o t h e r prosecutor tries a similar theory. FAULTY ASSUMPTIONS
BEHIND THE PROSECUTION P R E G N A N T D R U G USERS
OF
These prosecutions are premised on e r r o n e o u s assumptions that will have disastrous effects on the lives of these w o m e n and their children. One assumption is that p r e g n a n t addicts are indifferent to the health of their fetuses or that they willfully seek to cause them harm. For example, South Carolina Circuit Solicitor Joe Watson d e f e n d e d the prosecutions in his state: "It sort of came to a focus w h e n we had three or four in a row . . . we decided to sit d o w n and see if we c o u l d . . , force these w o m e n to do something."14 Former United States Senator Pete Wilson stated in a Congressional discussion on the topic: "I recall a w o m a n n a m e d Cheryl . . . . It w a s n ' t until Cheryl's seventh drug-addicted child that she realized what she was doing to her children was bad. ,,3o H o w e v e r , it is not true that all of these w o m e n are insensitive to their children's needs. Real resource constraints often p r e v e n t them from securing treatment or p r o p e r care during their pregnancies.* Even w h e n w o m e n can secure treatment, they may still be constrained by the nature of the addiction process itself, which typically involves loss of control over use of a drug and continued involvement even when there are serious consequences.31,# 9 Drug d e p e n d e n c y and alcoholism also includes tolerance d e v e l o p m e n t . 3 1 , # 7-98 Thus, to treat p r e g n a n t addicts as indifferent is to m i s u n d e r s t a n d and oversimplify the addiction process.
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*For e x a m p l e , a l t h o u g h P a m e l a Rae Stewart w a s ordered by h e r doctor to stay off h e r feet, s h e simply could not do so because s h e w a s the p r i m a r y caretaker of h e r two children. Similarly, Jennifer J o h n s o n h a d s o u g h t d r u g treatm e n t d u r i n g her p r e g n a n c y b u t w a s u n able to obtain it in h e r area. There is n o evidence that the court considered this relevant. WHI Vol. 1, No. 3 Summer 1991
A second erroneous assumption is that drug treatment is available and pregnant women willfully seek to avoid it. For example, in 11l re Troy D.,32 a case in which a woman lost custody of her newborn after the newborn tested positive at birth for drugs, the court did not examine the availability of drug or alcohol treatment available to the defendant. Had it done so, it would have found that many treatment programs will not admit pregnant women because they fear liability or do not have services such as child or obstetric care. In New York, for example, according to Dr. Wendy Chavkin, a former Rockefeller Fellow at the Columbia University School of Public Health and former Director of Maternity Services for the City of New York, 54% of the 78 drug treatment programs refuse to treat pregnant women, 67% refuse to treat pregnant women on Medicaid, and 87% have no services available to pregnant women addicted to crack who are Medicaid eligible. 33 Fewer than half of those programs that accept pregnant women provide or arrange for prenatal care; only two programs make provisions available for clients' children, although lack of child care is a major obstacle to participation in drug treatment for many women. A third assumption is that prosecution will deter women from alcohol and drug use. Yet punitive measures will, in our experience, deter women from using the health-related services that will most benefit themselves and their children. Many national health organizations, such as the American Medical Association, American Society of Addiction Medicine, and National Association of Perinatal Addiction and Research and Education have all issued policies opposing prosecution for this reason.
Implications and Impact of These Prosecutions The problems posed by the institution of these cases have far-reaching implications for all women. First, when society chooses to punish pregnant women for their drug use, it opens the door to the placement of restrictions on women's behavior during pregnancy. However, restrictions could go as far as to require women to obey all of their doctor's orders while pregnant, including instructions to quit their job or to stay in bed for a period of months, as well as preventing pregnant women from smoking or drinking alcohol. These arguments could be extended to all fertile women of childbearing age, because research has shown that alcohol consumption can harm a fetus even before a woman realizes she is pregnant. One vivid example is the case, UAW v Johnson Controls, 34 in which an employer sought to exclude all fertile women, regardless of their childbearing intentions or sexual preference, from jobs in which exposure to lead could potentially harm a fetus. In its decision, the appeals court repeatedly portrayed women as fetal vessels, for whom employment and personal autonomy are secondary concerns.* The dissent estimated that the decision would affect 15 to 20 million industrial jobs for working w o m e n . t Of concern in all of these cases is the fact that behavior engaged in while pregnant is being singled out for criminal liability, whereas similar behavior engaged in by men or nonpregnant women remains immune. For example, men and nonpregnant women who arrive at a hospital are not asked if they have children, they are not tested for drug use, and their medical records are not turned over to police or child welfare authorities. Men are not required to avoid alcohol, a substance that has been shown to contribute to decreased infant birth weight. 36 Men are not required to subordinate their own interest for the sake of another: A father, for example, would not be required to donate a kidney to his dying daughter, 37 nor would he be charged with manslaughter for not running into a burning building to save his child. The importance, therefore, of these cases cannot be underestimated. They raise vital civil liberties issues that affect maternal and child health, WHI Vol. 1, No. 3 Summer 1991
*The majority w e n t into great detail on the h a r m that m i g h t be d o n e to a fetus exposed to lead on the job site, b u t the effect that its decision w o u l d have on the lives of w o m e n excluded from these positions w a s not discussed. tThis case w a s recently overturned by the United States S u p r e m e Court. 3s
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particularly for low-income women, who cannot afford prenatal care, and that importance extends into women's very right to equality.
STATE LEGISLATIVE RESPONSES In a predictable move, state legislatures have begun to modify child abuse and neglect statutes to allow for the automatic removal of children from their mother's custody if there is a positive drug test at birth or to require health officials to report women who use drugs during pregnancy to child welfare authorities or law enforcement officials. The effect of these new laws will be to discourage women who are alcohol or drug dependent, and in need of medical care, away from health care. This effect will fall hardest on poor women and women of color. In a number of jurisdictions, women in government-subsidized facilities are routinely tested for drug use when women who can afford private health care are not tested. One recent study of Pinnellas County, Florida, conducted by the National Association for Perinatal Addiction Research and Education, found that African-American women were ten times more likely to be reported to child abuse authorities than were white women. 3a These laws may not be in the best interests of children, given the current state of foster care in the United States. A program in Los Angeles found, for example, that the 13 children in the program who had been exposed to drugs in utero had been placed in a total of 35 foster homes before reaching the age of three. 39 When foster care resources are scarce, removing a child from the parent's custody without undertaking a more searching review of parental fitness may not best serve the interests of the child. Accordingly, positive test results should not trigger presumptions of neglect.
ALTERNATIVE RESPONSES TO INFANT ILLNESS AND MORTALITY
There are better ways to address the problems facing children who were exposed to alcohol or drugs in utero than by punishing their mothers and by abrogating their rights. The mother's and children's rights need not be adversarial. For example, drug and alcohol treatment programs should not be allowed to exclude pregnant women. In pursuit of this goal, the American Civil Liberties Union Women's Rights Project filed, in December 1989, the first in a series of cases on behalf of pregnant crack addicts and alcoholics who had been turned away from four private alcohol and drug treatment programs in New York City.* States can engage in measures that account for the health care needs of pregnant women who use drugs, and yet not drive pregnant women away from the health care system. Laws may provide for early treatment intervention and child care services for parents in need of alcohol or drug treatment, or prohibit use of positive test results as the basis upon which to prosecute women. Florida, for example, has passed a law providing that "no parent of such a newborn infant shall be subject to criminal investigation solely on the basis of such infant's drug dependency. ''4° In New York, Assemblywoman Gloria Davis introduced a bill in the state legislature in 1990 that would have prohibited the preventive detention of pregnant women and the use of any evidence obtained from a fetus in utero or from a newly born infant to demonstrate either parental unfitness or child abuse. 41 States and the federal gov-
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*Elaine W., et al v North General Hospital, et al (no index number). Copies of the complaint and briefs may be obtained from the ACLU W o m e n ' s Rights Project.
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e r n m e n t can allocate m o r e f u n d s to t r e a t m e n t p r o g r a m s , especially to those p r o g r a m s willing to h a v e child care.
CONCLUSION The " m a t e r n a l - f e t a l rights" issue is inseparable f r o m the issue of w o m e n ' s right to bodily integrity, liberty, a n d equality a n d f r o m the best interests of the child. W o m e n w h o recognize that they will not be able to obtain a d e q u a t e prenatal care or d r u g t r e a t m e n t as a result of their addiction m a y not be able to get an abortion because of restrictive abortion laws, a n d they still m a y be p r o s e c u t e d . O t h e r s m a y not w a n t to h a v e an abortion but will do so to avoid p r o s e c u t i o n . T h e h i g h l y c h a r g e d n a t u r e of the c o n t e x t - - d r u g - a d d i c t e d w o m e n giving birth to d r u g - e x p o s e d b a b i e s - - m a k e s it painful to d e f e n d these w o m e n . The specter of a n e w b o r n going t h r o u g h w i t h d r a w a l is horrible. Yet allowing this scene to feed o u r punitive i m p u l s e s is at a cost to the health of p r e g n a n t d r u g addicts, to their n e w b o r n s , a n d to ourselves. All of these cases are indicative of a b u r g e o n i n g health crisis that requires the attention of the health care c o m m u n i t y . It should not require the i n v o l v e m e n t of lawyers. Unfortunately, t o d a y it does.
REFERENCES 1. Kolder A. Court ordered obstetrical interventions. N Engl J Med 1987;316:1192. 2. Nelson L. Forced medical treatment of pregnant women: Compelling each to live as seems good to the rest. Hastings Law J 1986;37:703. 3. Rhoden N. The judge in the delivery room: The emergence of court-ordered cesarean. Calif L Rev 1986;74:1951. 4. In reA.C., 533 A2d 611 (DC 1987), reh'ggranted 539 A2d 203 (DC 1988). (DC Court of Appeals originally affirmed a trial judge's order to force a cesarean section on a terminally ill pregnant women over her objections, in spite of the danger to the woman's life.) 5. Lewin T. When courts take charge of the unborn. The New York Times, 9 January 1981;A14. 6. People v Pamela Rae Stewart, No. M 508197 (San Diego Mun Ct 1987). See Defendant's Memorandum of Points and Authorities in Support of Motion to Dismiss. Briefs are available from the ACLU Reproductive Freedom Project. 7. Warren J. Infant death case: Mother innocent of prenatal crime. Los Angeles Times, 27 February, 1987;pt. 1:3 (col. 3). 8. Field M. Controlling the woman to protect the fetus. Legal Med Health Care 1989;17:114, 118. 9. Salamone D. Cocaine mom gets 14 years of probation. The Sentinel, 26 August, 1989;25 (col. 1). 10. Appellant's Initial Brief, Jennifer Johnson v State, No. 89-1765 (Fla Dist Ct App brief filed December 28, 1989). 11. Commonwealth of Massachusetts v J. Pellegrini, No. 87890 (Super Ct of Mass, October 15, 1990). 12. People v K.H., File No. 89-2931-FY (60th District Court, County of Muskegon, arraignment on November 13, 1989). 13. Simon H. Policing pregnancy in the drug war. The Detroit News, 8 December, 1989, 15A (col. 1). 14. Henderson B. Mothers of infant addicts: Does prosecution help? The Charlotte Observer, 26 August, 1989;1A (col. 1). 15. Piazza B. Addicted baby's mother charged. Piedmont News, 16 August, 1989. 16. Zogg J. Three charged with neglect of drug-addicted infants. Piedmont News, 17 August, 1989. 17. Debate raised over "prenatal police patrols." The Alaska Republic, 7 December, 1989;C2.
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18. Singleton D. Mom to be is held. New York Daily News, 11 August, 1989;23. 19. United States v Vaughn, No. F-2172-88B (Super Ct of DC, Aug. 23, 1988). 20. State of Georgia v Con~, No. 14/403-04 (Super Ct of Crisp Cty, filed November 6, 1989). 21. Reardon P. Grand jury won't indict mother in baby's drug death. Chicago Tribune, 27 May, 1989;1 (col. 4). 22. Foster C. Fetal endangerment cases increase. Christian Science Monitor, 10 October 1989;8. 23. Commonwealth v Levy, No. 89-2725-2729 (Super Ct of Mass, motion to dismiss filed November 10, 1989). 24. Cox v Court of Common Pleas, Franklin City, No. 88AP 856 (Ohio Ct App, December 13, 1988). 25. State of Ohio v Andrews, No. JU 68459 (Ct CP of Stark County, Ohio, June 19, 1989). 26. State of Ohio v Gray, No. CR88-7406 (Ct CP of Lucas County, Ohio, July 13, 1989). 27. State of Texas v Rodden, No. 0373625R (Dist Ct for Tarrant City, filed June 1, 1989). 28. Crawford S. Legal system grapples with newborn addicts. The Dallas Morning News, 19 July, 1989, p 1A. 29. Pregnant woman is charged with child abuse for drinking. The New York Times, 22 January, 1990. 30. 135 Cong Record 9319, 9320 (1989) (Introduction of Drug Abuse During Pregnancy Prevention Act of 1989, introduced on August 1, 1989, by Senator Pete Wilson). 31. American Psychiatric Association. Diagnostic and statistical manual of mental disorders (rev. 3rd edition). Washington, DC: APA, 1987;166. 32. 215 Cal App 3d 889, 263 Cal Rptr 869 (Cal Ct App 1989). 33. Chavkin W. The New York Times, 17 July, 1989; A21 (col. 2). (A facility's ability to provide care for a woman's other children can also be the determining factor as to whether she undergoes treatment. Virtually no programs provide such care.) 34. 886 F2d 871 (7th Cir 1989). 35. International Union, United Automobile, Aerospace and Agricultural hnplement Workers of America, UAW et al v Johnson Controls, Inc., slip opinion number 89-1215, March 20, 1991. 36. Little R, Sing C. Father's drinking and infant birth weight. Teratology 1987;36:5965. 37. McFall v Shrimp, 127 Pitts Leg J 14 (Allegheny Cty, July 26, 1978). (Judge John Flaherty refused to order a man to donate bone marrow that might have doubled his cousin's chances of survival from aplastic anemia.) 38. National Association for Perinatal Addiction Research and Education (NAPARE) press release, 18 September, 1989. 39. Interim Hearings on Parental Substance Abuse and Its Effects on the Fetus and Children Before the Senate Select Committee on Substance Abuse, California Legislature, at 30 (1988) (statement of Carol Cole, child development specialist/teacher in the Preschool Educational Development Program at the Salvin Special Education Center, Los Angeles Unified School District). 40. Fla Stat Ann §415.503 (8) (a) (2). 41. Legislative Bill Drafting Commission 12099-03-0.
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