J.

Nichols (Spring, 2016)

Drug Abuse during Pregnancy: Addressing Social Problems, Health Outcomes, and Legal Treatment

Independent Study Project

Spring 2016

Louis D. Brandeis School of Law

Jessica D. Nichols, 3L

1
J. Nichols (Spring, 2016)

I. INTRODUCTION

In recent years, the War on Drugs has undergone a rebranding of sorts by increasingly

targeting pregnant women who abuse or are addicted to illegal drugs. 1 For the most part, this focus has

corresponded with the timing of drug epidemics based upon the targeted substance of the day. 2 From

crack babies in the 1980s to babies born to opioid-dependent mothers presently, the state has

employed punitive regulation of womens reproductive health under the authority of the War on Drugs

in attempting to address risks associated with pregnancy and drug use. 3 This declared social war in the

1980s gave national recognition to substance abuse by pregnant women with the medias focus on the

crack epidemic and crack babies. 4 As other illicit drugssuch as methamphetamine and opioids

have become increasingly abused and garnered national media and police attention, there has been a

wave of government intervention via legislation criminalizing drug abuse during pregnancy. 5 To address

the ill-effects of babies born to mothers who have abused or are addicted to such drugs, many

conservative state legislatures have enacted laws which serve to criminalize or punish the drug behavior

of pregnant women.6

It is a widely-accepted notion that substance abuse while pregnant is a behavior society should

deter due to its wide range of negative consequences to the mother, the child, the family as a whole, and

communities. It is true that drug use by this group has been on the increase. 7 According to the National

1 Annaick Miller, Using the War on Drugs to Arrest Pregnant Women, Political Research Associates (2015)
http://www.politicalresearch.org/2015/09/17/using-the-war-on-drugs-to-arrest-pregnant-
women/#sthash.0qiSJXML.dpbs (last visited May 2, 2015).
2 Id.
3 Id.
4 Matthew Derringer, Note, If Addiction is a Mental Disease, Lets Start Treating It Like One: An Additional
Recommendation for the Indiana General Assemblys Prenatal Substance Abuse Commission, 8 Ind. Health L. Rev.
141 (2011).
5 Id.
6 Id.
7National Institutes of Health, National Institute on Drug Abuse, The Science of Drug Abuse and Addiction,
Dramatic Increases in Maternal Opioid Use and Neonatal Abstinence Syndrome (2012)
https://www.drugabuse.gov/related-topics/trends-statistics/infographics/dramatic-increases-in-maternal-opioid-
use-neonatal-abstinence-syndrome (last visited May 2, 2016).

2
J. Nichols (Spring, 2016)

Institute on Drug Abuse, 21,732 babies were born with Neonatal Abstinence Syndrome (NAS) in 2012,

which represented a five-fold increase since 2000. 8 This number corresponds to the five-fold increase in

delivering mothers using or dependent upon opioids. 9 It is a safe assumption to make that most

Americans believe that something should be done to curtail this phenomenon and help protect

newborns and the ill-effects from which they could potentially suffer.

Statistics abound that well-document substance abuse among pregnant women and the harms

caused to their babies. There are multiple risks associated with using drugs while pregnantfrom illegal

street drugs such as crack and heroin to legal substances such as prescribed medications, alcohol, and

nicotine.10 In general, though, newborns who have been repeatedly exposed to harmful drugs can

experience a host of negative effects such as low birth weight, narcotic withdrawal, hyperirritability,

gastrointestinal dysfunction, respiratory distress, tremors, feeding intolerance, seizures, postnatal growth

deficiency, microcephaly (given attention recently as an effect of the Zika virus 11), neurobehavioral

problems, neonatal mortality, and even sudden infant death syndrome (SIDS). 12 Yet, many of these

complications can arise from non-illicit drug use, drinking alcohol, and smoking cigarettes. 13 There has

been very little to no inclusion of cigarette smoking among recent regulation. Yet, the rate of smoking by

pregnant women has seen little decline from 2002-2012 while a significant decline occurred during that

8 Id.
9 Id.
10 The American College of Obstetricians and Gynecologists, Womens Health Care Physicians, Tobacco, Alcohol,
Drugs, and Pregnancy (2013) http://www.acog.org/Patients/FAQs/Tobacco-Alcohol-Drugs-and-Pregnancy (last
visited May 2, 2016).
11 World Health Organization, Programmes, Zika Virus and Complications (2016)
http://www.who.int/emergencies/zika-virus/en/ (last visited Apr. 19, 2016).
12 European Monitoring Centre for Drugs and Drug Addiction, Pregnancy and Opioid Use: Strategies for
Treatment, EMCDDA Papers 3 (2014) http://www.emcdda.europa.eu/publications/emcdda-papers/pregnacy-
opioid-use (last visited Apr. 19, 2016).
13 Substance Abuse and Mental Health Services Administration, Results from the 2012 National Survey on Drug
Use and Health: Summary of National Findings, NSDUH Series H-46, HHS Publication No. (SMA) 13-4795 46-47
(2012)
http://www.samhsa.gov/data/NSDUH/2012SummNatFindDetTables/NationalFindings/NSDUHresults2012.pdf (last
visited Apr. 19, 2016).

3
J. Nichols (Spring, 2016)

same period of non-pregnant women.14 Moreover, the rate of pregnant women aged 15-44 who used

illicit drugs in 2012 was 5.4%15 while in comparison, 15.9% of pregnant women smoked cigarettes during

that same period.16 In addition, it is generally accepted as a social norm that consuming alcohol while

pregnant should be avoided. Fetal alcohol syndrome is a dangerous condition that newborns can suffer

from if exposed to alcohol in utero.17 Many of the same effects caused by illicit drug use can occur due to

alcohol abuse, in addition to small head circumference, organ dysfunction, facial abnormalities, poor

motor skills, poor socialization skills, and learning difficulties. 18 And more pregnant women abuse

alcohol than illicit drugs, as 8.5% of pregnant women reported alcohol use in 2012, compared to 5.4%

being drug users during that same time period. 19 Again, the recent wave of legislation attempting to

address the health and well-being of newborns do little to nothing to address the severe risks associated

with alcohol abuse.20

The justification often given for many laws criminalizing substance abuse while pregnant or

jeopardizing parental rights is the states interest in protecting the health and well-being of children as

well as the deterrence of the behavior overall. 21 Some states seek solutions that promote treatment,

rehabilitation, and preservation of the family while others seek solutions that promote prosecution,

incarceration, and loss of the family.22 As of October 2015, only three states (Alabama, South Carolina,

14 Id.
15 Substance Abuse and Mental Health Services Administration, Results from the 2013 National Survey on Drug
Use and Health: Summary of National Findings, NSDUH Series H-48, HHS Publication No. (SMA) 14-4863 (2014)
http://www.samhsa.gov/data/NSDUH/2013SummNatFindDetTables/Index.aspx (last visited Apr. 19, 2016).
16 Id.
17 Id.
18 KidsHealth from Nemours, For Parents, Fetal Alcohol Syndrome http://kidshealth.org/en/parents/fas.html# (last
visited May 2, 2016).
19 Substance Abuse and Mental Health Services Administration, supra.
20 Lynne Paltrow & Katherine Jack, Pregnant Women, Junk Science, and a Zealous Defense, National Advocates for
Pregnant Women (2011) http://advocatesforpregnantwomen.org/publications/Champion30.pdf (last visited May
2016).
21 Leticia Miranda, Vince Dixon & Cecelia Reyes, How States Handle Drug Use During Pregnancy, ProPublica:
Journalism in the Public Interest (2015) https://projects.propublica.org/graphics/maternity-drug-policies-by-state
(last visited Apr. 19, 2016).
22 Id.

4
J. Nichols (Spring, 2016)

and Tennessee) had explicitly made substance abuse during pregnancy a crime under the leadership of

conservative Republican-controlled legislatures. 23 Although it seems like a majority of states do not

criminalize drug abuse while pregnant, it must be considered that in all but five states (Delaware, Iowa,

Maine, Rhode Island, and Vermont), women have been prosecuted under existing criminal statutes such

as wanton endangerment, child endangerment, delivery of a controlled substance to a minor, or

manslaughter.24 Although only five states explicitly criminalize drug use during pregnancy by statutory

codification, the remaining states do so by incorporating the behavior into existing criminal statutes. 25 In

the forty-five states which have criminalized drug use during pregnancy, costs to the state are excessive

in comparison to treatment-centered approaches. 26 Prosecution costs, public defenders, court costs,

incarceration, the potential for increased medical costs due to fear of seeking prenatal care, and many

other factors contribute to exorbitant costs which are not justified when considering outcomes which fail

to meet state objectives.27

Consequences of drug use by pregnant women extend beyond the criminal court, though. In

eighteen states, the behavior is explicitly identified as grounds for child abuse. 28 Because of this, in

fifteen states health care workers have a duty to report drug abuse during pregnancy and in four states

pregnant women suspected of drug use are required to submit to drug testing. 29 Further, pregnant

women in Minnesota and Wisconsin who have struggled with substance abuse are at risk of civil

23 Miller, supra.
24 Elizabeth Nolan Brown, Reason.com, Pregnant Women Increasingly Face Criminal Prosecution for Positive Drug
Tests: Hello Fetus, Goodbye Civil Liberties (2014) http://reason.com/archives/2014/05/16/prosecuting-pregnant-
women-for-drug-use (last visited May 2, 2016).
25 Id.
26 Amnesty International, USA: Tennessee Fetal Assault Law a Threat to Womens Health and Human Rights
(2016) file:///C:/Users/Chris/Downloads/AMR5136232016ENGLISH.PDF (last visited May 2, 2016).
27 Id.
28 Miranda, supra.
29 Miranda, supra.

5
J. Nichols (Spring, 2016)

commitment30. Regulation of motherhood in this context therefore moves beyond the context of

custodial intervention in family courts and into the criminal justice and civil commitment regimes.

From an ideological perspective, the fetal protection movement in the United States has been

a conservative-led national effort to give full personhood status to fetuses via state by state legislative

campaigns.31 This sentiment is not shared by other developed or developing nations. 32 While the United

States is not alone in the social problems associated with maternal substance abuse, it is alone in that

other nations do not use criminal or civil commitment approaches to attempt to address what other

countries see as conduct-based punishment. 33 The justification for the American approach lies in the

ideologically-rooted viewpoint that embryos and fetuses should be protected as full human beings

while in utero.34 Viewing the criminalization of maternal substance abuse through the lens of the fetal

protection movement provides more substantive insight into the true intent behind the recent wave of

punitive-based legislation. Although the stated objectives of protection of the viable unborn and

deterrence of the potentially risky behavior stand as the official version behind the legislation, the

ideological motives help fully explain why so many state legislatures, most often with conservatives at

the helm, garner the inertia needed for a bill like Tennessees SB 1391the so-called Fetal Assault

Lawto pass.

This Fetal Assault Law stands as perhaps the most poignant example of ideological-driven

punitive legislation. In 2014, Tennessee passed Senate Bill 1391, which added into the Tennessee

criminal code section on assaultive offenses the crime of Fetus as victim. 35 This statute allows for the

prosecution of pregnant women for assault based on the illegal use of a narcotic drug if her child is

30 Miranda, supra.
31 Linda C. Fentiman, Pursuing the Perfect Mother: Why Americas Criminalization of Maternal Substance Abuse is
Not the Answer, Pace L. Fac. Pubs 4 (2008).
32 Id.
33 Id.
34 Id.
35 Tenn. Code Ann. 39-13-107 (2015).

6
J. Nichols (Spring, 2016)

born either addicted to or harmed by the drug and such addiction or harm is a result of the mothers

drug use while pregnant.36 Under the statute, undergoing treatment would not prevent prosecution, but

would serve as an affirmative defense.37 (Note that the statute was recently allowed to expire when the

legislature declined to permanently adopt the statute due to disproportionate costs to outcomes

ratios38).

This Tennessee statute demonstrates just how problematic this kind of law can be.

Notwithstanding the statutory definition of another, individuals, and another person to include a

human embryo or fetus at any stage of gestation, its application presents a host of concerns when

attempting to interpret the language. First, the statute singles out illegal drug use as the act for which a

mother can be prosecuted.39 According to the Fetal Alcohol Spectrum Disorders Center for Excellence,

consequences of abuse of legal substances like alcohol, nicotine, and prescription drugs (such as

benzodiazepines like Xanax and Valium) can be just as severe, and potentially more so since they have

the potential to cause embryonic or fetal malformations, while opioids do not. 40 Further, such legal

substances present grave risks of poor fetal development and even SIDS. 41 By specifying substance abuse

as criminal only when the substances are illegal and narcotic, the statute is short-changing the stated

goals of protecting fetal health and deterring behavior by the mother that would be harmful by not

including the host of other behaviors that can produce the same or more harmful results such as

consuming alcohol, smoking cigarettes, or taking legitimate prescribed drugs.

36 Tenn. Code Ann. 39-13-107(c)(2) (2015).

37 Tenn. Code Ann. 39-13-107(c)(3) (2015).
38 Blake Farmer, Tennessee Lawmakers Discontinue Controversial Fetal Assault Law, National Public Radio (2016)
http://www.npr.org/2016/03/23/471622159/tennessee-lawmakers-discontinue-controversial-fetal-assault-law (last
visited Apr. 19, 2016).
39 Tenn. Code Ann. 39-13-107(a) & (c)(2) (2015).
40 European Monitoring Centre for Drugs and Drug Addiction, supra.
41 European Monitoring Centre for Drugs and Drug Addiction, supra.

7
J. Nichols (Spring, 2016)

Second, the statute provides that such prosecution for illegal drug use depends upon whether or

not the baby is born addicted or harmed by the narcotic. 42 These are not black and white medical

determinations and contain sufficient subjectivity to risk it becoming a methodology allowing for too

much individual discretion. According to the National Institute of Healths Library of Medicine, symptoms

of withdrawal due to addictiondiagnosed as Neonatal Abstinence Syndrome (NAS)may or may not

occur, and they may not present to up to a week after birth, which means both the mother and child

might have been discharged and be back home. 43 Also, the presence, type, and severity of symptoms

depend upon the type of drug used, how the body breaks down the drug, how much of the drug she

was taking, how long she had used the drug, and whether the baby was born full-term or early. 44

Further, the symptoms of NAS can also mirror other conditions. 45 Diagnosis is often done through

questioning of the motherwhich may or may not produce accurate informationand testing on the

newborn, which usually relies upon a scoring system based upon a practitioners observation alone 46.

Urine and bowel movements may also be tested, but would not necessarily provide results that depict

an accurate picture of the mothers drug behavior during the duration of her pregnancy. 47

A third point to consider is that a determination of harm is much more arbitrary and

discretionary than that of determining addiction. One of the most important points in looking at the

health of a child born to a mother who has abused drugs during pregnancy is the multi-dimensional

framework that can influence poor birth outcomes. This is to say that if a doctor or nurse decided upon

delivery that a child was harmed and that was due to the mothers prenatal drug use, she would be at

risk of prosecution for aggravated assault in Tennessee despite recent research that shows birth

42 Tenn. Code Ann. 39-13-107(c)(2) (2015).

43 National Institute of Health, U.S. National Library of Medicine, Medline Plus Medical Encyclopedia, Neonatal
Abstinence Syndrome, https://www.nlm.nih.gov/medlineplus/ency/article/007313.htm (last visited Apr. 19, 2016).
44 Id.
45 Id.
46 Id.
47 Barry M. Lester, Lynne Andreozzi, & Lindsey Appiah, Substance Use During Pregnancy: Time for Policy to Catch
up with Research, 1 Harm Red. J. 5 (2004).

8
J. Nichols (Spring, 2016)

outcomes are influenced heavily by related and often dependent circumstances such as maternal

poverty, poor nutrition, homelessness, a history of domestic violence, and lack of prenatal care. 48

Therefore, subjecting women to scrutiny based upon one potential negative factor among many is an

undermining of the goals of the law. Truly caring for the health and well-being of newborns and

genuinely seeking to curtail harmful behaviors such as drug use during pregnancy could only be done if

we recognized the complex relationships between drug behaviors and other influences on poor birth

outcomes. Focusing just on the drug use ignores completely the many related circumstances which

holistically serve to harm babys health.49

Kentucky, in contrast, has been taking the opposite approach in dealing with the risks of drug

abuse by pregnant mothers. Kentucky was one of six states (Connecticut, Kentucky, Minnesota, New

Jersey, Virginia, and West Virginia) to receive grants from the National Center on Substance Abuse and

Child Welfare to research and implement pilot programs aimed at identifying and treating pregnant

women dealing with substance abuse in 2014. 50 These grants are a step in the right direction in

developing holistic solutions due to their requirement that states target specific communities. 51 In

Kentucky, this means that the grant money is mostly being used in the rural areas of Eastern Kentucky

within the hardest-hit communitieswith distinct cultures and ways of life. 52 The grant, then, is

focusing on hiring healthcare workers who understand the local customs and attitudes and expanding

drug treatment programs.53

48 Fentiman, supra.
49 Id.
50 Mattie Quinn, Addicted and Pregnant: How States Deal with Drug Problems When Youre Expecting, Governing
the States and Localities, Health & Human Services (2016) http://www.governing.com/topics/health-human-
services/gov-pregnant-drug-abuse.html (last visited May 2, 2016).
51 Id.
52 Id.
53 Id.

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In Minnesota, native tribal communities have particularly been impacted by heroin use and the

grant money, in part, is being used to consider how basic prenatal care can be provided to such

communities that may hold different values in terms of healthcare, which can often conflict with state

public health recommendations concerning prenatal care. 54 These approaches do much more to begin to

address the complex entanglement of issues and factors that are related to prenatal drug use.

It is widely accepted that drug use by pregnant women poses potential problems to all

communities due to the harmful effects it can have on public health and communities of all kinds. 55 This

paper will show that developing solutions for substance abuse by pregnant women must revolve around

exposing the illogical ideological relationship between the conservative-driven legislation in relationship

to the systems core fundamental values. Further, family law standards must evolve to consider the

whole family unit along with consideration of the intersectionality of race, class and gender. Finally,

always viewing the issue through a holistic lens that seeks to understand the complex and

interconnected factors and circumstances related to substance abuse during pregnancy is an

indispensable approach, giving the best chance for successful, long-term strategies focused on

strengthening individuals, families, and communities.

II. THE ROLE OF CONSERVATIVE IDEOLOGY

The fact that most legislative efforts to criminalize and punish the substance abuse of pregnant

women are most often the result of conservative, Republican-driven policies is no secret. 56 Such policies

are, as a practical matter, conduct-based punitive measures due to implied moral failures. America has a

rich history of legislating morality, illustrated brilliantly in the U.S. Supreme Courts Lawrence v. Texas

opinion.57 Lawrence invalidated a Texas statute which criminalized deviate sexual intercourse with

54 Id.
55 The American College of Obstetricians and Gynecologists, supra.
56 Miller, supra.
57 Lawrence v. Texas, 539 U.S. 558 (2003).

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J. Nichols (Spring, 2016)

another individual of the same sex.58 Delivering the Courts opinion, Justice Kennedy addressed the

issue of whether the majority may use the power of the State to enforceviews on the whole society

through operation of the criminal law59 and explicitly did so under the guiding principles of Planned

Parenthood v. Casey that our obligation is to define the liberty of all, not to mandate our own moral

code.60

Justice Scalia delivered a dissenting opinion in Lawrence which powerfully characterized the

majority opinion as ushering in the end of all morals legislation. 61 Yet, he forcefully rejected the

majority opinion by citing multiple examples of how the law necessarily functions as a response to the

moral climate of society, which he used to support his argument that issues of morality and social norms

should fall under democratic, legislative authority rooted in judgmentsmade by the people. 62

Applying Justice Scalias reasoning to the issue at hand, perhaps he was right. Despite Lawrence and the

majoritys apparent constitutional rejection of moral legislation, state regulation of behaviors rooted in

moral disapproval have persisted and laws which punish pregnant women for drug abuse is an example

of just that.63

Within the trope of the criminalization of drug abuse by pregnant women are ideals which many

modern conservatives see as the cornerstone of Americas most traditional, long-standing institutions. 64

First, criminalization as a concept goes to the very heart of the core rule of law principle that is so

embedded within American political philosophy. 65 The sense of morality which arises from the good vs.

58 Id. at 563.
59 Id. at 570.
60 Lawrence v. Texas, 539 U.S. 558, 571 (2003) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.
833, 850 (1992)).
61 Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting).
62 Id. at 603-604.
63 Erin D. Kampschmidt, Note, Prosecuting Women for Drug Use during Pregnancy: The Criminal Justice System
Should Step Out and the Affordable Care Act Should Step Up, 25 Health Matrix J. of L. and Med. 487 (2015).
64 Gerald Leonard, Towards a Legal History of American Criminal Theory: Culture and Doctrine from Blackstone to
the Model Penal Code, 6 Buff. Crim. L. Rev. 691 (2003).
65 Id.

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J. Nichols (Spring, 2016)

evil, right vs. wrong, and legal vs. illegal rigid narratives is one that many law-abiding Americans

easily identify with and support. This is the moral code, so to speak, that in America, if you follow the

rules and work hard, anything you want out of life is within your grasp. Along with that, though, is the

principle that when you break those rules, you become indebted to society and must be held

accountable for your wrongdoings. This is one of the fundamental conservative principles of traditional

American criminal law theory.66

Secondly, drug abuse as a trope has such a pervasive history and reputation in American that is

inevitably regulated according to moral considerations, which most often fall along ideological lines. 67

For example, the 1920s Prohibition Era represented the effect of government behavioral regulation

based upon Victorian-era principles of morality. 68 These principles were adopted by White, Anglo-Saxon,

Protestant (WASPs) Americans as a code for reinforcing social, political, and economic institutions via a

moral framework.69 This code was at its height in the U.S. during the late 1800s and early 1900s and

served as the foundational basis for enforcing strict codes, most often emphasizing sexual repression,

low tolerance of crime, and a strong social ethic. 70 These values are embedded in the mainstream

conservative psyche and help explain many socially conservative positions, especially the Tough on

Crime/War on Drugs movement at the core of this current legislation. 71

Although the mainstream national conversation is not explicitly referring to the problem of

prenatal substance abuse in terms of the expected behavior of women to act lady-like, refrain from any

non-domestic behaviors, or reject self-fulfilling indulgences such as becoming drunk or getting high as it

66 Id.
67 Id.
68 Id.
69 Id.
70 Laura Cenicola & Mareike Aumann, British History 2: From the French Revolution to World War II Topic:
Majesties and Royal Highnesses, Introduction into Victorian MoralityWhat Exactly Was the Victorian Era?
http://www.laura-cenicola.de/brithist2/brithist/8-1-introduction-into-victorian-morality-what-exactly-was-the-
victorian-era.html (last visited May 3, 2016).
71 Miller, supra.

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would have been in the late 1800s, the subtle implications still abound. Instead of ostracizing these

women as vulgar outcasts in society based upon their immoral behaviors, they are ostracized as criminal,

unfit, dangerous parents undeserving of their own unique mothering experience. 72 The narrative may

sound different. The justifications might not sound as offensive. Yet, the Victorian moral vehicle which

has driven state regulation of women throughout American history since the late 1800s is as strong and

influential as ever.

A. Promoting Conservative Values: Strong Family Values

In the US, there are basic, fundamental principles which lie at the core of modern conservatism.

These include the notion that the family unit is the most important institution that is essential to any

understanding of conservatism.73 A strong, traditional family is what provides the best opportunities for

virtue, civic responsibility, self-sufficiency, and morality and should, perhaps, even be given special

consideration in terms of public policy according to modern conservative thought. 74

This is the first reason why conservatives should abandon any endorsement of policies which

punish pregnant women when they use drugs and actively work to offer rehabilitative, restorative

approaches instead. Women affected by these policies can have criminal and familial consequences as

well as the loss of freedom and liberty when facing civil commitment. 75 Having provided a synopsis of

some ways the criminal law addresses this issue, it is necessary, then, to look at how a mother convicted

might be punished. The Tennessee fetal assault law mentioned previously allows the affected mother to

be convicted for aggravated assault, which carries a maximum penalty of fifteen years in prison in

72 Ian Vandewalker, Taking the Baby before Its Born: Termination of Parental Rights of Women Who Use Illegal
Drugs While Pregnant, 32 N.Y.U. Rev. L. & Soc. Change 423 (2008).
73 Joe Carter, Family-First Conservatism: A Tentative Manifesto, Canon & Culture: Christianity and the Public
Square, A Project of the Ethics and Religious Liberty Commission (2014) http://www.canonandculture.com/family-
first-conservatism-a-tentative-manifesto/ (last visited Apr. 19, 2016).
74 Id.
75 Miranda, supra.

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J. Nichols (Spring, 2016)

Tennessee.76 Alabamas 2006 Child Endangerment Lawmeant to protect children against exposure to

methamphetamine labscan be used to prosecute pregnant women who have abused drugs with a

possible punishment of prison time.77 In 1997, the South Carolina Supreme Court held in Whitner v.

State that a fetus is a person and maternal acts endangering or likely to endanger a viable fetus are a

form of child abuse.78 Drug use while pregnant has been considered one of those maternal acts

punishable by up to ten years in prison. 79

Looking at the potential punishments associated with these criminal laws, it is not hard to

recognize the real and grave threat to families affected by this issue. Consider a scenario in which a

pregnant woman in Tennessee after the fetal assault law was enacted in 2014 was prosecuted,

convicted, and sentenced to fifteen years in prison. Perhaps this mother has other children. Maybe she

has struggled with what society is increasingly treating as a mental health disorder or disease but has a

stable, willing support system to help with child-rearing. Does she give birth in prison? If so, what are

the consequences of that? Will her newborn child know her mother before she is a teenager? How does

her fifteen-year sentence affect the rest of her family? Just keeping the remaining members of the

family together would seem to be quite the challenge. Who is now responsible for raising, teaching, and

nurturing her children? What effects will prison have on her illness of addiction? What are the costs to

the state and community?

Consider another scenario. There was no fetal assault law under which this mother was

prosecuted. Instead, she sought treatment through several of the state-supported facilities specializing

in substance abuse by pregnant women. She did not fear seeking treatment because there was no risk

76 Rewire, Legislative Tracker, Tennessee Fetal Assault Law (SB 1391), https://rewire.news/legislative-
tracker/law/tennessee-pregnancy-criminalization-law-sb-1391/ (last visited Apr. 19, 2016).
77 Miranda, supra.
78 Whitner v. State, 492 S.E. 2d 777 (S.C., 1997).
79 Miranda, supra.

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J. Nichols (Spring, 2016)

of going to prison for disclosing her condition to others. 80 This mother was able to carry her pregnancy

to term under the close supervision of specially-trained doctors. Because of this, both the mother and

child experienced very mild, if any, problems. This mother appreciated the opportunity she received for

treatment, keeps her family together, raises productive, educated members of society, and eventually

requires no regulation at all from the state.

The core conservative principle of the family as the most important institution in society is only

threatened by punishing pregnant women who suffer from substance abuse. If we send a mother to jail,

her family is at a serious risk of breaking down. If society is better off when families are healthy and

strong, then conservatives have no choice but to encourage and support policies and efforts that give at-

risk families a stronger chance of flourishing. Motherhood creates strong motivation for women to seek

help for and control their addictions, as even without any treatment, illicit drug use often declines as the

pregnancy progresses.81 To demonstrate this, data from 2012-2013 showed that the rate of illicit drug

use in pregnant women aged 15-44 in the third trimester was 2.4% as compared to 4.8% during the

second trimester and 9.0% during the first trimester. 82

When pregnant women have real treatment opportunities without the fear of prosecution,

chances of success are very promising when considering the tendency for the rate of drug use to

decrease as the pregnancy term progresses. The Toronto Centre for Substance Use in Pregnancy (T-CUP)

used data from their family-medicine based treatment program and reported that overall, most women

participating in their treatment program demonstrated a high level of compliance. 83 Further, the earlier a

patient sought treatment, the more successful the outcomes. As a result, the family clinic reported that

80Ferguson v. City of Charleston, 532 U.S. 67 (2001) (American Public Health Association, Amicus Curiae Brief in
Support of Plaintiff).
81 European Monitoring Centre for Drugs and Drug Addiction, supra.
82 European Monitoring Centre for Drugs and Drug Addiction, supra.
83 Alice Ordean & Meldon Kahan, Comprehensive Treatment Program for Pregnant Substance Users in a Family
Medicine Clinic, 57 Can. Fam. Physician 11 (2011).

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J. Nichols (Spring, 2016)

75% of mothers and their newborns experienced positive, successful outcomes and were discharged

under normal conditions.84 Most mothers will work extremely hard to ensure the success, safety and

health of their children and families. Those who suffer from drug addiction are no different; they just

need access to the necessary tools for treatment and restoration instead of adding the additional

problems presented by criminalization. Preservation of the family depends on it.

B. Promoting Conservative Values: The Pro-Life Movement

Conservatives also highly value the preservation of life and consider humanity to exist in its

earliest forms, often at conception.85 The Republican Party, most closely associated with conservative

values, promotes the sanctity of life by advocating against abortion. 86 The principles underlying this

value rest on the authority of God alone in end-of-life decisions and the belief that the human soul is

formed at conception and exists before and outside of fetal viability. 87 These are profound considerations

which could explain the conservative movements unrelenting opposition to almost all instances of

abortion. This should make the support of non-punitive solutions to pregnancy and substance abuse an

inevitable conservative position.

As supported by the study and data cited, a majority of pregnant women and mothers do not

intend or wish harm upon their children. 88 Instead, they would do almost anything to prevent it. 89 This

creates a problem, though, when that anything includes seeking treatment for a disease or condition

which could easily result in prosecution, incarceration or losing her child altogether. 90 Although maternal

instincts might tell an expectant mother to address her drug use for the health and benefit of her baby,

84 Id.
85 GOP, Republican Platform, We the People: A Restoration of Constitutional Government (2016)
https://www.gop.com/platform/we-the-people/ (last visited May 10, 2016).
86 Id.
87 Fentiman, supra.
88 European Monitoring Centre for Drugs and Drug Addiction, supra.
89 European Monitoring Centre for Drugs and Drug Addiction, supra.
90 American College of Obstetricians and Gynecologists, supra.

16
J. Nichols (Spring, 2016)

her maternal instincts coupled with her instincts of preservation of herself and her family could lead to

choosing to opt out of treatment in order to avoid losing access to her children or breaking up her family

by becoming incarcerated or facing custodial challenges in family court. This could lead women to

choose abortion over carrying her pregnancy to term in order to avoid the complex problems associated

with treatment while facing potential criminal charges and proceedings to permanently or temporarily

take her newborn child from her custody. Abortion quickly becomes the smartest, most effective

solution for some women.

This is where the conservative voice should resoundingly reject the application of any policy that

had potential for an outcome of pregnancy termination. Consider the position of a pregnant woman

who suffers from addiction in a jurisdiction that makes prosecution or state custodial intervention a real

possibility. Depending upon the severity of her addiction, she might understand the risk of infant

mortality or SIDS due to fetal substance exposure. This might result in manslaughter chargers or other

similar high-level homicide or assaultive charges. Or, she could opt for an early-term, medical abortion

which medical science has overwhelmingly concluded to be safer than carrying a pregnancy to term even

for healthy, low-risk women.91 It is easy under such a scenario to see how choosing abortion could be

viewed as the more humane, safer decision than the many uncertainties she would grapple with if

carrying to term.

Conservatives who adhere to the traditional anti-abortion, pro-life position must consider the

profound difficulty associated with a pregnant woman being in this position. In order for a pro-life

conservative to maintain intellectual honesty and integrity, she would have no reasonable choice than to

promote restorative and rehabilitative approaches to the issue of pregnant women who abuse drugs and

emphatically reject policies that promote punishment and retribution.

91 Gynuity Health Projects, National Center for Biotechnical Information, PubMed, The Comparative Safety of Legal
Induced Abortion and Childbirth in the United States (2012) http://www.ncbi.nlm.nih.gov/pubmed/22270271 (last
visited May 10, 2016).

17
J. Nichols (Spring, 2016)

C. Promoting Conservative Values: Individual Responsibility and Limited Government

The notion that government should be small, limited, and non-intrusive into individuals lives is

one that many conservatives purport to be among their most important values. 92 Yet, many policies

which involve social issues do not get the limited government considerations as other policies which

are often economic in nature.93 This is supported by the overwhelmingly consistent conservative

support of increased regulation of womens reproductive health, support of laws rejecting or restricting

any form of marriage outside of one man-one woman, and recent state laws regulating restroom

behavior in reaction to growing recognition of transgendered rights. 94 Often such deviations from the

small government position in order to support increased government regulation of social issues are

justified by the need to preserve certain values or conserve societys traditional moral principles.95 This

simply cannot be a justification that can be used, though, with this issue if conservatives wish to

maintain intellectual integrity.

Substance abuse during pregnancy implicates many more issues than just the social or moral

ones associated with using illegal drugs. This issue, as mentioned in several instances, is multi-

dimensional with many complex facets and the morality of drug use is likely at the bottom of the list.

(Even though there is growing consensus among both the right and left that drug addiction is a problem

best dealt with through rehabilitation and treatment by recognizing it as the disease that it is rather than

a moral deficiency.96) As explained, this issue involves the fundamental, basic notion of self-preservation

both at the individual and family levels. Most people in society who value family in any meaningful
92 GOP, supra.
93 Grant S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold
Federal Commercial Regulations but Preserve State Control over Social Issues, 85 Iowa L. Rev. 1 (1999-2000).
94 Wilson Andrews & Thomas Kaplan, New York Times, Where the Candidates Stand on 2016s Biggest Issues
(2013) http://www.nytimes.com/interactive/2016/us/elections/candidates-on-the-issues.html?_r=0 (last visited
May 10, 2016).
95 Nelson, supra.
96 Heather Haddon, The Wall Street Journal, Drug Deaths Becoming a 2016 Presidential Election Issue (2015)
http://www.wsj.com/articles/drug-deaths-becoming-a-2016-presidential-election-issue-1446596075 (last visited
May 10, 2016).

18
J. Nichols (Spring, 2016)

capacity can understand this implication. The issue also invokes the abortion debate and should lead

any genuinely reasonable pro-life conservative to see the issue at least partly through this lens.

Therefore, this is not an exception to the general conservative rule of limited government due to its

primary social nature. Too many issues are at play. Conservative intellectual integrity can only be upheld

if the mantle of limited government is extended in this instance. State regulation in a punitive manner

inserts the government into private matters which should be dealt with by families, doctors, and trusted

communities.

D. Promoting Conservative Values: Fiscal Responsibility

Another key component of the conservative platform is fiscal responsibility. 97 Conservative

political leaders promote fiscal responsibility in terms of government spending. 98 This value is often

invoked in discussions of issues relating to welfare spending, government dependency, social programs

and how the average, hard-working taxpayer is burdened by them. 99 Herein lies another opportunity for

conservatives to extend this message into unchartered territory. In 2009, the Journal of the American

Medical Association published a study which found that 78.1% of all newborns with NAS were covered

by Medicaid, along with a finding that the average cost of a hospital stay for NAS patients increased to

$53,400 in 2009 from $39,400 in 2000. 100 Because of the unique conditions experienced by some

children exposed to drugs in utero persist beyond hospital discharge, and the correlation between

poverty and prenatal drug abuse, the likelihood of additional post-discharge treatment coming under

state responsibility is very high.101 Here are some additional considerations: 31% of Americas homeless

population suffer from some sort of drug abuse or addiction; approximately 60% of the federal prison

97 GOP, supra.
98 GOP, supra.
99 GOP, supra.
100 Stephen W. Patrick, Robert E. Schumacher, Brian D. Bennyworth, Elizabeth E. Krans, Jennifer M. McAllister &
Matthew M. Davis, Neonatal Abstinence Syndrome and Associated Health Care Expenditures: United States, 2000-
2009, J. of the Am. Med. Assoc. (2012).
101 European Monitoring Centre for Drugs and Drug Addiction, supra.

19
J. Nichols (Spring, 2016)

population is incarcerated due a drug-related crime; children exposed to persistent drug use in utero are

up to 1.5 times more likely to require special education services, which costs an estimated $23 million

per year.102 These statistics demonstrate the costs which might not be considered among the more

obvious onescosts of Medicaid, foster and adoption services, costs of crime due to loss of productivity,

legal fees, the cost of incarceration and state correctional supervision, and many other ancillary

expenditures.103

Because the most extreme punitive measures have been introduced and/or supported by

conservatives in many states on this issue, it could easily be the case that the burden of shifting

narratives and attitudes fall squarely on the shoulders of conservative leaders.

II. THE FAMILY LAW AND THE BEST INTERESTS OF THE CHILD STANDARD

The early legal history of domestic relations in the United States was by and large governed by

the presumption that fathers were proper custodians, based upon social structures which placed women

and children under the ownership of patriarchs. 104 This practice was rejected in most of the United

States by the late 1800s in favor of the tender years doctrine. 105 This standard was based upon the

notion that, at least during early childhood (the tender years), children should remain with their

mothers whenever possible due to mothers ability to provide the best care for a young child. 106

As the womens rights movement accelerated through the 1970s, more and more women

delayed marriage and family in favor of educational and career pursuits, which deemphasized the family

structure in which wives tended to domestic duties while husbands earned income outside of the

102 European Monitoring Centre for Drugs and Drug Addiction, supra.
103 European Monitoring Centre for Drugs and Drug Addiction, supra.
104 McIlveen Family Law Firm, N.C. Family Law Blog, The History of Child Custody (2013)
https://gastoniafamilylaw.com/2013/06/06/the-history-of-child-custody/ (last visited May 3, 2016).
105 Id.
106 Id.

20
J. Nichols (Spring, 2016)

home.107 As the population of unmarried, childless, education women grew, they increasingly expected

to contribute to household income by also engaging in careers outside of the home. 108 This social shift

was not only one based in economic needs of families, but also a response to changing norms and

attitudes regarding womens roles.109 The acceptance of women as ambitious, educated, and career-

focused was on the rise and this inevitably led to an evolution of family structures, and necessarily,

family law.

As more and more mothers sought to continue or accelerate career pursuits while mothering,

the tender years doctrine began to wane by the late 1970s in terms of how the family law approached

custodial regulation.110 Women who had become mothers and then re-entered the workforce afterward

challenged the doctrinal basis of tender years as mothers and fathers began to collaborate in terms of

childcare responsibilities.111 As foundational feminist principles began to take root in society, reliance

upon the tender years legal standard placed women in a position where only they could serve as

caretakers of young children.112 This undermined career and educational progress. The mainstream

feminist movement could only succeed to the extent it influenced the structure of families and therefore

the availability of women to participate and excel in non-domestic roles. Any progress the feminist

movement had made economically and politically would be brought to a screeching halt at the point

where family courts made custodial decisions based on the notion that only mom was suitable for the

care of young children.

107 Id.
108 Rollins College Social Server, Feminism and the Rise of Divorce in the US during the 1970s, posted by
chernandez@rollins.edu (2014) (http://social.rollins.edu/wpsites/thirdsight/201/02/08/feminism-and-the-rise-of-
divorce-in-the-us-during-the-1970s/) (last visited May 5, 2016).
109 Id.
110 Id.
111 McIlveen Family Law Firm, supra.
112 McIlveen Family Law Firm, supra.

21
J. Nichols (Spring, 2016)

This led to the next major shift in the legal history of domestic relations away from tender

years toward the adoption of the best interests of the child (BIOC) standard. 113 The Uniform

Parentage Act heavily served as an example of an outcome influenced by a shifting family law

philosophy. This included a wave of state adoption of no-fault divorce governance. As divorces

increasingly became settled upon principles of equity instead of at-fault, punitive approaches, BIOC

stood as the custodial answer to questions arising from the changing family law system. 114 Instead of

presumptively imputing caretaking responsibilities of young children to women under the tender years

doctrine, family law jurisdictions began adopting BIOC. 115 Legal determinations were increasingly

focused on more equitable mother/father custodial arrangements. 116 This represented the growing

acceptance of shared parenting duties instead of gendered presumptions regarding how the family

should operate.

Presently, BIOC is the governing standard in all 50 U.S. States, the District of Columbia, American

Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. 117 Although the

individual statutory language differs across jurisdictions, generally family courts employ a factors-based

approach in considering what custodial arrangements serve childrens best interests. 118 These factors

include emotional ties between family members and caregivers, parental capacity to provide basic

necessities, mental and physical health of family members and caregivers, mental and physical health of

children, and domestic violence issues119

113 McIlveen Family Law Firm, supra.

114 McIlveen Family Law Firm, supra.
115 McIlveen Family Law Firm, supra.
116 McIlveen Family Law Firm, supra.
117 Childwelfare.gov, Publications, Determining the Best Interests of the Child (2012)
https://www.childwelfare.gov/pubPDFs/best_interest.pdf (last visited May 3, 2016).
118 Id.
119 Id.

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J. Nichols (Spring, 2016)

As the sole standard applied by family courts in custodial matters, BIOC sits in the very center of

any custody legal argument. This is certainly no different when mothers who have used drugs during

pregnancy face state intervention of their custodial rights. Attorneys, social service workers, health care

practitioners, and other related state-affiliated actors use BIOC arguments to say that mothers deserve

punishmentwhether custodial or criminal.

Reliance upon the standard and how it is to be applied places the child(ren)s best interests at

the center of the family being subjected to state regulation. When the state intervenes in a mothers

fundamental liberty interest in the care, custody, and control of her child(ren), 120 an unintended, yet

significant consequence occurs. By the state acting to protect the best interests of a child or children

affected by moms drug use, the stability of the rest of the family could be at risk. Under BIOC, state

intervention often arises as a matter of duty imputed to health care practitioners and social service

actors as a legal mandate.121 This rigid construction of how BIOC operates in instances of substance

abuse during pregnancy can lead to outcomes which underserve, neglect, or even outright harm the best

interests of the rest of the family.

The harm potentially done to the strength and preservation of families as a result of punitive

treatment of pregnant women who use drugs has been discussed within the context of reinforcing

conservative family values. This critique of policy which punishes mothers who abused drugs during

pregnancy extends beyond the conservative ideological consideration, though, and does so in a

profound, global way. When the legal system regulates a family based upon considering the best

interests of a child or children affected by the single issue of mom using drugs while pregnant, no matter

how well-intended BIOC is or how progressive compared to previous custodial models, any holistic

considerations upon the family as a unit are lost.

120 Troxel v. Granville, 530 U.S. 57 (2000).

121 Miranda, supra.

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J. Nichols (Spring, 2016)

This approach becomes problematic particularly in these instances where the child(ren) exposed

to mothers drug use are the predominant, if not only, focus of the legal application of BIOC. Using the

protection of children as a justification for punishing these mothers overlooks the best interests of older

children, fathers (biological or de facto), domestic partners, and other family members who participate

meaningfully due to non-traditional family models, cultural differences in family makeup, or other

family-unique considerations. Older childrenthrough no fault of their ownare denied the

development of bonding and relationships with younger siblings who are unable to fully integrate into

the family due to state intervention. Biological fathers might be given sole, legal custodial rights when

they are ill-prepared or lack opportunities to build support systems needed to exercise such custody.

This would certainly affect the best interests of the family members associated with the biological father

in such a circumstance. Domestic partners who exercise de facto parenting behaviors and contribute to

the overall well-being of the holistic family unit might not be considered at all in terms of legal

significance or protections. And, of course, the mothers held in punitive regard are not only stripped of

their fundamental liberties associated with families and parenting, but robbed of the very dynamic

which often is the catalyst to recovery, healing, and full societal participation: their own, unique

mothering experience. The mothers ability to recover fully and occupy her mothering role in the

individual capacity in which she was meant to is severely diminished if not eradicated all together. A

mother losing custody of her child can become a source of profound trauma. These conditions are well-

documented contributors to the continued cycle of drug use, poverty, familial instability, lack of

education, lifetime interaction with the criminal justice system, poor physical and mental health,

increased risk of suicide, and overall negative effects on communities.

By solely focusing on the protection of one family component under the application of BIOC

rather than holistically considering familial well-being, there is a systemic failure to protect other family

members who are at risk of experiencing profound negative outcomes as a result of state custodial

24
J. Nichols (Spring, 2016)

interference under BIOC. The meaningful, positive influences family members can experience as a result

of bonding with one another and enjoying continuity and stability can completely be erased under

punitive regulation of mothers who have abused drugs while pregnant.

The preservation of families is promoted by restorative, rehabilitative solutions to potential

problems and risks associated with drug abuse during pregnancy. Whether preserving the family unit is

an ideological interest meant to advance conservative principles of social frameworks, or whether

preserving the family unit is pursued in order to safeguard progressive values such as womens rights and

respect and recognition of the difference and uniqueness of individual families, the goal is the same:

preserve families. The way to get there, regardless of interests or motives, is the same: stop punishing

and start restoring.

It is for these reasons that conditions are ripe for another social and legal shift in the treatment

and regulation of families. As society works to understand issues of intersectionality of race, gender, and

class and how correlated complexities and intricacies contribute to or are related to drug abuse, the

family law must begin to look at how the familyhowever it is defined individually or culturallyis

treated holistically, considering it as a unit composed of members whose interests and protections are

interdependently woven rather than as independent parties who face legal regulation on a

circumstantial, reactionary basis.

III. INTERSECTIONALITY, EQUAL PROTECTION, AND DUE PROCESS

Looking at the regulation of the family from this context of the treatment of mothers who have

used drugs during pregnancy would be incomplete without considering how the intersectionality of race,

gender, and class operate in these circumstances. The experiences of those who sit in the place where

this triangular intersection occurs offer unique insights into how social norms and policies exacerbate

25
J. Nichols (Spring, 2016)

struggle, marginalize, or even promote discriminatory treatment. Perhaps nowhere is this

intersectionality more apparent than within this context.

A. Equal Protection: Gender Discrimination

Obviously, the topic in and of itself presents gender issues exclusive to being female. As a group,

American women are treated and regulated remarkably different than males both through legal and

health care institutions.122 Maternal substance abuse as an issue illustrates how treatment of parents-to-

be who struggle with drug abuse widely differ along gendered lines. Pregnant women are the exclusive

targets of almost all laws which criminalize or punish the drug abuse of expectant parents. 123 It is the

existence of her as female alone which exposes her to potential prosecution, incarceration, or state

interference of custodial rights. Hypothetically (and likely actually true as a practical matter), both

biological parents of an unborn child can abuse the same substances, in the same quantities, with the

same frequency, and in the exact same environments. Yet because of the female parents biological role

in reproduction, her behavior is unequally treated despite recent studies which show that drug abuse by

fathers can affect fetal health.124This represents how being female under these circumstances results in a

remarkably different treatment under the law.

This raises constitutional concerns under both the Due Process and Equal Protection Clauses of

the Fourteenth Amendment. Regarding this dissimilar treatment of parents, though, the equal

protection argument is implicated. Under the Equal Protection Clause, when the state treats similarly-

situated people differently on the basis of gender, the intermediate scrutiny standard must be met. 125

122 Mary Eastwood, The Double Standard of Justice: Womens Rights Under the Constitution, 5 Valpo. Univ. L. Rev.
281 (1971).
123 Miller, supra.
124 Meghan Horn, Mothers Versus Babies: Constitutional and Policy Problems with Prosecutions for Prenatal
Maternal Substance Abuse, 14 William & Mary J. of Women & L. 647 (2008).
125 Craig v. Boren, 429 U.S. 190 (1976).

26
J. Nichols (Spring, 2016)

Here, the similar situation is based on the category of persons as parents-to-be who abuse illicit drugs.

The unequal treatment happens when the mother is exposed to criminalization and custodial

intervention and the father is exposed to neither on the basis of him being an expectant parent abusing

drugs. This unequal treatment along gendered lines is only constitutional if the state can show that the

challenged classification serves important governmental objectives and that the discriminatory means

employed are substantially related to the achievement of those objectives. 126 Deterring drug-abusing

behavior during pregnancy is one of those stated objectives. 127 This is not achieved, though, when the

law fails to comprehensively consider the interwoven, complex circumstances surrounding drug use.

When the state completely omits the fathers behavior and how that is related to the mothers behavior

during pregnancy, as well as how his individual drug use can affect fetal health, deterrence is unlikely to

happen. Deterring drug behaviors during pregnancy is almost impossible to achieve if the approach is a

one-dimensional one which exclusively looks at pregnant women along rigid lines of whether or not

certain behaviors occurred. Most punitive policies do exactly this and are not substantially related to the

goal because solutions developed to deter must be done in ways shown to actually affect outcomes

through a multi-dimensional lens with a global framework, considering the social, economic, political,

and legal complexities involved such as differing family structures, socioeconomic status, access to

healthcare, community and support networks, access to social services, education, ideology, and

doctrinal family law attributes.

The other stated goal of protecting the unborn is also not substantially related to the

discriminatory treatment for the very same reason. 128 Poor fetal health is not an outcome exclusive to

exposure to drugs.129 Again, failure to approach this issue multi-dimensionally and therefore in ways

likely to fail, makes the protection of the unborn an invalid justification of laws which do nothing but

126 U.S. v. Virginia, 518 U.S. 515 (1996).

127 Paltrow, supra.
128 Paltrow, supra.
129 Fentiman, supra.

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J. Nichols (Spring, 2016)

expose women to criminal charges and threaten custodial rights. 130 Therefore, the legitimate important

government objectives of deterring risky and potentially harmful drug abuse behavior during pregnancy

and protecting the unborn are made illegitimate when the discriminatory treatment along gendered

lines are not substantially related to those objectives due to a comprehensive failure to employ

strategies which could actually begin to work toward achieving them. This discrimination of mothers is

therefore unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

B. Equal Protection: Racial Discrimination

The gender issue is the more obvious one, but very serious complexities lie in exploring issues of

race and class discrimination as well. Pregnant women who do end up either in the criminal justice

system or under the regulation of family courts represent huge disparities along racial lines which do not

correspond with actual rates of drug use. Pregnant women who are reported by health care

practitioners are disproportionately Black or Latina. 131 Yet, this does not align with rates of actual drug

use.132 Black and Latina women are no more likely to abuse drugs while pregnant than white women. 133

More accurately, rates of drug abuse by pregnant women are similar across all communities of all

colors.134

C. The Impact of Socioeconomic Status

The issue of class then comes into play to help explain these disparities. Women who end up

being reported for suspected drug use or subjected to drug testing overwhelmingly either rely on

130 Paltrow, supra.

131 National Institutes of Health, National Institute on Drug Abuse, Division of Epidemiology and Prevention
Research, Drug Use Among Racial/Ethnic Minorities file:///C:/Users/Chris/Downloads/NIHMinoritydrugUse
%20report.pdf (last visited May 10, 2016).
132 Id.
133 Id.
134 Id.

28
J. Nichols (Spring, 2016)

Medicaid for health care coverage or are uninsured. 135 This clear indicator of class presents itself to

practitioners before the patient is ever seen by a doctor in many cases. 136 The question then arises if and

to what extent implicit biases of practitioners play a role in reporting and subjecting women to drug

testing.

The grossly disproportionate impact that punitive legislation regarding pregnant women and

drug use has upon the woman who sits in the direct spot where race, gender, and class meet offers

strong evidence that the stated objectives of much of the legislation are not close to being achieved.

This intersectionality and how it affects treatment and outcomes provides further support for systemic,

comprehensive rejection of punitive, retributive measures. The reasons are based in fact, principles of

fairness, family and community building, and fundamental constitutional protections which should

extend beyond the theoretical and to the practical in order to protect these women from punishment.

The most marginalized in society who occupy the space where race, gender, and class intersect

are subjected to these laws much more often despite similar behaviors across other less-stigmatized

groups.137 Even if the intermediate scrutiny standard failed to protect women along discriminatory

gendered lines, then the unequal treatment along racial lines calls for application of strict scrutiny and

such laws would be much more likely to fail.

When we treat individuals who make up the classification of pregnant women who abuse drugs

in a discriminatory fashion along these lines, the goals of the legislation are completely undermined.

Consider that white women of economic privilege using a drug with just as much harmful potential to

fetal health but under perceived legitimacy due to the legal effect of prescriptions by supervising

135 Guttmacher Institute, State Policies in Brief, Substance Abuse during Pregnancy (2016)
https://www.guttmacher.org/sites/default/files/pdfs/spibs/spib_SADP.pdf (last visited May 10, 2016).
136 Id.
137 Bridgette Baldwin, Stratification of the Welfare Poor: Intersection of Gender, Race, and Worthiness in Poverty
Discourse and Policy, 1 The Modern American 4 (2014).

29
J. Nichols (Spring, 2016)

physicians experience punishments considerably less often. It cannot be because substances of identical

chemistry influence fetal health differently depending on whether or not Mom took the drug from a

legal prescription bottle or whether she bought it off the street. The fetus cannot tell the difference.

The drug does not become more or less harmful according to how it was obtained. But the experiences

and outcomes of mothers vary wildly and dramatically across lines of race and class. These laws are not

protecting the unborn children of the white women with prescriptions. These laws are not deterring her

behaviors. The answer then, must lie in complex nuances of how Black and Latina women living in

poverty become increasingly targeted, stigmatized, exposed, and therefore punished. 138

The need for a complete shift away from punishment and retribution toward rehabilitation and

restoration is indispensable if we truly seek to meaningfully influence the risks associated with drug use

during pregnancy.

D. Due Process and Fundamental Liberties of Family

It has been settled law for many years that the right to arrange ones family and exercise the

care, custody, and control of children as they see fit is a protected fundamental liberty interest under the

Due Process Clause of the Fourteenth Amendment. 139 Therefore, in order for the state to intervene and

deprive a parent of that liberty, the strict scrutiny standard must be met. 140 The state has to have a

compelling interest in depriving a parent of this liberty and the intervention must be narrowly tailored to

meet the goals which are most often stated as protection of unborn children and deterrence of the risky

behavior of abusing drugs while pregnant. 141 The way much of the punitive legislation regarding

pregnancy and drug use operates is to either expose a mother to criminal charges or threaten her

custodial rights.

138 Id.
139 Troxel, supra.
140 Korematsu v. U.S., 323 U.S. 214 (1944).
141 Id.

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J. Nichols (Spring, 2016)

IV. CONCLUSION

Many things need to change before meaningful progress is made toward applying fully

restorative, rehabilitative approaches toward maternal substance abuse. Prescriptions for change must

begin with a campaign targeted toward conservatives with the goal of forcing a choice: continue pushing

this issue or become intellectually discredited as their platforms values become eroded and undermined

through public exposure of what outcomes those policies actually do to conservative core values. This

campaign must be used to not only affect legislative and policy change, but also as a catalyst for shifts in

public attitudes of mainstream conservative citizens who by and large support these lawmakers.

Entire families must be considered, not as a replacement for BIOC necessarily, but as a strong

factor in determining BIOC. Looking at whole family preservation as a BIOC factor would be a step in the

right direction. Family law practitioners, judges, and academic experts must begin making these

arguments theoretically and in practice.

Criminal justice reform is a crucial component, as the punitive treatment of pregnant women

who abuse drugs is rooted in the tough on crime mentality of the War on Drugs. Decriminalizing and

destigmatizing drug abuse across all users has shown signs of progress, which would help this cause.

Funding saved from incarceration, prosecution, court costs, increased social services spending

could then be diverted to rehabilitation centers specializing in maternal substance abuse, which raises

the issue of actors who make these decisions. As this issue becomes increasingly framed through a

public health lens, healthcare practitioners, public health officials, and substance abuse experts should

begin replacing legislators as decision-makers.

The notion that abusing drugs while pregnant is a behavior society should work to mitigate to

the fullest extent should be an agreeable proposition to most. However, those who most aggressively

31
J. Nichols (Spring, 2016)

advocate for punitive treatment must begin to act while considering the entirety of their value systems.

Further, family courts must employ family-centric reasoning as not a replacement to BIOC necessarily,

but as part of a childs best interests. Finally, society overall must continue to evolve in terms of rejecting

rigid black and white narratives which do not allow for considerations of monumental influence such as

intersectionality and discrimination. Legal outcomes should consider discriminatory impact as evidence

for unconstitutionality, putting aside Feeney and embracing the reasoning of the recent Fair Housing Act

case which applied disparate impact.142 It is when we adopt these holistic solutions to this multi-

dimensional problem that we can employ useful, effective strategies in helping mothers, families, and

children.

142 Paul Hancock and Andrew C. Glass, Symposium: The Supreme Court recognizes but limits disparate impact in its
Fair Housing Act decision (2015), http://www.scotusblog.com/2015/06/paul-hancock-fha/ (last visited May 10,
2016).

32