In July of 1996, South Carolina's Supreme Court ruled that pregnant women who use illegal drugs can be prosecuted for child abuse. These misdemeanor offenses are now punishable by a maximum of 10 years in prison. The judgment portends another skirmish in the drug war —judicial sanction of the criminalization of drug use during pregnancy. The repercussions of this battleground, with women on the front lines, are reviewed below.

This ruling asserts that drug use by pregnant women is a criminal act. Once it is determined that a woman has been using drugs during pregnancy, her fetus is granted state protection from its mother and her behavior. The pregnant woman can be sent to prison: a substandard location for anyone with a drug problem or in need of medical attention. This chronology raises a number of questions: Is the threat of incarceration expected to deter women from drug use while pregnant? Are both fetus and mother assured of a drug-free environment in jail? Will a woman receive appropriate prenatal care and a healthy diet? Or is this simply a means by which the state expresses its disapproval of female behavior? Criminalizing drug use itself and not the resultant behavior is an unusual strategy that should be examined, particularly as the punishment is not universally enforced.

The archetype of the pregnant drug user exploits racist and sexist myths. The racial bias of prosecutions for drug-related crime has been well documented (Day 1995). Similarly, drug testing of pregnant women and consequent interaction with the criminal justice system has been demonstrated to be contingent upon the ethnicity of the mother (Chasnoff 1990). Women of color are frequently blamed for their infants' health outcomes although environmental factors may impact health to a greater degree than personal behaviors. When a woman of color is a suspected drug user, she is held exclusively responsible for her infant's health despite the difficulties inherent in determining the distinct effects of myriad factors including paternal behaviors. The complicated demarcation of causality is forfeited and replaced by a categorical denigration of pregnant drug users. In addition to these prejudices, the scarcity of drug treatment slots (Legal Action Center 1996), as well as the punitive consequences of disclosure to health care providers limit the options available to pregnant users.

Holding pregnant women to a different standard is a dangerous proposition. The point has been made elsewhere that assuming fetal rights are tantamount to the mother's rights is an argument devised by the pro-life movement as a legal strategy toward prohibiting abortion. (Pollitt 1990; Center for Reproductive Law and Policy 1992; Chavkin 1994). But the prosecution of these women suggests a discrimination that is quite distinct from a discussion of abortion rights. The provocative consequences of this ideology are manifest in legislation introduced in state legislatures around the country that would force pregnant drug users to be sterilized (Berrien 1990). The assertion that pregnant drug users are criminals encourages the regulation of female behavior.

Legal Issues

Over 200 women in 30 states have been charged with fetal abuse (Paltrow 1996). A variety of criminal charges have been adapted to punish pregnant drug users: child abuse, neglect, child endangerment, contributing to the delinquency of a minor, delivering drugs to a minor, manslaughter, homicide and assault with a deadly weapon. None of these statutes was designed to address drug use by pregnant women. The modification of the standards for criminal conduct, which traditionally require purposeful, criminal intent or negligence (Schroedel and Peretz 1994), is only one example of the manipulation of the law that encourages the criminalization of drug use during pregnancy.

There are no state statutes that specifically criminalize maternal drug use (Center for Reproductive Law and Policy 1992). Traditionally, child welfare agencies have been charged with the assessment of parental competency, including drug use as it endangers the life of a child. Children's protective services determine the safety of the home through an assessment of parental behavior. When a woman is charged with child abuse on the basis of a positive toxicology, the mother's potential for maltreatment is the basis of the claim, not actual abuse or neglect witnessed by agents of children's protective services. The assumption that child abuse is a natural consequence of drug use is not only inaccurate but sharply deviates from standard methodology used by child protective services to evaluate the safety of a home, namely the evidence of harm to the child. Child welfare agencies should evaluate parental competence and refrain from imposing a criminalization paradigm on new mothers.

To some extent, the polemic surrounding fetal abuse is about the state's responsibility to protect children. Where does a woman's control of her body end and state protection begin? This question was answered in Roe y. Wade with the Supreme Court's ruling that state responsibility became compelling (and could override the mother's self-determination) at the point of viability. Prior to viability, dominion over the pregnancy remains with the mother. Any attempt to prosecute a woman for potential harm to the fetus prior to viability undermines the authority of the Supreme Court.

A central argument in the debate over the legality of fetal abuse charges are the rights enumerated in the Constitution and the Bill of Rights. The constitutionally protected rights to procreate, to bodily integrity and to privacy, as well as the 8th Amendment's prohibiting cruel or unusual punishment and the 14th Amendment's ensuring due process and equal protection under the law are all cited in defense of pregnant drug users. If any of these rights are waived as a result of pregnancy, then pregnancy itself is penalized (Annas 1989). Toxicologies performed without consent, mandatory drug treatment and incarceration for the duration of a pregnancy are examples of the punitive and coercive nature of fetal abuse prosecutions. In such situations, women are deprived of their constitutional protection as a result of their capacity to bear children.

The practice of drug testing infants immediately following delivery is also controversial. These tests are routinely performed without a woman's consent at her doctor's discretion. Factors that influence a physician's decision to perform a toxicology include admission of drug use, evidence of sexually tranmitted diseases or HIV, public payor status, residence in neighborhoods with widespread drug use and inadequate prenatal care. (Birchfield 1995; Chavkin 1990). In addition to the previously indicated racial disparities in testing, these detriments of risk replace a woman's self-assessment with a series of discriminatory judgments by her physicians. The physician-ordered toxicology may be performed without adequate parental consent, notice, or probable cause and consequently used as evidence of child abuse. This practice violates the right of due process and the right to be free of unreasonable searches and seizures. If a toxicology is performed without the mother's permission her confidentiality, her right of bodily integrity and her right to informed consent are all waived in a misguided attempt to protect her unborn child.'

Scientific Data

The role of science in our society is to present objective, rigorously examined facts. Yet scientific inquiries regarding women, people of color and drug users have not received equitable funding and prominence, particularly when the findings contradict prevailing ideological constructs. In the rush to judgment of women who smoke crack cocaine, the infants born to these women became an emotional symbol of the devastation of drug use. "Crack babies" were portrayed as children permanently impaired by their mothers' drug use whose rehabilitation would result in high costs for the state. This notion was supported by clinical studies demonstrating delayed cognitive growth and developmental disabilities in crack babies (Coles 1993).

Meanwhile, similar studies that did not find a connection between maternal drug use and fetal development were not published (Koren 1989). It was well into the 1990s before these studies were given equal representation in the medical publications. As the reporting of the conflicting studies reached parity, methodological flaws in the "crack baby" studies became evident. By 1994, the Journal of the American Medical Association published a commentary entitled, "Smoking Cigarettes May Do Developing Fetuses More Harm Than Ingesting Cocaine, Some Experts Say" (Cotton 1994). The article concedes that while the concept that cigarettes may have a greater negative impact on infant health than cocaine may be "counterintuitive, they in fact represent a new consensus." In the interim prior to this consensus, questionable data justified the censure of pregnant drug users.

It is known that many factors influence prenatal outcomes. There continue to be more questions than answers regarding the range of human behavior that may affect the fetus. For example, people with low income (family income below the Federal Poverty Level) are at a higher risk for morbidity, mortality and generally poor health, including poor pregnancy outcomes (U.S. Dept. of Health and Human Services 1992). It is not known how this population achieves such poor health outcomes. Environmental factors may be more influential than behavioral determinants. In the case of drug-exposed infants, once the child reaches three years of age, developmental status is equally determined by environment and prenatal drug exposure (Cotton 1994). Marijuana and cocaine use may be associated with lower birth weight, head circumference and height (Zuckerman 1989), but the effects of prescribed drugs, hazardous chemicals, diet and moderate amounts of alcohol, nicotine and caffeine on birth outcomes have not been determined. The previously cited article on the harm of cigarettes and cocaine stated that nicotine affects fetal development more significantly than cocaine, and that many of the health outcomes associated with Cocaine are identical to the outcomes associated with smoking cigarettes (Cotton 1994). Science may never have the capacity to comprehensively define behavior during pregnancy as healthful or unhealthy, particularly behaviors that elicit a moral response.

Ethical Concerns

Fetal abuse capitalizes on a narrow interpretation of female behavior to support its tenets. Pregnant drug users are portrayed as autonomous women who irresponsibly decide to abuse drugs, then conceive and carry a child to term. The simplicity of this reasoning is appealing — it overlooks the major features of drug use during pregnancy. Domestic violence, partner drug use, appropriate drug treatment and diverse perceptions of motherhood all interact to influence the lifestyles of pregnant drug users. It is a tactical maneuver to present drug users, particularly pregnant users, as unconstrained by these realities.

A history of physical or sexual abuse is a risk factor for drug use. Women are more susceptible to abuse and consequently a stronger correlation has been found between abuse and female drug use, with estimates suggesting as many as 80 percent of female drug users are abuse survivors (AIDS Resource Center 1994). Domestic violence, the foremost cause of injury for women ages 15 to 44 (Schroeder and Peretz 1994), is a crime that historically has not resulted in criminal sanction. Recent studies suggest that pregnancy may increase the risk of battering in a relationship (Campbell 1992). This violence is a significant determinant of drug use during pregnancy. Victims of domestic violence are more likely to continue using substances during pregnancy than women who are not currently in abusive relationships (Martin 1996). With this critical mass of information on the interaction between abuse and drug use, it is ironic that the term fetal abuse is employed to describe pregnant women's behavior.

Paternity and the effects of the father's behavior on mother and child are rarely examined in the determination of fetal abuse. Clinical studies suggest that sperm damage may be caused by drug use and this damage may in turn cause birth defects (Yazigi and Polakoski 1992). The research is in its infancy and results are far from conclusive; the real question is why has it taken so long to begin to evaluate the effects of male drug use on birth outcomes? It is not uncommon for a female drug user to be partnered with a male drug user who may pressure her to use drugs during pregnancy. Consistently women are scrutinized and held accountable for the baby's health while paternal behavior is overlooked.

Both the theory and the repercussions of fetal abuse attempt to sever the bond between a mother and her child. During the gestational period, both the mother and the fetus are maturing. The suggestion that the fetus is an independent person prior to viability is an attempt to misconstrue the reality of pregnancy. By focusing all of the attention on the child, the mother is reduced to a nativity vessel. Fetal abuse ideology also suggests that a mother intentionally harms her child by ingesting drugs during pregnancy. The mother may not be aware of how her own body is affected by drugs, much less her fetus' health. A woman may be afraid to discuss these concerns with health care providers (with good reason). There are no definitive answers to give her; health outcomes of female drug use are not well-known or studied.

Appropriate drug treatment, arguably the best solution for pregnant drug users, is rarely available. One study found that only 6.2 percent of drug treatment slots were appropriate for pregnant women; on-site child care, on-site medical care, family involvement and psychosocial support, particularly to address histories of abuse, are integral components of a successful drug program for this population (Slutsker et al. 1993). Other studies have found similarly low access for poor, pregnant women who use crack to traditional drug treatment modalities — an overwhelming majority of these programs would not accept pregnant women (Chavkin 1990). These factors defy a logical solution: The overriding concern for fetal development has impeded not only information on the consequences of drug use for the mother, but the ability to access drug treatment to minimize the harm of drug use for both mother and child.

In this politicized environment, a woman's rights are subordinated to those of her fetus. This is well illustrated by the story of Diane Pfannenstiel. In Albany County, Wyoming, in 1990, Ms. Pfannenstiel was pregnant and involved in an abusive relationship with the father of her children. Ms. Pfannenstiel contacted a local victim's advocacy group after a violent incident in the home and was accompanied by members of the group to the hospital. At the hospital, Ms. Pfannenstiel was arrested for child abuse because she was intoxicated while pregnant. No charges were filed against the father. Charges against Ms. Pfannenstiel were later dropped because no injury to the fetus could be determined (Merrick 1993). Fetal abuse promotes an institutional response to drug and alcohol abuse that is punitive, short-sighted and unethical.

Conclusion

The war on drugs is fundamentally a war on drug users in the United States. Most citizens are concerned about the repercussions of drug use — crime, disease and poverty— and not the behavior itself. Images of wailing, premature infants reinforce the notion that drug use during pregnancy is a horrific act that should be punished. These tac- tics allow fetal abuse advocates to wage a war on women who use drugs and conceive a child. There are significant concerns about the fairness and ac- curacy of this strategy. A few of them are summarized below.

Fetal abuse maintains that toxicology screens are the best means of determining drug use by a pregnant woman. Drug toxicologies are an imprecise tool that are capable of assessing illegal drug use within the few days prior to urinalysis, although unable to determine the amount or frequency of use. The classic study of discrepancies in testing found that poor women, regardless of ethnicity, were more likely to be tested and reported to child welfare authorities than women of higher socio-economic status. African-American women were 9.6 times more likely to be reported than white women, although the rates of drug use were similar for both races (Chasnoff 1990). Toxicology screens are racially biased and therefore unacceptable determinants of fetal abuse. Only universal testing of both legal and illegal drugs for all pregnant women would ensure equitable determination of prenatal drug use.

The criminalization of fetal abuse discourages a reduction in drug use during pregnancy. Traditionally, outlawing a behavior reduces its occurrence. Fetal abuse charges only deter pregnant women from receiving care. Women are reluctant to access drug treatment and prenatal care, and to disclose drug use to health care providers because of the risk of criminal charges. Fetal abuse does not address the availability of drugs nor the environment, which may prompt their use. It maintains the scarcity of appropriate prenatal care for women who use drugs. The mother and child receive no care until birth, at which time they will be cared for at high cost to the state because of prematurity, low birth weight, poor nutrition and other negative outcomes. Criminalization does not prevent drug use during pregnancy. It only reduced access to health care services for a population in severe need.

After all the discussion, there is still one question: Are women who use drugs capable of parenting? Knowing that drug use in different shapes and forms is prevalent throughout all communities, is it a question of degree? Are illegal drugs more harmful than legal drugs? The issue expands as it is analyzed, confounding the ability to resolve the issue. The answer for now may be highly subjective because there is just not enough scientific knowledge to reach a conclusion. There are too many questions not answered by the phrase "fetal abuse," which draws lines in the sand to demarcate harmful from unharmful behavior. Drug use can be harmful to a pregnant woman and a child. Demonizing pregnant drug users is an inexpensive and ineffective means of addressing this complex social issue.

Tanya Ehrrnann is one of the second place winners of DPF's Student Paper Competition.
Ms. Ehrmann is completing a degree in health policy at Columbia University's School of Public Health this fall. She previously worked with female drug users in New York City. Send correspondence to: 312 Clermont Ave., Brooklyn, NY 11205-4606. Phone: (718) 855-6911.

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