(Dailard) The controversy is determining the balence between womens' rights to their body's integrity and society's interest in healthy pregnancies. There is no criminal law against drug abuse during pregnancy.Prosecutors attempt to use criminal laws against pre-natal substance abuse already in effect such as possesion of a controlled substance, delivering drugs to a minor (through the umbilical cord), and neglect. (Dailard) Women appeal these convictions which typically end up overturned on the grounds that a fetus could not be considered a child or person under criminal child abuse statutes.
Because of this, the controversy grows and it becomes more difficult to criminally prosecute these women.On October 4, 2010 the U. S. Supreme Court heard arguments in Ferguson v. City of Charleston.
(Harris) This case was brought to the Supreme Court by 10 women who were tested for cocaine use without their consent while recieving prenatal care at a South Carolina public hospital. Women who tested positive were turned into the local police and arrested for crminal child abuse. The Court has to decide whether or not drug testing pregnant women without a warrent or consent and reoprting them violates their Fourth Amendment right to be free from unreasonable searches.The Fourth Amendment is the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (The Constitution) To get these women convicted the prosecutors would have to obtain the womens' consent, which is unlikely.
There are some states that tried to criminalize prenatal drug use or use it to take away their rights as a parent.Some belive that making treatment more available for them would be a better approach. (Dailard) In the case Johnson vs. Florida in 1987, a mother ingested cocaine the night before she went into labor, knowing that if she ingested it with-in 48 hours of giving birth it could pass onto the baby. Although it was a normal birth there were traces of cocaine foung in the mother and the infant. The mother also ingested cocaine and smoked marijuna regularly during a subsequent pregnancy and ingested cocaine while she was in labor.
She was charged with delivery of a controlled substance to the infant as a living person because it was ingested seconds after the birth before the umbilical cord was clamped. Under the statue it is illegal for a person eighteen years of age or older to deliver a controlled substance to a minor under the age of eighteen. Though there are many complications with cases such as these, more often than not they are brought to court. In September of 2007, a Missouri court dismissed child endangerment charges brought against a woman who had used marijuana and methamphetamines during her pregnancy.The court found that Missouri's child endangerment statute did not specifically prohibit conduct that had occurred during pregnancy and thus was harmful only to a fetus and not to a living child. In 2007 and 2008, eight women in one Alabama juristiction were put on prbation for eighteen-months for drug use during pregnancy.
The local prosecutor used a statute for criminalizing chemical endangerment of a child. They used referance to the need to protect "the child-to-be" from prenatal drug use.When the Drug Policy Alliance was asked if arresting pregnant women for the use of drugs promoted both the mother and child's health they responded that research shows drug-using pregnant women would face prosecution or potentialy loose their child, rather than be deterred from drug-use. This steers drug-using pregnant women away from help and treatment.
Drug-treatment is the most effective method of reducing substance abuse and related harms. Research in medicine continues to reveal more and more ways in which a baby's health can be jeopardized by what a woman does during pregnancy.Heavy alcohol use during pregnancy can result in "fetal alcohol syndrome. " Infants with this syndrome suffer from mental retardation and physical deformities and have an increased chance of dying shortly after birth. Developments in genetics and obstetrics continue to provide us with more and more prenatal diagnostic tests and medical treatments that enable us to prevent birth defects.
Most women welcome these developments. There are some, however, who are unwilling to avoid those activities or behaviors that could harm their offspring. These women refuse to undergo medical treatments that would prevent birth defects.Forcing pregnant women to submit to medical treatment for the sake of their fetus imposes an obligation on them that we as a society do not impose on others. It is only fair to be equal with everyone.
We allow people the right to refuse medical attention if they don't want it and they do not have to put others medical needs before their own. We are asking something of these women that we do not ask of the rest of society. Furthermore, as a society, we have a duty to protect the fetus, even if that means forcing the woman to get medical treatment. If they do not cooperate, criminal prosecution is the most reasonable second option.
