Posted by: bridget | 30 January 2007

The Case for Prosecuting Pregnant Women

Feminists are in an uproar over legislation that would criminalise taking drugs during pregnancy. Basic thesis: such legislation overrides the autonomy of the pregnant woman; this is an attempt by “the patriarchy” to control pregnant women; that this will lead to the control of all pregnant women and government-mandated folic acid regimes; there is no baby in question; and there is a Constitutionally-protected right to be a drug addict.

None of these arguments are persuasive, and all of them ignore the basic problem with allowing pregnant women to do drugs: there is a negative effect on the child. Even if there is only a chance (albeit a reasonable one) of future harm, that future harm to the baby is permanent. Those babies will spend their entire lives paying the consequences for their mother’s actions (not to mention societal costs). Legal drugs (alcohol and cigarettes) have age requirements: we require that a person be physically mature and of consenting age before taking those substances. It is not all about the pregnant woman’s “body” or “autonomy;” there is another being whom her actions effect.

There is no requirement for “certain harm” before prosecuting certain behaviours. Drunk driving, by itself, is entirely benign: it is only the elevated risk of harm (i.e. increased accident rate) that we deem inappropriate. Likewise, being a drug addict is allowed (see below), but possession of drugs is criminal, as is giving drugs to a minor (an unavoidable side effect of taking them while pregnant).

While interpretations of the Constitution mandate that the State cannot criminalise a state of being (ex. a drug addict), that does not prevent the government from criminalising possession and taking of drugs; nor does it stop us from criminalising the giving of drugs to minors. A person may not void all drug laws by stating that, as an addict, she has a right to such drugs. The limitations of the doctrine only prevent a state (or an employer, under non-discrimination laws) from criminalising or penalising addiction, such as by going to a rehab facility or seeking counseling. For years, we have known that addicts are addicts, whether or not in the presence of the addictive substance: an alcoholic who does not drink is still an addict, albeit a dry one. It is this state that is protected by the Constitution. Such rights certainly do not extend to allowing people to do or distribute drugs. If a woman were addicted to drugs and put drugs in her infant’s food, she would not be exempt from prosecution. This is the same situation.

The slippery-slope argument is ridiculous here. As stated above, the government prosecutes only elevated risk: drunk-driving laws and speeding laws will not criminalise all driving, nor does it require that all cars have electronic stability control and side-curtain airbags. Likewise, criminalising actions that lead to fetal deformity is vastly different from criminalising a lack of folic acid. Illegal drugs are just that – illegal – and alcohol and cigarettes are strongly regulated. Any person, of any age, may go to the supermarket and get prosciutto; that is not true for vodka or crack cocaine. When a woman is pregnant, there are all sorts of risks – genetic abnormalities, cystic fibrosis, early delivery, slight malnutrition – but all are considered within the normal bounds of pregnancy. Doing drugs is clearly outside of the normal bounds of pregnancy, and the risks are borne entirely by another person.

Drunk-driving laws do not criminalise drinking on the theory that every drunk is a potential drunk driver. Likewise, laws criminalising drug use by pregnant women cannot be extended to all women, who are theoretically able to become pregnant. The laws are triggered when the behaviour turns from innocuous (drinking in a bar, doing drugs) to doing so in a situation that causes harm to others (key in ignition, pregnancy). Those lines are too clear for a slippery-slope argument to work.

Finally, liberals make their favourite argument: that a fetus, with a brain, heart, organs, and body, is not really a baby. Ignoring the philosophical issue, it does not matter, legally, for this situation whether or not the fetus is a human. Malpractice and tort law allow for a person to bring action against someone who has harmed them when the harm only appears long after the tort is committed. Likewise, the State may step in when a certain action will harm another in the future (ex. malnutrition and neglect). Therefore, the only requirement for state intervention is that the fetus will one day be a human with an elevated risk of harm from the (illegal, anyway) actions.

Pregnant women should not, by virtue of being pregnant, have rights denied to the rest of the population. If drugs should be legal, then they should be legalised for the entire country, not just pregnant women. A pregnant woman may not use an illegal drug without fear of prosecution, merely because being both pregnant and a drug addict are constitutionally-protected states. Likewise, a person who malnourishes or abuses a child will be prosecuted (under the theory that the effects are long-lasting): these laws ensure that someone who does a harm that will result in a damaged child will be prosecuted. The prosecution of pregnant women is entirely consistent with our laws.

This is a classic pro-life issue. Liberals often complain that pro-lifers don’t do enough to ensure that those babies will have a good life once they leave the womb; this legislation ensures that our society can reduce the number of deformed or developmentally-damaged babies.



  1. Bitch

  2. A close friend of mine is pregnant and she is smoking methamphetamine.I also know who she gets it from, and where he lives. She is a week, but good person, who is five months pregnant, she has now been on the meth for three weeks. The baby she is carrying is most likley mine. What should I do? I don’t want a drug addicted baby! Help Her please!

  3. This is the most rediculous thing I have ever read. How can you say that people have a Constitutional right to be a drug addict? Why would you even want to feed into that, giving them more reason to think its okay..I don’t understand this view point very well, and hope someone else can agree with me that this is nonsense.

  4. Hi Emily,

    Thanks for stopping by. Let me try to clarify.

    First of all, the Supreme Court has said that there are Constitutional rights to do a lot of things that I wouldn’t think are protected by the Constitution.

    The state of being a drug addict is a chemical/physiological one. It’s like being alcoholic. Your body reacts a certain way to these substances that makes it difficult for you to quit, although other people would react differently.

    A better way to put it might be that the government cannot criminalise physiological states of being or reactions, no more than it could make it a crime to be bipolar or schizophrenic. We punish crimes – specific acts and the intention to do those acts – but we don’t punish a state of being.

    Make more sense?

  5. So, Im a nursing student and we are presenting both sides of this topic for our senior level legal/ethical debate! I love the site! Thanks so much!
    I totally agree…even tho I know that realistically the more we try to prosecute those women, the less vitally important prenatal care they will receive. Its def a dilemma in the h/c world!

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