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Tuesday, June 26, 2012

Should A Pregnant Woman Be Charged For Drug Use That Harms Her Fetus?


In Alabama, pregnant women who use drugs that harm their fetus can be prosecuted under the state’s new chemical endangerment law.

The law was originally created to protect children from the dangers of meth labs, but it is now being used to prosecute new mothers – There have been around 60 chemical-endangerment prosecutions of new mothers since the law was enacted in 2006, according to the New York Times.

Criminal convictions of women for their newborns’ positive drug tests are rare in other states, lawyers familiar with these cases say. In most places, maternal drug use is considered a matter for child protective services, not for law enforcement… Last summer, the Alabama Court of Criminal Appeals upheld this expanded interpretation of the chemical-endangerment law, ruling that the dictionary definition of “child” includes “unborn child.”

That interpretation is currently being examined by the state’s supreme court.

Anti-Abortion Rights Movement Pushing For Laws

The anti-abortion rights movement is pushing for these laws, in an attempt to give full personhood rights to fetuses and embryos– which they hope will eventually bring about the destruction of Roe v. Wade.

But a consortium of abortion rights advocates, doctors and the ACLU say prosecuting new moms for chemical endangerment of their fetuses could create a society where women are relegated to second class citizens, enslaved as child bearers, like those depicted in Margaret Atwood’s “A Handmaid’s Tale.”

Bioethicist Art Caplan told Here & Now‘s Robin Young that charging a new mom for drug use that harmed her fetus could lead to a wide range of other prosecutions.

“There are lots of other ways in which people can harm a fetus that don’t involve drugs,” he said. “Let’s say a woman decides to enter a marathon and somehow she loses the baby. Let’s say people decide that they’re going to eat a poor diet. Are we going to punish every obese woman? There is a slippery slope here.”

Caplan also says that many women may not know they are pregnant in the early stages, and one could have a drink that causes harm — which he does not think should be a seen by the law as a crime.

How The Law Handles A ‘Potential Person’

Caplan also says that the anti-abortion rights advocates who are pushing to have embryos considered full people from the moment of conception are not supported by science.

“We know scientifically that a huge proportion of embryos, probably as many as 40 to 50 percent don’t become fetuses, much less babies,” he said. “So what you’re talking about is potential people. And the question then becomes, does the law want to treat the destruction of a potential person with the same vigor that it does murdering a real person.”


  • Art Caplan, head of the division of medical ethics at NYU’s Langone Medical Center

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  • Hannahkay7

    concerning the issue of personhood in regards to abortion; call me crazy but I feel like considering abortion a violent crime similar to murder is about two steps away from equating miscarriage to involuntary manslaughter and I think that is just about the saddest thing I can imagine for a women to have to deal with. 

    • pepperlove

      My sentiments exactly! As a pregnant woman (6 mos), this hits on one of my largest fears – not just that I would lose my child through miscarriage, but that somehow people (society, the law, what have you) would blame me for it.

  • Riley1178

    What if our justice system could provide funds to help mothers and children in need instead of finding ways to incriminate them?

  • Riley1178

    Shouldn’t our laws should reflect our values. Even if we are going to value the fetus over the mother we have an inherent interest in the well being of the mother. A case could be made that community resources and early intervention would ultimately be more cost effective than punishment measures anyhow.

  • Thinkergoi

    Soon you will need a complete exam and a permit to get pregnant.

  • derek

    How about we charge people, religious or not, who smoke in public with attempted homicide of a person??

  • Ken

    Where was the conservative viewpoint in this segment? Just a few weeks ago NPR president Gary Knell claimed on the Diane Rehm Show that NPR strives for balance. This segment was one of many I’ve heard since that illustrates that he was wrong – and that illustrates why I no longer pledge to my local station.

  • JPGal

    We are the only industrialized nation that fails to provide health care for its people.  States are actively dismantling programs (usually sponsored by Planned Parenthood) that provide prenatal health care as well as birth control to poor women, while also defunding Head Start and pre-school programs.  Drug treatment programs, especially residential programs, have notoriously few spots for females.  As social programs fall to the wayside, we continue to turn to the criminal justice system to take up the slack.  It is tragic that in the richest (and we like to think freeist) nation in the world, pregnant women can be treated this way.

  • dpfromAlaska

    The ethics discussion on this topic was interesting, but what I consider a current, associated aspect to this topic I either missed hearing or it wasn’t addressed. If the purpose of these proposed laws is to protect fetuses, why is it that current laws on the books about abuse of women aren’t enforced? Data in America confirm that spouse abuse typically escalates during pregnancies. I don’t believe there have recently been increased convictions of men who have assaulted pregnant women in any of the states that are trying or have passed these new laws. What about conviction of impaired drivers who cause accidents affecting pregnant women and their pregnancies? And who gets prosecuted in the case of a man having sex with a pregnant woman that results in vaginal bleeding and miscarriage? What about a rape that makes a woman pregnant, and leads to her becoming suicidal from the assault and unintended pregnancy? Should the man be prosecuted for attempted murder if she tries to commit suicide? If laws already on the books aren’t being enforced against those who injure pregnant women and their fetuses, whether the injury is deliberate or through negligence, then the intent of the proposed or passed “fetus personhood” laws is focused on making women less-than human beings.  The permutations of these laws follow a slippery slope, and suggest that those who support these types of laws and haven’t put as much work toward the conviction of those who injure or kill pregnant women may consider women more like incubators.

  • ElrondPA

    Starting off this segment by referring to “anti-abortion rights” groups made it clear that the show wasn’t trying to be balanced. (The fair way to refer to a group is the way it refers to itself: thus “pro-life” and “pro-choice.”) And no one seems to have noticed that the actions that are being dealt with are ILLEGAL. There is a huge legal (as well as medical) difference between taking illegal drugs and running a marathon, to take one ridiculous example that one of the guests mentioned.

  • Escor001

    they already have places that help  mothers in need, what do you call planned parenthood? And in Minnesota there are many clinics and other places that help mothers that need the help. The problem is that people are going to the places for each pregnancy. They cannot rely on this things each time

  • Vandenstudio

    a woman that has had more then one child born addicted walks out of the hospital scott free to live her life partying while either the state or a family member picks up and raises the child she detroyed…its horrible …i am adopting our niece who was born addicted to herione,crack and alcohol and i detoxed her while her (donor) lives the party life she is 40..yet i have to pay thousands of dollars to adopt her..how is that right …no funding to adopt these kids..yet there is so much funding to help addicts? i say charge them so funds can be made available

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