Paltrow, Lynn M, et al. Part 2. Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs. Women's Law Project and National Advocates for Pregnant Women; October 2000.
Endnotes cont......
25. S.C. Code Ann. § 20-7-736(G).
26. Fla. Stat. Ann. § 39.01(30)(g).
27. Tex. Fam. Code Ann. § 261.001(8).
28. Md. Code Ann., Fam. Law § 5-313(d)(1)(iv); see also Bonnie I. Robin-Vergeer, The Problem of the Drug-Exposed Newborn: A Return to Principled Intervention, 42 Stan. L. Rev. 745, 771-76 (1990) (arguing for universal testing and reporting to the child welfare system, but excluding reports for marijuana because of lack of evidence regarding marijuana use and interference with parenting ability).
29. See, e.g., Ind. Code §§ 31-34-1-10, -11; Utah Code Ann. § 62A-4a-404; Wis. Stat. Ann. § 48.02(1).
30. See Minn. Stat. Ann. § 626.556(2)(c)(7).
31. See Minn. Stat. Ann. § 626.5562(1), (2).
32. Wis. Stat. Ann. § 48.02(1).
33. See S.C. Code Ann. § 20-7-736(G).
34. See Abrahamson, supra note 6, at 142-43 (discussing S.C.Code 20-7-510(A)); Jonathan Dube, S.C. Drug Counselors Wrestling with Pregnancy-Reporting Law, Post & Courier (Charleston, S.C.), Apr. 12, 1998 (discussing memo to drug treatment center directors from the state Department of Alcohol and Other Drug Abuse Services instructing counselors to report drug use by third-trimester pregnant women to authorities); Attorney General Charles M. Condon, Office of the Attorney General of South Carolina, Intervention Protocol for Drug-Impaired Infants 4 (1998) (stating unequivocally that "[w]ith the decision in Whitner v. State, holding viable fetuses to be persons for purposes of Sec.20-7-50, the reporting requirements of S.C. Code Ann. Sec. 20-7-510 are now clearly applicable to cases of suspected abuse or neglect involving unborn, yet viable fetuses, defined as 24 weeks gestation with an illegal drug in their system").
35. See Survey, infra (listing statutes for Iowa, Minnesota, and Virginia).
36. Cf. Wendy Chavkin et al., Efforts to Reduce Perinatal Mortality, HIV, and Drug Addiction: Surveys of the States, 50 J. Am. Med. Wom. Assoc. 164, 164-165 (1995); Letter from Susan V. Demers, Deputy Commissioner and General Counsel of the New York State Department of Social Services, to Karen Goldstein (Aug. 17, 1990).
37. See Laura Lassor, When Success Is Not Enough: The Family Rehabilitation Program and the Politics of Family Preservation (unpublished manuscript on file with NAPW); Wendy Chavkin, Drug Addiction and Pregnancy: Policy Crossroads, 80 Am. J. Pub. Health 483 (1990).
38. See Lassor, supra note 37, at 7 (describing how "a backlog in investigations and foster care placements caused hundreds of infants to be held in New York City hospitals for as long as several months after they were medically ready for discharge); Diane Duston, Boarder Babies Straining Hospitals’ Resources, Associated Press, June 23, 1992 (quoting David Liederman, executive director of the Child Welfare League, who asserts that the government should help families in distress solve their problems, instead of focusing on punishment for drug use); see also Denise Paone & Julie Alpern, Pregnancy Policing: Policy of Harm, 9 Int. J. of Drug Policy 101, 104 (1998) (noting that as a result of being kept in hospitals for extended periods of time "these children may be condemned to living conditions that pose greater harm to their well-being than the ones from which they were removed"); Demers supra note 36.
39. John McCarthy, The CPS Drug Use Dilemma: Balancing the Right of Children to Protection Against the Right of Children to Their Parents, Sacramento Medicine, Nov. 1998, at 11-12.
40. See In re Valerie D., 613 A.2d 748 (Conn. 1992) (holding that plain language and legislative history do not support application of civil child abuse statute where child was born with positive toxicology and other symptoms after mother had injected cocaine several hours prior to giving birth and distinguishing numerous lower sister state court decisions reaching the opposite conclusion); In re Nassau County Dep’t of Soc. Serv., 661 N.E.2d 138 (N.Y. 1995) (noting that a finding of neglect as to a newborn and a newborn’s older sibling may not be based solely on the newborn’s positive toxicology for a controlled substance); see also In re Appeal in Pima County Juvenile Severance Action No. S-120171, 905 P.2d 555 (Ariz. 1995) (ruling that a finding of neglect as to a newborn and a newborn’s older sibling may not be based solely on the newborn’s positive toxicology for a controlled substance); In re Adoption of Katherine, 674 N.E.2d 256 (Mass. App. Ct. 1997) (refusing to permit adoption of children without the biological parent’s consent and concluding that "[i]n the absence of a showing that a cocaine-using parent has been neglectful or abusive in the care of that parent’s child, we do not think a cocaine habit, without more, translates automatically into legal unfitness to act as a parent"); State ex. rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729 (Wis. 1997) (refusing to allow detention of pregnant woman under statute allowing state to take protective custody of a "child" because legislature did not intend to include fetus within the definition of child).
41. See In re Guardianship of K.H.O., 736 A.2d 1246 (N.J. 1999) ("[T]he child’s addiction and symptoms of withdrawal, coupled with her mother’s failure to provide continuing care for her child or to take any measures to help her child overcome her suffering, satisfy the [endangerment to child’s health and development] prong of the statutory test [for termination of parental rights]."). In Ohio, the intermediate court of appeals held that a fetus is a "child" under the state’s civil child abuse statute. See In re Baby Boy Blackshear, No. 99CA00018, 1999 WL 770788, at *3, (Ohio Ct. App. Sept. 7, 1999). An appeal is currently pending before the Ohio Supreme Court.
42. Minn. Stat. Ann. § 626.5561(2) (permitting emergency commitment of pregnant women); S.D. Codified Laws § 34-20A-63 (permitting "emergency commitment" of pregnant women who abuse alcohol or drugs). See generally Sandra Anderson Garcia & Ingo Keilitz, Involuntary Civil Commitment of Drug-Dependent Persons With Special Reference to Pregnant Women, 15 Mental Physical Disabilities L. Rep. 418, 419 (1991) (discussing the 1989 amendments to the Commitment Act of 1982).
43. Wis. Stat. Ann. §§ 48.133, 48.135, 48.981(3) (amending the Children’s Code to extend regulatory control over the behavior of pregnant women).
44. See Garcia & Keilitz, supra note 42, at 420-421.
45. See id. at 419 (noting that as of 1991, except for Minnesota, no state policy articulated the specific goal of involuntarily committing pregnant drug users based solely on a state’s interest in protecting the fetus).
46. See In re Tanya P., No. 530069/93, slip. op. at 18-22 (N.Y. Sup. Ct. N.Y. Cty. Feb. 24, 1995).
47. See, e.g., Ky. Rev. Stat. Ann. § 222.021; La. Rev. Stat. Ann. §§ 40:2018, 46:2511; N.H. Rev. Stat. Ann. § 132:20; Or. Rev. Stat. § 430.910.
48. See, e.g., Pa. Stat. Ann. tit. 71 § 553.
49. See, e.g., Ga. Code Ann. § 26-5-20; Kan. Stat. Ann.§ 65-1, 165; Mo. Ann. Stat. § 191.731.
50. See, e.g., Colo. Rev. Stat. § 26-4-508.2(1).
51. See, e.g., Del. Code Ann. tit. 16, § 190; Mo. Rev. Stat. §§ 191.725. See also Roth, supra note 12, at 166-75, 176, observing that many of the provisions for education and treatment do not in fact guarantee funding for those services and that the effectiveness of these non-punitive approaches "depends on the strength of the state’s commitments as measured by allocation and duration of funds; its enforcement of policies guaranteeing access; the breadth and depth of treatment offerings and so on."
52. See, e.g., Iowa Code § 125.32A; Kan. Stat. Ann. § 65-1, 165. Some states have also passed laws requiring that prospective adoptive parents receive information about a birth mothers’ drug use history and the results of an infant drug toxicology test. See Me. Rev. Stat. Ann. tit 18-A, § 9-304(b); Mich. Comp. Laws Ann. § 710.27(b); N.Y. Dom. Rel. Law § 112(2-a); Okla. Stat. Ann. tit. 10 § 7504-1.1(B)(2)(b)(3), (10) & (11); Or. Rev. Stat. § 418.325; Vt. Stat. Ann. tit. 15-A, § 2-105; Wyo. Stat. Ann. § 1-22-116; see also Cal. Welf. & Inst. Code § 16135 (establishing services for adoptive parents of infants presumed to have been affected by prenatal drug exposure.).
53. See Or. Rev. Stat. § 430.920.
54. Md. Code Ann. Health-Gen § 15-103(b)(9)(vi).
55. See, e.g., 720 Ill. Comp. Stat. Ann. 570/407.2; N.J. Stat. Ann. § 2C:35-8.
56. See, e.g., 235 Ill. Comp. Stat. Ann. 5/6-24a(a) & (b) ("The General Assembly finds that there is a need for public information about the risk of birth defects (specifically Fetal Alcohol Syndrome) when women consume alcoholic liquor during pregnancy. . . . Every holder of a retail license, whether the licensee sells or offers for sale alcoholic liquors for use or consumption on or off the retail license premises, shall cause a sign with the message ‘GOVERNMENT WARNING: ACCORDING TO THE SURGEON GENERAL, WOMEN SHOULD NOT DRINK ALCOHOLIC BEVERAGES DURING PREGNANCY BECAUSE OF THE RISK OF BIRTH DEFECTS’ to be framed and hung in plain view."); see also D.C. Code Ann. § 25-147; Ga. Code Ann. § 3-1-5; Minn. Stat. Ann. § 340A.410, Subd. 4b (3) N.J. Stat. Ann. § 33:1-12a; Or. Rev. Stat. § 471.551; Tenn. Code Ann. § 57-1-211; Wash. Rev. Code Ann. § 66.16.110; W.Va. Code § 60-6-25.
57. See, e.g., Okla. Stat. Ann. tit. 63, § 2-424; see also Survey, infra (detailing other Drug Dealer Liability Acts).
58. Id.
59. Ernest Drucker, Drug Prohibition and Public Health, 25 Years of Evidence, 114 Pub. Health Rep. 14, 18 (1999).
60. The Drug War Backfires, N.Y. Times, Mar. 13, 1999, at A14 (noting that this is not because Americans use more drugs than people in other nations and that "[s]urveys now show . . . that the use of crack, by about 600,000 people annually, has not changed in 10 years. Nor has the general level of illegal drug use.").
61. Amnesty International, "Not Part of My Sentence": Violations of the Human Rights of Women in Custody 15 (1999).
62. Id. at 22; see Catherine Conly, U.S. Dep’t of Justice, The Women’s Prison Association: Supporting Women Offenders and Their Families 3 (1999) (detailing the dramatic rise in the number of women imprisoned in federal and state prisons on drug offenses).
63. See, e.g., 25 U.S.C. § 1665g (permitting "grants to Indian tribes and Indian organizations to establish fetal alcohol syndrome and fetal alcohol effect programs"); 42 U.S.C. § 280c-6 (establishing grants for home visiting services for at-risk families); 42 U.S.C. § 290bb-1(a) (grants "for the purpose of providing to pregnant and postpartum women treatment for substance abuse").
64. See 21 U.S.C. § 1665d(b).
65. See 42 U.S.C. § 280f(d).
66. Personal Responsibility And Work Opportunity Reconciliation Act Of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of U.S.C.).
67. Codified at 21 U.S.C. § 862a.
68. Codified at 42 U.S.C. § 608.
69. Amending 7 U.S.C. § 2015.
70. Amending 42 U.S.C. § 1382(e).
71. Amending 42 U.S.C. § 1437d.
72. Codified at 21 U.S.C. § 862b.
73. Legal Action Center, Steps to Success, Helping Women with Alcohol and Drug Problems Move From Welfare to Work 2 (May 1999); see also Drug Strategies, Keeping Score, Women and Drugs: Looking at the Federal Drug Control Budget 22 (1998) (discussing the federal TANF laws and noting that "[o]ver 90 percent of the 3 million households receiving TANF funds in 1998 are headed by women"). See also, Corinne A. Carey, Crafting A Challenge to the Practice of Drug Testing Welfare Recipients: Federal Welfare Reform and State Responses as the Most Recent Chapter in the War on Drugs, 46 Buffalo L. Rev. 281 (1998)
74. Legal Action Center, supra note 73, at 2.
75. Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified in scattered sections of 42 U.S.C.).
76. 42 U.S.C. § 675(5)(C).
77. 42 U.S.C. § 675(5)(E).
78. Jan McCarthy, et al., The Adoption and Safe Families Act: Exploring the Opportunity for Collaboration Between Child Mental Health and Child Welfare Service Systems: A Resource Guide 37 (1999).
79. See, e.g., Dan Baum, Smoke and Mirrors: The War on Drugs and the Politics of Failure 267-72 (1996) (noting that "the movement to prosecute drug-using mothers gets much of its steam from the anti-abortion movement."); Humphries, supra note 3, at 69 ("Knowing a declaration that legal life begins at conception is beyond them, right-to-life jurists have tried to work around the edges, using related issues like maternal drug use to advance their cause.").
80. The issue remains current in the media, as it has devoted substantial coverage to the Children Require a Caring Kommunity (CRACK) program, a program that offers drug-users $200 to get sterilized or use long-term contraception. See Anne-Marie O’Neill & Kelly Carter, Desperate Measure, People, Sept. 27, 1999, at 145 (describing founder Barbara Harris’s program offering $200 to stop crack addicts from having more babies); see also Children Require a Caring Kommunity Home Page, (visited May 3, 2000) (official web site of the CRACK program that discusses alleged harms to drug exposed newborns); Lynn Paltrow & Robert Newman, Treatment, Not Sterilization, Is the Way to Help Addicted Moms, Houston Chron., Jan. 30, 2000, at C4 (arguing that program is based on numerous medical and social myths).
81. See Robin-Vergeer, supra note 28, at 748-50.
82. 740 Ill. Comp. Stat. Ann. 20/2(a).
83. See e.g., Ezekiel J. Emanuel, Eight is Too Many, New Republic, Jan. 25, 1999, at 8, 10 (discussing the numerous medical problems resulting from large multiple births including prematurity, low-birthwight and death).
84. D.A. Frank et al., Maternal Cocaine Use: Impact on Child Health and Development, 40 Advances in Pediatrics 65 (1993).
85. See Abrahamson, supra note 6, at 147; see also The Lindesmith Ctr., supra note 6; Gómez, supra note 1, at 23-25 (discussing the failure of longitudinal studies to find statistically significant differences between cocaine-exposed children and non-exposed children).
86. See Paone & Alpern, supra note 38, at 104 (citing Thurman et al., Prenatally Exposed to Cocaine, Does the Label Matter?, 18 J. of Early Intervention 119 (1994) and Woods et al., Pygmalion in the Cradle: Observer Bias Against Cocaine Exposed Infants, 17 Infant Behav. & Dev. 1020 (1994)); see also Delacey Skinner, Body Politics, Point (South Carolina), Fall 1999, at 8, 9 ("For Knight and her son, though, the most painful result of their ordeal are the social consequences Brandon has faced from the labels used in the media. After a picture of Knight and Brandon opposite a picture of a ‘crack baby’ ran in Source magazine last year, Brandon was teased at school. Kids started calling him a ‘crack baby.’").
87. See Robin-Vergeer, supra note 28, at 771-72.
88. See Linder v. United States, 268 U.S. 5, 18 (1925) ("[Addicted persons] are diseased and proper subjects for [medical] treatment."); cf. Robinson v. California, 370 U.S. 660, 666-67 (1962) (holding unconstitutional a state law making narcotic addiction a crime).
89. See Charles Marwick, Physician Leadership on National Drug Policy Finds Addiction Treatment Works, 279 JAMA 1149 (1998); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 176 (4th ed. 1994) ("The essential feature of substance dependence is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues use of the substance despite significant substance related problems. There is a pattern of repeated self-administration that usually results in tolerance, withdrawal, and compulsive drug-taking behavior.").
90. Amicus Curiae Brief of the American Medical Association in Ferguson, et. al. v. City of Charleston et. al., in the United States Supreme Court, No. 99-936, at 7 citing American Medical Association, Proceedings of the House of Delegates: 137th Annual Meeting, Board of Trustees Report NN 236, 241 (June 26-30,1988).
91. Drucker, supra note 59, at 16, 28 (noting that in the United States, "the very use of the term harm reduction is still banned from the Federal policy lexicon and denied funding because it is seen as ‘condoning drug use’").
92. See Sheigla Murphy & Marsha Rosenbaum, Pregnant Women on Drugs: Combating Stereotypes and Stigma 100 (1999).
93. Id.
94. Id.
95. See Marsha Rosenbaum, Women: Research and Policy, in Williams & Wilkins, Substance Abuse 654-65 (1997) ("Researchers have consistently found high levels of past and present abuse in the lives of women drug users. Many have suggested that there is a relationship, if not absolutely causal, between violence experienced by women and drug use.").
96. See, e.g., Hortensia Amaro et al., Violence During Pregnancy and Substance Abuse, 80 Am. J. Pub. Health 575, 578 (1990); Teri Randall, Domestic Violence Begets Other Problems of Which Physicians Must Be Aware, 264 JAMA 940, 943 (1990).
97. See Center for Substance Abuse Treatment, Pregnant, Substance-Using Women 6 (1993) (U.S. Dept. of Health & Human Servs. Publication No. (SMA) 93-1998) (discussing the services needed to address successfully the treatment of drug using women, noting that it "is imperative that programs include services designed specifically for women, particularly pregnant women").
98. Id. at 6-8.
99. See Pregnant, Substance-Using Women, supra note 97. See also Center for Substance Abuse Treatment, Practical Approaches in the Treatment of Women Who Abuse Alcohol and Other Drugs 124-26 (1994) (U.S. Dept. of Health and Human Servs. Publication No. (SMA) 94-3006), (providing guidance to treatment providers to meet the specific needs of women with substance abuse problems).
100. Amicus Curiae Brief of California Medical Association & American College of Obstetricians and Gynecologists, District 9, at 3-4, In Re Adrianna May H., No. 3 Civil CO14203 (Cal. Ct. App. 3d filed June 17, 1993); see also Center for the Future of Children, Recommendations, in The Future of Children 8 (Richard F. Behrman ed., 1991) ("[A]n identified drug exposed infant should be reported to child protective services only if factors in addition to prenatal drug exposure show that the infant is at risk for abuse or neglect.").
101. See Marwick, supra note 89 (The Physician Leadership on National Drug Policy reviewed more than 600 peer-reviewed research articles and found that addiction to illicit drugs can be treated with as much success as other chronic illnesses like diabetes, asthma, and hypertension).
102. See e.g., Stephen Magura et al., Effectiveness of Comprehensive Services for Crack-Dependent Mothers with Newborns and Young Children (1998) (discussing New York City’s experience with the Family Rehabilitation Program and citing numerous studies describing how comprehensive, coordinated, holistic treatment are better at engaging pregnant and parenting women); Pregnant, Substance-Using Women, supra note 97; Claire McMurtrie et al., A Unique Drug Treatment Program for Pregnant and Postpartum Substance-Using Women in New York City: Results of a Pilot Project, 1990-1995, 25 Am. J. Drug & Alcohol Abuse 701, 701-02 (1999) (describing a comprehensive model of drug treatment for pregnant and postpartum women that included children and did not view relapse as a failure, concluding that it "seem[ed] to improve mother’s lives, fetal drug exposure, and birth outcome significantly"). See also Practical Approaches, supra note 99 at 68, 97-98.
103. See Marwick, supra note 89, at 1149 (discussing the fact that drug "treatment costs ranged from $1800 per patient for outpatient treatment to $6800 for long-term residential care," which is far less expensive than the $25,900 per year it costs to keep one person in prison); see also the Future of Children, supra note 100, at 14 (noting that "it is extraordinarily costly for government to rear children through foster care, with costs typically around $3,000 per year per child, but reaching as high as $35,000 or even double that when the children have special medical complications").
104. See Lassor, supra note 37, at 3 (discussing the elimination by New York City Mayor Rudolph Giuliani of city funding for the Family Rehabilitation Program); Magura, supra note 102; Charisse Jones, A Casualty of Deficit: Center for Addicts, N.Y. Times, Jan. 14, 1995, at A27 (noting the dwindling numbers of treatment programs in New York City); Alma J. Carten, Mothers in Recovery: Rebuilding Families in the Aftermath of Addiction, 41 Nat’l Ass’n of Soc. Workers 37 (1996).
105. See Lassor, supra note 37, at 3.
106. See, e.g., Wendy Chavkin, Mandatory Treatment for Drug Use During Pregnancy, 266 JAMA 1556 (1991); Julie Petrow, Addicted Mothers, Drug Exposed Babies: The Unprecedented Prosecution of Mothers Under Drug-Trafficking Statutes, 36 N.Y.L. Sch. L. Rev. 573, 604-06 (1991) (arguing for an increase in federal and state funding for drug treatment programs for women); Molly McNulty, Note, Pregnancy Police: The Health Policy and Legal Implications of Punishing Pregnant Women for Harm to Their Fetuses, 16 N.Y.U. Rev. L. & Soc. Change 277, 292-303 (1987) (discussing the lack of access to adequate health care); Wendy Chavkin et al., National Survey of the States: Policies and Practices Regarding Drug-Using Pregnant Women, 88 Am. J. Pub. Health 117 (1998); Legal Action Center, Steps to Success 3 (May 1999); Drug Strategies, Keeping Score, Women And Drugs: Looking at the Federal Drug Control budget 16-17 (1998); Vicki Breitbart et al., The Accessibility of Drug Treatment for Pregnant Women: A Survey of Programs in Five Cities, 84 Am. J. Pub. Health 1658 (1994); see also Elaine W. v. Joint Diseases N. Gen. Hosp., Inc., 613 N.E.2d 523, 524 (N.Y. 1993) (discussing a New York hospital’s refusal to admit pregnant women into its drug detoxification program).
107. See, e.g., 2 State Council on Maternal, Infant & Child Health, 1991 South Carolina Study of Drug Use Among Women Giving Birth: Prevention and Treatment Services 2, 10 (1992) (reporting that "specific resources designed to meet the needs of women of childbearing age, especially pregnant women, are not widely available" and that lack of child care and transportation are seemingly insurmountable obstacles to treatment for many women); Substance Abuse & Pregnancy Work Group, A Report to The Secretary of the Kentucky Cabinet for Human Resources And the Legislative Research Commission 17 (1994) (noting the lack of treatment services "especially those that provide specific services for pregnant women").
108. Legal Action Center, supra note 73, at 6.
109. Id.
110. Amy Hill, Applying Harm Reduction to Services for Substance Using Women in Violent Relationships, Harm Reduction Communication, Spring 1998, at 7-9 (discussing the reasons why the development of services for battered, substance-abusing women is limited).
111. See Chavkin, supra note 106, at 1559 (explaining that the risks involved in seeking treatment deter addicted mothers from getting the help they need); see also State v. Ashley, 701 So. 2d 338, 342-43 (Fla. 1997) (dismissing homicide charges against a woman who shot herself in the stomach after discovering that Medicaid would not cover the expense of an abortion); Shelly Gehshan, Missed Opportunities for Intervening in the Lives of Pregnant Women Addicted to Alcohol or Other Drugs, 50 J. Am. Med. Women’s Ass’n 165, 166 (1995) (discussing a study of 181 addicted pregnant women in the South and finding that "45% did not have a regular source for family planning services").
112. See Murphy & Rosenbaum, supra note 92, at 100.
113. Susan C. Boyd, Mothers and Illicit Drugs: Transcending the Myths 14-16 (1999) (listing at least fourteen studies demonstrating that women who use illicit drugs can be adequate parents).
114. M. Kearney et al., Mothering on Crack Cocaine: A Grounded Theory Analysis, 38 Soc. Sci. & Med. 351, 355 (1994).
115. American Bar Association, Foster Care Project, national Legal Resource Center for Child Advocacy and Protection, Foster Children in the Courts, 206 (Mark Hardin ed. 1983).
116. Nat’l Council of Juvenile and Family Court Judges, Permanency Planning for Children Project, Protocol for Making Reasonable Efforts to Preserve Families in Drug Related Dependency Cases 17 (1992).
117. Shelly Gehshan, A Step Toward Recovery ii (1993).
118. See, e.g., Bonita Evans, Youth in Foster Care: The Shortcomings of Child Protection Services (1997); Scott J. Preston, Note, "Can You Hear Me?": The United States Court of Appeals for the Third Circuit Addresses the Systemic Deficiencies of the Philadelphia Child Welfare System in Baby Neal v. Casey, 29 Creighton L. Rev. 1653 (1996).
119. Paone & Alpern, supra note 38, at 101.
120. Michael Wald, State Intervention on Behalf of Neglected Children: A Search for Realistic Standards, 27 Stanford L. Rev. 985 (1975).
121. Michelle Jackson & Gordon Berry, Motherhood and Drug Dependency: The Attributes of Full-time Versus Part-time Responsibility for Child Care, 29 Int’l J. Addictions 1521 (1994).
122. Lassor, supra note 37, at 7 (describing how "a backlog in investigations and foster care placements caused hundreds of infants to be held in New York City hospitals for as long as several months after they were medically ready for discharge"); Duston, supra note 38; Paone & Alpern, supra note 38, at 104 (noting that as a result of being kept in hospitals for extended periods of time "these children may be condemned to living conditions that pose greater harm to their well-being than the ones from which they were removed.").
123. Jan Hoffman, Challenge Drug Tests, The Village Voice, July 10, 1990, at 11; see also Class Action Complaint, Ana R. v. New York City Dep’t of Social Services (S.D.N.Y. filed on June 7, 1990) (describing numerous cases of children removed without notice based on false positives or positive test results for drugs administered by physicians during labor).
124. Cathy Singer, The Pretty Good Mother, Long Island Monthly, Jan. 1990, at 46 (reporting that a mother who had smoked marijuana to ease labor pain lost custody of her baby even though the mother had acted responsibly throughout her entire pregnancy).
125. See e.g., Associated Press, Woman Given Labor Sedative Loses Custody Of Children, The Sacramento Bee, Feb. 11, 2000 (describing a California woman who lost custody of her newborn and other children for three months based a drug test of the newborn that reflected a sedative given to the woman during labor); Cathy Zollo, When Policy Meets Reality, Times Record News (Wichita Falls, Texas), Nov. 11, 1999 (reporting a case in where the state took into emergency custody a newborn and three older siblings based on a single positive marijuana test on the newborn); Melissa Hung, Reefer Madness? Angela Took A Hit. And CPS Took Her Babies Away, Houston Press, Nov. 4, 1999, at 8 (reporting another Texas case in which the child welfare agency removed custody of a newborn and a one year old sibling based solely on a positive drug test for marijuana). See also, Abigail English, Prenatal Drug Exposure: Grounds for Mandatory Child Abuse Reports?, Youth Law News, 1990, at 3-8 (arguing that laws that rely on positive drug tests are both too narrow and too broad and fail to give children greater protection than individual assessments of parenting ability); Youth Law News, July-Oct. 1995, at 1-40 (revising and reprinting the Special Issue from 1990).
126. Ira Chasnoff et al., The Prevalence of Illicit-drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida, 322 N. Eng. J. Med. 1202, 1202-06 (1990); see also Roberts, supra note 4, at 172-76; Renee I. Solomon, Note, Future Fear: Prenatal Duties Imposed by Private Parties, 17 Am. J.L. & Med. 411, 418 (1991) (arguing that "70% of those arrested for drug-related fetal abuse have been African-American" because "[r]ace and poverty biases make it easy to blame the victim").
127. See, e.g., Robin-Vergeer, supra note 28, at 796-97 n.237 (advocating a more selective process for screening infants); Lawrence J. Nelson & Mary Faith Marshall, Ethical and Legal Analyses of Three Coercive Policies Aimed at Substance Abuse by Pregnant Woman 95-120, 169-76 (1998).
128. Memorandum from Dr. Wendy Chavkin to Jane Spinak and Danny Greenberg: Position Paper on Government Action of In Utero Drug or Alcohol Exposure (May 24, 1996) (on file with NAPW) (asserting that proposed universal urine drug screening of newborns in New York State would cost 26.1 million dollars annually and alcohol and confirmatory drug tests would cost 95.9 million dollars annually).
129. Fetal Alcohol Syndrome is the leading cause of preventable mental retardation in the United States. L.P. Finnegan & S.R. Kandall, Maternal and Neonatal Effects of Alcohol and Drugs in Substance Abuse, A Comprehensive Textbook 513, 529 (J.H. Lowinson et al. eds., 1997). See also Janet Golden, "An Argument That Goes Back to the Womb": The Demedicalization of Fetal Alcohol Syndrome 1973-1992, 33 J. of Social History 269 (1999) (describing how FAS came to the public’s attention and how public sympathy for the victims of FAS transformed to public scorn for their mothers, then to fear of those with the syndrome).
130. Joseph R. DiFranza & Robert A. Lew, Effect of Maternal Cigarette Smoking on Pregnancy Complications and Sudden Death Syndrome, 40 J. of Fam. Prac. 385 (1995) (Cigarette smoking has been linked to as many as 141,000 miscarriages and 4,800 deaths resulting from perinatal disorders, as well as 2,200 deaths from sudden infant death syndrome nationwide.).
131. For example, the Committee to Study the Prevention of Low Birthweight found numerous behaviors and risk factors besides the use of illegal substances that increase the chances of bearing a low birthweight infant, which is considered to be the greatest single determinant of infant mortality in the United States. Comm. to Study the Prevention of Low Birthweight, Div. of Health Promotion and Disease Prevention, Inst. of Med., Preventing Low Birthweight - Summary 1, 1-7. Among the behavioral and environmental factors that contribute to low birth weight are smoking cigarettes, poor nutritional status, exposure to occupational hazards, and living at a high altitude. See id. at 7; see also March of Dimes, Folic Acid Fact Sheet (visited May 3, 2000) <http://www.march-of-dimes.com/ Programs2/FolicAcid/FASheet.htm> (explaining that research demonstrates that women who consume the recommended amount of folic acid, reduce their risk of having a baby with Neural Tube Defects including anencephaly, a fatal condition in which a baby is born with a delivery underdeveloped brain and skull and spina bifida, a leading cause of childhood paralysis).
132. See Robin-Vergeer, supra note 28, at 745-46; see also Zollo, supra note 125 (reporting that research involving "controlled studies on 12,000 live-birth babies [found that marijuana had] no impact on fetal health or fetal size").
133. See Gómez, supra note 1, at 1-3 ("The convergence of the war on drugs with the abortion debate at fever pitch propelled ‘crack babies’ into the public imagination.").
134. See, e.g., Baum, supra note 79; Mike Gray, Drug Crazy 108-10 (1998); Ethan A. Nadelmann, Drug Prohibition in the United States: Costs, Consequences, and Alternatives, Science, Sept. 1, 1989, at 939 (discussing various drug legalization and decriminalization plans); Anthony Lewis, Abroad at Home; Futility of the Drug War, N.Y. Times, Feb. 5, 1996, at A15 ("80 years of prohibition have been a disastrous failure.").
135. See Loren Siegel, The Pregnancy Police Fight the War on Drugs, in Crack in America 249, 249 (Craig Reinarman & Harry G. Levine eds., 1997) ("During the late 1980s, as the specter of ‘crack babies’ haunted American political rhetoric, more than two hundred criminal prosecutions were initiated against women in almost twenty states."); see also Lynn Paltrow, Criminal Prosecutions Against Pregnant Women: National Update and Overview (1992) (documenting 167 arrests nationwide as of 1992).
136. See Lynn M. Paltrow, Punishing Women for Their Behavior During Pregnancy: An Approach that Undermines the Health of Women and Children, in Drug Addiction Research and the Health of Women 467 (1998). In California, prosecutors continue to arrest pregnant drug users despite the fact that the legislature not only explicitly rejected criminal approaches, but specifically adopted a comprehensive remedial approach as an alternative. See also Gómez, supra note 1, at 50-59, 75-91 (discussing legislative attempts to deal with drug-addicted pregnant women and the treatment these women receive from prosecutors).
137. See, e.g., State v. Zimmerman, No. 96-CF-525, 1996 WL 858598 (Wis. Ct. App. Sept. 18, 1996) (denying motion to dismiss first degree intentional homicide and reckless conduct charges brought against a woman who was pregnant and an alcoholic), rev’d, State v. Deborah J.Z., 596 N.W.2d 490 (Wis. 1999); Katharine Collins, Prenatal Child Abuse Charged, Casper Star Tribune, July 2, 1998, at A1, A10 (discussing State v. Pfannenstiel, a 1989 case in which child abuse charges, brought against a pregnant woman accused of excessive drinking during pregnancy, were ultimately dismissed); Brian Maffly, ‘Fetal Abuse’ Charges Give Rise to Debate; Mothers-to-be Need Help, Not Fear, Critics Say, The Salt Lake Trib., Dec. 1, 1997, at D1 (describing felony child abuse charges brought against Julie Garner, 26, who used alcohol during her pregnancy).
138. See, e.g., Deanna S. Gomby & Patricia H. Shiono, Estimating the Number of Substance-Exposed Infants, in The Future of Children 19, 21 (Richard F. Behrman ed., 1991) (discussing the prevalence of various forms of substance abuse among pregnant women and finding that significantly more children are exposed to alcohol and cigarettes than to illicit drugs).
139. See, e.g., Reinesto v. Superior Court, 894 P.2d 733 (Ariz. Ct. App. 1995) (dismissing child abuse charges against pregnant woman who allegedly used heroin, finding that expansion of the statute to include fetuses would violate legislative intent, offend due process notions of notice, and render statute impermissibly vague); Reyes v. Superior Court, 75 Cal. App. 3d 214 (Ct. App. 1977) (dismissing child abuse charges filed against a woman who was pregnant and addicted to heroin and finding that the statute was not intended to include a woman’s alleged drug use during pregnancy and that to conclude otherwise would offend due process notions of fairness and render statute impermissibly vague); Johnson v. State, 602 So. 2d 1288, 1290, 1297 (Fla. 1992) (reversing conviction of a woman who used cocaine during pregnancy for "deliver[ing] cocaine to a minor" and finding that application of the statue to fetuses and pregnant women violated legislative intent); State v. Gethers, 585 So. 2d 1140 (Fla. Dist. Ct. App. 1991) (dismissing child abuse charges brought for prenatal drug use on the grounds that such an application would be at odds with the public policy of the state regarding child abuse and neglect, including the intent to preserve the family life of parents and children whenever possible); State v. Luster, 419 S.E.2d 32, 34-35 (Ga. Ct. App. 1992) (holding that a statute proscribing distribution of cocaine from one person to another did not apply to pregnant women and fetuses and to interpret otherwise would deprive pregnant women of fair notice); Commonwealth v. Welch, 864 S.W.2d 280, 283 (Ky. 1993) (affirming reversal of child abuse conviction of a pregnant woman who used illegal drugs and concluding that applying the statute would violate the plain meaning of the statute, deprive the woman of constitutionally mandated due process notice, and render the statute unconstitutionally vague); People v. Hardy, 469 N.W.2d 50, 52-53 (Mich. Ct. App. 1991) (holding that the application of the state’s drug delivery statue to a pregnant woman who "delivered" cocaine to her child through the umbilical cord violates legislative intent and the constitutional proscription that "a penal statute must be sufficiently definite and explicit to inform those who are subject to it what conduct will render them liable to its penalties"); Sheriff, Washoe County, Nev. v. Encoe, 885 P.2d 596, 598 (Nev. 1994) (holding that application of child endangerment statute to a pregnant woman who uses an illegal substance would violate the plain meaning of the statue, deprive the woman of constitutionally mandated due process notice, and render the statue unconstitutionally vague); People v. Morabito, 580 N.Y.S.2d 843 (Geneva City Ct. 1992) (dismissing child endangerment charges against woman who used cocaine while pregnant); State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992) (holding that a child neglect statute could not be used to prosecute pregnant woman for substance addiction because neither the statutory language nor the legislative history indicated its applicability to such conduct); Collins v. State, 890 S.W.2d 893 (Tex. App. 1994) (dismissing injury to a child charges against a woman who allegedly used drugs during pregnancy and finding that applying statute to prenatal conduct violates due process); State v. Dunn, 916 P.2d 952, 955 (Wash. Ct. App. 1996) (dismissing child mistreatment charges, finding that the legislature did not intend to include fetuses within the scope of the term "child" which was defined "as person under eighteen years of age"); State v. Osmus, 276 P.2d 469, 475 (Wyo. 1954) (ruling that a woman whose newborn died as a result of her negligent failure to obtain proper prenatal care or medical care at birth could not be guilty of manslaughter). A complete list of published and unpublished opinions and orders in cases involving the criminal prosecution of pregnant women is available from the National Advocates for Pregnant Women.
140. See Welch, 864 S.W. at 283 (ruling that if the state’s child endangerment statute were construed to permit the prosecution of pregnant women because they endangered the health of the fetus, it would "lack fair notice and violate constitutional due process limits against statutory vagueness"); Encoe, 885 P.2d at 598 (holding that the application of child endangerment statute to a pregnant woman who uses an illegal substance would deprive the woman of due process); Commonwealth v. Pelligrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990) (holding that the rights to reproductive privacy and personal autonomy, as well as due process, do not permit the application of a drug delivery statute to women who use drugs while pregnant).
141. See, e.g., Luster, 419 S.E.2d at 35 (viewing addiction during pregnancy as a disease and addressing the problem through treatment rather than prosecution as the approach "overwhelmingly in accord with the opinions of local and national medical experts"); Johnson, 602 So. 2d at 1297 (noting the opposition of medical groups to the prosecution of pregnant women under a drug delivery statute and concluding that "[t]he Court declines the State’s invitation to walk down a path that the law, public policy, reason and common sense forbid it to tread").
142. 492 S.E.2d 777 (S.C. 1997), cert. denied, 523 U.S. 1145 (1998).
143. Id. at 780.
144. See id. at 786.
145. See id. at 781-82 (recognizing that a parent may be prosecuted for a legal act if it endangers the child).
146. See Melissa Manware, Infant Born Drunk: Intoxicated Mom is Facing Charges, The State (Columbia, S.C.), Sept. 24, 1998, at A1 (reporting that a new mother was charged with unlawful conduct toward a child based on evidence that she had been drinking alcohol while pregnant).
147. A woman who suffered a stillbirth was arrested and charged with homicide by child abuse. Police reports showed that the child was not "killed by cocaine" and no other evidence of drug use was reported; nevertheless, the prosecutor insisted that the stillbirth was a "crime" for which the woman had to take responsibility. Kathy Ropp, Mothers Charged with ‘Homicide by Child Abuse’ The Horry Independent Newspaper (Conway, S. C.), Aug. 19, 1999, at A-1.
148. When a thirteen-year-old girl experienced a stillbirth her parents were arrested: One charge was for unlawful conduct to a child—because they had allegedly "failed to get proper care for the fetus." Associated Press, Three People Face Charges in Stillbirth, The Post and Courier (Charleston, S.C.), July 22, 1999, at 6-B.
149. In Roe v. Wade, the United States Supreme Court held that pregnant women have a right to decide whether or not to terminate a pregnancy. An essential element of that decision was the Court’s specific conclusion that fetuses–even after viability–are not persons under the Fourteenth Amendment. 410 U.S. 113, 153, 158 (1973) ("[T]he word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.").
150. The conservative punditry also used Whitner to advocate for the overturning of Roe. See, e.g., Rick Bragg, Defender of God, South and Unborn, N.Y. Times, Jan. 13, 1998, at A10 (reporting on the pursuit of South Carolina Attorney General Charles M. Condon, who argued that a "fetus is a fellow South Carolinian" and succeeded in convincing the highest court in South Carolina that "a viable fetus is a person under the states child abuse laws," and noting that "[s]ome fear that the prosecutions could be expanded so that a woman who aborted a fetus . . . could be charged in the death of a child"); George Will, Fetuses as Carolinians, Newsweek, June 8, 1998, at 78 (criticizing the Supreme Court for not using Whitner as an opportunity to review Roe v. Wade and "the peculiar logic of the abortion policy that has been created by judicial fiats"); see also Lyle Denniston, Supreme Court Shields Police from Lawsuits Related to Chases, The Baltimore Sun, May 27, 1998, at 3A ("The National Right to Life Committee, while satisfied with the Supreme Court’s order, said the justices should have used the case for a ruling that would have barred women from aborting fetuses.").
151. See State v. Ard, 505 S.E.2d 328, 330 (S.C. 1998) (upholding application of death penalty to Ard, who was convicted of two murders: the murder of his pregnant girlfriend and the murder of their "unborn but viable son"); Audiotape of Oral Argument in State v. Ard (State agreeing that its interpretation of Whitner would be applicable to the state’s abortion laws, making post viability abortions punishable as murder and the women who have them and all those who assist them potentially subject to the death penalty) transcribed in part in Lynn M. Paltrow, Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, 62 Albany L. Rev., 999, 1035-1038 (1999) (discussing State v. Ard and oral argument addressing the relationship between Whitner and South Carolina’s abortion laws).
152. See Robinson v. California, 370 U.S. 660 (1962).
153. See id. at 666-67.
154. See Linder v. United States, 268 U.S. 5 (1925).
155. See Robinson, 370 U.S. at 667 n.8.
156. Id. at 667.
157. The Whitner opinion was first announced on July 15, 1996. The court then granted Ms. Whitner’s Petition of Rehearing and issued a re-filed and final opinion on October 27, 1997.
158. See e.g., Abrahamson, supra note 6, at 140-141; Bragg, supra note 150 (Brendan Dawkins, who runs a treatment program at the Keystone Substance Abuse Services Center in Rock Hill, South Carolina, also reported that "[h]er center usually has about 20 pregnant women addicted to drugs, usually crack. Now there are only 10. She believes others are passing up counseling and prenatal care because they are afraid of being arrested. ‘I think they’re going over the state line to North Carolina to have their babies.’").
159. See discussion supra notes 14-19 and accompanying text (discussing widespread opposition to punitive approaches by leading medical groups because of the likelihood of deterring women from health care during pregnancy).
160. Infant Mortality on Rise in ‘97, Post & Courier (Charleston, S.C.), Feb. 19, 1999, at B1.
161. Associated Press, Discarded Children Increasing, Post & Courier (Charleston, S.C.), April 19, 1999.
162. See, e.g., Linda Martin, Fetus Is Ward of State, Tulsa World, Sept. 3, 1999 (reporting that an Oklahoma prosecutor came up with a legal strategy to have a fetus declared dependent after learning about Whitner).
163. Whitner, 492 S.E.2d at 782-83 (distinguishing numerous decisions from other states, noting specifically with regard to a Massachusetts case that "the rationale underlying our body of law–protection of the viable fetus–is radically different from that underlying the law of Massachusetts").
164. See Wis. Stat. Ann. §§ 48.01 - .989; S.D. Codified Laws § 34-20A-63.
165. See Gómez, supra note 1, at 41-42, 47, 49-50 (describing role of medical groups in defeating punitive legislation in California); Steven Walters, ‘Coke Mom’ Bill Passed in Assembly, Milwaukee J. Sentinel, Nov. 20, 1997, at 1, 1-2 (noting that opponents of the bill "cited opposition by treatment professionals and public health officials" and quoting one state representative as saying, "[t]his is the worst form of lawmaking we can engage in. . . . We are refusing to listen to the people who are experts in this area. . . . I don’t know why we think we know better.").
166. See Walters, supra note 165, at 2 (noting that a Milwaukee facility (Meta House) treating addicted pregnant women had its state subsidy cut despite a long waiting list and that the bill included no additional money to pay for treatment programs); Richard P. Jones, Cocaine Mom, Feticide Bills OK’d Debate Turns Emotional Over Measures Aims At Protecting Fetuses, Milwaukee J. Sentinel, May 2, 1998, at 1 (reporting that Sen. Gwen Moore (D-Milwaukee) tried "several times to include funding for treatment," saying, "Ain’t a dime in this bill, not one dime to make this happen.").
167. See Wis. Stat. Ann. §§ 48.01-.989.
168. See Wis. Stat. Ann. §§ 48.01, 48.02(1)(am).
169. Wis. Stat. Ann. § 48.01(1)(am).
170. Id. § 48.02(1)(am).
171. Id. § 48.02(19).
172. See id. § 48.193(1).
173. Id. § 48.193(1)(d)(2).
174. See id. § 48.193(2). Indeed, the legislation went into effect without any guidelines or standards as to how to interpret or apply the law. See Linda Hisgen, State of Wis. Dep’t of Health and Fam. Serv’s, 1997 Wisconsin Act 292, at 1-2 (Memorandum, July 23, 1998). "Act 292 creates a new area of responsibility for child welfare, and, as such, there are no existing protocols, policies, assessment tools or guidelines that define child welfare’s role." Id. Similarly, the state notes that determining under the statute whether the woman’s drug use poses serious physical harm "would have to be done on speculation, since fetal impact research is not conclusive." Id.
175. Wis. Stat. Ann. § 48.065(1).
176. Id. § 48.235(1)(f).
177. See id. § 48.02(19).
178. Id. § 48.235(3).
179. Id. § 48.235(3)(b)1.
180. See generally Hisgen, supra note 174 , at 1 (noting that the statute "provides for interventions to protect unborn children that parallel the protections for children throughout [the child welfare code]"); see also Kenneth A. De Ville & Loretta M. Kopelman, Fetal Protection in Wisconsin’s Revised Child Abuse Law: Right Goal, Wrong Remedy, 27 J. Law Med. & Ethics 332, 338 (1999); Mary Faith Marshall, Commentary: Mal-Intentioned, Willful Ignorance, and Fetal Protection Laws: Is There a Lexicologist in the House?, 27 J. Law Med. & Ethics 343 (1999).
181. S.C. Code Ann. § 20-7-510 (A); see also Abrahamson, supra note 6, at 142-43.
182. Wis. Stat. Ann. § 48.981(2).
183. See Tom Kertcher, ‘Cocaine Mom’ Law Invoked in Attempt to Detain Woman: Racine Case Thought to be First Time Law Is Used Without Other Crime, Milwaukee Journal Sentinel, Nov. 5, 1999.
184. See S.D. Codified Laws § 34-20A-63 (Michie 1998) (stating that the grounds for emergency commitment of intoxicated persons includes pregnant women who are abusing drugs or alcohol).
185. Id. § 34-20A-63(3).
186. § 34-20A-63; see Elizabeth Walsh, New South Dakota FAS Laws Threaten Women’s Rights, Wicozanni Wowapi: Newsletter of the Native Am. Women’s Health Ed. Resource Ctr., Oct. 7, 1998, at 1.
187. Vince Beiser, Fetal Abuse, MoJoWire, June 14, 2000 at http://www.motherjones.com/news_wire/fetal.html (describing new criminal prosecutions in Georgia, North Carolina, Pennsylvania and Texas).
188. Herron v. State, slip op. for publication, Cause No. 71D01-9906-DF-709 (Indiana Ct. of Appeals)(June 7, 2000) (reversing lower courts denial of a motion to dismiss criminal neglect of a dependent charges filed against a woman who gave birth to a child with cocaine present in its system, finding that the statue’s plain language and legislative intent did not permit the expansion of the word dependent to include an unborn child); State v. Deborah J.Z., 596 N.W. 2d 490, 49091 (Wis. Ct. App. 1999) (dismissing attempted homicide and reckless injury charges against a woman who ingested alcohol late in her pregnancy and finding that the plain language of the statutes does not apply to actions directed again an unborn child), rev. denied 604 N.W.2d 570 (Wis. 1999); State v. Farrell, CR-98-75 slip op. (Wy. Third Judicial District Oct. 2, 1998). (dismissing criminal child abuse charges against Kelly Farrell who admitted using marijuana and tobacco during her pregnancy and gave premature birth to an infant who tested positive for methamphetamines. Distinguishing Whitner, holding that court could not expand the scope of criminal laws without violating Ms. Farrell’s constitutional right to fair notice.)
189. See Corinne A. Carey, Proposed and Recently Adopted Legislation Criminalizing Maternal Drug Use and Affecting Child Custody (visited May 3, 2000) http://www.familywatch.org /library/legis.htm.
190. The Future of Children, supra note 100, at 8.
191. See Coalition on Alcohol and Drug Dependent Women and Their Children 15 (1991) (on file with NAPW).
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