The Suffering of Innocents

One of the most troubling challenges to proponents of drug legalization is summed up in the simple question: "What about the crack babies?" We see them on television, their tiny bodies ravaged by the effects of their mothers' drug habits. Their piercing wails seem to express outrage at their predicament. Here are the most innocent of bystanders, harmed beyond repair by another person's carelessness. Here is a problem that would not be mitigated—indeed, could very well be worsened—by the repeal of prohibition.

But here also is evidence of the drug war's assault on individual responsibility. Until recently, the notion of holding the mothers of crack (or heroin or methamphetamine) babies accountable for their actions was virtually unthinkable. Indeed, the prevailing view remains that they, like their children, are victims. The drugs made them do it.

Rarely is it asked, Who made them do the drugs? Not only is that initial choice treated as a fait accompli, but the addict is portrayed as someone who has lost all volition. In this light, crack babies are an inevitable result of drug use.

It is dangerous, you see, for a drug warrior to acknowledge the distinction between merely taking cocaine and forcing it on a third party. People might start wondering why the government should bother to prohibit the former. Still, a few prosecutors have implicitly recognized the difference, and one has obtained the conviction of a Florida woman who endangered two babies by smoking crack throughout her pregnancies.

Unfortunately, the charge in that case, delivering cocaine to a minor, obscures the fundamental issue. In previous cases, judges or grand juries have thrown out more appropriate charges—such as manslaughter, felony injury to a child, and failure to provide medical care—against mothers whose babies died or suffered injury as a result of prenatal neglect. Critics of treating such neglect as a crime rightly point out that users of illegal drugs are not the only ones who might be found guilty of harming a baby through negligence during pregnancy.

Take the Seattle woman who drank half a fifth of whiskey virtually every day of her pregnancy and consequently gave birth to a baby suffering from fetal alcohol syndrome. She certainly did not consider herself a criminal. In fact, she turned around and sued Jim Beam. In one of those periodic miracles of civil justice, a federal jury found that the liquor company could not be held liable. But wait a minute—what about the mother?

An odd thought, perhaps—in what other crime does the perpetrator injure the victim by doing something perfectly legal to her own body? Moreover, unlike the effects of a robbery or an assault, the consequences of prenatal negligence are not immediate. The mother is not to be punished for harming a fetus—this would, after all, cover abortion—but for the delayed effect of threatening, injuring, or killing a baby. Then again, ordinary child neglect or abuse can also have a cumulative impact, but this does not absolve parents who starve their kids or feed them lead.

The key question is whether the mother is aware of the harm she is doing. It is obviously unjust to punish a woman who falls down the stairs during pregnancy for the damage such an accident might do to her baby. But a mother who knowingly and repeatedly endangers her baby's life through reckless action during pregnancy is no less guilty of neglect than one who abandons her child on the street, heedless of the consequences. Indeed, she is arguably more culpable: A crack baby or an FAS infant is the product of not one decision but a whole string of them—the decision to engage in a potentially dangerous activity, the decision to have a child or to have sex without contraception, the decision to continue the hazardous behavior, the decision to carry the fetus to term.

It seems plausible to suggest that the threat of a criminal penalty would, in at least some instances, break one of the links in this chain. But regardless of deterrent value, the state has a legitimate role in punishing a mother who knowingly hurts her child, just as it should punish anyone who violates another person's rights. That, in short, is one answer to "What about the crack babies?" If we want government to mind its own business, we must clearly define what that business is.