Civil Liberties

Pregnant Women Increasingly Face Criminal Prosecution for Positive Drug Tests

Hello fetus, goodbye civil liberties


The "crack baby" panic may have gone the way of the cassette tape, but America's womb-based war on drugs is alive and kicking. Fueled by a potent mix of drug war propaganda and fetal rights advocacy, states have been charging pregnant women who use drugs—however casually or legally—with everything from child neglect and "chemical endangerment" to contributing to the delinquency of a minor and felony assault.

A study from the National Advocates for Pregnant Women (NAPW) highlighted 413 cases of pregnant women being incarcerated or forced into drug treatment in the U.S. between 1973 and 2005. Since then, there have been at least 300 more cases, a number that NAPW said is a severe under-count.

This is in addition to the untold number of pregnant women who are reported to child protective services (CPS) agencies because of positive drug tests. Protocols vary between states, counties, and hospital systems, but in many, pregnant women are automatically tested for drugs at maternity wards or in the course of prenatal care. The U.S. Supreme Court ruled in 2001 that drug testing pregnant women without consent was unconstitutional—but only when it could lead to criminal charges. And consent is a fuzzy concept here anyway, often given in the signing of general pregnancy medical forms.

In New York City, more than a dozen maternity wards regularly drug test new mothers, turning any positive results over to child protective services. City attorneys estimate that 100 to 200 neglect cases each year stem from these tests.

New York is one of 17 states that specifically address pregnant women's drug use in civil child neglect laws. In some, it's possible to take away a child based on a single positive drug test, regardless of whether the newborn exhibits symptoms of such exposure, whether the mother was using the drug as part of prescribed medical treatment, and absent any other reasons to suspect maternal drug addiction or unfitness to parent. The zero-tolerance policy has resulted in neglect investigations and even temporary child removal for positive drug tests stemming from poppy seeds, medical marijuana, and prescription opioids.

But some states aren't content merely taking away women's kids for these transgressions. NAPW warns of "an increasing trend toward viewing pregnancy as a proper subject of the criminal law."

At the forefront of these efforts is Tennessee, which recently passed a law allowing women to be charged with assault, punishable by up to 15 years in prison, for babies born "addicted to or harmed by" a narcotic drug. Newborns cannot, medically speaking, be "addicted," though they can experience withdrawal symptoms. The Tennessee law is largely concerned with something known as "neonatal abstinence syndrome," (NAS) a possible (but not certain) side effect of prenatal exposure to opiates.

NAS can come from a pregnant woman's use of any opioid, including painkillers, heroin, or the "maintenance" drugs—such as methadone and Suboxone—used to minimize withdrawal symptoms in folks giving up painkillers and heroin. Abrupt discontinuation of these drugs in dependent women can pose more risk to a developing fetus than the drugs do. Though NAS is being branded as a horrific syndrome that will mark a child for life—much like the apocryphal "bio-underclass" of crack babies we were going to see—it can be readily treated without leading to any known long-term, adverse effects for a child.

"While NAS is being singled out and criminalized, there are other drivers of negative neonatal health outcomes that are far more damaging, such as cigarette smoking and poverty," said Whitney O'Neill Englander, government relations manager for the Harm Reduction Coalition. "The implications of singling out one condition over another and criminalizing it, without a basis in science or medicine, is very concerning."

A wide swath of mainstream medical groups, including the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association, object to tactics like Tennessee's, which they say will deter pregnant women from seeking prenatal care and/or addiction help. Policies that punish women for substance abuse during pregnancy are "contrary to the welfare of the mother and fetus," asserted ACOG in a committee opinion. "Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse."

Around the same time as Tennessee Gov. Bill Haslam was signing his state's misguided new law, the Alabama Supreme Court upheld the conviction of Sara Hicks, charged for giving birth to a healthy baby who tested positive for cocaine.

Under Alabama's "chemical endangerment" law, passed in 2006, people are prohibited from exposing children to a controlled substance. The law was intended to keep people from bringing children to meth labs. But it's been used more than 100 times since its passage to prosecute women who use drugs while pregnant.

Alabama courts have continually held that the meaning of the word "child" in the law unambiguously includes fertilized eggs. The Supreme Court upheld this interpretation 8-1, with Chief Justice Roy Moore writing a separate concurring opinion "to emphasize that the inalienable right to life is a gift of God that civil government must secure for all persons," born and unborn:

Legal recognition of the unborn as members of the human family derives ultimately from the laws of nature and of nature's God, Who created human life in His image and protected it with the commandment: 'Thou shalt not kill.'

Chief Justice Moore went on to compare courts that uphold established abortion laws to Nazi war criminals.

Justice Tom Parker also wrote a separate opinion to emphasize Alabama's stance on the inalienable rights of the unborn, which apply "to life at every point in time and in every respect," including "a life free from harmful effects of chemicals at all stages of development." This, he notes, is what makes Alabama a "refuge" for liberty.

These justices had already ruled on a similar case, and it's "very unusual for a state supreme court to take a case to address a settled issue of law," said Lynn Paltrow, founder and executive director of NAPW. "It appears that the court accepted the Hicks case for the purpose of more fully articulating a view that pregnant women are proper subjects of Alabama's criminal justice system and a growing state and national system of mass incarceration."

They are, indeed. In Utah, a 24-year-old woman was recently charged with second degree felony child endangerment after giving birth to a child at 39 weeks—40 weeks is considered full term—and admitting that she had used meth several times during pregnancy. In Texas, women who smoke marijuana while pregnant can be charged with "delivery of a controlled substance to a minor," a second-degree felony punishable by two to 20 years incarceration. Ohio lawmakers are seeking to add extra penalties for selling drugs to a pregnant woman. And despite the now-legal status of marijuana in Colorado, using it while pregnant can still get you cited for child abuse.

"I would love to say that I see a shift towards the understanding that pregnant women can still be medical marijuana patients—indeed they sometimes are advised to use it for pregnancy ailments like morning sickness, for which it has historically been used by midwives for thousands of years," says Sara Arnold, co-founder of the Family Law & Cannabis Alliance.

"However, as the drug warriors grab at straws to try to stay relevant, the shift is towards greater invasion into pregnant women's bodies, their babies, and their homes via child protective services and family court, and sometimes criminal court as well."

These policies are not pro-children or pro-family.  They mete out punishments based not on actual harm or risk but some combination of moral panic, fetal personhood propaganda, and selective interpretation of that risk. In their rush to usher newborns into the arms of state protective services, they frequently fail to consider what's best for babies at their most vulnerable. [What's worse for a child: a mother who smokes the occasional joint or is undergoing addiction treatment or being shuffled around from foster home to foster home for the first few weeks or years of life?]

It would all be highly objectionable even if it were working to decrease harm to babies and mothers. In reality, it fails to accomplish even this—and may actually drive up health risks—while managing new and powerful infringements on pregnant women's privacy and personal liberty.

NEXT: DEA Chief Dials Back Drug War Bluster After Talk With Holder

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The "crack baby" panic may have gone the way of the cassette tape

    Has it really? Try telling a Normal that sometime. They never believe it.

    1. I mean, try telling a Normal that crack babies were a myth. Me communicate good.

    2. In high school some friends and I modified one of those health class posters about the dangers of having a crack baby to read "Crack Babies: Little, Yellow, Different... Better". Seemed very clever at the time.

  2. So, you can kill your fetus, but you can't get it high.

    1. Just asking, for a friend...

      If one if pro-choice, must they defend a mother who does things that could seriously harm her unborn child, even if she hasn't chosen to abort it?

      1. wouldn't they have to? You can't claim "it's her body" and then start drawing caveats because she does something potentially dangerous. Too bad "it's my body" doesn't extend to things like deciding for myself whether to wear a seatbelt, smoke a joint, or eat a Big Mac.

        1. That's what I am thinking, but it never necessarily gets discussed. Is it ok to be pregnant and doing drugs at 2 months, but not at 7?

        2. I wondered about that myself.

          A hypothetical situation. If I was about to be a mother, and I did some drugs before the child was born and I was still able to get an abortion.

          What does the law encourage? Does it encourage me to have the child and get help for doing the drugs, especially if I was addicted? Does it help me raise the child better since an addicted parent might not be the best parent? I would think not. Assuming I didn't really care about the child, I could easily just get an abortion and suffer far less consequences. The law ultimately encourages just giving up and throwing away a life over correcting what might happen.

          If one is ultimately pro-life, then this law actually hurts your cause. It encourages abortion to escape punishment. If one is pro-choice, it is inconsistent with your arguments and changes the stance to pro-abortion instead. Because you aren't really giving them a choice, you are encouraging if not outright mandating it. SO what happens when caught you are given the "choice" of killing your child or going to prison and having your child taken away. I doubt that pro-choice supporters would want such to be their face.

      2. must they defend a mother who does things that could seriously harm her unborn child

        Great observation. If the argument is that it's not yet a person (with rights) and you may therefore kill it, you can also claim you may do whatever you wish to it. If it has no right to life, it has no rights.

        1. 1-You poisoned a woman
          2-She has a child many years later
          3-This child is malformed because of your empoisonement

          Does this child can sue you (and not just the woman) ? And if so does that imply that unconceived children have a right to life ?

      3. I'll take the contra-factual here. Not because I believe it, just for the sake of argument. IF you believe in some sort of continuum view of humanity rather than conception that still doesn't mean that you can abuse a potential human that will become a human. Abortion is the specific exception because you are taking positive action to end the continuum.

        In real terms, prosecuting women who miscarry, for whatever reason, seems like a poor use of state power.

        1. When does it become wrong then to take the positive action?

          1. That is the million dollar question.

            1. Don't you think we should ask for *more* than a million dollars? A million dollars isn't exactly a lot of money these days. Virtucon alone makes over 9 billion dollars a year!

        2. so where do we draw the line between the typical miscarriage and one that occurs due the mother doing stupid things.

          1. I say you don't. Way too much intrusion into personal, medical matters would be required.

            1. Yep, agreed. It's impossible to determine which of the many, many factors that can cause a miscarriage actually does so (and it's often causes, working together). And many of the causes of "typical" miscarriage can also be matters ostensibly within a mother's control, so where would you draw the line?

        3. "IF you believe in some sort of continuum view of humanity rather than conception that still doesn't mean that you can abuse a potential human that will become a human."

          I like the way you phrased this. My general position is that an individual is noticeably present when they can impose their will on the world. But an individual goes through periods of dormancy such as sleep or a coma. We don't suspend an individual's rights during these times but in some instances they have a guardian acting on their behalf. So we should also not disrupt the natural process of a fetus developing into an infant and eventually a human capable of imposing their own will. This would mean parents of a fetus would be guardians and need to act in the best interest of the fetus.

        4. "continuum view of humanity"

          Some humans are more human than others?

          1. Some humans are more human than others?

            +1 Tyrell Corporate motto

      4. I'm not in favor of punishing women for things they do while pregnant that aren't good for the fetus (or for having an abortion).
        But I think there is a difference. With an abortion, you are not fucking up the life of a future human being. If you drink all the time or something, but still have the baby, you are likely condemning someone to a more difficult life. Some might say that the abortion is even worse, but assuming you are pro-legal-abortion, it is a real distinction.

        1. Isn't killing someone the worst offense?

          Are you saying there are worse offenses than killing or are you carving out an exception for in-womb individuals?

          1. I don't think that the whatever-you-want-to-call-it is a full human being with all the rights that entails from the moment of conception, so I guess I sort of am making that exception.

            So an abortion kills something that is not quite fully human yet. Not murder.
            But, left intact, that same thing will some day become a full fledged human being who can suffer from the damage caused by drinking or drugs or whatever.

            Of course, if you disagree with me about the moral status of the unborn, you won't agree.

            1. There is a big problem with your example.

              Let us assume that a surgery is done on a "pre-viable" (I don't buy the distinction, but whatever) little one. Now let's say the surgeon's hand slips and he cuts off the little one's finger.

              Now he has "messed up" that little one's life... IF you let it get to "viability". So you're saying the only moral thing to do is kill it?

              If cutting the finger off isn't severe enough for you, just imagine the line being drawn where you do think it's enough.

        2. You could say the same thing about murder. You're not fucking up somebody's future life, you're just ending it.

          1. Yes, my argument doesn't work if you consider it a full human being from the moment of conception.

            1. Your argument doesn't work unless someone is in favor of the same principle for a non-fetal human.

            2. As someone who does not consider a fetus a full human being from the moment of conception, I appreciate your argument.

              1. at what point do you consider a fetus a full human being? To me, this is where the real abortion debate should begin.

            3. Your argument only works if you don't consider an unborn human a person until the moment of birth, which seems an untenable position.

        3. Some might say that the abortion is even worse, but assuming you are pro-legal-abortion, it is a real distinction.

          I don't think you need to assume the 'pro-legal-abortion' stance. I support the morning after and am pro-choice up to the point of heartbeat/brainwave activity (6 weeks.) which makes me pretty anti-abortion and I can certainly agree that inflicting a lifetime of cruelty on someone is worse than killing them.

          I can certainly envision scenarios where I'd prefer death to the circumstances. Even ones where I might choose to endure the circumstances but keep death as an option.

          1. I don't think most of what gets prosecuted would count as a lifetime of cruelty.

            I grew up around all sorts of children. Many children I knew had problems. Some were mentally disabled, others had physical deforms such as being unable to walk. But I never got the feeling they wanted to die. If having a disease or deform is worse than death, I would think one would prefer to die.

            And yet, these kids had a lot of love in their lives, and they brought a lot of love to everybody that knew and cared about them.

            I have also seen the other side of the coin. My step-father was physically, and emotionally abusive to my my mother, my siblings, and I. I would never wish another child to go through what we went through. If anything has given me suicidal desires, it was when we were being abused by him. Outside of such a situation, I've seen other kids go through abuse, and there really isn't anything much worse than it.

            So when somebody says that death is better than being born with some disorder, as if the child would prefer to die with it, I become skeptical.

    2. I've always wondered how there can be fetal murder statutes. It's a 'person' if someone other than the mother wants it dead, but is not a person if the mother wants it dead. Doesn't that mean that the sole determinant of whether or not it is a 'person' is the mother's say-so?

    3. Yup, that was pretty much my thought.

  3. "While NAS is being singled out and criminalized, there are other drivers of negative neonatal health outcomes that are far more damaging, such as cigarette smoking and poverty," said Whitney O'Neill Englander, government relations manager for the Harm Reduction Coalition. "The implications of singling out one condition over another and criminalizing it, without a basis in science or medicine, is very concerning."

    Right you are, Whitney. Take away the kids of cigarette smokers and poor people, too!

    1. I'd rather take away the kids of helicopter parents and busybodies. That has to be an unhealthy environment.

  4. I view this as similar to the way prosecutors seems to love to go medieval on teenagers, especially if they do anything sexual. They're punishing the woman for having had sex (my guess is that the targets of this stuff are also often single mothers and young). There is a weird, sadistic strain of puritanism in the prosecutor ranks.

  5. Any excuse to break up a family.

  6. The Fourth Amendment violations and zero-tolerance crap are bad.

    Yet it seems that ENB doesn't want *any* prosecution of drug-taking pregnant women, even if it causes demonstrable harm to the child.

    I'm not putting words in her mouth - she says "It would all be highly objectionable even if it were working to decrease harm to babies and mothers."

    What would be wrong with a law which is limited to drug use which *actually causes demonstrable harm* to the baby?

    To say, "it's not the drugs that harm the baby, it's the withdrawal symptoms," seems to me like hairsplitting.

    1. What would be wrong with a law which is limited to drug use which *actually causes demonstrable harm* to the baby?

      Nothing if it is enacted the day after we declare abortion to be murder. Your logic makes sense only if you think it is a "child" growing in her womb. If you believe that, however, then abortion is murder. You should allow a woman to get an abortion because it is her choice to have whatever medical procedure on her body she likes but then prosecute her if she uses drugs while pregnant. The law owes society rational consistency.

      Beyond that, even if you take the theory that "sure it is not a baby now but it will be and it is the ensuring live child whose interests we are protecting", the how do you not then criminalize people who will pass on bad genes having children? I don't see how someone having a child that has a fifty fifty chance of having Huntington's disease is any better than someone smoking crack while pregnant.

      We don't want to go down that road. As long as abortion is legal, I don't see any way you can punish pregnant women for using drugs.

      1. "The law owes society rational consistency."

        I would say the laws ought to be consistently *good.* So if there are bad laws, they should be brought into conformity with the good laws.

        But it certainly doesn't follow that if there are bad laws, the other laws must also be made bad for the sake of consistency.

        I grant that the inconsistency between treating the unborn as humans with rights in some contexts, and as rights-less blobs in other contexts, will get resolved sooner or later. Meanwhile, in the prolife view, it's better to protect *some* of the unborn than *none* of them.

        And bear in mind that the lawmakers who made abortion legal are not necessarily the same lawmakers who seek to protect the unborn from non-deadly harm in the womb. In many states, abortion was legalized by judges, and the legislators try to protect the unborn to the extent judges permit it. Let the judges explain how the logic of their position entails the right to poison your child in the womb and give birth to a damaged baby.

        1. I would say the laws ought to be consistently *good.* So if there are bad laws, they should be brought into conformity with the good laws.

          The "good" is a bit difficult to define. You think abortion being legal is a bad law. Other people disagree. It is not an argument that can be settled in any definitive way. What can be definitively said is that laws that are follow contradictory logic and allowing the government to change its assumptions and rational when ever it feels like doing some "good" is a bad thing.

          I would like to see abortion be illegal too. Since I can't have that, I will take the law at least being logically consistent.

          1. If the issue can't be settled definitively, then I would think the *logical* conclusion would be to have inconsistent laws, reflecting the muddle of the underlying debate!

            Now, I deny the premise - I think the dispute can be resolved my way, though not in the current state of public opinion. Some public education is required.

            Meanwhile, the muddled middle, which helps decide what the laws will be, will as I said above make laws reflecting the muddle, and the muddle will persist until these moderates make up their minds.

            Better to be inconsistently good than consistently bad.

            1. You are assuming that you will always agree with the "good" the government is acting irrationally to enforce. Once you say "well sure the government can pretend black is white as long as it is doing good" then you are giving up on the law needing any sort of rationality. What you are telling me is that "it is okay if a law is inconsistent and irrational when put in context with other laws but that is okay because I like this law".

              That is I think pretty short sighted. If the government can decide a fetus is a human except when it is not, it can do that sort of intellectual backflip in a lot of other ways that I don't think you are going to like.

              1. The government is *already* doing these intellectual backflips. A fetus is human when it comes to some of these child-abuse laws, not to mention inheritance rights, and I'm sure I could come up with others.

                But suppose you resolved the inconsistency by making fetuses kill-able up to the point of birth, or some stage of development other than conception.

                To me, serious irrationalities would remain in the law, in that before point X (birth, brain development or whatever) a living human being has no rights in particular, but after that point, he or she has a fundamental right to life. Picking and choosing among living human beings to decide who has the right to life strikes me as irrational - I would say unconstitutional.

                So moving the law in an increasingly anti-fetus direction wouldn't, from my point of view, make the law more rational, is what I'm saying.

                1. Again, if the prolifers had their way, the law *would* be much more rational (as we see it), in that it would recognize living human beings as natural persons from conception to natural death.

                  It's the choichers and muddled moderates, not us, who we perceive as introducing irrationality into the law.

                  Maybe you disagree with our premises, but from our viewpoint, we're not saying the law should classify black as white - we see our opponents as doing that.

                2. I believe the general age of viability, which at this time is 24 weeks, would be a good time to consider the rights of the fetus. I believe most, if not all states, have abortion legal up to 24 weeks. So perhaps these laws should be amended to reflect this. So until 24 weeks the government couldn't take any action against the mother.

              2. I agree with John, here. Libertarian concerns about NAP are not the only thing that matters to law, and in this case all the other factors -- proportionality, practicality, lack of deterrence effect, rationality, consistency -- this law is all sorts of wrong, even if we allow for a provable harm.

                I endorse laws against abortion in part because they have been effective at reducing abortion rates in the countries where they have been implemented, and because they can be implemented fairly and justly in Western liberal democracies. I believe they are fully justified as law. The same does not appear to me to be true for "crack baby" laws.

                1. OK, then, a fair distinction.

                  While I think that laws against using drugs while pregnant can be written and administered fairly, I might be wrong. The article certainly gives some examples of laws written/administered unfairly.

      2. I agree with you 100%.

    2. What would be wrong with a law which is limited to drug use which *actually causes demonstrable harm* to the baby?

      Getting pregnant while you have stupid moron genes to pass on causes more demonstrable harm than just about anything else.

      In addition to the injustice of punishing taking drugs but not punishing the act of getting-pregnant-while-not-having-genius-genes, it also exposes a worldview where "anything less than optimal" = "criminal harm" - a worldview lawyers, and lawmakers, like to impose o others, but never impose on themselves.

      1. it also exposes a worldview where "anything less than optimal" = "criminal harm"

        Precisely. This worldview is a godsend for statists and control freaks of all stripes, because it's incredibly vague and can be used as a cudgel against anyone they wish.

        1. I don't think I actually hold the worldview you impute to me.

      2. Getting pregnant while you have stupid moron genes to pass on causes more demonstrable harm than just about anything else.

        Really? I was under the impression that IQ and other "moron" traits are (at best) only partially hereditary; moreover creating a being with sub-optimal initial conditions is clearly different from damaging said being after the moment of creation through one's own action*. Conflating the two would be like suggesting that giving birth to a cripple is equivalent to taking a five-iron to someone's knees until their legs are no longer functional.

        *This of course presupposes that the fetus is in fact a "created being" vested with rights, but since that is the framework suggested by Eddie and John I'm going with it for the sake of the hypothetical.

        1. moreover creating a being with sub-optimal initial conditions is clearly different from damaging said being after the moment of creation through one's own action

          Not if you're the one in control of the initial conditions, it isn't.

          Thought experiment:

          If I deliberately gene-engineered a kid with Down's Syndrome, that would be a harm, right?

          Well, if I'm a moron, and I deploy my sperm and say, "SWIM, BOYS!" that's what I'm doing, on a lesser scale.

          All that varies there is my degree of certainty and my degree of control.

          Nobody has ever managed to achieve perfect conditions for child-bearing and child-raising. It can't be done. Everyone has taken some action that some social scientist somewhere could claim "had a negative impact" on a child. Did you breathe the air in a city while pregnant? Did you not get perfect nutrition while pregnant? Did you walk into a room where your pregnant spouse was sitting with trace amounts of some carcinogen on your shoes or clothes? Then fuck you, go directly to jail.

          1. "Nobody has ever managed to achieve perfect conditions for child-bearing and child-raising. It can't be done."

            Of course, but I hope you're not claiming that's my goal - at least as far as criminal law is concerned.

            In the case of children already born, the law distinguishes between harming the child (a crime) and having an allegedly dysgenic child (not a crime).

            And I don't think having children with supposedly dysgenic spouse is the same as being a Frankenstein and creating a human being with a bad genetic condition.

            1. And I don't think having children with supposedly dysgenic spouse is the same as being a Frankenstein and creating a human being with a bad genetic condition.


              Because having imperfect genetic material is different than deliberately manipulating your kid's genetic material?

              Well, then, that implies that having your kid come in contact with drugs incidentally (because you take them) is different than injecting your kid with drugs.

              1. You don't have a to be a prohibitionist to tell the difference between having kids with your spouse and taking drugs. One is fairly fundamental to the perpetuation of the species, the other is fairly optional.

                And yes, using eugenics to interfere with marriage should be off-limits, more so than more dubious practices.

                1. You don't have a to be a prohibitionist to tell the difference between having kids with your spouse and taking drugs.

                  If it's so straightforward, you should be able to easily explain it.

                  1. OK - a man and a woman get married and have children. This should not be a crime, period. I can say this because I think the government should give special recognition and protection to marriage. For those who think otherwise...I'm not sure at the moment what to say, except to persuade them of the need to protect marriage.

                    Ingesting a poisonous substance and causing demonstrable harm to your unborn child? Or giving poisonous substances to a born child? Not really in the same category.

                    1. Arguing by axiom is pretty useless when talking to people who don't share them.

                      Also, no one's saying people should be arrested for having suboptimal children. The comparaison is meant to go like this:

                      Three kids pop out from different couples.

                      1. Normal Kid
                      2. Normal Kid + some drug usage related harms
                      3. Kid with Huntington's disease (or worse)

                      How do you argue for jailing #2's mother/parents and not #3's?

                      - It can't be the level of harm, since (in this hypothetical), #3 is way worse off.
                      - It can't be the foreseeability (because both sets of parents knew of the very high likelyhood of the outcome).

                      So you have to fall back to some kind of distinction on the cause of harm:

                      - Drug war mentality (FYTW), which I don't think anyone here would consider a sane basis.
                      - Genes are special (anything goes), but any other kind of harm is not OK. You're still left with where to draw the line (and because we're talking chemicals, it truly is a full continuum). If you drink a glass of wine, are you micro-aggressing your fetus?
                      - ???

                      Also from a purely tactical perspective, you really shouldn't punish people for things done to their fetuses if they can just abort them ahead to avoid prosecution. You'd directly be incentivizing people to get abortions.

          2. If I deliberately gene-engineered a kid with Down's Syndrome, that would be a harm, right?

            Well, if I'm a moron, and I deploy my sperm and say, "SWIM, BOYS!" that's what I'm doing, on a lesser scale.

            Not even a little bit. There is no intention to create a being with sub-optimal conditions, and the level of understanding of genetics that would be required to understand how to reduce these chances is beyond us ATM (and probably for the near future). Intelligent people have children with sub-optimal traits all the time; retards have been known to have very intelligent children. It is not even close to the same thing as an intentional harm that is provable (keep in mind that I'm not sure there is a provable harm in the case of crack babies, since the evidence appears to be mixed). Once again, I point out that if it were the case that these two things are equivalent then there would also be an equivalence between a harm and an initial condition with the same outcome (miscarriage = murder, giving birth to a cripple = crippling someone, etc).

            1. Right, but you have less than perfect genetic material to pass on - and you pass it on anyway.

              So why would that not be a crime, if it IS a crime to know that you have less than perfect blood flowing through your placenta, and you let it flow anyway?

              If we can demand that a mother have a perfect placenta, why can't we demand that she have perfect genetic material?

              1. That's fucking retarded, Fluffy. The logic being used is not optimal as opposed to sub-optimal, it is whether the child was better off before the event than after the event and whether this is provable and substantial such that it rises to the level of abuse. Just as letting your kid miss a meal because he's a petulant brat who doesn't eat what's before him does not rise to the level of starving a child to death, so too it seems likely to me that the damage of "crack baby" is not substantial enough to require legislation. The principle, however, is easy enough to understand and it is beyond me why you are arguing against a point that no one has made.

              2. Fluffy,

                You are misstating the logic behind this law. The crime is a woman doing something that harms her already existing child. The crime is not a woman doing something that is likely to produce a screwed up child.

                It is a subtle difference but an important one. The crime here is essentially failing to provide for you child by doing drugs. The person with the genetic defect is not failing to provide anything. They are taking an action likely to produce a defective child. That is not the same as harming a child that already exists.

          3. "Well, if I'm a moron, and I deploy my sperm and say, "SWIM, BOYS!" that's what I'm doing, on a lesser scale."

            What, do you have conscious control over which spermatozoa reaches the ovum so the genetically defective ones don't make the cut?

    3. By "these policies" I was referring to all of the policies related to maternal drug testing and prosecution that I had been mentioning. Some of these, such as taking children away from drug-addicted mothers where there are other clear indications of abuse or neglect, are warranted. Others, like drug testing all women at maternity wards, I don't think would be justifiable even if you could prove this did identify/save some babies.

      1. Also, yes, I agree with (most of) what John and Fluffy said.

        1. In that case, I agreed with you when I said "The Fourth Amendment violations and zero-tolerance crap are bad."

          I gave your remark a broader interpretation than it may have warranted.

          Now, I think giving your kids an addictive substance (in the womb or not) so that they actually suffer withdrawal symptoms might qualify as "abuse or neglect."

          1. What, you mean like sugar?

            1. Just as the law should distinguish between swatting a toddler on the behind and burning it with a hot iron, it should distinguish between giving a child a nonoptimal diet and giving it actual poison.

              1. I know a great many people who think letting your kid use a plastic juice bottle is "giving them poison".

                1. You have to make distinctions.

                  You can even call it casuistry if you like - I couldn't object!

                2. I know a great many people who think letting your kid use a plastic juice bottle is "giving them poison".

                  I know a lady who thinks demons live in her hair. So what? I thought libertarians were about formulating principles for the purpose of applying them generally, not whining that other people are morons.

                  1. So what? I thought libertarians were about formulating principles for the purpose of applying them generally, not whining that other people are morons.

                    True, but you must keep in mind where your opponents WILL take it once you've cracked the seal:

                    Sending a woman to jail for letting her child drink from plastic bottles is no different than sending her to jail for using drugs during pregnancy.


                    They can get what they want by simply redefining poison. They did it with "racist".

                    1. I mean, there's already the Alabama judge asserting a right from conception to be free of "all harmful chemicals." Environmental pollutants and certain food additives are called "harmful chemicals" all the time.

                    2. Judging by the stickers the state of California mandates be put on everything...

                    3. Obviously California and Alabama should fuse into a single state. Call it Evilstan.

    4. Agreed. *If* (and that is a big if) some amount of drug use while pregnant causes harm and *if* we believe life starts sometime during conception, then it seems little different from any other case of child abuse/neglect to me.

    5. I'm for legal abortion and all that, so we are not going to agree on much here. But to me one major problem with criminalizing abortion as well as things like harm caused by drug use will involve major invasions of privacy and further conscription of medical professionals to act as law enforcers.
      Even if it is appropriate to punish mothers for harm done by drugs to their children, the loss of privacy and trust in medical professionals for everyone would be too high a cost.

      1. I think the laws against abusing *born* children already carry the risks you mention. Indeed there are horror stories about CPS abuse.

        That doesn't translate into legalizing *actual* child abuse - the lock-in-the-basement-without-food kind.

        There are some real crimes which should be prosecuted - dealing with abuses by legalizing the underlying behavior would be a bridge too far.

  7. I am herefore making a motion for the establishment of a new abbrieviation:

    "TIWTTTWOWIR" meaning,

    This Is Why They Think The War On Is Real

    1. *War on Women Is Real


        1. I'm taking that as a second. All in favor?

          1. Opposed! I can't read giant acrnyms and they piss me off just about as much as trigger warnings do.

    2. No.

      1) Being in the Air Force has given me severe PTSD when it comes to long-ass acronyms with limited utility.

      2) "War on women" as a meme presupposes that one party is to blame for all anti-women policies; further it supposes that any policy (no matter how libertarian) which does not advantage women is part of this war. Both parts of the meme are fairly stupid; the nannying of women seems to be fairly bipartisan and of course a lack of laws re: employment or welfare tailored towards women is a good thing from the libertarian POV.

      1. It's truer to say there's a war on men.

        After all, if a woman decides to go through with a pregnancy because it's her body, why does the man have to pay child support?

        War on men, that's why.

        I say either the man gets a 50% say in whether to abort the fetus, AND gets a say in how the woman cares for the fetus while pregnant (aka what she eats, whether she smokes, etc)...or end all child support laws.

        1. Someone who actually believes that is not mentally or emotionally mature enough to be having sex.

        2. Men should start making a woman sign a legal contract before having sex. "If sex results in an unintended pregnancy woman must: get consent for abortion, agree to 50-50 custody of any born child" or if a man doesn't want kids, "women assumes full responsibility if sex results in unintended pregnancy and man relinquishes all rights and responsibilities, including financial, to any born child." Problem solved. More people will keep their pants on and prevent overpopulation. It's win win!

  8. Ahh, 'Crack Babies'.

    The nostalgic memories it evokes. We thought they'd be the energy-source of the future! Or at least the seedlings for a generation of supermutant crime-lords who'd bring us the NYC We'd Come To Expect

    Sadly, along came Reagan and ruined everything. Well, at least we still have DEATH WISH III, here reviewed by the greatest reviewer in the reviewing universe: RAZORFIST

    IMHO, his reviews are themselves works of art.

    1. That's awesome.

      1. I beg you all, please watch Razorfist review of other cinema masterpieces, such as

        - Invasion U.S.A.

        - Out For Justice

        - Rock & Roll Nightmare

        ...and many, many more

        You WILL thank me

    2. So the dude feeding the ammo was a crack baby?

      1. No, silly. The armies of vaguely-ethnic breakdancers armed with tire-irons being mowed down by the machinegun wielding Charles Bronson was a symbolic allegory of the Crack Baby epidemic being cleansed by Roe-v-Wade, which thankfully freed us from the lives of millions of potential welfare-recipients.

        What, do I also need to explain to you what Top Gun is all about?

        1. Naval aviators being overwhelmingly gay?

          1. +1 Reverse-Hi-Five y Lat-Flex

    3. That was as good as the movie.

  9. and then there is this:

    has a couple of breaks to get past the 50-character limit. Apologies for IT shortcomings.

    1. Crack babies lead to crazy babies.

  10. This is a great example of a law that the benefit of enforcing is not worth stepping onto the slippery slope. Outside of child molesters and RACISTS!!, there isn't anyone in this society who is subjected to more stigma than the perceived irresponsible pregnant mother. Any honest obstritritian will tell you that there is no harm for a pregnant women having an occasional drink. Fetal alcohol syndrom occurs in the children of black out drunks not in the children of a stressed out mother who had a glass of wine occasionally to chill out when she was pregnant. Yet, have an obviously pregnant woman walk into a bar and order a glass of wine and watch the reaction.

    Given that, only the most drug addicted and craven mothers are going to use drugs while pregnant. This or any law is not going to deter them from doing so when the enormous social stigma to doing so hasn't already done so. This law will not result in a single person refraining from drug use during pregnancy.

    1. It will however send us onto the slippery slope of the government criminalizing perceived unhealthy behaviors. If we are going to lock up expectant mothers who do drugs, why not do the same to those who drink or smoke? And while we are at it, how about doing the same to ones who don't eat a healthy diet or don't get regular sonograms and health check ups? Who here doesn't care about babies?

      Once society starts down the road of "there ought to be a law" to stop a particular behavior, there is often no stopping it. You should for that reason only go down that road when you absolutely have no other choice and the first step actually results in justice or a lot of good. This law doesn't do that and sends us onto a horrible slippery slope.

      1. Right, this is what I'm objecting to.

        Because in every last one of those instances, we can apply the logic:

        1. Ordinarily, you'd have the right to do this;

        2. However, we can quantify that when you do so while pregnant, it means that your child will achieve an outcome that is less than some hypothetical perfect outcome;

        3. Therefore, you have abused or neglected the child.

        It's crazy.

        As I said above, lawyers would never do this to themselves.

        If I claimed that because a lawyer got high one night over the course of a time period when he handled my lawsuit, I was criminally harmed by his negligence - and argued that, theoretically, had he spent that time working on my case instead my outcome in court might have been better - the lawyers would freak out about how unfair that was.

        But that's the standard of behavior they want imposed on everyone else.

        1. The other thing is these laws are always sold referencing the extreme and easy case. They point to some case where a woman's doctors and family did everything they could to stop her but she used crack and the kid was predictably born addicted to it and with a lot of problems.

          The problem is that you can't and they wouldn't if they could right a law that just solves that one case. It will be much more general than that and criminalize a lot of cases that are much less clear and harder.

          It is easy to say "it shall be illegal to use drugs while pregnant". Okay, what about the woman who eats a marijuana brownie? Are we going to throw her in jail like the crack head? What about a woman who has a toothache and takes one of her husband's Percasets to go to sleep? What does it mean to "use drugs to harm a baby?" That is a really difficult question with no clear answer. It is just the type of question we shouldn't be asking courts to answer or for DA's to bring criminal charges over.

      2. Yes, what John said.

    2. I'm pretty sure GA considered a bill that as an unintended consequence of trying to get twofer murder charges on people who murder pregnant women (let's be very clear -- on the abusive partners who murder pregnant women). It turned out, though, that the upshot was that every single miscarriage would have to be investigated as a murder. I think that got shot down.

      1. Yeah, I remember something like that happening.

  11. I think we should distinguish between drug warrior-style zero tolerance by which contact with a proscribed plant is automatically assumed to turn you and your baby into monsters, and laws against actual, provable harm from alcohol, crack, etc.

    1. The state is not an instrument of subtlety and nuance. You either create strict rules and suffer the bar being set too low or too high, or else you create vague rules and suffer the whims of courts and officials.

      Before you can establish what you want to do, you have to establish what it is possible to do. From my perspective, I can see very little good, and a great deal of bad, to come of the state's involvement in these matters.

      1. Many stories of police/govt/lawmaker abuse involve dealing with alleged violent crimes and vastly overreacting to same. So sometimes the government has trouble making distinctions. But I think we still need laws against violent crimes.

        Consider the false prosecutions in child-abuse and rape cases - the McMartin horror and others. That doesn't mean child-abuse and rape should be legalized, just that you gotta watch the govt. like a hawk and make sure it limits it attentions to actual criminals.

        1. If you have the power to change the law, then you should use that power to fix the enforcement of laws before you go about expanding the situations in which people will be subject to that enforcement.

          Even so, how do you see such a law realistically being enforced in such a way that neither tramples mothers' rights nor leaves too many babies with "provable harm" done to them?

  12. The states have the power to protect viable life/potential life (per dual decision of Roe v. Wade and Doe v. Bolton). However, will laws prosecuting pregnant women really make any difference in incident rates? I am inclined to say no (just like the war on drugs). The women with prescriptions are covered with the right to privacy from Roe v. Wade. There is no research supporting long term effects or an infant going through withdrawals from occasional use. However, I was an RN for 8 years and did take care of a couple newborns that were going through withdrawal. It is real and not pretty. The reality is a newborn can't be an addict because they have no choice but to withdrawal. Don't be too hard on those proposing these laws because most of us would be pretty upset if confronted with a newborn who was going through withdrawals.

  13. Best article and coverage of this yet, well said, thankyou Elizabeth Nolan Brown and Reason.

  14. Idk, try taking care of a preemie crawling out of its skin for 12 hours straight with a mother who clearly couldn't care less and makes a perfunctory visit once every few days just so she keeps the neonatologist and social services off her back and this topic could possibly stir up a bit more passion within you. As a NICU RN, I'm not in favor at all of "one size fits all" laws concerning this subject but in certain circumstances, I think retribution is warranted. However, as this article points out, opening up the possibility of prosecution of women who have legally been on substances during their pregnancy is discriminatory and only views this issue with blinders on. Case in point: the worst case I've seen of NAS was due to a mother being on opiate painkillers throughout her pregnancy bc she had been having severe renal problems for months. While I wouldn't wish the foster care system on anyone, the thought of sending some of these kids (a good number of whom are going to need continuing outside therapy for developmental, physical and cognitive delays due to their prematurity) home with parents who have shown themselves to be neglectful in more ways than one is morally irresponsible to me, personally.

  15. Fetal personhood propaganda?

    So is the author of this article one of those people who believes that some magical transformation happens to the "fetus" when it traverses the birth canal that somehow endows it with both personhood and the rights that accompany it?

  16. Why are pregnant women being routinely tested for drugs in the first place? That right there is a violation of the mother's rights, functionally classifying her as an incubator at conception.

    If a doctor asks you if you would like to be tested for drugs the only right answer is no. Because either A. You're not on drugs and it's unnecessary or B. You are on drugs and you'd be incriminating yourself.

  17. If anything the progressives want to expand abortion. their values and ideology create a culture of dependence and underachievement, of dysfunction and collapse. Not just on individual level, but the basic unit of society: the family.

    Its in the best interest of the catholic church to hide priest sex abuse scandals. Its in the best interest of progressives for abortion to proliferate. Its really the only way to prevent a speedy destruction of any civilization they have a sizeable footprint within. liberal leadership doesnt want abortion because its a 'right', they want it because it effectively hides the product of liberal lifestyles.

    As a social conservative i am in favor of abortion. not because i think its morally acceptable, i dont, i think its like murder. but because i hate liberals.

  18. Yes it is kinder to the baby to kill it rather than making it go through life partially retarded by brain damage due to serious drug abuse. The baby will likely grow up to be an addict as well.

    I hope these laws include alcohol, and any narcotic pain killers administered by doctors during birth. Surely they are not advocating that women should be abstinent for 9 months only to get to the hospital and get shot up by heavy narcotics because they cant take a little pain. It is proven that drugs during birth can lower IQ of the baby, and while this may not matter as much if the parents are geniuses, if the parents are both idiots that baby will need every single last IQ point to get through life successfully.

Please to post comments

Comments are closed.