William & Mary Journal of Race, Gender, and Social Justice
Mothers Versus Babies: Constitutional and Policy Problems with Prosecutions for Prenatal Maternal Substance Abuse
This note examines the constitutional and policy implications of criminal prosecutions for prenatal maternal substance abuse under statutes criminalizing drug delivery, child abuse, and manslaughter. Although only one of these convictions has been upheld in the thirty years since a prosecutor first brought such charges, prosecutors continue to propose new and increasingly inventive theories of prosecution. Not only do these cases present procedural due process, substantive due process, and equal protection problems, they also cannot be supported by public policy. The prosecutions are opposed by healthcare workers, pit the interests of mothers and unborn children against each other, and actually drive pregnant addicts away from prenatal care. Although a number of punitive solutions have been proposed, including statutes written specifically to target prenatal drug use and civil sanctions, the only real solution to the problem of prenatal maternal drug use is to increase funding for drug treatment centers that cater to or can accommodate pregnant women.