A Difficult Delivery

Last week, Tracy Ward of Amarillo, Texas, went on trial for delivering drugs to her unborn child. She allegedly "delivered" the drugs by using cocaine.

As Ward was pregnant at the time, her own ingestion of the controlled substance would necessarily have passed it along to her baby. The authorities discovered Ward's act when her child was born testing positive for cocaine

As of 2003, Texas law has defined an "individual" in its Penal Code and Civil Practice and Remedies Code to include "an unborn child at every stage of gestation from fertilization until birth." The legislature's apparent purpose in expanding the definition of an individual was to allow for prosecutions and lawsuits against third parties who harm unborn children.

For some purposes, the law exempts the mother from criminal liability. But prosecutors and defense attorneys dispute whether the exemption applies in Ward's case.

Let us put aside the question of whether the statute will ultimately be read by an appellate court to apply to the use of cocaine by a pregnant woman. For purposes of this column, we will assume that the statute applies and consider an independent question: Is such a prosecution appropriate, from a constitutional and policy perspective?

Resolution of this issue turns out to be far less simple than might appear at first glance.

An Easier Case Than Abortion?

One argument for opposing a "delivery of drugs to a child" prosecution concerns the right to abortion. If there is a right to kill an embryo or fetus prior to birth, then surely it must follow, the argument goes, that there is a right to harm that same embryo or fetus in a manner that falls short of causing death. The greater power to kill, in other words, includes the lesser power to injure.

Though seemingly logical, this argument is unpersuasive for three reasons. First, abortion is not a per se right to kill. Second, the authority to kill does not necessarily include the authority to injure. And third, abortion and prenatal cocaine use cause harm to distinct entities.

Abortion Not a Right to Kill

The right to abortion, as I have argued in another column , is not truly a right to kill an embryo or a fetus as such. It is a right to choose not to continue being pregnant. That is why, I explained, the right to kill the fetus in utero ends at viability – the point at which choosing not to remain pregnant no longer requires that the fetus die, for it can survive outside the womb.

Once understood in this way, it is clear that a woman does not have the legal right simply to injure an embryo or fetus. Being able to choose not to be an altruist, in other words, does not entail being able to choose to cause injury to another person.

Abortion, so understood, is an on/off proposition – not a license to hurt one's embryo or fetus. Prosecuting a woman for injuring her child during pregnancy is therefore consistent with preserving her right to abortion.

Authority to Kill Does Not Include Authority to Injure

Furthermore, even if there were a right to kill one's fetus, there would not necessarily be a right to injure it/him/her. Injuring, in other words, is not simply a lesser form of harm than killing. It is qualitatively different.

For that reason, for example, our Constitution is understood to permit a person to be executed for a capital offense but not to have a limb severed or be tortured or used involuntarily in a medical experiment.

Similarly, though the law permits some homicides (called "justifiable homicides"), such as in self-defense, it does not thereby permit a person to say "I won't kill the guy, but I will steal his wallet or give him a blanket containing smallpox."

The right to abortion, even if conceptualized as a right to kill, is thus consistent with the prosecution of a defendant for delivering drugs to her unborn child.