Prosecuting pregnant drug-addicted mothers

This post originally appeared on Feministe

Good news out of New Mexico:

On May 11, the Supreme Court of the State of New Mexico turned back the state's attempt to expand the criminal child abuse laws to apply to pregnant women and fetuses. In 2003, Ms. Cynthia Martinez was charged with felony child abuse "for permitting a child under 18 years of age to be placed in a situation that may endanger the child's life or health. . ." In bringing this prosecution, the state argued that a pregnant woman who cannot overcome a drug addiction before she gives birth should be sent to jail as a felony child abuser.

I just wrote a big huge final paper on this topic, so I'll offer some background. Basically, over the past 30 years pregnant women have been prosecuted in several states for using drugs while pregnant. They're usually prosecuted under child abuse or drug trafficking statutes. These prosecutions have happened even when the child showed no signs of harm. Regina McKnight, a South Carolina woman, was recently convicted of homicide by child abuse after giving birth to a stillborn baby. Her conviction was upheld by the South Carolina State Supreme Court.

The New Mexico Supreme Court has come to the opposite conclusion in a similar case -- that the state's child abuse statutes cannot be used to prosecute drug-addicted mothers for their neo-natal drug use. This is good, as the South Carolina decision was pretty devastating. But the SC decision still stands in SC, and may be used to influence similar cases in other states; luckily, now the NM decision can be taken into account, too. There is still no national consensus on this issue, and women in various states continue to be prosecuted.

No one wants women to use drugs while they're pregnant. Obviously we do want to protect fetuses from in utero drug exposure. But there are a lot of problems with these cases -- equal protection issues, statutory interpretation issues, status crime issues, due process issues, and on and on. If you're interested, short summaries of some of the many problems are below the fold:

1. Status issues: The U.S. Supreme Court has held that a person cannot be prosecuted for being a drug addict. Prosecuting someone for the illness of drug addiction, they said, is in violation of the 8th Amendment's bar on cruel and unusual punishment. People can, obviously, still be prosecuted for the sale, possession and purchase of drugs.