Over the past twenty-five years, more than one hundred women have been criminally prosecuted in the United States for fetal harm as a result of drug consumption during pregnancy. In every state except South Carolina, these convictions were ultimately overturned on appeal for two primary reasons. Many of the appellate court judges relied upon the principle that a fetus was not a person within the meaning of the law that prosecutors were relying upon.
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Also, the umbilical cord was not a means of drug “delivery” as the term was envisioned by legislatures at the time of statutory enactment, and the separation of powers doctrine disallowed the judges and prosecutors from interpreting it as such. Concerns also arose among judges that prosecuting drug-addicted, pregnant mothers as criminals would further drive them away from the few medical resources available to them. Furthermore, instead of prison, the most effective means of combating the maternal drug problem in America would be to create additional drug treatment resources.
In line with these beliefs, the State of Missouri expressly prohibited women from being criminally prosecuted for the harms caused to their children by prenatal drug exposure. After continuous defeats at the appellate level, the ambitions of the prosecutors came to rest in the mid-1990’s, and there was a time of inactivity regarding fetal protections. However, by the late 1990’s, aggressive prosecutions were enacted in six states, seeking to prosecute these women for criminal homicide, attempted intentional homicide, manslaughter, and murder.
Often, doctors and nurses aided the prosecution. In Ferguson v. City of Charleston, the United States Supreme Court held that the hospital staff’s drug testing of infants born to women suspected of child abuse was a violation of the women’s Fourth Amendment Constitutional rights. The first woman to be charged with murder was Regina McKnight in 1999, when her child was stillborn. Regina was African-American, homeless, and addicted to crack-cocaine. Upon the stillbirth of her child, the doctors tested both Regina and her child for drugs.
Cocaine metabolites were found in both. Although the first trial ended as a mistrial, Regina was convicted and sentenced to twenty years in prison in the second trial. On appeal, the defendant argued that the due process principle of legality had been violated by the homicide prosecution, but the Supreme Court of South Carolina upheld the conviction, stating that they had previously found a fetus to be a child for the purpose of other criminal prosecutions and that finding could permit a stillborn fetus to qualify as a child for the “homicide by child abuse” statute.
In dicta, the court also concluded that a woman could be charged with child endangerment if she consumed drugs during her pregnancy because it was determined to be public knowledge that cocaine consumption was harmful and potentially fatal; so, to consume cocaine while pregnant does meet the mens rea requirement of acting with “extreme indifference to the value of human life.
”Regina was released in 2008, after serving nine years of her sentence, when the Supreme Court of South Carolina found that she had ineffective counsel who failed to introduce key evidence required to effectively challenge the mens rea and causation elements. During this period of the prosecutors’ active pursuit of homicide charges, women also began to be indicted for the child abuse and drug delivery crimes that had been previously held as being legally unsound. The states who most actively pursued civil charges were Wyoming, New Mexico, Texas, Missouri, Alabama, Maryland, and New Hampshire.
As with the past attempts, however, these charges were ultimately dismissed or the convictions were later overturned. The reasoning of the courts remained as it had been – the prosecutors were attempting to expand the meaning of delivery beyond the legislative intent, a fetus is not a child under the law, the legislature had not made the consumption of drugs by a pregnant women prosecutable, and, newly, toxicology tests of newborn infants were inadmissible by United States Supreme Court precedent in Ferguson.
In 2006, the Alabama legislature enacted a new criminal statute regarding the “chemical endangerment of a child. ”This statute was primarily enacted to criminalize the exposure of children to methamphetamines in the course of methamphetamine use or manufacture. At the trial court level, prosecutors within the state have successfully applied the statute to women who consume drugs during their pregnancy approximately forty times, resulting in prison sentences of ten years to life.
Recently, at the end of the third quarter of 2011, the Alabama Criminal Appeals Court ruled that the “chemical endangerment” statute can be lawfully applied to the women who consume illegal drugs during their pregnancies. An appeal to the Alabama Supreme Court is currently pending, according to defense attorney Carmen Howell. Civil More frequently than the aforementioned criminal prosecutions, civil suits have been brought against mothers who consumed drugs during their pregnancy, with the charges made on behalf of the fetus or newborn child.
Currently, every state allows a suit for prenatal injuries to be brought against a third-party if the infant is born alive, most states permit wrongful death suits against a third-party for the death of a fetus prior to birth resulting from prenatal injury, and some states have even allowed loss of consortium claims to be brought when their unborn child is killed by the tortuous action of another. However, throughout American history, a fetus has been unable to sue its own mother for prenatal harm, based upon the unique, symbiotic relationship found only between a mother and fetus.
The first case allowing a woman to be sued for her actions while pregnant occurred in Michigan with the case of Grodin v. Grodin. The father of a child born with tooth discoloration was allowed by the Michigan Court of Appeals to sue the child’s mother for her consumption of Tetracycline while pregnant. In determining this case, the court only analyzed the simple, factual question of whether a pregnant woman’s Tetracycline consumption constitutes a reasonable exercise of parental discretion.
In contrast, the Illinois Supreme Court held in Stallman v. Youngquist, that a child who suffered prenatal injuries as a result of the mother’s car accident could not sue the mother for negligence. Addressing the more complex and deeply rooted question of whether a pregnant woman owes a duty of care to her fetus, the Illinois Supreme Court stated that a pregnant woman’s every moment shapes the prenatal environment and effects the developing fetus, thereby making it impermissible to impose such a duty of care on a pregnant woman.
Four major concepts were identified as support for the Stallman decision. First, actions prior to conception have the potential to affect a fetus, making it impossible to limit and define such a tort duty from pregnant woman to fetus. Second, socio-economic differences affect access to healthcare, reproductive education, and the ability to promptly determine the existence of a pregnancy, making it impossible to develop an objective standard within which such a tort duty could be clearly defined.
Also, such a cause of action could result in “unprecedented intrusion into the privacy and autonomy” of mothers, an intrusion so severe that it should not occur at the hands of the common law but only by the legislature after due argument and consideration. Finally, healthy babies are not created by tort liability imposed after birth on an individual basis but by better education about prenatal health before-the-fact. Overview of Current Law and Fetal Personhood
The United States’ Department of Health and Human Services (HHS) published new regulations in 2002 to expand the definition of “child” for the State Children’s Health Insurance Program from “an individual under 19 years of age” to “an individual under the age of 19 including the period from conception to birth. ” Although the purpose set forth by HHS was to ensure medical coverage for pregnant immigrant women, many argue that the true purpose was to create a legal precedent for the law to treat fetuses as persons.
Under the Bush Administration, HHS wanted to expand this proposition further in 2008, when the agency attempted to redefine birth control as a form of abortion, based upon their regulation stating that life begins at conception, so healthcare professionals would be legally able to opt out of the requirement to prescribe or dispense birth control or the morning-after pill. The attempt was not wholly successful.
In 2004, the Unborn Victims of Violence Act (UVVA), also known as Laci and Connor’s Law, was enacted by Congress, making it a separate crime to injure or cause the death of a fetus during the commission of another federal offense. The UVVA defines an unborn child as “a member of the species homo sapiens, at any stage of development. ”Although the UVVA was enacted in response to the increased violence against pregnant women, many argue that the fetal harm should only allow for a more harsh penalty to be imposed, instead of removing the injured pregnant woman as a party to the suit.