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Article Title

Criminalizing Pregnancy

Document Type

Article

Publication Date

7-15-2017

Publication Citation

92 Indiana Law Journal 947 (2017)

Abstract

The state of Tennessee arrested a woman two days after she gave birth and charged her with assault of her newborn child based on her use of narcotics during her preg-nancy. Tennessee’s 2014 assault statute was the first to explicitly criminalize the use of drugs by a pregnant woman. But this law, along with others like it being considered by legislatures across the country, is only the most recent manifestation of a long history of using criminal law to punish poor mothers and mothers of color for their behavior while pregnant. The purported motivation for such laws is the harm to the child from prenatal exposure to illegal drugs. But recent scientific studies undermine the harm narrative.

This Article is the first to take a close look at the science behind these laws. Recent longitudinal studies confirm that the use of illegal drugs while pregnant, in and of itself, rarely results in long-term adverse consequences to the fetus and subsequent child. Meanwhile, the negative consequences of ingesting licit substances such as tobacco, alcohol, and other lawfully prescribed medications, often are much greater than the potential undesirable effects of drug use. Poverty, domestic violence, and a father’s behavior prior to conception also have been shown to have significant harmful impacts on fetal development. Although the criminalization of drug use by pregnant women does not prevent impairment of the fetus and subsequent child, it often leads to additional detrimental consequences. The state regularly steps in and re-moves children born to women using illicit drugs while pregnant, even when there is no evidence of harm to the child and despite the documented harms to newborns from placement in the foster care system. Additionally, as every major medical organization has publicly indicated, pregnant women are less likely to seek prenatal care if they fear arrest for using drugs, creating damaging effects greater than any potential harms from the drug use.

Legislatures’ unwillingness to acknowledge the empirical evidence contradicting the rationales for this latest batch of criminal laws might cause one to wonder whether the harm to the child is truly the motivating impetus behind these laws. The existing statutes have a disproportionate impact on poor mothers and mothers of color. In fact, class- and race-based constructions of motherhood go a significant distance toward explaining the presence of these laws. This Article analyzes how our current approach to the use of drugs by pregnant women relies on these troubling economic- and race-based social constructions, rather than on any scientific or empirical evidence. By challenging the erroneous presumptions motivating these laws, this Article hopes to move legislatures toward effectively addressing the more substantial risks to developing fetuses.

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