WHEN A MOM-TO-BE ABUSES DRUGS

In more than 30 states, women who allegedly took illicit substances
while pregnant have been arrested and charged under statutes that
criminalize child abuse or distribution of drugs to a minor. All told,
more than 200 women have been so charged.

These prosecutions have resulted from an urgent desire to safeguard
children in utero and to push drug-abusing women into treatment. That
desire, and the outrage that fuels it, are understandable. But these
prosecutions are bad public policy.

That point is supported by a new study by legal and medical scholars
sponsored by the Robert Wood Johnson Foundation of Princeton, N.J.
Singled out for criticism in the study was South Carolina, the only
state whose Supreme Court has gone so far as to uphold the application
of existing child abuse or drug distribution statutes to pregnant drug
abusers.

The constitutional infirmity of child abuse or drug distribution
prosecutions against expectant mothers stems from the U.S. Supreme
Court's various decisions on the right to privacy, particularly that
in Roe vs. Wade. While recognizing a certain state interest in
protecting fetal life, that decision said that a woman ultimately
controls her body. The fetus is, in effect, hostage to its mother's
decisions, for better or worse.

Obviously, when a mother opts to abuse drugs it is for the worse. But
that cannot be a reason to abandon the principle, because it would
open the door to gross intrusions by the state on individual privacy.

The legal scholars in the Johnson study suggested--without
recommending--that one possible avenue of argument in favor of fetal
protection from drug-abusing mothers might lie in extension of the
laws allowing "involuntary civil commitment" of people with mental
disorders who pose a danger to others. But to suggest an equation of
the decision to abuse drugs with the involuntary condition of mental
illness seems a dangerous course to begin traveling.

Also dubious are some of the study's health arguments against
prosecuting pregnant drug abusers. True, the threat of criminal
sanctions may deter some women from seeking proper prenatal care. But
it is equally true that some women seem to have changed their behavior
when faced with the prospect of jail.

And the Johnson study is entirely unconvincing when it implies that
imprisonment itself poses a health threat to prenatal humans. In the
choice between supervised prenatal care in state custody or the
unpredictable care of a mother who continues to abuse illicit drugs,
there is not much of a contest.

In the last analysis, the constitutional principle is the trump card
here. We do not, as a matter of principle, infringe the right of any
individual to control her (or his) own body for the sake of a third
party.

Thus, the Johnson study is right on target when it calls on the states
to turn away from constitutionally questionable actions and focus
instead on expanding voluntary drug-treatment and prenatal-care
programs. These things cost money and they don't fetch big headlines
for prosecutors. But they do work.

Checked-by: Patrick Henry