The Criminalization of Pregnancy Outcomes: Fetal Personhood and Substance Use During Pregnancy

by Anna Marchiony, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

“Personhood” is one’s status of being a person. The concept of when someone “becomes” a person has been debated for centuries, and such a determination has important implications in the law. Personhood is necessary to confer upon an individual the rights, protections, and privileges afforded to a person under the law. “Natural personhood” begins at the moment of birth and ends at the moment of death.¹ Fetal personhood is a definition of personhood that includes a fetus or unborn child and recognizes a fetus as a person under the law.²

The recognition of fetal personhood opens up the door to criminally prosecute pregnant people whose actions may negatively impact the fetus. Criminal prosecution based on fetal personhood has become more common, especially when the pregnant person uses illicit substances during pregnancy. Though on its face it seems reasonable to charge a person for using drugs during pregnancy, these prosecutions are nothing more than a façade. Prosecutors who move forward with convictions claim to care about the wellbeing of the child and parent; however, the impact of these convictions does little to deter substance abuse and actually causes more harm than good.

Part II of this article discusses how the legal landscape regarding fetal personhood has shifted since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.³ Part II also describes how prosecutors have harnessed the concept of fetal personhood to convict people who use substances during pregnancy and how some courts have upheld the criminalization of pregnant people. Part III addresses the many ways in which such criminalization actually fails to accomplish the goals of prosecution that proponents of fetal personhood espouse. Part III also recommends treatment in lieu of prosecution, which would actually protect and support unborn children, infants, and families. Finally, Part IV argues that the prosecution of pregnant persons based solely on their substance use is bad public policy and should be halted immediately.

II. Background

A. Dobbs v. Jackson Women’s Health Organization’s Impact on Recognizing Fetal Personhood

The Supreme Court held in Roe v. Wade that the word “person” in the Fourteenth Amendment did not include a fetus, and that personhood cannot be granted to a fetus before the point of viability.⁴ However, in its 2022 decision, Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe.⁵ Though the Court in Dobbs stated that the decision was “not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth,”⁶ the decision left a lot of ambiguity⁷ and laid a foundation for the legal recognition of fetal personhood.⁸

Since Dobbs, states where fetal personhood laws were previously struck down have moved for those decisions to be reversed.⁹ Many states’ civil and criminal codes now define “personhood” to include a fetus, even conferring onto a fetus the full protection of the state’s constitutional rights.¹⁰ Though some believe that fetal personhood is a positive measure that protects the rights of the unborn, it massively impacts the rights and statuses of pregnant persons and those who are capable of pregnancy.¹¹

B. Weaponization of Fetal Personhood and the Criminalization of Pregnancy

Fetal personhood is recognized in many areas of state law, ranging from statutes related to property and inheritance to criminal codes.¹² While the acknowledgement of fetal personhood in some areas of the law may not be harmful to pregnant persons, “[b]road statements of personhood drawn from preexisting civil bodies of law, especially wrongful death, are taken out of their intended, confined contexts and used as fodder for the expansion of pregnancy criminalization.”¹³ Some attorneys disregard the legislative intent behind statutes that acknowledge fetal personhood,¹⁴ arguing that inclusion of fetal personhood in one area of the law is “legislative recognition of the personhood of the unborn,” and thus can be applied in another area of the law.¹⁵

Criminal child abuse and neglect is one area in which prosecutors have weaponized fetal personhood against pregnant persons.¹⁶ Currently, thirty-eight states have fetal homicide laws, which permit homicide charges to be brought against a person who causes the loss of a pregnancy.¹⁷ Despite most states including “explicit language precluding charging pregnant people in relation to their own pregnancies,” prosecutors continue to criminally charge pregnant people who miscarry or have stillbirths.¹⁸ This is especially true for people who use illegal substances during pregnancy.

Since 1973, at least forty-five states have prosecuted pregnant people for exposing their unborn child to substances prenatally.¹⁹ People who use substances while pregnant and miscarry may even be prosecuted for manslaughter or homicide, even when, “[i]n many instances, the fetus was not even developed enough to be viable outside the womb.”²⁰ People who use substances while pregnant may also be criminally charged even when the infant is born healthy and does not suffer any adverse effects from the parent’s substance use.²¹ Charging women with criminal child abuse or neglect, or even homicide, based on their substance use while pregnant is unique, since in no other context is mere substance use an illegal act.²²

By prosecuting people who use substances while pregnant, government actors attempt to stop behavior they believe is harmful to the fetus.²³ They also rationalize criminalization by asserting that “if [parents] make bad decisions about using drugs while they’re pregnant, they’re probably going to make other bad decisions when raising the child.”²⁴ When courts uphold these prosecutions, they have done so with the belief that “using drugs while pregnant qualifies as ‘extreme indifference to human life’ under the state’s homicide laws.”²⁵ Three state judiciaries in particular – South Carolina, Alabama, and Oklahoma – have “expanded their use of child abuse and neglect laws … to police the conduct of pregnant women under the concept of ‘fetal personhood.’”²⁶ The use and expansion of child abuse and neglect laws in this way constitutes “judicially enacted ‘personhood measure[s] in disguise,’”²⁷ as the courts ignored legislative intent and re-wrote statutes to comply with their own sense of morality. Doing so has continued the criminalization of pregnant persons.

1. South Carolina

In 1997, the Supreme Court of South Carolina held that, under the state’s child abuse and endangerment statute, the word “child” includes a viable fetus.²⁸ Cornelia Whitner was charged with criminal child neglect under S.C. Code Ann. § 20-7-50 (1985)²⁹ after she and her newborn child tested positive for cocaine.³⁰ Whitner appealed, arguing that the criminal child neglect statute should not apply to prenatal drug use.³¹ In determining whether the statute’s use of the word “child” applied to fetuses, the Court stated that “South Carolina law has long recognized that viable fetuses are persons holding certain legal rights and privileges.”³² The Court looked to the state’s wrongful death statute, and held that “it would be ‘grossly inconsistent . . . to construe a viable fetus as a ‘person’ for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context.’”³³ Even though S.C. Code Ann. § 20-7-50 (1985) did not include “fetus” as a protected person, the Court held that, based on a plain reading of the statute and on legislative intent, the term “child” included a viable fetus and upheld Whitner’s conviction.

Since the Court’s ruling in Whitner v. State, pregnant persons in South Carolina have continued to be prosecuted for unlawful neglect of a child or homicide by child abuse based on their substance use while pregnant.³⁴ In South Carolina, these charges are punishable by up to ten years in prison for unlawful neglect of a child, or a minimum of twenty years in prison for homicide by child abuse.³⁵

2. Alabama

In 2006, Alabama enacted § 26-15-3.2, chemical endangerment of a child, which makes it illegal to knowingly, recklessly, or intentionally cause or permit a child to be exposed to a controlled substance or drug paraphernalia.³⁶ The legislative intent in enacting § 26-15-3.2 was to protect children from home meth labs, which had become a problem in Alabama.³⁷ However, shortly after § 26-15-3.2 passed, prosecutors started applying it to pregnant people who used substances during pregnancy.³⁸ Prosecutors argued that “the womb was also an environment and that if you expose a child to drugs in the environment of the womb, that’s the same as exposing a child who’s already been born to toxic substances from a meth lab or other types of drugs.”³⁹

In 2013, the Supreme Court of Alabama affirmed the conviction of two women based on that application of § 26-15-3.2.⁴⁰ Hope Ankrom pled guilty to chemical endangerment of a child after she and her healthy child tested positive for cocaine at delivery.⁴¹ Amanda Kimbrough also pled guilty, as her methamphetamine use while pregnant allegedly resulted in the death of her unborn child.⁴² Both women initially moved to dismiss their indictments on the basis that the term “child” in § 26-15-3.2 did not include unborn children.⁴³ The Supreme Court of Alabama quoted the trial court’s dismissal of Ankrom and Kimbrough’s motions at length, stating that the plain meaning of the term “child” includes an unborn child.⁴⁴ The Court also relied on the legislature’s statement that “‘[t]he public policy of the State of Alabama is to protect life, born, and unborn.’”⁴⁵ Additionally, the Court noted that the term “minor child” was previously interpreted to include a viable fetus in the context of a wrongful death suit.⁴⁶ Finally, the Court analogized to Whitner⁴⁷ and stated that “the plain meaning of the word ‘child’ is broad enough to encompass all children – born and unborn.”⁴⁸ The Court concluded by affirming the state’s legitimate interest in protecting the life of a fetus that may become a child.⁴⁹

The Supreme Court of Alabama held that the statute protects unborn children, that a mother’s womb constitutes the fetus’s “environment,” that the plain meaning of the word “child” includes unborn children, and that this interpretation applies to all children, regardless of viability.⁵⁰ By applying § 26-15-3.2 to the environment of a pregnant person’s uterus, a pregnancy that ends in a stillbirth or miscarriage can result in a Class A felony and up to ninety-nine years in prison.⁵¹ This may happen even when there is no discernible link between the death of the fetus and the pregnant parent’s substance use.⁵² Since the Court’s decision, one Alabama county alone has charged 257 pregnant women with chemical endangerment of a child.⁵³

3. Oklahoma

In 2015, state lawmakers enacted 63 OS § 103, which changed the definition of a stillbirth from twenty weeks gestation to only twelve weeks.⁵⁴ This change now requires state medical examiners to conduct autopsies on miscarriages that occur at any point in a pregnancy after twelve weeks.⁵⁵ Though 63 OS § 103 was initially enacted to permit parents who miscarried to obtain a death certificate, it is now being used to help establish fetal personhood.⁵⁶ As part of an autopsy, medical examiners test fetuses for illegal substances, enabling prosecutors to charge a parent with felony child neglect if the drug test comes back positive.

In State v. Green,⁵⁷ the Oklahoma Court of Criminal Appeals addressed whether an unborn child is considered to be a “child” within the meaning of the state’s criminal child abuse and neglect statute, 21 O.S.Supp.2014, § 843.5(C). Kathyrn Green gave birth to a stillborn child, and after the medical examiner performed an autopsy, Green was charged with felony child neglect in violation of 21 O.S.Supp.2014, § 843.5(C) due to exposing her unborn child to methamphetamine.⁵⁸ The trial court granted Green’s motion to quash on the grounds that a fetus is not a child, and thus is not subject to the child neglect statute.⁵⁹ The State appealed.⁶⁰ On appeal, the Court of Criminal Appeals looked at a prior case which held that “an unborn viable fetus is a ‘human being’ for purposes of Oklahoma’s homicide statutes.”⁶¹ The Court stated that the purpose of § 843.5 is to protect children, and a viable fetus is in need of protection just as much as a child who has been born.⁶² Therefore, 21 O.S.Supp.2014, § 843.5(C) applies to fetuses.

Though Oklahoma’s felony child abuse and neglect statute is typically used in cases with “harder” substances, like methamphetamine, at least twenty-six women have been charged with felonies for using marijuana during pregnancy.⁶³ In 2020, the District Attorney for Key and Noble counties charged at least seven women with felony child neglect for using marijuana while pregnant.⁶⁴ Though some individuals may receive deferred sentences, probation, or community service with orders to attend parenting classes or treatment,⁶⁵ a conviction of felony child neglect can result in a life sentence.⁶⁶

IV. Discussion

Though the courts’ decisions in South Carolina, Alabama, and Oklahoma are fringe decisions and the majority of states have not engaged in such “judicial activism,”⁶⁷ the legal landscape since Dobbs suggests that this could change. Since Dobbs, there are concerns that the prosecution and conviction of pregnant persons who use substances will become more common as state legislatures and judiciaries expand child abuse and neglect laws, as well as homicide laws, under the guise of fetal personhood.⁶⁸

Oklahoma District Attorney Brian Hermanson claims that these kinds of prosecutions are not intended to put people in jail, but rather are intended to “stop the damage [and] injury to these fetuses and children that are getting ready to be born so that they can live a happy life and not be addicted when they’re born.”⁶⁹ However, this kind of judicial activism is ineffective to achieve this goal. There is no evidence to support criminalization as an effective deterrent for substance use while pregnant. Moreover, the act of prosecuting individuals who use substances while pregnant may actually have the opposite effect than intended, causing more harm to children and families than good.

A. Medical Evidence Does Not Support Prosecution

One common argument in favor of prosecution is that when a person uses substances while pregnant, they are putting their own wants ahead of the child’s needs and are choosing drugs over the child’s life.⁷⁰ Yet, medical research cannot conclusively determine whether prenatal substance exposure is linked to or causes health concerns, miscarriages, or stillbirths.

Studies conducted on the impact of prenatal exposure to substance use have not demonstrated whether prenatal exposure impacts a fetus’s health inside or outside of the womb.⁷¹ “[D]rug use doesn’t necessarily harm a fetus [and] ‘[e]xposure does not equal toxicity.’”⁷² Research on the impact of prenatal substance exposure has suggested it is extremely difficult to determine whether poor outcomes are linked to prenatal substance exposure, or whether those outcomes are the result of other external environmental factors,⁷³ such as poor nutrition, poor health care, domestic violence, and more. Furthermore, research does not support the theory that parents who use drugs while pregnant are more likely to abuse or neglect their children once they are born.⁷⁴

In some cases where pregnant people are prosecuted for substance use while pregnant, autopsy reports cannot conclude that substance use was the cause of death.⁷⁵ However, prosecutors may not even be required to prove harm to the fetus or child.⁷⁶ They must only prove that the fetus or child was exposed to substances at some point during pregnancy.⁷⁷ In light of the medical research, this is highly concerning. Given the lack of medical information on the impact on fetuses, continuing to prosecute pregnant persons will do little to aid in the goal of protecting fetal life. Therefore, the prosecution of persons for substance use while pregnant should not be utilized simply as a means to punish them for an act the prosecutor believes is improper.

B. Prosecution is Against the Best Interests of the Child

Prosecutors who continue to embrace the criminalization of substance use during pregnancy “ignore the effects of separating a newborn from a mother”⁷⁸ and may be engaging in conduct that is actually against the best interests of the child.

While child abuse and neglect can be a criminal offense, a state’s child protective services department (“CPS”) is chiefly responsible for investigating allegations of child abuse and neglect and determining an appropriate response if evidence of abuse or neglect is found. CPS investigations and determinations are based on the best interests of the child.⁷⁹ CPS often opens an abuse or neglect case when a newborn tests positive for drugs.⁸⁰ CPS’s investigations into whether a parent’s substance use impacts child safety is not a black and white inquiry and does not turn solely on whether a parent merely used substances. Rather, a CPS caseworker considers many factors when determining whether parental substance use constitutes abuse or neglect of the child, such as how their use impacts their caretaking abilities.⁸¹ Substance use alone is not child abuse or neglect.⁸²

If a child is removed from a parent’s care due to substance use, CPS’s primary goal is to provide the parent with services to encourage reunification of the parent and child. However, states with criminal policies that prosecute pregnant substance use impede CPS’s goal of reunification. States with criminal policies have higher rates of foster care admissions for infants, and families are less likely to reunify.⁸³ Criminal charges often result in prison time, probation, or mandated drug treatment, all of which may require that the child be removed from the parent’s custody. Removal from a parent is proven to cause long-term emotional and physical harm to a child.⁸⁴ By separating a child from their parent and sentencing the parent to a potentially lengthy sentence, thereby prolonging reunification, the criminalization of substance use during pregnancy negatively impacts the child’s wellbeing.

C. Prosecution Leads to Avoidance of Critical Prenatal Healthcare

Consistent prenatal care is essential for any pregnant person, but it is especially important for pregnant individuals who use substances. Research shows that prenatal care results in better outcomes both for the pregnant person and for the child, since doctors have a chance to recommend treatment options, screen for illness, and implement public health interventions.⁸⁵ However, “medical experts warn that prosecuting pregnant people who seek health care could cause them to avoid going to a doctor or hospital altogether, which is dangerous for the mother and developing fetus.”⁸⁶

Many medical professionals believe that the prosecution of people who use substances during pregnancy deters them from receiving prenatal healthcare.⁸⁷ The American College of Obstetricians and Gynecologists “opposes any policies or practices that seek to criminalize individuals for conduct alleged to be harmful to their pregnancy,” stating that “[a]ny statute or legal measure that utilizes the criminal legal system as a way to control or manage behaviors during pregnancy is counterproductive to the overarching goal of improving maternal and neonatal outcomes.”⁸⁸ Even the United States Department of Health and Human Services opposes the use of a pregnant person’s private health information for use in a criminal, civil, or administrative investigation, stating that doing so “can result in medical mistrust and the deterioration of the confidential, safe environment that is necessary to quality health care.”⁸⁹

Prosecutors who continue to charge pregnant women are ignoring medical advice⁹⁰ and are deterring pregnant people from seeking prenatal health care.⁹¹ “By adopting policies that scare women away from treatment, clinics and health organizations lose the opportunity to intervene and promote maternal and infant health.”⁹² By doing this, the criminalization of substance use during pregnancy contradicts the purported goal of helping parents and children and undercuts prosecutors’ rationale for these charges.

C. Prosecution Reinforces Bias, Prejudice, and Racism

The prosecution of persons who use substances while pregnant disproportionately impacts low-income communities, particularly communities of color.⁹³ Often, hospitals that accept low-income parents who use Medicaid perform drug tests more frequently than hospitals serving wealthier patients.⁹⁴ Many of the pregnant individuals targeted by these prosecutions end up pleading guilty.⁹⁵ They may feel ashamed about their substance use, are fearful of the potential consequences associated with the charges, or think pleading is their only option to avoid going to prison.⁹⁶ This is problematic because many women who are targeted are low-income, cannot afford an attorney, and take a plea deal rather than force the prosecutor to litigate the case. They may even be unaware that the laws in their state expressly exclude the pregnant parent from prosecution or that their state has declined to extend fetal personhood to criminal child abuse and neglect cases.⁹⁷

E. Family-Focused Solutions and Treatment over Prosecution

Rather than criminally prosecute people who use substances during pregnancy, legislative and judicial solutions should focus on treatment options that keep families together. Substance users who receive treatment during pregnancy have better birth outcomes with fewer complications.⁹⁸ Not only would family-centered treatment options lead to better outcomes for parents and children, but it may also cost the state less money to treat substance use rather than prosecute it.⁹⁹

Despite the importance of substance use treatment during pregnancy, pregnant individuals who need substance abuse treatment are 17% less likely to receive treatment than non-pregnant substance users.¹⁰⁰ The fees associated with treatment,¹⁰¹ the fact that treatment centers may not offer options to keep parents and children together,¹⁰² addiction specialists potentially being reluctant to treat pregnant people,¹⁰³ and OBGYNs not being trained in addiction care all deter pregnant individuals from seeking substance abuse treatment.¹⁰⁴ Moreover, pregnant people in need of substance abuse treatment are even less likely to receive treatment if they live in a state with punitive policies.¹⁰⁵

In order to provide adequate substance use treatment for pregnant individuals, treatment programs should “‘focus[] on the unique needs of the maternal-infant dyed, addressing social determinants of health, physical and mental health needs, and foster collaborations across agencies and service providers at all levels.”¹⁰⁶ One example of a holistic approach to treatment for pregnant parents struggling with addiction is First Step Home. Located in Cincinnati, Ohio, First Step Home is a maternal treatment center offering residential services, medical-assisted treatment, mental health treatment, and parenting classes.¹⁰⁷ First Step Home allows children up to age twelve to live with their mothers and offers onsite childcare.¹⁰⁸ The average residential stay is thirty to forty-five days long, followed by transitional housing and intensive outpatient treatment.¹⁰⁹ First Step Home partners with local hospitals and the county’s child protective services agency to ensure holistic care and collaboration.¹¹⁰

If prosecutors, judges, and legislators are serious about protecting unborn children, infants, and families, they would direct their attention to implementing more treatment centers modeled after First Step Home, rather than waste resources prosecuting parents. These treatment centers focus on collaborative efforts among agencies and treating substance use instead of criminalizing it.

IV. Conclusion

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization¹¹¹ left open the question of when personhood begins. In the wake of this decision, proponents of fetal personhood found legal loopholes and argue that since legislatures have recognized fetal personhood in some areas of the law, then fetal personhood should also be recognized in actions against pregnant persons whose actions or inactions harm their unborn child. This has led to the weaponization of fetal personhood and the criminalization of pregnant persons, especially those who use substances during pregnancy.

The prosecution of people who use substances during pregnancy should cease. The practice is a needlessly harsh and an overly zealous way to assign moral blame to pregnant people who do not conform with society’s expectations. Even the National Right to Life Committee disagrees with the practice, stating that “‘any measure seeking to criminalize or punish women is not pro-life.’”¹¹² The practice does not have the support of the medical community, likely causes more trauma than it prevents, and reinforces racial and socioeconomic biases regarding substance use. Ultimately, if those supporting these kinds of prosecutions truly cared about the unborn child, infants, and mothers they seek to help, they would direct their efforts towards advocating for better access to substance use treatment.

Cover Photo by Isaac Quesada on Unsplash

Anna Marchiony

References

1
When Fetuses Gain Personhood: Understanding the Impact on IVF, Contraception, Medical Treatment, Criminal Law, Child Support, and Beyond, Pregnancy Just. (Aug. 17, 2022), https://www.pregnancyjusticeus.org/wp-content/uploads/2023/05/fetal-personhood-with-appendix-UPDATED-1.pdf [hereinafter When Fetuses Gain Personhood].
2
Julie F. Kay, Why So-Called Personhood Laws Are the Next Big Threat After ‘Roe’ Falls, ReWire News Group (May 4, 2022), https://rewirenewsgroup.com/2022/05/04/why-so-called-personhood-laws-are-the-next-big-threat-after-roe-falls/; When Fetuses Gain Personhood, supra note 1 (noting that twenty-one states have expanded their criminal code definition of a homicide victim to include a zygote, embryo, or a fetus).
3
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
4
410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); Madeleine Carlisle, Fetal Personhood Laws Are a New Frontier in the Battle Over Reproductive Rights, TIME (June 28, 2022), https://time.com/6191886/fetal-personhood-laws-roe-abortion/.
5
Dobbs, 142 S. Ct. 2228 (2022).
6
Id. at 2261.
7
Carlisle, supra note 4.
8
When Fetuses Gain Personhood, supra note 1.
9
Carlisle, supra note 4.
10
When Fetuses Gain Personhood,supra note 1.
11
Id. (noting that recognition of fetal personhood “fundamentally change[s] the legal rights and status of all pregnant women); Carlisle, supra note 4 (“Fetal personhood laws allow the state to regulate pregnant women.”).
12
When Fetuses Gain Personhood, supra note 1.
13
Id. at 12.
14
One example of the prosecution taking legislative intent out of context is a wrongful death statute. In a wrongful death suit, the purpose of allow parents to recover for the death of the fetus is to compensate the parents for the loss of their potential relationship with the child. Inclusion of a fetus in a wrongful death context was meant to protect the rights of the parents, not the fetus itself. See When Fetuses Gain Personhood, supra note 1, at 12-13.
15
Id. at 12.
16
Id. at 11-12
17
Id. at 9.
18
Id. at 10.
19
Leticia Miranda, Vince Dixon, & Cecilia Reyes, How States Handle Drug Use During Pregnancy, ProPublica(Sept. 30, 2015), https://projects.propublica.org/graphics/maternity-drug-policies-by-state.
20
Cary Aspinwall et al., They Lost Their Pregnancies. Then Prosecutors Sent Them to Prison, The Marshall Project (Sept. 1, 2022), https://www.themarshallproject.org/2022/09/01/they-lost-their-pregnancies-then-prosecutors-sent-them-to-prison.
21
Id.; Cary Aspinwall, These States Are Using Fetal Personhood to Put Women Behind Bars, The Marshall Project (July 25, 2023), https://www.themarshallproject.org/2023/07/25/pregnant-women-prosecutions-alabama-oklahoma?utm_campaign=opening-statement&utm_medium=email&utm_source=newsletter&utm_term=3390-the-predictive-policing-revolution-that-wasn-t&utm_source=TMP-Newsletter&utm_campaign=ea6b675321-EMAIL_CAMPAIGN_2023_10_03_11_07&utm_medium=email&utm_term=0_5e02cdad9d-ea6b675321-%5BLIST_EMAIL_ID%5D.
22
Distribution, manufacture, or possession of substance is criminalized; however, merely using illegal substances and having a positive drug test in itself is not a criminalized act. See Aspinwall, supra note 20.
23
Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period, The Am. Coll. of Obstetricians and Gynecologists (Dec. 2020), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period [hereinafter ACOG].
24
Brianna Bailey, Oklahoma is Prosecuting Pregnant Women for Using Medical Marijuana, The Frontier (Sept. 13, 2022), https://www.readfrontier.org/stories/oklahoma-is-prosecuting-pregnant-women-for-using-medical-marijuana/.
25
Aspinwall, supra note 20.
26
Aspinwall, supra note 21.
27
When Fetuses Gain Personhood, supra note 1.
28
Whitner v. State, 492 S.E.2d 777, 779 (S.C. 1997).
29
S.C. Code Ann. § 20-7-50 (1985) (“Any person having the legal custody of any child or helpless person, who shall, without lawful excuse,refuse or neglect to provide, as defined in § 20-7-490, the proper care and attention for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court.”).
30
Whitner, 492 S.E.2d at 4.
31
Id. at 5.
32
Id. at 6.
33
Id. at 6-7.
34
Jocelyn Grzeszczak & Eva Herscowirz, Put to the Test: Pregnant Women in SC Face Severe Consequences for Using Drugs, The Post and Courier (Sept. 30, 2023), https://www.postandcourier.com/news/put-to-the-test-pregnant-women-in-sc-face-severe-con%5b%e2%80%a6%5dg-drugs/article_cc3738fa-4e62-11ee-95ff-c786149ce11d.html.
35
Id.
36
la. Code § 26-15-3.2 (2006).
37
All Things Considered, Alabama Woman’s Case Highlights State’s Aggressive Prosecution of Pregnant Women, NPR (July 3, 2019), https://www.npr.org/2019/07/03/738586890/alabama-womans-case-highlights-state-s-aggressive-prosecution-of-pregnant-women.
38
Id.
39
Id.
40
Ex parte Ankrom, 152 So. 3d 397 (Ala. 2013).
41
Id. at 401.
42
Id. at 402.
43
Id. at 401-02.
44
Id. at 404.
45
Ex. parte Ankrom, 152 So. 3d at 404.
46
Id.
47
Id. at 405-07.
48
Id. at 411.
49
Id. at 418.
50
Unborn Child a “Child” for Crime of Chemical Endangerment, A.B.A. (Feb. 1, 2013), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol_32/february_2013/unborn_child_a_childforcrimeofchemicalendangerment/.
51
Amy Yurkanin, How One Alabama County Declared War on Pregnant Women Who Use Drugs, The Marshall Project (July 26, 2023), https://www.themarshallproject.org/2023/07/26/alabama-pregnant-women-drugs; Ala. Code § 26-15-3.2.
52
Id.
53
Id.
54
Kassie McClung & Brianna Bailey, She was Charged with Manslaughter After a Miscarriage. Cases Like Hers are Becoming More Common in Oklahoma, The Frontier (Jan. 7, 2022), https://www.readfrontier.org/stories/she-was-charged-with-manslaughter-after-a-miscarriage-cases-like-hers-are-becoming-more-common-in-oklahoma/.
55
Id.
56
Aspinwall, supra note 20.
57
474 P.3d 886 (Okla. Crim. App. 2020).
58
Id. at ¶1, ¶3.
59
Id. at ¶1.
60
Id.
61
Id. at ¶11.
62
Green, 474 P.3d at ¶12.
63
Bailey, supra note 24.
64
Bailey, supra note 54.
65
Id.
66
Bailey, supra note 24.
67
State v. Louk, 786 S.E.2d 219, 227 f.5 (W. Va. 2016).
68
Aspinwall, supra note 20.
69
Bailey, supra note 54.
70
Id.
71
Grzeszczak, supra note 34.
72
Aspinwall, supra note 20.
73
Grzeszczak, supra note 34.
74
Id.
75
Aspinwall, supra note 20.
76
Aspinwall, supra note 21.
77
Id.
78
Id.
79
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80
Bailey, supra note 54; Erika Edwards, Doctors Call for Changes to Laws That Criminalize Drug Use During Pregnancy, CNN News (May 31, 2023), https://www.nbcnews.com/health/health-news/laws-criminalizing-drug-use-pregnancy-need-change-research-rcna83500.
81
Wisselman Harounian, A Guide to Cannabis, Legal Marijuana and Family Law Matters, https://lawjaw.com/wp-content/uploads/Marijuana-eBook.pdf (noting that caseworkers will consider whether a parent’s substance use causes them to be impaired and unable to act in the best interest of their child); Bailey, supra note 53 (“Workers consider how substance use affects the caregivers’ parenting and if the child has the ability to protect themselves when deciding whether to recommend removing a child from the home.”).
82
Office of Nat’l Drug Control Pol’y, Executive Office of the President, Substance Use Disorder in Pregnancy: Improving Outcomes for Families (Oct. 21, 2022),https://www.whitehouse.gov/wp-content/uploads/2021/10/ONDCP_Report-Substance-Use-Disorder-and-Pregnancy.pdf.
83
Dr. Nora Volkow, Pregnant People With Substance Use Disorders Need Treatment, Not Criminalization, Nat’l Inst. on Drug Abuse (Feb. 15, 2023), https://nida.nih.gov/about-nida/noras-blog/2023/02/pregnant-people-substance-use-disorders-need-treatment-not-criminalization#:~:text=Many%20U.S.%20states%20have%20punitive,charged%20with%20a%20criminal%20act; Maria X. Sanmartin, PhD et al., Association Between State-Level Criminal Justice-Focused Prenatal Substance Use Policies in the US and Substance Use-Related Foster Care Admissions and Family Reunification, JAMA Pediatrics (May 18, 2020), https://jamanetwork.com/journals/jamapediatrics/fullarticle/2766133 (“Infants who entered the foster care system because of parental substance use who live in states that have criminal justice-oriented prenatal substance use policies had a lower chance of reunification with a parent compared with states that have not adopted those policies.”).
84
Children’s Rights Litigation Committee of the American Bar Association Section of Litigation, Trauma Caused by Separation of Children From Parents: A Tool to Help Lawyers, A.B.A. (May 2019), https://www.americanbar.org/content/dam/aba/publications/litigation_committees/childrights/child-separation-memo/parent-child-separation-trauma-memo.pdf (documenting the scientific research and case long demonstrating the multitude of ways in which separation from a parent can negatively impact a child).
85
Rebecca Stone, Pregnant Women and Substance Use: Fear, Stigma, and Barriers to Care, Health & Just. (Feb. 2, 2015), https://healthandjusticejournal.biomedcentral.com/articles/10.1186/s40352-015-0015-5.
86
Aspinwall, supra note 21.
87
Aspinwall, supra note 20.
88
ACOG, supra note 23.
89
HIPPA Privacy Rule to Support Reproductive Health Care Privacy, 73 Fed. Reg. 23506 (Apr. 17, 2023), https://www.govinfo.gov/content/pkg/FR-2023-04-17/pdf/2023-07517.pdf.
90
Aspinwall, supra note 20.
91
HIPPA Privacy Rule to Support Reproductive Health Care Privacy, 73 Fed. Reg. 23506 (Apr. 17, 2023), https://www.govinfo.gov/content/pkg/FR-2023-04-17/pdf/2023-07517.pdf.
92
Stone, supra note 85.
93
ACOG, supra note 23(“Despite similar rates of drug use between people of different races and income levels, medical professionals and the foster system overwhelmingly target people who are poor and people of color for pre- and post-natal drug testing and reporting to child protective services.”).
94
Grzeszczak, supra note 34.
95
Aspinwall, supra note 20; Grzeszczak, supra note 34.
96
Aspinwall, supra note 20.
97
When Fetuses Gain Personhood, supra note 1.
98
Volkow, supra note 83.
99
Bailey, supra note 54.
100
Volkow, supra note 83.
101
Aspinwall, supra note 21.
102
Grzeszczak, supra note 34.
103
Edwards, supra note 80.
104
Id.
105
Volkow, supra note 83.
106
Office of Nat’l Drug Control Pol’y, supra note 82.
107
First step home, https://firststephome.org/services (last visited Nov. 13, 2023).
108
Id.
109
Id.
110
Annual Report 2022, First Step Home , 2, https://static1.squarespace.com/static/62a0cc1bbd7aa01b861c1c8c/t/6357012f00604d19015a7fba/1666646322353/500180_First_Step_Home_Foldout_2022_AnnualReport_FINAL-ONLINE.pdf.
111
Dobbs, 142 S. Ct. 2228 (2022).
112
Aspinwall, supra note 20; An Open Letter to State Lawmakers from America’s Leading Pro-Life Organizations, Nat’l Right to Life (May 12, 2022), https://www.nrlc.org/uploads/communications/051222coalitionlettertostates.pdf (“We state unequivocally that we do not support any measure seeking to criminalize or punish women and we stand firmly opposed to include such penalties in legislation.”).