Fetal Rights

The use of illegal drugs such as cocaine and heroin can have a devastating effect on the health of a fetus. By the early 1990s, it was estimated that 375,000 children were born annually in the United States suffering from the effects of illegal drugs taken by their mother.

As a result, some states have held women criminally liable for any use of illegal drugs that harms their fetus. Prosecutors in many states have sought to deter such behavior by charging women with a number of crimes against their fetus, including delivery of drugs, criminal CHILD ABUSE, assault with a deadly weapon, and MANSLAUGHTER. Johnson v. State, 578 So. 2d 419 (Fla. 1991), demonstrates the controversial aspects of such prosecutions. In this case, a Florida district court of appeal upheld a lower court's conviction of a woman for the delivery of a controlled substance by umbilical cord to two of her four children. The decision was the first appellate ruling to uphold such a conviction.

Jennifer Johnson, a twenty-three-year-old resident of Seminole County, Florida, had been arrested in 1989 after two successive instances in which a child born to her tested positive for cocaine immediately after birth. Cocaine is especially harmful to a fetus, often causing premature birth, significant deformities and ailments, and even death. After Johnson's conviction in the Seminole County Circuit Court in 1989, the AMERICAN CIVIL LIBERTIES UNION (ACLU) appealed the case with backing from an unusual alliance of medical and civil rights organizations, including the AMA, the American Public Health Association, the Florida Medical Association, and the National Abortion Rights Action League, all of which had different reasons for supporting the appeal.

The AMA stated that it opposed the use of criminal prosecutions against mothers. Imposing criminal sanctions, it said, does not prevent damage to fetal health and may violate the privacy laws between doctors and women, making doctors and hospitals agents of prosecution. The ACLU echoed the AMA, arguing that prosecutions of drug-addicted women for harm to their children will greatly damage women's health, their relationship to the HEALTHCARE community, and their ability to control their own body. It also maintained that the policies enacted against Johnson should be made by a state legislature

and not the courts, and it pointed out that many more minority women than white women are reported for child abuse after testing positive for drugs.

Other critics argued that most child abuse statutes do not specifically mention drug use by pregnant women as an offense, thereby raising the question as to whether prosecutions on charges of drug use involve a denial of DUE PROCESS. Still others said that increased funding for substance abuse treatment programs was a much better approach to the drug problem. They saw prosecutions on drug abuse charges as doing little to treat the underlying addiction and argued that such prosecutions deter at-risk women from seeking prenatal care, increasing the likelihood of harm to the fetus.

Despite these arguments, the Fifth District Court of Appeals, in Florida, upheld Johnson's conviction. It agreed with the prosecution's argument that Johnson's umbilical cord had delivered cocaine to her children after their birth but before the cord was cut, thereby violating a Florida statute against the delivery of a controlled substance to a minor (Fla. Stat. Ann. §893.13(1)(c) [West 1991]).

States will continue to struggle with this issue as they seek to achieve the best balance between maternal and fetal rights. States will also have to consider whether or not to hold criminally liable women whose use of legal substances such as alcohol or tobacco harms the fetus.