A recent study found that in 1995 almost two-thirds of the states reported positive newborn toxicology results to child protection services or the Department of Health. Ten states required that such results be reported to law enforcement officials. See Chavkin, W. et al., “National Survey of the States: Policies and Practices Regarding Drug Using Pregnant Women,” American Journal of Public Health, 88 (1998): 117–19. For a review of the diverse approaches taken by the states, see Paltrow, L.M. Cohen, D.S. Gray, C.A., Year 2000 Overview: Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs, Report of the Women's Law Project and National Advocates for Pregnant Women, available through <www.advocatesforpregnantwomen.org/articles/index.htm>.CrossRefGoogle Scholar

“Illicit Drug Use By Pregnant Women,” (Policy Statement 9020) American Journal of Public Health, 81 (1331): 253.Google Scholar

“Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women,” (Board of Trustees Report) JAMA, 264 (1990): 2663–70.CrossRefGoogle Scholar

American Nurses Association, Opposition to Criminal Prosecution of Women for Use of Drugs While Pregnant and Support for Treatment Services for Alcohol and Drug Dependent Women of Childbearing Age (position statement) (April 15, 1991).Google Scholar

The American Academy of Pediatrics and The American College of Obstetricians and Gynecologists, Guidelines for Prenatal Care (1992); Committee on Substance Abuse, American Academy of Pediatrics, “Drug-Exposed Infants,” Pediatrics, 86 (1990): 639–42.Google Scholar

Guidelines for Prenatal Care, supra note 5; The American College of Obstetricians and Gynecologists, Cocaine Abuse: Implications for Pregnancy (Committee Opinion 81) (1990).Google Scholar

The American Society of Addiction Medicine, Public Policy Statement on Chemically Dependent Women and Pregnancy, (September 25, 1989).Google Scholar

National Association of Public Child Welfare Administrators, Guiding Principles for Working with Substance-Abusing Families and Drug-Exposed Children: The Child Welfare Response, (approved by the Executive Committee at the National Council of State Human Services Administrators, January 1991).Google Scholar

Chavkin, W. “Drug Addiction and Pregnancy: Policy Crossroads,” American Journal of Public Health, 80 (1990): 483–87; Blank, R.H., “Maternal-Fetal Relationship: The Courts and Social Policy,” Journal of Legal Medicine, 14 (1993): 73–92; Daniels, C.R., At Women's Expense: State Power and the Politics of Fetal Rights (Cambridge, MA: Harvard University Press, 1993); Mathieu, D., “Mandating Treatment for Pregnant Substance Abusers: A Compromise,” Politics and the Life Sciences, 14 (1995): 199–208; “Symposium: Pregnancy and Substance Abuse,” Politics and the Life Sciences, 15 (1996): 49–82; Jos, P.H. Marshall, M.F. Perlmutter, M., “The Charleston Policy on Cocaine Use During Pregnancy: A Cautionary Tale,” Journal of Law, Medicine & Ethics, 23 (1995): 120–128.CrossRefGoogle Scholar

Mechanic, D. Schlesinger, M., “The Impact of Managed Care on Patient's Trust in Medical Care and Their Physicians,” JAMA, 275 (1996): 1693–97; Shortell, S.M. Walters, T.M. Clarke, K.W.B. Budetti, P.P., “Physicians as Double-Agents: Maintaining Trust in an Era of Multiple Accountability,” JAMA, 280 (1998), 1102-1108; Bloche, M.G., “Clinical Loyalties and the Social Purposes of Medicine,” JAMA, 281 (1999): 268–74.CrossRefGoogle Scholar

Blank, R.H., “Maternal-Fetal Relationship: The Courts and Social Policy,” The Journal of Legal Medicine, 14 (1993): 73–92.CrossRefGoogle Scholar

There is, of course, a growing literature that tried to assess the relative threats posed by a wide variety of legal and illegal behaviors. In general, research on the negative effects of tobacco and alcohol has been more conclusive and the research on the use of cocaine and other drugs has generally found that adverse effects are not nearly as severe as many predicted. See, for example, Hurt, H.H. et al., “Children with In Utero Cocaine Exposure Do Not Differ From Control Subjects on Intelligence Testing,” Archives of Pediatrics and Adolescent Medicine, 151 (1997): 1237–42 and Hurt, H. et al., “A Prospective Comparison of Developmental Outcome of Children With In Utero Cocaine Exposure and Controls Using the Battelle Development Inventory,” Journal of Developmental and Behavioral Pediatrics, 22 (2001): 27–34.CrossRefGoogle Scholar

Consider, for example, the Bush administration's recent decision to broaden the definition of a child to include the prenatal period from conception for the purposes of determining eligibility for the Children's Health Insurance Program. Pear, R., “Bush Plan Allows States to Give ‘Unborn Child’ Medical Coverage,” New York Times, July 6, 2001, at A1.Google Scholar

For a discussion of how popular images of client groups can influence policy, see Schneider, A. Ingram, H., “Social Construction of Target Populations: Implications for Politics and Policy,” American Political Science Review, 87 (1993): 334–47. For discussions of race and policies regarding mothers, see Beckett, K. “Fetal Rights and ‘Crack Moms:’ Pregnant Women in the War on Drugs,” Contemporary Drug Problems, 22 (1995): 587–612; Roberts, D.E., Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York, Ny: Pantheon, 1997).CrossRefGoogle Scholar

Five years after implementing the Interagency Policy, the Medical University agreed to discontinue the program in an agreement with the Civil Rights Division of the Department of Health and Human Services (DHHS). DHHS investigated charges that the policy, implemented in a federally-funded facility, was racially discriminatory. The charges included both discriminatory application of the policy to black women who were screened and arrested more frequently than white women, and arbitrary selection of the illegal drugs that were tested for and for which women were arrested, crack cocaine being the most frequent drug resulting in arrest. A subsequent investigation by the Office of Protection from Research Risks (OPRR) of the National Institutes of Health found that the Interagency Policy involved research on human subjects without their consent and without the requisite Institutional Review Board evaluation and approval. As a result, the OPRR deferred renewal of the Medical University's Multiple Project Assurance for one year, thereby threatening millions of dollars in federal funds if the Interagency Policy were continued.Google Scholar

Ten of the women arrested under the Medical University policy brought charges against the Medical University, the police department, and the prosecutor alleging racial discrimination, unlawful search and seizure, violations of confidentiality and the right to refuse medical treatment, and a series of other charges. In Ferguson v. City of Charleston, No. 2-93-26242-2 (D.S.C. filed Oct. 5, 1993), a federal jury dismissed all charges against the hospital, the police, and the prosecutor. Proponents of the policy claimed vindication for their approach.Google Scholar

In Whitner v. State, 492 S.E.2d 777 (S.C. 1997), the court established that a viable fetus is considered a person under South Carolina's child abuse and neglect statute. The court ruled that a pregnant woman may be held criminally liable for any action during her pregnancy that is likely to “endanger the life, health or comfort” of her viable fetus. In June 1998, the United States Supreme Court refused, without comment, to hear the Whitner appeal, thus allowing South Carolina's Supreme Court ruling to stand.Google Scholar

Ferguson v. City of Charleston, No. 99–936. The Supreme Court, however, left it to lower courts to determine whether the women had consented to the drug tests that led to their arrests.Google Scholar

South Carolina Department of Social Services, Third Trimester Fetuses Survey, (working draft) January 1-December 31, 1998.Google Scholar

“Mom Gets 12 Years in Drug Death of Fetus,” The State, May 17, 2001, at A1Google Scholar

Shortell, S.M. et al., “Physicians as Double-Agents: Maintaining Trust in an Era of Multiple Accountability,” JAMA, 226 (1998): 1521–26.Google Scholar

Brint, S.G., In an Age of Experts: The Changing Role of Professionals in Politics and Public Life (Princeton, N.J.: Princeton University Press, 1994).CrossRefGoogle Scholar

Greenhouse, S., “AMA's Delegates Vote to Unionize,” New York Times, June 24, 1999, at A1.Google Scholar

Miller, N.S. Gold, M.S., “Management of Withdrawal Syndromes and Relapse Prevention in Drug and Alcohol Dependence,” American Family Physician, 58 (1998): 139–47; Friedman, P. Saitz, R. Samet, J. “Management of Adults Recovering From Drug and Alcohol Problems,” JAMA, 279 (1998): 1227–32.Google Scholar

Seivewright, N.A. Greenwood, J., “What is Important in Drug Abuse Treatment,” The Lancet, 8998 (Feb. 10, 1996): 373–77; Chavkin, W., “Drug Addiction and Pregnancy: Policy Crossroads,” American Journal of Public Health, 80 (1990): 483-87, at 485.CrossRefGoogle Scholar

Lex, B., “Prevention of Substance Abuse Problems in Women,” in Watson, R., ed., Drug and Alcohol Abuse Prevention (Clifton, NJ: Humana Press, 1990); Burkett, G. "Lecture at Conference on Reproductive Ethics," American Society of Law, Medicine, and Ethics, Naples, FL, January 4, 1995; Chasnoff, I., “Drugs, Alcohol, Pregnancy and the Neonate: Pay Now or Pay Later,” JAMA, 266 (1991): 1567–68.Google Scholar

“Early Data in Provider Study Reveal Struggle for Survival,” Alcohol and Drug Abuse Week 8, no. 37 (September 23, 1996): 1-2; Gardner, J., “Drug Treatment Takes a Hit,” Modern Healthcare 26, no. 43 (October 21, 1996): 66–70.Google Scholar

Center for Reproductive Health Policy Research, Institute for Health Policy Studies, University of California, San Francisco, Options for Recovery: A Final Evaluation Report (1994).Google Scholar

Center for Substance Abuse Treatment, Substance Abuse and Mental Health Services Administration, U.S. Department of Health and Social Services, Pregnant, Substance Abusing Women, (Treatment Improvement Protocol Series, #2) (1995): At 6–7.Google Scholar

Theidon, K., “Taking a Hit: Pregnant Drug Users and Violence,” Contemporary Drug Problems, 22 (1995): 564–87; Thompson, M.P. Kingree, J.B., “The Frequency and Impact of Violent Trauma Among Pregnant Substance Abusers,” Addictive Behaviors, 23 (1998): 257–62.CrossRefGoogle Scholar

Hurt, , "Children with in Utero Cocaine Exposure," supra note 12; Hurt, , "A Prospective Comparison of Development Outcome," supra note 12.Google Scholar

Problems recognized by, among others, the American Medical Association, the American Society of Addictive Medicine, the National Association for Perinatal Addiction Research and Education, the American Academy of Pediatrics, and the American Nurses Association.Google Scholar

Means, L.B. et al., “Client Demographics and Outcome in Outpatient Cocaine Treatment,” International Journal of Addiction, 24 (1989): 3227–3334; Agosti, V. et al., “Patient Factors Related to Early Attrition from an Outpatient Cocaine Research Clinic: A Preliminary Report,” International Journal of Addiction, 26 (1991): 327–34.CrossRefGoogle Scholar

Valliant, G.E., “What Does Long-Term Follow-Up Teach Us About Relapse and Prevention of Relapse in Addiction?,” British Journal of Addiction, 83 (1988): 1147–57.CrossRefGoogle Scholar

Daley, M. Argerious, M. McCarty, D., “Substance Abuse Treatment for Pregnant Women: A Window of Opportunity?,” Addictive Behaviors, 23 (1998): 239–50.CrossRefGoogle Scholar

Center for Reproductive Health Policy Research, supra note 28.Google Scholar

Coletti, S.D. et al., “PAR Village for Chemically Dependent Women: Philosophy and Program Elements,” Journal of Substance Abuse Treatment, 12, no. 4 (1995): 289–96.CrossRefGoogle Scholar

Kent, C., “Experts Fear ‘Get Tough’ View of Drug Treatment May Backfire,” American Medical News, 39, no. 35 (1996): 1–3.Google Scholar

“Combination Inpatient and Outpatient Treatment Helps Drug Users Resist Temptation,” The Brown University Digest of Addiction Theory and Application, 18, no. 5 (1999): 6.Google Scholar

“Intensive Substance Abuse Treatments: Are We Getting Our Money's Worth?” Brown University Digest of Addiction Theory and Application, 16, no. 12 (1997): 1–4.Google Scholar

Friedmann, P. Saitz, R. Samet, J., “Management of Adults Recovery From Alcohol or Other Drug Problems,” JAMA, 279 (1998): 1227–32, at 1227.CrossRefGoogle Scholar

Marwick, C., “Physician Leadership on National Drug Policy Finds Addiction Treatment Works,” JAMA, 279 (1998); 1149–54.Google Scholar

For other articulations of this distinction, see Mann, J., “Public Health and Human Rights,” Human Rights, 25, no. 4 (1998): 2–6; Wagner, M., “The Public Health Versus Clinical Approaches to Maternity Services: The Emperor Has No Clothes,” Journal of Public Health Policy, 19, no. 1 (1998): 24-35; Bloche, M.G., “Clinical Loyalties and the Social Purposes of Medicine,” JAMA, 281 (1999): 268-74.Google Scholar

Mosher, J. F., “A Public Health Approach to Alcohol and Other Drug Problems: Theory and Practice,” in Scutchfield, F.D. Keck, L. W., eds., Principles of Public Health Practice (Clifton Park, NY: Delmar Thomas Learning, 1997).Google Scholar

Haack, M.R., “Comprehensive Community Based Care: The Link Between Public Policy and Public Health,” in Haack, M.R., ed., Drug Dependent Mothers and Their Children: Issues in Public Health Policy and Public Health (New York, NY: Springer Publishing Co., 1997): 1–30.Google Scholar

Schneider, A. Ingram, H., “Social Construction of Target Populations: Implications for Politics and Policy,” American Political Science Review, 87 (1993): 334–47.CrossRefGoogle Scholar

Kar, S.B. Alex, S., “Public Health Approaches to Substance Abuse Prevention: A Multi-Cultural Perspective,” in Kar, S., ed., Substance Abuse Prevention: A Multi-Cultural Approach (Amityville, NY: Baywood, 1999): 11–42, at 33.Google Scholar

Baker, E.A. Brownson, C.A., “Defining Characteristics of Community Based Health Promotion Programs,” in Community Based Prevention: Programs That Work (Boston, MA: Jones & Bartlett Publishing, 1999): 7–19, at 10.Google Scholar

Sanders-Phillips, K. “Psychosocial Factors Influencing Substance Abuse in Black Women and Latinos,” in Kar, S., ed., Substance Abuse Prevention: A Multi-Cultural Perspective (Amityville, NY: Baywood Publishing, 1999): 199–216.Google Scholar

Parker, E.A. et al., “Coalition Building for Prevention,” Journal of Public Health Management Practice, 4, no. 2 (1998): 25–36.CrossRefGoogle Scholar

Kumpferer, K.L. et al., “Leadership and Team Effectiveness in Community Coalitions for the Prevention of Alcohol and Other Drug Abuse,” Health Education Research, 8, 3 (1993): 351–74.Google Scholar

Rogers, T. et al., “Characteristics of Participant Perception of Tobacco Control Coalitions in California,” Health Education Research, 8, no. 3 (1993): 345–58.CrossRefGoogle Scholar

Jordan, L.L., “Bridging the Public Policy/Public Health Gap: Organizing Multiple Agencies to Deliver Coordinated Services,” Haack, M.R., ed., Drug Dependent Mothers and Their Children: Issues in Public Health Policy and Public Health (Springer Publishing Company, 1997): 249–64.Google Scholar

Kellogg, W.K. Foundations, Grantmaking Initiative Announcement for Community Based Public Health (Battle Creek, MI: E. Parker, 1991).Google Scholar

Kar, Alex, , supra note 47.Google Scholar

Fullilove, M.T. Lown, A. Fullilove, R.E., “Crack ‘Hos and Skeezers’ Traumatic Experiences of Women Crack Users,” The Journal of Sex Research, 29 (1992): 275–87.CrossRefGoogle Scholar

Lacey, L., “Helping Low Income Minority Women Reduce Cancer Risk,” Oncology, 7 (1992): 22.Google Scholar

Bhattachaya, G., “Engaging Women/Mothers in Multi-Cultural Community Organizing to Prevent Drug Abuse,” in Kar, S., ed., Substance Abuse Prevention: A Multicultural Perspective (Amityville, NY: Baywood, 1999): 77–99.Google Scholar

Amezucua, C. et al., “A Su Salud: Health Promotion in a Mexican-American Border Community,” in Bracht, N., ed., Health Promotion at the Community Level (Newbury Park, CA: Sage, 1999): 257–76.Google Scholar

Sanders-Phillips, , supra note 49, at 208; see also Gottblieb, B. H., Social Networks and Social Support, (Beverly Hills, CA: Sage, 1981) and Israel, B.A., “Social Networks and Social Support: Implications for Natural Helpers and Community Level Interventions,” Health Education Quarterly, 12 (1985): 65–80.Google Scholar

Baker, Brownson, , supra note 48, at 7–8.Google Scholar

Prochaska, J.O. Diclemente, C.C., “Stages and Processes of Self-Change of Smoking: Toward and Integrative Model of Change,” Journal of Consulting and Clinical Psychology, 51 (1983): 390–95.CrossRefGoogle Scholar

Kar, Alex, , supra note 47, at 16.Google Scholar

Kar, S., “Primary Health Care: Implications for Medical Education,” Academic Medicine, 65 (1990): 301–306; Lee, P. Paxman, D., “Reinventing Public Health,” Annual Review of Public Health, 18 (1997): 1–35.CrossRefGoogle Scholar

Only about one-sixth of the years of life expectancy gained in this country during this century can be attributed to the beneficial impact of medicine, medical care, and medical research. “Medicine and Public Health, Ethics, and Human Rights,” Hastings Center Report, 27, no. 3 (1997): 6–13.CrossRefGoogle Scholar

Whitner, supra note 17. Whitner was actually heard twice by the supreme court. The first opinion was issued in July 1996; but in an unusual procedural move, the Court granted an amicus curiae's motion for rehearing. The opinion was amended and refiled on October 27, 1997. A petition for certiorari to the United States Supreme Court on behalf of Ms. Whitner was denied by the Court in May 1998; as cited in Nelson, L.J. Marshall, M.F., An Ethical and Legal Analysis of State-Compelled Loss of Liberty as an Intervention to Reduce the Harm of Perinatal Substance Abuse and Drug Addiction, final report from a project sponsored by the Robert Wood Johnson Foundation Substance Abuse Policy Research Program (August 12, 1998), at 65.Google Scholar

Some rule out any such tradeoffs as inconsistent with the rights of the mother and / or the prerogatives of the physician. But this is a difficult position to defend, since community well-being does require some restriction of individual autonomy. So, some balancing of privacy rights and society's interest in healthy newborns is necessary.Google Scholar

Although South Carolina ranks twenty-third in the percentage of two-year-olds immunized and twelfth in child support enforcement, and federal initiatives have allowed some expansion of Medicaid coverage for children (enactment of the state Children's Health Insurance Program (CHIP) enabled South Carolina to extend Medicaid coverage to children in families who earn up to 150 percent of the federal poverty level), South Carolina ranks fiftieth in infant mortality, Children's Defense Fund, The State of Children in America's Union (2002), available through <www.childrensdefense.org/data.php>, at 47, forty-eighth in the incidence of low-birth weight babies, id. at 45, fortieth in the incidence of prenatal care, id. at 58, thirty-sixth in child poverty, Kids Count, State Profiles of Child Well-Being (2003 Data Book), available through <www.aecf.org/kidscount/>, at 69, thirty-ninth in teenage deaths due to accident, homicide, and suicide, id. at 64, and thirty-fifth in the percentage of teens who drop out of high school, id. at 66., at 47, forty-eighth in the incidence of low-birth weight babies, id. at 45, fortieth in the incidence of prenatal care, id. at 58, thirty-sixth in child poverty, Kids Count, State Profiles of Child Well-Being (2003 Data Book), available through , at 69, thirty-ninth in teenage deaths due to accident, homicide, and suicide, id. at 64, and thirty-fifth in the percentage of teens who drop out of high school, id. at 66.' href=https://scholar.google.com/scholar?q=68Although+South+Carolina+ranks+twenty-third+in+the+percentage+of+two-year-olds+immunized+and+twelfth+in+child+support+enforcement,+and+federal+initiatives+have+allowed+some+expansion+of+Medicaid+coverage+for+children+(enactment+of+the+state+Children's+Health+Insurance+Program+(CHIP)+enabled+South+Carolina+to+extend+Medicaid+coverage+to+children+in+families+who+earn+up+to+150+percent+of+the+federal+poverty+level),+South+Carolina+ranks+fiftieth+in+infant+mortality,+Children's+Defense+Fund,+The+State+of+Children+in+America's+Union+(2002),+available+through+,+at+47,+forty-eighth+in+the+incidence+of+low-birth+weight+babies,+id.+at+45,+fortieth+in+the+incidence+of+prenatal+care,+id.+at+58,+thirty-sixth+in+child+poverty,+Kids+Count,+State+Profiles+of+Child+Well-Being+(2003+Data+Book),+available+through+,+at+69,+thirty-ninth+in+teenage+deaths+due+to+accident,+homicide,+and+suicide,+id.+at+64,+and+thirty-fifth+in+the+percentage+of+teens+who+drop+out+of+high+school,+id.+at+66.>Google Scholar

Chavkin, W. et al., “National Survey of the States: Policies and Practices Regarding Drug Using Pregnant Women,” American Journal of Public Health, 88 (1998): 117–19.CrossRefGoogle Scholar

National Center on Addiction and Substance Abuse at Columbia University, Shoveling Up: The Impact of Substance Abuse on State Budgets (January, 2001).Google Scholar

Harris, K., “5.6 Billion Budget Compromise Has Unprecedented Cuts,” The State, June 15, 2001, at A1.Google Scholar

Pagliaro, A. M. Pagliaro, L.A., “Teratogenic Effects of in Utero Exposure to Alcohol and Other Abusable Psychotropics,” in Haack, M.R., ed., Drug Dependent Mothers and their Children: Issues in Public Policy and Public Health (New York, NY: Springer Publishing Co, Inc., 1997): 31–63.Google Scholar

And so, the criminalization of substance abuse among pregnant women may offer the worst of both worlds. On the one hand, it weakens the effectiveness of the clinical encounter by seriously eroding trust between the caregiver and the patient, further alienating individuals from the health-care system, and reinforcing the idea that the object of our efforts is the isolated individual in need of treatment or incarceration. On the other hand, it fails to make good on its promise of promoting the health and well-being of future citizens by neglecting to address the full range of threats to newborns and children and by ignoring the social and economic context that gives rise to many of those threats.Google Scholar