I have practiced in many family and criminal courts over the past 25 years in New York State. An issue of significant importance which we must guard against happening in the courts of our state, is the prosecution of women in criminal or family court under the state’s penal and child abuse laws, respectively, for using drugs or alcohol during pregnancy. Eighteen states prosecute pregnant women for child abuse for using drugs during pregnancy and 18 states require health care professionals to report suspected drug abuse.

The penal and child abuse laws are often used by pro-life judges, district attorneys and social service attorneys to prosecute pregnant women suspected of drug use during pregnancy who give birth or miscarry.

Example: Alabama sentenced a woman to ten years in state prison after her baby died shortly after birth. Her crime: drug use during pregnancy, although it was never proven that the drug use caused the death, and medical evidence indicated otherwise. The judge denied the woman’s request to call a medical expert to testify.The law she was prosecuted under “chemical endangerment,” originally enacted to penalize adults who expose young children to deadly fumes from meth labs, was hijacked by prosecutors to charge the woman with the equivalent of an A felony murder charge.

These laws force women who don’t want to have an abortion to have an abortion, because of fear of prosecution. Since health care providers are mandated reporters, pregnant women may not seek prenatal care.

Why, would you ask is this happening across the United States? The reason: prosecution of pregnant women during pregnancy is a back door way to establish law and case law for the “personhood” of the fetus which will lead to the criminalization of abortion. Once this happens, women lose their rights as individuals imbued with inalienable rights under the U.S. Constitution. Let me know if you know of any cases in New York State where pregnant women have been prosecuted for drug or alcohol use during pregnancy.

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