NCJ Number
170575
Date Published
1998
Length
15 pages
Annotation
This paper provides an overview of the types of legal responses to the moral panic regarding "crack babies" (babies of mothers who used crack while pregnant) raised in the media and discusses newer medical evidence on the effects of prenatal substance abuse and the constitutional rights of those affected.
Abstract
The author shows that the criminalization of substance abuse during pregnancy under substance abuse and child abuse statutes is a failed policy. Repeatedly, the courts have thrown out such cases, warning that prosecution of behavior during pregnancy leads down the "slippery slope" to an invasion of women's constitutional rights and statutory vagueness. Courts have declined to find women guilty under statutes not intended for this use (with the exception of South Carolina), and no State or Federal legislatures have so far been able to overcome the constitutional and other legal obstacles (such as the problem of recognizing a fetus as a person) to enact new criminal code legislation. The criminalization of conduct during pregnancy is unconstitutional, sexist, and serves no social policy purpose. The threat of such prosecutions alone would lead women away from prenatal care, worsen the risks for the fetus, and make interventions less likely. Only when parents are unable to care for the child at all should the juvenile court take custody away from the parent. The goal of public policy should be to provide pregnant women and mothers of young children with effective treatment, comprehensive prenatal care, and contraceptive help, so that they may maintain custody of their children and manage their own lives. Juvenile court intervention should be limited to the protection of children who are at great risk of harm; the loss of constitutional rights and the costs incurred should be prevented, and criminal court intervention should never be used. 1 note