NCJ Number
154304
Journal
Seton Hall Constitutional Law Journal Volume: 2 Dated: (1991) Pages: 53-126
Date Published
1991
Length
74 pages
Annotation
This paper critiques the constitutional issues associated with three strategies for addressing the situation of a growing number of pregnant, drug-abusing women who give birth to drug- addicted or drug-exposed infants.
Abstract
One approach is criminal prosecution of the mother. A second approach aims to protect the fetus by controlling a pregnant woman's conduct. A third approach is the use of neglect and abuse statutes and proceedings to remove the children of addicted parents from the home either temporarily or permanently. Each of these approaches raises serious constitutional issues. The criminal prosecution of drug-abusing mothers is the most controversial approach and raises issues of cruel and unusual punishment and due process. The second approach, which involves various means of state intervention during pregnancy, including actions designed to protect a fetus, is growing in popularity. Although state interest in the protection of a viable fetus can have priority over a woman's right to privacy, the point at which drug exposure becomes harmful to the fetus and the nature of that harm has yet to be scientifically determined. Both legislators and the judiciary continue to struggle with identifying the most appropriate time and means of intervention. The third approach, intervention following the child's birth, has the least problematic constitutional issues; however, in order to avoid infringement upon a mother's privacy and fourth amendment rights, medical professionals must have some "reasonable suspicion" or "medical necessity" before subjecting the mother of a newborn to drug screening. Moreover, a finding of neglect and a deprivation of the mother's custody, even if temporary, cannot be based solely upon her prenatal conduct. The ultimate determination must be based on a risk, or lack thereof, to the newborn. 367 footnotes