•  
  •  
 

St. Thomas Law Review

Jeanette Lewis

First Page

275

Document Type

Comment

Abstract

America's "War on Drugs" has given rise to political and legal debate concerning the critical health problems presented by maternal drug abuse during pregnancy. The "War," largely characterized by criminal sanctions as opposed to preventative measures, indicates the social attitude and legal response to this crisis. Researchers estimate that 375,000 newborns may be harmed by maternal substance abuse in the United States each year. Furthermore, one in every ten babies born in urban areas has been exposed to cocaine in the womb. Given the epidemic proportions of America's drug problem and its agenda against drug use, it is surprising that of seventy- eight drug treatment programs in New York City, fifty-four percent refused to treat pregnant addicts, and thirteen percent refused to treat pregnant addicts on Medicaid. Without the help necessary to overcome addiction, the number of drug addicted newborns will continue to increase because the very services created to thwart drug abuse ignore the problem of pregnant women's addiction. This comment defines the current legal debate in relation to the constitutionality of fetal rights legislation. In addition, it analyzes the implications of present judicial and legislative attempts to address the issue of pregnancy and substance abuse. The first section examines Roe's trimester framework and presents argument against its application. Furthermore, it analyzes the potential effect of Webster v. Reproductive Health Services, on Roe's definition of "person" as it relates to the timing of state intervention. Section two sets forth judicial interpretations of legislation used to punish pregnant addicts and demonstrates the futility of addressing substance abuse under existing civil and criminal statutes. The third section defines the "rights dilemma" which perpetuates the notion of maternal/fetal conflict, ignores their natural connection and thereby creates an adversarial relationship between 'them. The final section suggests legislative and ideological reforms that promote a fair solution. Discussion includes solutions premised on feminist theory, or alternatively, the creation of maternal health laws patterned after state mental health statutes. Only by acknowledging the reciprocal and interconnected relationship between mother and fetus may we establish remedies that protect both women and children.

Download

Share

COinS