Punishing Drug Use During Pregnancy: Is It Time to “Just Say No” to Fetal Rights?

In family courts throughout the country, civil neglect and abuse petitions are routinely brought against individuals based on their drug use during pregnancy. While some may be quick to justify such state interventions in the name of child protection based on the presumption that drug use always harms fetuses in utero and the child once it is born, this note questions the propriety of such justifications. While drug use during pregnancy may result in detrimental health outcomes, the theoretical underpinning of this premise has been dramatically distorted due to racist and classist assumptions that permeate child protective schemes. Medical research suggests that harm to the child resulting from in utero exposure to substances has been vastly overstated due in large part to the pervasive rhetoric of the war on drugs, “crack babies,” and the vilification of Black motherhood. Furthermore, punishing individuals for drug use during pregnancy in the name of fetal protection highlights the law’s recent tendency to afford legal protections to fetuses, often at the expense of their mothers’ privacy and reproductive liberty interests. Thus, the justifications for state intervention (i.e., preventing harm to the child) must be carefully scrutinized. Otherwise, family courts, despite their purported rehabilitative and non-punitive purpose, are simply carrying out state-sanctioned family separation, the trauma of which cannot be overstated. About half the states consider drug use during pregnancy as child abuse or neglect per se under their child-welfare statutes. The remaining states either have no specific requirement or require a showing of harm to the child caused by the parent’s drug use before a finding of neglect or abuse can be made. This note focuses on New York State’s approach, which requires a showing of harm to the child caused by drug use during pregnancy. While preferable to state approaches which permit such a finding without any showing of harm, New York caselaw suggests ample room for improvement. First, New York must promulgate clear standards for establishing harm to the child. New York also cannot ignore the harm of the most drastic and invasive of its interventions—removal of the infant—in its analysis. New York must establish clear guidelines for drug testing and subsequent reporting of pregnant women. Finally, to truly work in the best interests of children and families and to best align with its “rehabilitative” purpose, New York family courts must reject a punitive approach and should prioritize interventions supporting maternal health and recovery