Like alcohol and cigarettes, using cocaine during pregnancy can pose risks to the woman and the fetus. More carefully controlled studies, however, are finding that cocaine is not uniquely or even inevitably harmful. For example, unlike the devastating and permanent effects of fetal alcohol syndrome, which causes permanent mental retardation, cocaine seems to act more like cigarettes and marijuana, increasing certain risks like low birth weight but only as one contributing factor and only in some pregnancies. 13 Epidemiological studies find that statistically speaking many more children are at risk of harm from prenatal exposure to cigarettes and alcohol. In fact, one recent publication on women and substance abuse has created the label "Fetal Tobacco Syndrome" to draw attention to the extraordinarily high miscarriage and morbidity rates associated with prenatal exposure to cigarette smoke. 14
The suggestion of sterilization, however, is particularly attractive if there is no explanation about why a pregnant woman with a drug problem would want to become pregnant or to have a child in the first place. But drug-using pregnant women become pregnant and carry to term for the same range of reasons all women do. Because contraception failed. Because they fell in love again and hoped this time they could make their family work. Because they are "pro-life" and would never have an abortion. Because when they found out the beloved father of the baby was really already married, they thought it was too late to get a legal abortion. Because they do not know what their options might be. Because they have been abused and battered for so long they no longer believe they can really control any aspect of their lives including their reproductive lives. Because they wanted a child. Because their neighbors and friends, despite their drug use, had healthy babies and they believed their's would be healthy too.
1 in 14 pregnant women still smokes, CDC study reports
Other barriers also exist. Judge Eaton ruled that "the defendant also made a choice to become pregnant and to allow those pregnancies to come to term." The prosecutor argued that "[w]hen she delivered that baby she broke the law." By saying this, the judge makes clear that it was having a child that was against the law. If Ms. Johnson had had an abortion she would not have been arrested - even for possessing drugs. 38 But, this statement not only reveals a willingness to punish certain women for becoming mothers, it also reflects a host of widely held beliefs and assumptions about access to reproductive health services for women.
A Significant Amount Of Women Continue Smoking While Pregnant
As the court recognized, to hold women legally accountable would depend on the "legal fiction" that the fetus is "a separate person with rights hostile and assertable against its mother." As the court explained:
The relationship between a pregnant woman and her fetus is unlike the relationship between any other plaintiff and defendant. No other plaintiff depends exclusively on any other defendant for everything necessary for life itself. No other defendant must go through biological changes of the most profound type possible at the risk of her own life, in order to bring forth an adversary into the world. It is after all, the whole life of the pregnant woman which impacts on the development of the fetus. As opposed to the third-party defendant, it is the mother's every waking and sleeping moment which for better or worse shapes the prenatal environment which forms the world for the developing fetus. That this is so is not a pregnant woman's fault: it is a fact of life.
More pregnant women are smoking weed to help with …
Some people argue, however, that a woman who "chooses" to become pregnant, and does not end that pregnancy should be held legally accountable for her actions. Much of the problem with this argument has already been addressed above. How do we know that a woman chose to become pregnant? Or that she could have ended her pregnancy? Even assuming that at least some women's choices are completely free, totally conscious, and completely funded, the consequences of such a standard of accountability would result in a level of state surveillance and scrutiny of women's lives that is not only dangerous but also completely unprecedented under our system of law. As the Illinois Supreme Court explained in rejecting the argument that a child should be able to sue its mother for injuries caused by her behavior during pregnancy:
It is the firmly held belief of some that a woman should subordinate her right to control her life when she decides to become pregnant or does become pregnant. Anything which might possibly harm the developing fetus should be prohibited and all things which might positively affect the developing fetus should be mandated under penalty of law, be it criminal or civil. Since anything which a pregnant woman does or does not do may have an impact, either positive or negative, on her developing fetus, any act or omission on her part could render her liable to her subsequently born child. While such a view is consistent with the recognition of a fetus' having rights which are superior to those of its mother, such is not and cannot be the law of this state.A legal right of a fetus to begin life with a sound mind and body assertable against a mother would make a pregnant woman the guarantor of the mind and body of her child at birth. A legal duty to guarantee the mental and physical health of another has never before been recognized in law. Any action which negatively impacted on fetal development would be a breach of the pregnant woman's duty to her developing fetus, Mother and child would be legal adversaries from the moment of conception until birth. If a legally cognizable duty on the part of mothers were recognized, then a judicially defined standard of conduct would have to be met. It must be asked, by what judicially defined standard would a mother have her every act or omission while pregnant subjected to state scrutiny? By what objective standard should a jury be guided in determining whether a pregnant woman did all that was necessary in order not to breach a legal duty to not interfere with her fetus' separate and independent right to be born whole? In what way would prejudicial and stereotypical beliefs about the reproductive abilities of women be kept from interfering with a jury's determination of whether a particular woman was negligent at any point during her pregnancy?