Unshackling Addiction: A Public Health Approach to Drug Use During Pregnancy

Wisconsin Journal of Law, Gender & Society, Fall 2011

32 Pages Posted: 18 Aug 2011 Last revised: 20 Dec 2012

See all articles by Seema Mohapatra

Seema Mohapatra

Indiana University Robert H. McKinney School of Law

Date Written: August 18, 2011


Criminal law recognizes the legal right of fetuses to be free from harm and neglect. In some scenarios, such as in cases of violence against pregnant women by intimate partners, the recognition of fetal rights bolsters women’s rights. Such fetal homicide laws were originally intended to create additional penalties in cases where a pregnant woman was killed. In contrast, cases where pregnant women are imprisoned due to illicit drug use during pregnancy or due to a suicide attempt while pregnant, fetal rights actually work to subordinate women’s rights. Laws which criminalize women for mental health problems such as drug addiction and depression may have the unintended consequence of preventing women from seeking prenatal care or aid to overcome such problems. Such laws, instead of protecting the fetal victim, actually may work to encourage women not to carry the pregnancy to term in certain circumstances.

Despite a body of scholarship critiquing criminalization of pregnant women for public health problems, such as drug addiction, prosecutors continue the practice of penalizing pregnant mothers for illicit drug use. Additionally, states continue to pass laws that seek to penalize pregnant women in the name of fetal rights. For example, in March 2010, Utah passed a law that could be used to prosecute women who miscarry due to drug use or another intentional act. This paper summarizes the recent cases and laws that aim to protect fetal victims by criminalizing pregnant women for illegal or reckless acts, such as illicit drug use and attempted suicide due to depression.

This paper then analyzes the recent cases and laws that grant fetal rights at the expense of women’s rights through a bioethical lens. Applying the bioethical principles of autonomy, beneficence, nonmaleficence, and justice to recent cases highlights the error of submerging the rights of a pregnant woman in favor of the rights of a fetus as a victim in the criminal justice system. Additionally, this paper analyzes this issue as a public health problem and describes how public health methodologies may be more useful to aid this problem, rather than a criminal law approach.

Suggested Citation

Mohapatra, Seema, Unshackling Addiction: A Public Health Approach to Drug Use During Pregnancy (August 18, 2011). Wisconsin Journal of Law, Gender & Society, Fall 2011, Available at SSRN: https://ssrn.com/abstract=1911709

Seema Mohapatra (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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