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Woman On Trial for Delivering Cocaine to her Unborn Child:
A Surprisingly Difficult Case


Wednesday, Aug. 11, 2004

Last week, Tracy Ward of Amarillo, Texas, went on trial for delivering drugs to her unborn child. She allegedly "delivered" the drugs by using cocaine.

As Ward was pregnant at the time, her own ingestion of the controlled substance would necessarily have passed it along to her baby. The authorities discovered Ward's act when her child was born testing positive for cocaine

As of 2003, Texas law has defined an "individual" in its Penal Code and Civil Practice and Remedies Code to include "an unborn child at every stage of gestation from fertilization until birth." The legislature's apparent purpose in expanding the definition of an individual was to allow for prosecutions and lawsuits against third parties who harm unborn children.

For some purposes, the law exempts the mother from criminal liability. But prosecutors and defense attorneys dispute whether the exemption applies in Ward's case.

Let us put aside the question of whether the statute will ultimately be read by an appellate court to apply to the use of cocaine by a pregnant woman. For purposes of this column, we will assume that the statute applies and consider an independent question: Is such a prosecution appropriate, from a constitutional and policy perspective?

Resolution of this issue turns out to be far less simple than might appear at first glance.

An Easier Case Than Abortion?

One argument for opposing a "delivery of drugs to a child" prosecution concerns the right to abortion. If there is a right to kill an embryo or fetus prior to birth, then surely it must follow, the argument goes, that there is a right to harm that same embryo or fetus in a manner that falls short of causing death. The greater power to kill, in other words, includes the lesser power to injure.

Though seemingly logical, this argument is unpersuasive for three reasons. First, abortion is not a per se right to kill. Second, the authority to kill does not necessarily include the authority to injure. And third, abortion and prenatal cocaine use cause harm to distinct entities.

Abortion Not a Right to Kill

The right to abortion, as I have argued in another column, is not truly a right to kill an embryo or a fetus as such. It is a right to choose not to continue being pregnant. That is why, I explained, the right to kill the fetus in utero ends at viability -- the point at which choosing not to remain pregnant no longer requires that the fetus die, for it can survive outside the womb.

Once understood in this way, it is clear that a woman does not have the legal right simply to injure an embryo or fetus. Being able to choose not to be an altruist, in other words, does not entail being able to choose to cause injury to another person.

Abortion, so understood, is an on/off proposition -- not a license to hurt one's embryo or fetus. Prosecuting a woman for injuring her child during pregnancy is therefore consistent with preserving her right to abortion.

Authority to Kill Does Not Include Authority to Injure

Furthermore, even if there were a right to kill one's fetus, there would not necessarily be a right to injure it/him/her. Injuring, in other words, is not simply a lesser form of harm than killing. It is qualitatively different.

For that reason, for example, our Constitution is understood to permit a person to be executed for a capital offense but not to have a limb severed or be tortured or used involuntarily in a medical experiment.

Similarly, though the law permits some homicides (called "justifiable homicides"), such as in self-defense, it does not thereby permit a person to say "I won't kill the guy, but I will steal his wallet or give him a blanket containing smallpox."

The right to abortion, even if conceptualized as a right to kill, is thus consistent with the prosecution of a defendant for delivering drugs to her unborn child.

Abortion and Drug Use Harm Different Entities

Finally, the harms that are committed in abortion and in the use of a toxic substance during pregnancy, respectively, victimize a baby at two very distinct points in his development.

Abortion commits a harm against a fetus or embryo at whatever stage of maturation it has reached. For that reason, many consider it worse, as a moral matter, to abort a six-month fetus than to terminate during the first month of pregnancy. The further along the gestation, the greater the presumed entitlement of the developing human being to our respect and empathy.

Using a toxic drug during pregnancy, however, is harmful to the baby later on, once he or she is born. To protect that baby, in fact, the most crucial period of time during which a pregnant woman should refrain from exposing herself to harmful substances is during the first trimester, the period during which abortion is widely considered less objectionable than it is later on.

The relevant moment of impact for prenatal exposure to toxins is therefore the time after birth, when the harm will be experienced by the child. In this sense, the use of cocaine during pregnancy is a harm to a child who is later born, rather than a harm to an existing fetus or embryo. If there is an abortion, then the harm of the cocaine delivery accordingly never comes to pass.

Consider an analogy. High school prankster Jim Roe places a highly potent laxative in his rival John Doe's lunch thermos, knowing that John will drink from the thermos in three hours. Sure enough, John drinks his grape juice from the thermos at lunch and soon afterward is plagued with severe diarrhea. It is exactly at that time that John has an important exam he is scheduled to take, but he misses the test, because he is in the bathroom for several hours. Though Jim drugged John's thermos in the morning, the foreseeable impact of Jim's actions was to make John sick at lunchtime and thus to interfere with John's examination.

Similarly, a pregnant woman's use of cocaine will foreseeably have its destructive impact after her child is born (rather than in utero) so that the relevant moment of harm is when the child is outside the womb and hence uncontroversially a full human being. It is because of the harm that occurs at that time (rather than during pregnancy) that the criminal law might step in and hold the woman responsible.

Logically, then, the right to abortion does not include a right to use drugs during pregnancy that will harm the child once he is born.

Does Cocaine's Illicit Status Justify the Ward Prosecution?

On the other side of the balance is a very different sort of argument: No one has the right to use cocaine, a controlled substance the possession of which is criminally banned. By demanding that pregnant women refrain from using cocaine, the law accordingly places no greater burden upon them than it places upon everyone else.

Furthermore, when a non-pregnant person uses a drug, it generally harms only the user him- or herself. When a pregnant woman, by contrast, uses a drug, it has a potentially harmful direct effect on another person, the woman's child. Her use of the substance is therefore more destructive than its use by her non-pregnant counterpart and ought, for that reason, to be subject to greater punishment, as Tracy Ward's cocaine use could be if she is convicted.

Though apparently reasonable, again, like the arguments regarding abortion, the drug use argument is flawed. The regulation of a pregnant woman's use of cocaine is legally questionable not because she has a right to use cocaine. She most certainly does not have such a right, and if she were to be prosecuted for possession in the same way as a non-pregnant man or woman is prosecuted, Ward would have no cognizable cause for complaint.

The problem, however, is that Ward is being prosecuted for harming another person when all she has literally done is to ingest a substance herself. In other words, it is her uniquely female status as a pregnant woman rather than anything distinctive about what she was doing with cocaine that makes her use of the drug a delivery to a child. When the law punishes the pregnant woman more harshly for drug use than it would another person, it consequently burdens her uniquely by virtue of her gender-based status.

Such regulation, moreover, does not admit of a logical stopping point at cocaine. The medical evidence shows, for example, that alcohol use by pregnant women is more destructive to babies than the use of cocaine. The same is true for smoking cigarettes or working at factories in which substances such as lead are in the air. It would thus be bizarre to single out cocaine if the concern is truly the welfare of children.

And if we start down the road of prosecuting pregnant women for doing things to their developing children, then there is almost no activity -- however private and protected for the rest of the population -- which would not present itself as a potential subject for regulation.

In the end, pregnant women would effectively become wards of the state whose every action could subject them to criminal penalties.

Pragmatic Arguments

As I have argued, then, neither the right to abortion nor generalized prohibitions against cocaine use resolve the question of whether the law ought to punish women specifically for taking a controlled substance during pregnancy. One could logically prosecute them without endangering the right to abort, and one could oppose their prosecution without questioning the state's authority to prohibit everyone, including pregnant women, from using illicit drugs.

How, then, do we decide whether to support such prosecutions, if not ideologically? One useful way to approach the issue is pragmatically.

What can we expect pregnant women to do if faced with the possibility of being prosecuted for delivering drugs to children when they use cocaine? One possibility is that they will not use cocaine. If we believed that would happen, then prosecution might be worthwhile.

Another scenario, however, seems far more likely, given the general failure of the war on drugs to curb use or demand (and the likelihood that a woman using drugs during pregnancy is either addicted or less than fully compliant with the criminal law). The probable consequence of prosecuting pregnant women who use cocaine is that such women will try to avoid getting caught.

The fear of detection will motivate women to do one of two things. First, they might refrain from seeing a doctor, particularly when they are about to deliver their babies (who might test positive for cocaine and provide evidence against their mothers). Second, and perhaps more likely, the women will simply terminate their pregnancies.

If our concern is the wellbeing of children once they are born, we will want to avoid the first scenario. The babies of women who receive no prenatal care or who deliver their babies without some support (whether from a midwife or a doctor) are unlikely to thrive in the face of post-partum complications. Scaring women away from the healthcare system is therefore a dangerous proposition.

If our concern is to protect unborn children, then the correct decision is obvious: Do not prosecute pregnant cocaine users. Offer them opportunities for rehabilitation, because there is a good chance that at least some of them are addicted and would like to stop using, if only for their children's sake.

If, finally, our concern is to avoid the birth of injured babies, then we face a painful dilemma: if women will have already used drugs by the time their babies are due to be born, do we wish for them to abort?

I would suggest that the answer is no. Regardless of one's position on the right to choose, few would propose that the government pressure women to abort "imperfect" children. And it would be ironic indeed, as well as unfortunate, if -- as I suspect -- the successful prosecution of Tracy Ward resulted not in healthier pregnancies but in more abortions, performed under pressure from the government.

Sherry F. Colb, a FindLaw columnist, is Professor and Judge Frederick B. Lacey Scholar at Rutgers Law School-Newark. Her earlier columns may be found in the archive of her work on this site.

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