Laws Criminalizing Pregnancy 'Subsume Women's Rights' to Those Granted to Fetuses, Columnist Writes

December 15, 2014 — At both the state and federal level, courts are "impos[ing] additional punishments on women by dint of the fact they were pregnant" when their actions occurred, Daily Beast columnist Emily Shire writes.

There are currently "17 states with laws that consider drug abuse during pregnancy a form of child abuse," according to Shire. She notes that Tennessee this year became the first state to enact a law that allows criminal charges against women for using illicit drugs during pregnancy, while "Minnesota, South Dakota, and ... Wisconsin consider the presence of drugs in a pregnant woman grounds for civil commitment and forced rehabilitation." Shire highlights the case of Wisconsin resident Tamara Loertscher, who was imprisoned under a 1997 state law, "which claims to protect 'unborn children who are at substantial risk of serious physical injury due to the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs.'"

According to a study by National Advocates for Pregnant Women, which is aiding Loertscher in a lawsuit against the state, there were "'413 cases from 1973 to 2005 in which a woman's pregnancy was a necessary factor leading to attempted and actual deprivations of a woman's physical liberty,'" and there have been an additional 380 of such cases since 2005, Shire writes.

Problems With Laws

NAPW and women's health advocates argue that enhanced penalties that only apply to pregnant women are "a form of sex-based discrimination that violates the 14th Amendment," Shire continues.

Further, such policies "may ultimately discourage pregnant women from seeking help for addictions or even basic medical care," Shire notes, adding that physicians groups like the National Perinatal Association, Physicians for Reproductive Health and the American College of Obstetricians and Gynecologists have also spoken out against them. Overall, Shire argues that the policies "subsume women's rights in favor of those granted to their weeks-old fetuses" (Shire, Daily Beast, 12/12).