Equal Protection Clause of 14th Amendment The equal protection clause of the Fourteenth Amendment extended to protections of the Bill of Rights to all Americans, including pregnant women. Therefore, it is fundamentally unconstitutional under the equal protection clause of the Fourteenth Amendment to criminalize pregnant women who take illegal drugs for fetal abuse or neglect without applying the same conditions on pregnant women who endanger their unborn child by drinking alcohol, smoking, or otherwise failing to provide the best possible nurturing environment for the fetus. This paper reviews the relevant peer-reviewed and scholarly literature together with the precedential case law concerning these issues to support this view, followed by a summary of the research and important findings in the conclusion.

Review and Analysis

A growing body of research concerning fetal development together with innovations in modern healthcare technologies have provided researchers with new insights about what can harm or nurture babies in the womb. These new findings have also created a situation where women are being held to higher standards of behavior during their pregnancy in ways that may be violative of constitutional protections. For example, Weyrauch (2002) reports that, "The rapid and recent advancements in prenatal care, combined with an increase in knowledge of fetal development, have led to a higher scrutiny of women's activities during pregnancy" (p. 81). These trends have been matched by a corresponding increase on the part of the law enforcement community to target illicit drug use by pregnant women. In this regard, Weyrauch (2002) emphasizes that, "For decades, the nation's primary response to the problem of illicit drug use has been an escalation of federal, state, and local law enforcement activities aimed at discouraging drug use through punishment of the users. In recent years, the public has increasingly favored holding women criminally responsible if they use drugs while pregnant" (p. 83).

Because pregnancy is an enormously private issue and is surrounded by powerful cultural factors, the manner in which women proceed with their pregnancies is a highly subjective affair. Indeed, Weyrauch (2002) points out that, "It is a popular belief amongst physicians that the relationship between a mother and her unborn child is unique" (p. 82). When pregnant women engage in behaviors that may introduce unnecessary harm to the fetus, though, these behaviors may be challenged by the criminal justice system. In this regard, Weyrauch emphasizes that, "When a pregnant woman's behavior endangers her fetus' life through active or passive conduct, 'fetal abuse' is deemed to have occurred. The specific problem of fetal abuse involving mothers that abuse drugs is highly controversial, and courts are often called upon to provide guidance and resolution on these sensitive issues" (2002, p. 82). According to Stone-Manista (2009), "Since the late 1970s, state prosecutors seeking to punish these women for their drug use have made the problem a complex legal one as well" (p. 823). The complexity of the issues involves not only the criminality of the behaviors in the first place, but what level these behaviors rise to in terms of harm to the fetus. In this regard, Stone-Manista notes that, "Prosecutors bring criminal charges against pregnant women who use illicit drugs under a wide range of state statutes, including but not limited to those governing criminal child abuse, criminal child mistreatment, and attempted first-degree intentional homicide" (p. 823).

Clearly, then, fetal neglect and abuse can assume a number of forms, including excessive consumption of alcohol, aspirin, or caffeine, as well as inadequate diet or other improper activities, depending on the level and duration of their use. Pregnant women who take illegal drugs, though, should not be criminally charged for this "improper activity" because this would violate the equal protection clause of the Fourteenth Amendment, but this has not stopped states from trying. According to Stone-Manista (2009), some recent examples from across the country are illustrative of these trends:

1. In September of 2007, a Missouri appellate court dismissed child endangerment charges brought against a woman who had used

The court, applying canons of statutory construction, found that Missouri's child endangerment statute did not specifically prohibit conduct that had occurred during pregnancy and thus was harmful only to a fetus and not to a living child.
2. In 2007 and 2008, eight women in one Alabama jurisdiction (population 37,000) were prosecuted in an eighteen-month period for drug use during pregnancy. The local prosecutor, referring to the need to protect "the child-to-be" from prenatal drug use, made use of a statute criminalizing "chemical endangerment of [a] child" that "was primarily intended to protect youngsters from exposure to methamphetamine laboratories" (p. 825).

Moreover, states have even attempted to criminal pregnant women for taking drugs during as well as following their pregnancies. From example, according to Blank (2002):

The legal penalties available to influence the behavior of pregnant women fall into one of several categories. During pregnancy the courts might order incarceration or detention of the woman to physically constrain her behavior out of concern for fetal health. Legal penalties after birth include various civil tort actions or criminal sanctions. All legal approaches have problems. By their nature, the courts find it difficult to draw lines that exclude the culpability of the mother. (2002, p. 169)

Nevertheless, there is a growing body of evidence that supports the notion that criminal penalties for pregnant women who take illegal drugs are already subject to criminal charges for their personal behaviors and that additional criminal sanctions are superfluous. For instance, a report to the American Medical Association (1990) concluded that criminalizing pregnant women who take illegal drugs would be unlikely to influence behavior because:

The use of illegal substances already incurs criminal penalties. Pregnant women who ingest illegal substances are obviously not deterred by existing sanctions; the reasons which prompt them to ignore existing penalties might very well also prompt disregard for any additional penalties. Also, in ordinary instances, concern for fetal health prompts the great majority of women to refrain from potentially harmful behavior. If that concern, generally a strong impetus for avoiding certain actions, is not sufficient to prevent harmful behavior, then it is questionable that criminal sanctions would provide the additional motivation needed to avoid behaviors that may cause fetal harm. (cited in Blank, 2002 at p. 170)

Other authorities argue that criminalizing pregnant women who take illegal drugs is wrong because these women have few resources available to them in the first place. For instance, the results of survey conducted in 2008 determined that just 19 states have drug treatment programs that were designed specifically for pregnant women; moreover, only seven states provide pregnant women with priority access to state-funded drug treatment programs (Flavin, 2009). According to Flavin, "Even in these states, however, the demand may exceed the number of available spaces in treatment programs. And while there is strong evidence that treatment for addiction is at least as effective as treatment for other chronic, relapsing conditions, treatment often fails patients. As a result, it is inappropriate to assume that simply entering treatment will be sufficient to 'cure' a woman of her dependency on drugs" (p. 112).

Indeed, some pregnant women have been charged with criminally endangering their fetuses by taking illegal drugs in a misguided attempt to "cure" them, or at least to provide an example for other pregnant women who may be considering taking illegal drugs as well. In this regard, Flavin (2008) emphasizes that, "Police officers, prosecutors, and judges (as well as the social workers and hospital staff who often report women to law enforcement) may claim that prosecution and other measures are necessary to safeguard the health of the fetuses" (p. 112). "They may use prosecution (or the threat of prosecution) to force women into drug treatment or to deter other women from using drugs. In some cases, women have been incarcerated not because of the offense they committed but because they were pregnant" (emphasis added) (p. 112).

The commission or omission of an act that would otherwise not be punished with incarceration but which becomes criminal simply because of the presence of a fetus defies common sense. Indeed, Paltrow (1999) reports that, "In the name of fetal rights, over 200 pregnant women or new mothers in approximately 20 states have been arrested. Most of the women arrested have been low-income women of color with untreated drug addictions" (p. 1002). Likewise, Roberts (1991) reports that inordinately high percentages of pregnant women who are singled out for criminal charges are minority women, especially African-Americans, who are from low-income families.

The doctrine of fetal rights was established by the Supreme Court in Smith v. Brennan in 1960 wherein the Court held that "justice requires recognition of a child's legal right to begin life with a sound mind and body" (Weyrauch, 2002, p. 83). While specific laws differ from state to state, the federal government has since established a standard policy concerning the prevention of fetal abuse; however, a precedential case that has created significant controversy based on the conflicting constitutional issues involved is Ferguson v. City of Charleston, the "first case in which the Supreme Court…