Fetal Abuse and the Criminalization of Behavior During Pregnancy

Abstract

During the 1980s, concern about fetal harm resulting from a pregnant woman's use of illegal drugs escalated, and prosecutions of pregnant drug users for harm against the fetus, or fetal abuse, were undertaken in several states. Due to constitutional and statutory problems, as well as concerns about fairness and effectiveness, efforts to criminalize fetal abuse have typically failed to withstand judicial scrutiny. Evidence suggests that criminal prosecution for fetal abuse relies on questionable procedures, is unevenly applied, and may keep women from seeking drug treatment or prenatal care.