Punitive versus public health oriented responses to drug use by pregnant women.

During the past fifteen years, the term fetal abuse has been applied to physical and developmental harms caused by prenatal drug exposure, but not to other preventable threats to fetal well-being. Although Roe v. Wade established the legal rationale for fetal abuse prosecutions, which held that a state may have a compelling interest in intervening in a woman’s pregnancy after the fetus reaches viability, states did not initially use Roe to prosecute pregnant women whose substance abuse threatened fetal wellbeing. The situation began to change in the mid-1980s, when media attention on the problems of “crack babies” combined with technological advances in in utero fetal health monitoring to create a public outcry against pregnant substance abusers. Governmental responses to prenatal drug exposure have proceeded under two venues: the criminal justice system and state legislatures. The purpose of the criminal justice system is to determine whether a crime has been committed and, if so, to punish the guilty parties—not to determine the most effective policy to combat a particular social ill. Not surprisingly, therefore, most policies emanating from the criminal justice system are punitive in nature. Also, most decision-making within the criminal justice system occurs on an ad hoc basis, without substantial input from experts. Police, prosecutors, and judges are rarely forced to confront facts that contradict their framework of analysis. In contrast, the legislative process is, by nature, a slow one that emphasizes deliberation and provides many opportunities for expert witnesses to provide input. As a result, there are substantial differences