by Jill Morrison

I’ve run into lots of people who support reproductive freedom, but who are a bit uncomfortable when I tell them about one aspect of the Center’s work: opposing the prosecution of women for using drugs while pregnant [pdf].  Prosecutors have used a range of laws, from homicide to child endangerment to drug distribution, in an attempt to punish pregnant women based on a positive drug test of their infants. 

It is an incredibly difficult issue, but its relationship to reproductive freedom is undeniable. While we battle in the court of public opinion, actual courts have almost uniformly held that pregnant women’s rights are violated when they are prosecuted for drug use.  Just last week, the New Mexico Supreme Court found in favor of Cynthia Martinez, who was charged with child abuse based on her drug use while pregnant.  NWLC submitted an amicus brief [pdf] in the case, arguing that such prosecutions are discriminatory and unconstitutional. 

Despite recent attacks on women’s reproductive rights, the government still cannot take actions that place an undue burden on the decision to have a child.  Prosecutions like the one against Cynthia Martinez mean that once pregnant, a woman who has used drugs could avoid criminal prosecution only by terminating her pregnancy, so such prosecutions clearly violate basic constitutional rights.  While we don’t support drug use during pregnancy we certainly oppose denying any woman her fundamental rights. 

This is a problem best addressed through access to medical care and drug treatment.  Despite claims that these prosecutions protect children, criminalizing pregnancy only causes women to avoid prenatal care leading to worse pregnancy outcomes. Fortunately, when I have the chance to explain our position, and how a range of even legal behaviors could subject women to prosecution, most of those who once showed discomfort have some empathy for these women and an understanding of how threats to their reproductive freedom endanger their children and us all. 

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