Pregnancy and Alcohol: Limitations on Criminal Prosecution

(Period Covered: 1/1/1998 through 1/1/2012)

This policy topic covers laws addressing the use of medical test results, such as prenatal screenings or toxicology tests, as evidence in the criminal prosecution of women who may have caused harm to a fetus or a child.  

Scientific research has established that alcohol consumption during pregnancy is associated with adverse health consequences.  Fetal Alcohol Spectrum Disorders (FASD) is the term used to describe the range of birth defects caused by maternal alcohol consumption during pregnancy.  FASD are considered the most common nonhereditary cause of mental retardation.  Included in Fetal Alcohol Spectrum Disorders is the diagnosis often referred to as Fetal Alcohol Syndrome (FAS), which is the most severe form of FASD. It is characterized by facial defects, growth deficiencies, and central nervous system dysfunction.  Also included in FASD are other types of alcohol-induced mental impairments that are just as serious, if not more so, than in children with FAS.  The term "alcohol-related neurodevelopmental disorder" (ARND) has been developed to describe such impairments. Prenatally exposed children can also have other alcohol-related physical abnormalities of the skeleton and certain organ systems; these are known as alcohol-related birth defects (ARBD). (National Institute on Alcohol Abuse and Alcoholism, June 2000; Warren and Foudin, 2001; SAMHSA, 2004).

State and Federal governments have established various policies in response to the risks associated with drinking during pregnancy. This section describes legal provisions that prohibit the use of the results of medical tests, such as prenatal screenings or toxicology tests, as evidence in the criminal prosecution of women who may have caused harm to a fetus or a child. Such prosecutions may be based on a law specific to harm to a fetus or child from alcohol consumption or on more general criminal laws addressing child abuse and criminal endangerment.

The research for this policy topic also examined whether States have legal provisions that prohibit prosecution of women for harm to a fetus or a child as a result of alcohol use during pregnancy; no such provisions were found.

Explanatory Notes and Limitations Specifically Applicable to Pregnancy and Alcohol: Limitations on Criminal Prosecution

1. General statutes in public health and safety codes or elsewhere that stipulate that intoxication is not an element of a criminal offense are not included in this data collection.
    
2. No statutes were identified that prohibit criminal prosecution of women for exposing a fetus to alcohol. Instead, the provisions covered in this policy topic prohibit the use of medical tests such as prenatal screenings and toxicology tests as evidence in criminal prosecutions.
    
3. States may also exclude medical tests from civil prosecutions. This possibility has not been analyzed.
    
4. This data collection excludes statutes mandating that required disclosure of background information about biological parents who place a child for adoption, including information about substance abuse, shall not result in criminal proceedings against the individual(s) who furnish the information.
    
5. For purposes of this policy topic, in addition to the specific mention of alcohol in statutes and regulations, the term "substance abuse," and references to the abuse of "legal substances," "legal drugs," and "addictive drugs," have been interpreted as including "alcohol abuse."
    
6. APIS does not collect provisions that refer only to "controlled substances" or those that exclude alcohol.

Explanatory Notes and Limitations Applicable to All APIS Policy Topics 

1. State law may permit local jurisdictions to impose requirements in addition to those mandated by State law. Alternatively, State law may prohibit local legislation on this topic, thereby preempting local powers. APIS does not document policies established by local governments. 
    
2. In addition to statutes and regulations, judicial decisions (case law) also may affect alcohol-related policies. APIS does not review case law except to determine whether judicial decisions have invalidated statutes or regulations that would otherwise affect the data presented in the comparison tables. 
    
3. APIS reviews published administrative regulations. However, administrative decisions or directives that are not included in a State's published regulatory codes may have an impact on implementation. This possibility has not been addressed by the APIS research. 
    
4. Statutes and regulations cited in tables on this policy topic may have been amended or repealed after the specific date or time period specified by the site user's search criteria. 
    
5. A comprehensive understanding of the data presented in the comparison tables for this policy topic requires examination of the applicable Row Notes and Jurisdiction Notes, which can be accessed from the body of the table via links in the Jurisdiction column. 

(Policies in effect on: 1/1/2012)

Our research identified no Federal statutes or regulations pertaining to prohibitions against use of medical tests, such as positive toxicology findings or the results of prenatal screenings, as evidence in criminal prosecutions of women who may have exposed a fetus to alcohol.
 

1. Abel, E.L., and Kruger, M. Physician attitudes concerning legal coercion of pregnant alcohol and drug abusers. American Journal of Obstetrics & Gynecology 186(4):768-772, 2002.
    
2. Floyd, R.L., Ebrahim, S., Tsai, J., O'Connor, M., and Sokol, R. Strategies to reduce alcohol-exposed pregnancies. Maternal and Child Health Journal 10(5):149-151, 2006.
    
3. Golden, J. Message in a Bottle: The Making of Fetal Alcohol Syndrome. Cambridge: Harvard University Press, 2005.
    
4. Jessup, M.A., Humphreys, J.C., Brindis, C.D., and Lee, K. A. Extrinsic barriers to substance abuse treatment among pregnant drug dependent women. Journal of Drug Issues 33(2):285-304, 2003.
    
5. Jones, K.L., and Streissguth, A.P. Special issue introduction: Fetal alcohol syndrome and fetal alcohol spectrum disorders: A brief history. Journal of Psychiatry & Law 38(4):373-38, 2010.
    
6. Lester, B.M., Andreozzi, L., and Appiah, L. Substance Use During Pregnancy: Time for Policy to Catch Up with Research. Harm Reduction Journal 1:5, 2004.
    
7. Roberts, S.C., and Nuru-Jeter, A. Women’s Perspectives on Screening for Alcohol and Drug Use in Prenatal Care. Women’s Health Issues 20(3):193-200, 2010.
    
8. Substance Abuse and Mental Health Services Administration, Center for Excellence. Fetal Alcohol Spectrum Disorders (FASD). Accessed August 9, 2012 at: http://fasdcenter.samhsa.gov/.
    
9. Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Substance Use Among Women During Pregnancy and Following Childbirth. Rockville, MD: The National Survey on Drug Use and Health Report, 2009.
    
10. Thomas, S., Rickert, L., and Cannon, C. The meaning, status, and future of reproductive autonomy: The case of alcohol use during pregnancy. UCLA Women’s Law Journal 15:1-46, 2006.
     
11. Young, N.K., Gardner, S., Otero, C., Dennis, K., Chang, R., Earle, K., and Amatetti, S. Substance-Exposed Infants: State Responses to the Problem. Rockville, MD: Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, 2008.