The newsletter of the ISBA’s Standing Committee on Women and the Law
Prenatal drug use: Functionalistic vs. formalistic approaches
Will a mother’s prenatal drug use result in a finding of child abuse or neglect once the fetus is born? To answer this question, it is necessary to look to the controlling statute of one’s jurisdiction. In Illinois, under 705 ILCS 405/2-3(1)(c), a neglected minor includes:
any newborn infant whose blood, urine, or meconium contains any amount of a controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act, as now or hereafter amended, or a metabolite of a controlled substance, with the exception of controlled substances or metabolites of such substances, the presence of which in the newborn infant is the result of medical treatment administered to the mother or the newborn infant ….
Illinois’ Juvenile Court Act serves as a model for many jurisdictions across the United States. However, as states adopt and revise statutes, evidence of what constitutes a “child,” “actual harm,” “imminent danger,” and “substantial risk,” coupled with a state’s personhood or parenthood approach not only impacts precedent, but can leave more questions than answers.
In recent years, Illinois has taken more of a parenthood stance in recognizing that life begins at conception. According to 720 ILCS §510/1, the General Assembly of the State of Illinois regulates abortion in accordance with the precedent set forth by the United States Supreme Court in Roe v. Wade (1973). However, the General Assembly, without restricting a woman’s right to privacy or to an abortion, upholds the long-standing state policy “that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child’s right to life and is entitled to the right to life from conception under the laws and Constitution of this State.” Id. The intent of the Illinois General Assembly was to continue to uphold the state’s policy protecting the right to life of an unborn child from the time of conception by prohibiting an abortion unless it is medically necessary to preserve and save the life of the mother. Id. The state’s policy was restricted by the Roe v. Wade (1973) decision, but legislative history reveals that it is the intent of the General Assembly, if Roe v. Wade (1973) is ever reversed, modified, or the United States Constitution is amended, “to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother’s life shall be reinstated.” Id.
On the contrary, states such as New Jersey have taken more of a personhood stance. New Jersey does not provide many rights to a fetus. New Jersey’s statutory definition for “abused or neglected child means a child less than 18 years of age.” (N.J.S.A. 9:6-8.21(c)(4)(b)). In addition, New Jersey law places emphasis on protecting a child after birth and, as a result, focuses on a child’s condition after birth. Not every instance of drug use will result in a court being able to substantiate a finding of abuse. Although this article is not a forum for an abortion debate, as Roe v. Wade (1973) is well settled law, clarifying and understanding whether states take a personhood or parenthood stance is a critical aspect of how state statutes are formed.
According to N.J.S.A. 9:6-8.21(c)(4)(b):
Abused or neglected child means a child less than 18 years of age whose parent or guardian, as herein defined, … [as] a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care… in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court….
While the Illinois statute clearly recognizes that a “newborn infant” can be abused or neglected at birth upon a finding of specific evidence, the New Jersey statute addresses harm to a child as opposed to a fetus or newborn. In a New Jersey Supreme Court case decided in February 2013, prenatal drug use by a mother may not result in a finding of abuse or neglect to a “child” if there is no evidence of “actual harm,” “imminent danger,” or “substantial risk” upon the birth of the child. N. J. Dept. of Children and Families v. A.L., 213 N.J. 1, 8 (2013). Moreover, the court limited the conditions of abuse and neglect to applying only after the birth of the child, stating that there could be no “actual harm,” “imminent danger,” or “substantial risk” to a fetus. Id.
Although Illinois and New Jersey have statutes that appear facially similar, they each have a substantial impact on their citizenry and set public policy that can be both beneficial and harmful. The purpose of the Illinois statute is to protect the health and welfare of an unborn child or fetus. Illinois statutes, such as involuntary manslaughter and reckless homicide of an unborn child (720 ILCS 5/9-3.2(c)), and voluntary manslaughter of an unborn child (720 ILCS 5/9-2.1(b)(2)), support the state’s policy of protecting unborn children. The state attempts to statutorily deter and protect unborn children by implementing severe penalties such as a Class 1 felony, which carries a possible 4 to 15 year prison sentence (730 ILCS 5/5-4.5-30(a)) for persons convicted of voluntary manslaughter of an unborn child, and a Class 3 felony, which carries a possible two- to five-year prison sentence (730 ILCS 5/5-4.5-40(a)) for persons convicted of involuntary manslaughter and reckless homicide of an unborn child.
However, in Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court set a precedent allowing women to choose whether or not to have a child and allowed states to place some regulations on abortions. If a woman were to have an abortion adhering to the statute in either Illinois or New Jersey, the state could not charge her with murder. The Supreme Court placed a great emphasis on autonomy. New Jersey law allows a woman to take drugs while pregnant or to have an abortion. Illinois law allows a woman to have an abortion, but not to take drugs while pregnant. Illinois’ public policy regulates the autonomy of women by allowing them to be found abusive or neglectful if the child’s blood, urine, or meconium tests positive for drugs at birth.
In the same instance, Illinois’ statute can have a negative effect on women who use drugs and do not know of their pregnancy. It is widely recognized that drug use can hinder the development of a fetus, resulting in issues such as low birth weight and/or fetal movement. A woman who uses drugs at the beginning of her pregnancy, not knowing she is pregnant, and who stops using drugs upon determining a positive pregnancy, can still lose her custodial rights to the Department of Children and Family Services if the baby tests positive for drugs at birth. In addition, a woman who has accidently ingested drugs, such as when the mother in New Jersey Department of Children and Families v. A.L. claimed that she accidently ingested cocaine when she was five months pregnant, can be found guilty of child abuse or neglect in Illinois, but not in New Jersey. 213 N.J. at 10. Therefore, Illinois can also theoretically criminally punish a woman who chooses to quit using drugs for the health of her baby in the same manner as a woman who uses drugs the day of her delivery under the Illinois battery of an unborn child and aggravated battery of an unborn child statute. 720 ILCS 5/12-3.1(a)(b). Under Illinois 720 ILCS 5/12-3.1(a)(b), “a person commits a battery of an unborn child if he or she knowingly without legal justification and by any means causes bodily harm to an unborn child,” and “commits aggravated battery of an unborn child when, in committing a battery of an unborn child, he or she knowingly causes great bodily harm or permanent disability or disfigurement to an unborn child.” As a result, under the Illinois battery/aggravated battery of an unborn child statute, a woman who uses drugs can receive either a Class A misdemeanor, which carries a maximum penalty of 364 days in county jail (730 ILCS 5/5-4.5-55(a)), or a Class 2 felony, which carries a sentence of 3 to 7 years in the Illinois Department of Corrections (730 ILCS 5/5-4.5-35(a)), depending on the extent of the damage to the child. 720 ILCS 5/12-3.1(c). Illinois also has laws regarding the intentional homicide of an unborn child. 720 ILCS 5/9-1.2. Specifically, a person who intentionally:
perform[s] acts which cause the death of an unborn child, [if] he without lawful justification (1) either intended to cause the death of or do great bodily harm to the pregnant woman or her unborn child or knew that such acts would cause death or great bodily harm to the pregnant woman or her unborn child; or (2) knew that his acts created a strong probability of death or great bodily harm to the pregnant woman or her unborn child; and (3) knew that the woman was pregnant. 720 ILCS 5/9-1.2(a)(1)(2)(3).
Although this statute on its face appears to be targeted more towards men abusing pregnant women, taken literally, a woman who knowingly uses drugs or causes her own miscarriage as the result of drugs can theoretically be charged with first degree murder. 720 ILCS 5/9-1.2(d)(1). However, a woman who receives an abortion in accordance with Illinois law or who suffers a miscarriage for an unexplained reason is not charged with murder. In addition, Illinois’ functionalistic approach allows all children and fetuses to have the best possible chance of being healthy. This creates productive citizens, and reduces the costs of financial support to children and adults who may suffer medical conditions as a result of the adverse effects of prenatal drug use.
On the contrary, New Jersey’s statute seems to place a higher burden of proof on the state to prove child abuse and neglect, and the statute does not contain a special provision addressing newborn infants. The policy behind this statute is that women have a right to autonomy, and that it is impossible for her to commit child abuse or neglect to a fetus. This formalistic approach has recently produced the harsh result of allowing mothers to use drugs that may produce adverse effects on a fetus, and can potentially lead to costly financial support for medical treatment for these children. However, New Jersey’s policy choice is to value a woman’s autonomy over the life a fetus.
Neither statute is entirely right or entirely wrong. As a country, we have come a long way from Roe v. Wade (1973), as science has allowed for fetal viability at earlier and earlier stages of pregnancy. No matter the jurisdiction of a lawyer practicing juvenile law, the purpose of juvenile law is to protect the best interest of a child. Currently, each state must recognize and define what constitutes a child, whether the unborn are children or fetuses, and at what point a fetus is viable.
Illinois law contains some apparent contradictions in its balancing of the rights of an unborn fetus versus those of the mother. In People v. Brown, Cook County Circuit Court granted a petition appointing a temporary custodian and a guardian ad litem for a fetus when the pregnant appellant patient refused blood transfusions on the basis of her religious beliefs. 689 N.E.2d 397, 399 (Ill. App. Ct. 1 Dist. 1997). The State argued that it had a substantial interest in the viable fetus, and that interest outweighed the minimal invasion of a blood transfusion. Id. at 400. However, the appellate court held that the State could not supersede the appellant’s competent refusal of medical treatment and her right to autonomy in order to save the life of the fetus. Id. at 405. The appellate court concluded that the circuit court erred (1) in appointing a temporary custodian for the fetus with the authority to consent to blood transfusions for the patient, (2) in appointing the public guardian as guardian ad litem, and (3) in ordering the patient to undergo the transfusion. Id. at 406. The court found that (1) the case satisfied the public policy of the state mootness doctrine, (2) a blood transfusion was an invasive medical procedure, (3) as a competent adult, the patient had an absolute right to refuse medical treatment, (4) religious objections to treatment were constitutionally protected, and (5) the State’s interest in the preservation of life, the prevention of suicide, the protection of third parties, and the ethical integrity of the medical profession did not supersede the patient’s decision. Id. at 400-402. The precedent Illinois sets in the above case seems quite disparate from its statutes regarding abuse and neglect of an unborn child. By contrast, New Jersey law does not address the issue of abuse or neglect of a fetus.
There is an apparent contradiction between the idea that a woman can lose custody of her child in a neglect case if the child is born substance exposed and could also possibly face criminal prosecution for that same substance exposed infant, but she cannot be forced to undergo a blood transfusion to save the life of her unborn child if it violates her religious beliefs. One possible explanation is that Illinois, while forced to follow the decision in Roe v. Wade (1973), does not agree with that decision and has, therefore, created a statutory scheme which, while not in direct conflict, certainly seems to undermine the spirit of Roe v. Wade (1973). From a logical analysis standpoint, New Jersey has a statutory scheme most aligned with Roe v. Wade (1973). Illinois would argue it is more correct in its statutory scheme from a moral standpoint. In other words, New Jersey, but for Roe v. Wade (1973), may have provided constitutional rights to a fetus. Due to the fact that a state cannot overrule federal law, New Jersey chooses to strictly follow federal law while Illinois makes an exception to extend the state’s rights to a fetus. Another possible explanation is the First Amendment issue presented in People v. Brown, which balanced the mother’s religious beliefs and privacy rights with the state’s interest in an unborn fetus, may tip the balance towards the mother’s rights. 689 N.E.2d 397, 406 (Ill. App. Ct. 1 Dist. 1997). ■