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Journal Issue: Drug-Exposed Infants Volume 1 Number 1 Spring 1991

Perspective of a Reproductive Rights Attorney
Lynn Paltrow


  1. Davidson, Joe. Cries for help: Some addicts beg for drug treatment but programs are full. The Wall Street Journal, September 4, 1990 at A1.
  2. Chavkin, W. Help, don't jail, addicted mothers. The New York Times, July 18, 1989 at A21; Born hooked: Confronting the impact of perinatal substance abuse. Hearing before the U.S. House of Representatives, Select Committee on Children, Youth and Families, 101st Cong., 1st Sess. (April 27, 1989) (opening statement of Representative George Miller, chairman, Select Committee on Children, Youth and Families).
  3. Amaro, Hortensia, Fried, Lise E., Cabral, Howard, and Zuckerman, Barry. Violence during pregnancy and substance use. American Journal of Public Health (May, 1990) 80:575; Violence breeds addictions. Medical News & Perspectives. Journal of the American Medical Association, (1990) 264:943 (citing Handbook of Family Violence); Leff, Lisa. Treating Drug addition with women in mind. The Washington Post, March 5, 1990 at E1; Finkelstein, Nora, Duncan, Sally Anne, Deman Laura, and Smeltz, Janet. Getting sober, getting well, A treatment guide for caregivers who work with women. Cambridge, MA: Women's Alcoholism Program of CASPAR, Inc., 1990, 243–48.
  4. Finkelstein, N. Treatment issues: Women and substance abuse. Paper prepared for the National Coalition on Alcoholic and Drug-Dependent Women and Their Children, Cambridge, MA, September, 1990, p. 12.
  5. Big bribe helps mothers fend off allure of crack. The New York Times, March 7, 1990 at B9.
  6. Reed, Beth Glover. Developing women-sensitive drug dependence treatment services: Why so difficult? Journal of Psychoactive Drugs (April–June, 1987) 19:151.
  7. Excerpt from the Brief for the Amici Curiae, Women Who Have Had Abortions and Friends of Amici Curiae in Support of Appellees (1989) (No. 88-605) by Burns, S., NOW Legal Defense and Education Fund at 6-126.
  8. Chargot, Patricia. Medicaid ban develops cycle of angry mothers, unwanted babies. Detroit Free Press, August 5, 1990.
  9. Florida v. Johnson, No. E89-890-CFA, (Fla. Cir. Ct. July 13, 1989) Trial Transcript at 365, 367, appeal docketed, No. 89-1765 (Fla. Dist. Ct. App. August 31, 1989).
  10. National Coalition on Alcoholic and Drug-Dependent Women and Their Children, State legislative and policy proposals. Wasington, DC: National Council on Alcoholism and Drug Dependence, April, 1990.
  11. Linden v. United States, 268 U.S. 5, 18 (1925) National Treasury Employees Union v. Raab, 109 S. Ct. 1384, 1396 (1989).
  12. Finnegan, L. Management of pregnant drug-dependent women. Annals of New York Academy of Sciences (1978) 311:135.
  13. Missing links: Coordinating federal drug policy for women, infants and children Hearings before the U.S. Senate Committee on Governmental Affairs, 101st Cong., 1st Sess. (1989) (opening statement of Senator Herb Kohl).
  14. Affidavit, Cathy Hauer, California v. Stewart, No. M508197 (San Diego Mun. Ct., Feb. 23, 1987).
  15. Affidavit, Ira J. Chasnoff, M.D., submitted in support of Defendant's Motion to Dismiss Indictment, Michigan v. Hardy, No. 87-2931-F7 (Mich. Dist. Ct. Dec. 5, 1989).
  16. Hoye, D. Fear of jail keeps pregnant addicts from seeking help. Arizona Daily Star, September 28, 1990.
  17. Bowsher, C.A. Drug-exposed infants: A generation at risk. Statement before the Committee on Finance, United States Senate. Washington, DC: U.S. General Accounting Office (GAO/HRD-90-46) June 28, 1990.
  18. Suffet, F., and Rafalshy, T. The addiction program, child maltreatment, and the child welfare system. In Pregnant addicts and their children, A comprehensive approach. Brotman, R. et. al., eds. New York: New York Medical College Center for Comprehensive Health Practice, 1985, p. 81.
  19. Gentry, Carol. Angry doctors cut drug test after police interview moms. St. Petersburg Times, May 13, 1989 at 1B.
  20. American Academy of Pediatrics, Committee on Substance Abuse. Drug-exposed infants. Journal of Pediatrics (October 4, 1990) 86:639–642; American College of Obstetricians and Gynecologists. Patient choice: Maternal–fetal conflict. (ACOG Committee Opinion No. 55). Washington, DC: ACOG, October, 1987, as discussed in correspondence between Elaine Locke, Kary Moss, and Lynn Paltrow, December 4, 1989; American Public Health Association. Illegal drug use by pregnant women, American Journal of Public Health (1991) 81; APHA Policy 9020. Brief of the American Public Health Association and Other Concerned Organizations as Amici Curiae in Support of Defendant Appellate, Michigan v. Hardy, No. 128458 (Mich. Ct. App.).
  21. Bouie v. City of Columbia, 378 U.S. 347 (1964): Grayned v. Rockford, 408 U.S. 104 (1972).
  22. Courts, confronted with requests to interpret statutes contrary to their legislative intent, have refused to extend the statutes to apply to women who give birth to drug-exposed or prenatally-injured babies. See Florida v. Gethers, No. 89-4454CF10A (Fla. Cir. Ct. Nov. 6, 1989) (refusing to extend aggravated child abuse, a crime against "persons" statute, to actions "directed against a fetus which only later results in an injury to a 'person'"); Florida v. Gray, No. CR88-7506 (Ohio C.P. July 13, 1989) No. L-89-239, slip op. (Ohio Ct. App. Lucas Cty, Aug. 31, 1990) (refusing to extend child-endangering statute to include the fetus or prenatal conduct); Ohio v. Andrews, No. JU68459 (Ohio C.P. June 19, 1989) (refusing to usurp legislature's role by extending the child-endangering law); California v. Stewart, No. M508197 (San Diego Mun. Ct., Feb. 23, 1987) (finding criminal child support statute that explicitly covered "a child conceived but not yet born" was not intended to impose additional duties on pregnant women); Reyes v. Superior Court, 75 Cal. App. 3rd 214 (1977) (holding that child-endangering statute did not include a woman's prenatal conduct); Florida v. Ethel D. Carter, No. 89-6274, slip op. (Fla. Cir. Ct., Escambia County, July 23, 1990), appeal docketed, No. 90-2261 (Fla. App. 1 Dist. App., July 23, 1990); Massachusetts v. Pellegrini, No. 87970, slip op. (Mass. Sup. Ct., Oct. 15, 1990) (principles of statutory construction; due process of law and separation of powers do not permit extension of drug delivery statute to pregnant women). Michigan v. Bremer, No. 90-32227-FH (Mich. Cir. Ct., Muskegon County, Jan. 31, 1991) (interpreting the drug delivery law to cover ingestion of cocaine by a pregnant woman would be a radical incursion upon existing law).
  23. Correspondence of Susan v. Demers, deputy commissioner and general counsel, New York State Dept. of Social Services, to Karen Goldstein, August 17, 1990. (On file with the ACLU Foundation, Reproductive Freedom Project, New York.)
  24. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
  25. The court agreed with this formulation of the "crime," noting that Jennifer Johnson "made a choice to become pregnant and to allow those pregnancies to come to term." Florida v. Johnson, No. E89-890-CFA, (Fla. Cir. Ct. July 13, 1989) Trial Transcript at 365, 367, appeal docketed, No. 89-1765 (Fla. Dist. Ct. App. August 31, 1989).
  26. In Washington, D.C., a woman mysteriously "miscarried" days before a hearing which had been scheduled by a judge who had threatened to put her in jail because he believed she was using drugs while pregnant. Burgan, Sam W. Correspondence with author, January 22, 1990 (on file with the ACLU Foundation, Reproductive Freedom Project, New York.)
  27. Tolchinsky, Abby. Prosecution of pregnant women: A convergence of the war on drugs and the right to life movement. Unpublished paper on file with the ACLU Foundation, Reproductive Freedom Project, New York, April, 1990.
  28. California v. Stewart, No. M508197 (San Diego Mun. Ct., Feb. 23, 1987); Konon, M. Data access to fetus case put on hold. San Diego Tribune, October 24, 1986 at B1, B12.
  29. Wyoming v. Pfannenstiel, No. 1-90-8CR (Laramie, Wyo. complaint filed on Jan. 5, 1990); Levendosky, Charles. Turning women into 2-legged petri dishes. Sunday Star Tribune, January 21, 1990 at A8.
  30. Massachusetts v. Pellegrini, No. 87970, slip op. (Mass. Sup. Ct., Oct. 15, 1990).
  31. In re Troy D. 263 Cal. Rptr. 869 (Cal. App. 4th Dist. 1989).
  32. Because of concern about the effect of radiation from the sun and the stars on airline crews and passengers, Dr. Gineran, a researcher, advised: "If I were a woman in the critical period of pregnancy for [mental] retardation, I would tend to avoid flights to Europe." Wald, M. Radiation exposure is termed a big risk for airplane crews. The New York Times, February 14, 1990 at 1A.
  33. Pregnant women who come into contact with cat feces or raw meat can be exposed to toxoplasmosis. This parasitic disease can cause serious damage to the developing baby, often resulting in abortion, preterm birth, or death. Guttmacher, A.F. Pregnancy, birth and family planning. New York: New American Library, 1984, 188–89.
  34. Stallman v. Youngquist, 531 N. Ed. 2d 355 (911. 1988); In re A.C., 573 A. 2d 1235 (D.C. App. 1990).
  35. Robinson v. California 370 U.S. 660 (1962).
  36. Johnsen, Dawn. From driving to drugs: Governmental regulation of pregnant women's lives after Webster. University of Pennsylvania Law Review (1989) 138:179, 203–04.
  37. American Civil Liberties Union Foundation, Reproductive Freedom Project, New York. Overview of ACLU national survey of criminal prosecutions brought against pregnant women: 80% brought against women of color. Memorandum issued May 7, 1990.
  38. Chasnoff, I. J. The prevalence of illicit drug or alcohol use during pregnancy and discrepancies in mandating reporting in Pinellas County, Florida. New England Journal of Medicine (April, 1990) 332:1202; Winslow, R. Black cocaine mothers likely to be turned. The Orlando Sentinel, November 21, 1989; Winslow, R. Black pregnant women far more likely than whites to be reported for drug use. The Wall Street Journal, April 27, 1990
  39. Moss, K. Legal issues: Drug testing of post-partum women and newborns as the basis for civil and criminal proceedings. Clearinghouse Review (February, 1990); Whalen v. Roe, 429 U.S. 589 (1977).
  40. In re Jeffrey, No. 99851 (Mich. Ct. App. filed Apr. 9, 1987).
  41. Singer, Cathy. The pretty good mother. Long Island Monthly, January, 1990 at 46.
  42. A model for advocacy and treatment: The role of perinatal toxicology testing. California Advocates for Pregnant Women Newsletter (July/August, 1990) 11:1.
  43. Ana R., et. al v. New York City Department of Social Services, et al., Complaint filed in the United States District Court, Southern District of New York.
  44. Children 1990. Washington DC: Children's Defense Fund, 1990; Blakeslee, S. Research on birth defects shifts to flaws in sperm. The New York Times, January 1, 1991 at A1.