Constitutional View On Prosecuting Pregnant Women

Laws & Policies

"Another constitutional argument [against prosecuting pregnant women] is based on the right to privacy: the prosecution of a pregnant drug-addicted woman infringes upon a woman’s right to privacy, as established in Roe v. Wade.111 In Roe, the Supreme Court held that the right to privacy, 'whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action ... or ... in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.'112 Advocates of the right to privacy contend that a woman does not lose her right to privacy simply because she becomes pregnant, and the constitutional right to privacy 'extends to both women and men, regardless of their biological differences.'113 Advocates therefore contend that because the Constitution does not differentiate among persons who are able to enjoy the right to privacy, the pregnant woman remains a 'person' as defined and protected under the Constitution.114 Hence, the State’s mechanisms — prosecution by child abuse, endangerment, controlled substance abuse, manslaughter, and homicide statutes — infringe upon a drug-addicted woman’s fundamental right to privacy because these mechanisms punish her simply for exercising her constitutional right to procreate.115"

Source: 

Lyttle, Tiffany, "Stop The Injustice: A Protest against the Unconstitutional Punishment of Pregnant Drug-Addicted Women," The New York University Journal of Legislation and Public Policy (New York, NY: New York University School of Law, Spring 2006) Volume 9, Number 2, p. 796.
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