Crj 202 Research Paper
CRJ 202 Legal Paper
Paper Topic #3
The state of Olympus is proposing legislation to make it criminal for a woman who is pregnant to become intoxicated voluntarily. The punishment is up one year in prison or an alternative during which the woman will be on probation. During the probation period, the woman will be enrolled in mandatory treatment and counseling for alcohol abuse. If the probation is violated, the woman will face a year in prison, just like the other punishment when the woman is not on probation. The issue with this legislation is whether or not it is constitutionally legal to make it criminal for a pregnant woman who is of the age twenty one and older to become intoxicated at their own free will. The issues in this legislation …show more content…
also deal with the fundamental right for a legal, consenting adult to consume alcohol, and the liberty issue is that a woman has as much of a right to consume alcohol as anyone else, the issue is that when there is the possibility of another life involved such as a fetus then the state interest becomes an issue. The fact is that the government whether state or federal cannot stop a woman of age from consuming alcohol because the way the law is this legislation would violate the Equal Protection Clause by making just pregnant women unable to legally consume a legal substance, and the liberty or fundamental right to consume the legal substance. The federal government and state governments have not been consistent when dealing with pregnant women and substance abuse. Several states have made statutes making it a crime for women to use illegal substances during their pregnancy. The statute usually penalizes women using an illegal substance in the third trimester and usually for illegal drugs such as crack/cocaine. There have been no statutes against pregnant women consuming alcohol. The reasoning of the law is that constitutionally, the law cannot stop a pregnant woman from drinking alcohol just like they cannot stop a pregnant woman from smoking cigarettes. Alcohol consumption is legal when the person drinking is of age and are not driving a vehicle or causing a ruckus in public. Even though alcohol abuse is linked to problems for a fetus, newborns, and can even effect someone for the rest of their life because of fetal alcohol syndrome, it is not legal to stop a woman from the freedom and liberty to consume alcohol, pregnant or not. Most people follow the kind of rule that pregnant women generally don’t drink when they are pregnant because the effects it can have on their offspring.
There is also a portion of society, even doctors that believe a drink of wine every once in a while when pregnant is okay. There are no current statutes or laws that prohibit or make it illegal for pregnant women to drink alcohol, even in a public bar. This is for a reason because there are however statutes in some states that vary, they still prohibit women from using any illegal substances when they are pregnant. The issue in law is whether a fetus is viable, when the fetus considered viable and can the fetus be considered a child under child endangerment or child abuse laws. In the case of Whitner v South Carolina (1997) a woman was convicted of criminal child neglect and sentenced to eight years in prison because she used crack cocaine in the third trimester of her pregnancy, causing her child to be born with an addiction to crack cocaine. The defendant then filed for a post-conviction relief stating that her counsel was ineffective and the court didn’t have the jurisdiction. The South Carolina Supreme Court was looking at the issues of if the trial court was correct in accepting the guilty plea and ineffective counsel and whether the viable fetus is a person or child under the child abuse and endangerment statute in South Carolina. The Supreme Court found that the court was wrong for accepting the ineffective counsel …show more content…
and plea, more importantly the court found that the viable fetus is a child or person for the purpose of the statute. With that being said, it is clear that in the state of South Carolina a pregnant woman cannot use crack cocaine during her pregnancy in particular the third trimester, not only because crack cocaine is an illegal substance but also because the viable fetus being carried in considered a child or person which gives the law the right to convict her of criminal child neglect under the South Carolina child abuse and endangerment statute. The court stated, “We have no difficulty in concluding that a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person” (Whitner v South Carolina, 1997). . The precedent set in the case of Hollis v Commonwealth (1983) said that “the Hollis case was a criminal homicide case, not a child abuse case; the injury to the fetus in Hollis was caused by a third party's assault on the mother, not by the mother's self-abuse; and the baby was born dead, whereas here the baby was born alive” (Hollis v Commonwealth, 1983). The incident that happened was a man that brutally assaulted his eight month pregnant wife and the baby was born stillborn. The state of Kentucky ruled that an unborn viable fetus is not a person under the grounds of murder therefore the husband could not have committed murder on the fetus. In the case of Commonwealth v Welch (1993) the court overturned the conviction of criminal abuse in the second degree on the grounds of the Hollis v Commonwealth case. In Commonwealth v Welch, a woman was using cocaine during her pregnancy, she was later convicted of criminal abuse in the second degree, possession of a Schedule II narcotic, and possession of drug paraphernalia even though her baby was born at full term without any permanent defects. The child was born with some minor side effects from the lack of cocaine because the umbilical cord was cut, stopping the crack cocaine from entering the infants system. The defendant appealed to the court decision and was granted, the Court of Appeals affirmed the convictions for possession of a controlled substance and the possession of drug paraphernalia, and the Court of Appeals overturned the conviction of criminal abuse in the second degree. This case is an excellent example of how difficult it is for the law to prosecute a woman that is pregnant for doing something harmful to herself as well as her unborn child, even when the substance is illegal. Alcohol is a legal substance making it that much harder to regulate for a person that is legal to consume it no matter how it affects their unborn child. State v Gray is a case that happened in 1987 when a woman was indicted almost a year after the birth of her child that was born addicted to cocaine due to the mothers ingestion of the substance before the birth of her baby. The woman, Tammy Gray, was charged with one count of child endangerment for causing her baby to be born addicted to cocaine and endangering her health and wellbeing by using the substance in the third trimester of her pregnancy. “The defendant filed a motion to dismiss the case on the ground that the child endangerment law in the state of Ohio did not create a duty of care to a fetus.” (State v Gray, 1992). The county court granted the dismissal and the state appealed. “The Court of Appeals for Lucas County held that a parent may not be prosecuted for child endangerment for substance abuse occurring before the birth of the child” (State v Ohio). This is another case that provides the reason why convicting pregnant women of crimes against their fetus is so difficult because the way the law is written, a fetus even viable is not necessarily considered a person or child in the eyes of the law. For someone to be convicted of murder in any degree the death must be to a person and according to the courts, the law, and the states that have set these precedents, an unborn child is not a person. Even in cases when a child is born dead, or not born and is killed within the womb and removed no one has been convicted of murder. In a law review from the curators of the University of Missouri is reviewing the interventions of child welfare for drug dependent pregnant women that are addicted to illegal drugs as well as alcohol or tobacco products. The review states that the problem with the states relying on child services to take care of the problem of drug or alcohol dependent women. The review states that the states should “adopt an alternative child protection model that restores physicians to their role of healer and requires them to carry out their ethical and therapeutic obligation to diagnose this serious medical problem during prenatal care” (Weber, Ellen, University of Missouri). The law review concludes that more needs to be with health care in general, the system is responsible for physicians ignoring duties to help women before it’s too late in the pregnancy. This is an example of a way to fix the issue of women and alcohol abuse when pregnant because doctors would do the job of taking care of others and there would be fewer cases in the courts deciding on how to prosecute and convict pregnant women addicted to alcohol or illegal drugs and tobacco products. The law is a hard thing to apply to cases involving an unborn child. Although the federal government amended the Child Abuse Prevention and Treatment Act to require mandatory reporting when a physician suspects a baby is born addicted to illegal or controlled drugs, this does not change the use or deterrence of the use of alcohol to pregnant women. The Charleston Law Review explains that although this amendment helped, it didn’t change anything in the protection of fetuses and the reason many states have failed in convicting women for substance abuse when pregnant is because the statutes do not protect the unborn. The review proposes a statute for the states to regulate the use of illicit substances, alcohol, and tobacco and criminalizing such abuse for pregnant women. The Charleston review states that the criminalization of pregnant women is substance abuse doesn’t violate their right to privacy, or the equal protection clause. The reasoning behind the review that this statute wouldn’t violate the right to privacy states “The use of such substances is not a fundamental right and, therefore, the regulation must pass only the rational basis test.” (Congdon, Patricia, Charleston). The rational basis test requires only to be reasonably related to a legitimate government interest. It has been known that the state has an interest in the citizens that live there as well as future citizens of the state. The reason the statute wouldn’t violate the equal protection clause is because the clause cannot stop the government from creating legislation that groups people separately when there is a legitimate and important government interest. University of Illinois Law Review explains why it is hard for there to be laws against pregnant women using or abusing alcohol because it violates the United States Constitution. Instead, the review gives recommendations for helping the problem the law has dealing with fetuses being affected by their mothers’ actions. The review recommends that the government can civilly commit pregnant women even though it is a tough precedent to set. It may be the only way for the government to protect future people of this country without violating the mother’s rights under the constitution. Under the United States Constitution and a mothers’ rights to her fetus it is too difficult even constitutionally illegal for the law to stop a pregnant woman from using a legal substance even if they are addicted to alcohol. There are many cases that have tried to prosecute women for abusing illegal substances during their pregnancy that affected their fetus and the convictions have often failed because the way law is written it does not state that the protection of citizens in this country it does not apply to fetuses living inside their mother. If mothers are not being convicted for using illegal drugs while pregnant then the law cannot prosecute and convict women for using alcohol when they are pregnant just because they are pregnant. If they are of the legal age to drink then they have the right to consume alcoholic beverages even if it is affecting their unborn child and future citizens of the United States.
Sources
Court cases:
Commonwealth v Welch, 490 U.S.
2235 (1993).
State v Gray, 584 U.S. 710 (1992).
Whitner v South Carolina, 492 U.S. 777 (1997).
Law Review:
Congdon, Patricia (2011). Prenatal Prosecution: Taking A Stand For The State and Well-Being Of Its Soon To Be Citizens. Charleston Law Review. 5 CHARLR 621. Retrieved 10 March 2012, from Westlaw Campus database.
Linder, Erin (2005). Punishing Prenatal Alcohol Abuse: The Problems Inherent In Utilizing Civil Commitment to Address Addiction. University of Illinois Law Review. 2005 UILLR 873. Retrieved 10 March 2012, from Westlaw Campus database.
Weber, Ellen (2006). Child Welfare Interventions for Drug Dependent Pregnant Women: Limitations of Non-Public Health Response. UMKC Law Review. 75 UMKC 789. Retrieved 10 March 2012, from Westlaw Campus
database.
Paper Topic #3
The state of Olympus is proposing legislation to make it criminal for a woman who is pregnant to become intoxicated voluntarily. The punishment is up one year in prison or an alternative during which the woman will be on probation. During the probation period, the woman will be enrolled in mandatory treatment and counseling for alcohol abuse. If the probation is violated, the woman will face a year in prison, just like the other punishment when the woman is not on probation. The issue with this legislation is whether or not it is constitutionally legal to make it criminal for a pregnant woman who is of the age twenty one and older to become intoxicated at their own free will. The issues in this legislation …show more content…
also deal with the fundamental right for a legal, consenting adult to consume alcohol, and the liberty issue is that a woman has as much of a right to consume alcohol as anyone else, the issue is that when there is the possibility of another life involved such as a fetus then the state interest becomes an issue. The fact is that the government whether state or federal cannot stop a woman of age from consuming alcohol because the way the law is this legislation would violate the Equal Protection Clause by making just pregnant women unable to legally consume a legal substance, and the liberty or fundamental right to consume the legal substance. The federal government and state governments have not been consistent when dealing with pregnant women and substance abuse. Several states have made statutes making it a crime for women to use illegal substances during their pregnancy. The statute usually penalizes women using an illegal substance in the third trimester and usually for illegal drugs such as crack/cocaine. There have been no statutes against pregnant women consuming alcohol. The reasoning of the law is that constitutionally, the law cannot stop a pregnant woman from drinking alcohol just like they cannot stop a pregnant woman from smoking cigarettes. Alcohol consumption is legal when the person drinking is of age and are not driving a vehicle or causing a ruckus in public. Even though alcohol abuse is linked to problems for a fetus, newborns, and can even effect someone for the rest of their life because of fetal alcohol syndrome, it is not legal to stop a woman from the freedom and liberty to consume alcohol, pregnant or not. Most people follow the kind of rule that pregnant women generally don’t drink when they are pregnant because the effects it can have on their offspring.
There is also a portion of society, even doctors that believe a drink of wine every once in a while when pregnant is okay. There are no current statutes or laws that prohibit or make it illegal for pregnant women to drink alcohol, even in a public bar. This is for a reason because there are however statutes in some states that vary, they still prohibit women from using any illegal substances when they are pregnant. The issue in law is whether a fetus is viable, when the fetus considered viable and can the fetus be considered a child under child endangerment or child abuse laws. In the case of Whitner v South Carolina (1997) a woman was convicted of criminal child neglect and sentenced to eight years in prison because she used crack cocaine in the third trimester of her pregnancy, causing her child to be born with an addiction to crack cocaine. The defendant then filed for a post-conviction relief stating that her counsel was ineffective and the court didn’t have the jurisdiction. The South Carolina Supreme Court was looking at the issues of if the trial court was correct in accepting the guilty plea and ineffective counsel and whether the viable fetus is a person or child under the child abuse and endangerment statute in South Carolina. The Supreme Court found that the court was wrong for accepting the ineffective counsel …show more content…
and plea, more importantly the court found that the viable fetus is a child or person for the purpose of the statute. With that being said, it is clear that in the state of South Carolina a pregnant woman cannot use crack cocaine during her pregnancy in particular the third trimester, not only because crack cocaine is an illegal substance but also because the viable fetus being carried in considered a child or person which gives the law the right to convict her of criminal child neglect under the South Carolina child abuse and endangerment statute. The court stated, “We have no difficulty in concluding that a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person” (Whitner v South Carolina, 1997). . The precedent set in the case of Hollis v Commonwealth (1983) said that “the Hollis case was a criminal homicide case, not a child abuse case; the injury to the fetus in Hollis was caused by a third party's assault on the mother, not by the mother's self-abuse; and the baby was born dead, whereas here the baby was born alive” (Hollis v Commonwealth, 1983). The incident that happened was a man that brutally assaulted his eight month pregnant wife and the baby was born stillborn. The state of Kentucky ruled that an unborn viable fetus is not a person under the grounds of murder therefore the husband could not have committed murder on the fetus. In the case of Commonwealth v Welch (1993) the court overturned the conviction of criminal abuse in the second degree on the grounds of the Hollis v Commonwealth case. In Commonwealth v Welch, a woman was using cocaine during her pregnancy, she was later convicted of criminal abuse in the second degree, possession of a Schedule II narcotic, and possession of drug paraphernalia even though her baby was born at full term without any permanent defects. The child was born with some minor side effects from the lack of cocaine because the umbilical cord was cut, stopping the crack cocaine from entering the infants system. The defendant appealed to the court decision and was granted, the Court of Appeals affirmed the convictions for possession of a controlled substance and the possession of drug paraphernalia, and the Court of Appeals overturned the conviction of criminal abuse in the second degree. This case is an excellent example of how difficult it is for the law to prosecute a woman that is pregnant for doing something harmful to herself as well as her unborn child, even when the substance is illegal. Alcohol is a legal substance making it that much harder to regulate for a person that is legal to consume it no matter how it affects their unborn child. State v Gray is a case that happened in 1987 when a woman was indicted almost a year after the birth of her child that was born addicted to cocaine due to the mothers ingestion of the substance before the birth of her baby. The woman, Tammy Gray, was charged with one count of child endangerment for causing her baby to be born addicted to cocaine and endangering her health and wellbeing by using the substance in the third trimester of her pregnancy. “The defendant filed a motion to dismiss the case on the ground that the child endangerment law in the state of Ohio did not create a duty of care to a fetus.” (State v Gray, 1992). The county court granted the dismissal and the state appealed. “The Court of Appeals for Lucas County held that a parent may not be prosecuted for child endangerment for substance abuse occurring before the birth of the child” (State v Ohio). This is another case that provides the reason why convicting pregnant women of crimes against their fetus is so difficult because the way the law is written, a fetus even viable is not necessarily considered a person or child in the eyes of the law. For someone to be convicted of murder in any degree the death must be to a person and according to the courts, the law, and the states that have set these precedents, an unborn child is not a person. Even in cases when a child is born dead, or not born and is killed within the womb and removed no one has been convicted of murder. In a law review from the curators of the University of Missouri is reviewing the interventions of child welfare for drug dependent pregnant women that are addicted to illegal drugs as well as alcohol or tobacco products. The review states that the problem with the states relying on child services to take care of the problem of drug or alcohol dependent women. The review states that the states should “adopt an alternative child protection model that restores physicians to their role of healer and requires them to carry out their ethical and therapeutic obligation to diagnose this serious medical problem during prenatal care” (Weber, Ellen, University of Missouri). The law review concludes that more needs to be with health care in general, the system is responsible for physicians ignoring duties to help women before it’s too late in the pregnancy. This is an example of a way to fix the issue of women and alcohol abuse when pregnant because doctors would do the job of taking care of others and there would be fewer cases in the courts deciding on how to prosecute and convict pregnant women addicted to alcohol or illegal drugs and tobacco products. The law is a hard thing to apply to cases involving an unborn child. Although the federal government amended the Child Abuse Prevention and Treatment Act to require mandatory reporting when a physician suspects a baby is born addicted to illegal or controlled drugs, this does not change the use or deterrence of the use of alcohol to pregnant women. The Charleston Law Review explains that although this amendment helped, it didn’t change anything in the protection of fetuses and the reason many states have failed in convicting women for substance abuse when pregnant is because the statutes do not protect the unborn. The review proposes a statute for the states to regulate the use of illicit substances, alcohol, and tobacco and criminalizing such abuse for pregnant women. The Charleston review states that the criminalization of pregnant women is substance abuse doesn’t violate their right to privacy, or the equal protection clause. The reasoning behind the review that this statute wouldn’t violate the right to privacy states “The use of such substances is not a fundamental right and, therefore, the regulation must pass only the rational basis test.” (Congdon, Patricia, Charleston). The rational basis test requires only to be reasonably related to a legitimate government interest. It has been known that the state has an interest in the citizens that live there as well as future citizens of the state. The reason the statute wouldn’t violate the equal protection clause is because the clause cannot stop the government from creating legislation that groups people separately when there is a legitimate and important government interest. University of Illinois Law Review explains why it is hard for there to be laws against pregnant women using or abusing alcohol because it violates the United States Constitution. Instead, the review gives recommendations for helping the problem the law has dealing with fetuses being affected by their mothers’ actions. The review recommends that the government can civilly commit pregnant women even though it is a tough precedent to set. It may be the only way for the government to protect future people of this country without violating the mother’s rights under the constitution. Under the United States Constitution and a mothers’ rights to her fetus it is too difficult even constitutionally illegal for the law to stop a pregnant woman from using a legal substance even if they are addicted to alcohol. There are many cases that have tried to prosecute women for abusing illegal substances during their pregnancy that affected their fetus and the convictions have often failed because the way law is written it does not state that the protection of citizens in this country it does not apply to fetuses living inside their mother. If mothers are not being convicted for using illegal drugs while pregnant then the law cannot prosecute and convict women for using alcohol when they are pregnant just because they are pregnant. If they are of the legal age to drink then they have the right to consume alcoholic beverages even if it is affecting their unborn child and future citizens of the United States.
Sources
Court cases:
Commonwealth v Welch, 490 U.S.
2235 (1993).
State v Gray, 584 U.S. 710 (1992).
Whitner v South Carolina, 492 U.S. 777 (1997).
Law Review:
Congdon, Patricia (2011). Prenatal Prosecution: Taking A Stand For The State and Well-Being Of Its Soon To Be Citizens. Charleston Law Review. 5 CHARLR 621. Retrieved 10 March 2012, from Westlaw Campus database.
Linder, Erin (2005). Punishing Prenatal Alcohol Abuse: The Problems Inherent In Utilizing Civil Commitment to Address Addiction. University of Illinois Law Review. 2005 UILLR 873. Retrieved 10 March 2012, from Westlaw Campus database.
Weber, Ellen (2006). Child Welfare Interventions for Drug Dependent Pregnant Women: Limitations of Non-Public Health Response. UMKC Law Review. 75 UMKC 789. Retrieved 10 March 2012, from Westlaw Campus
database.