Taking The Baby Before It's Born: Termination Of The Parental Rights Of Women Who Use Illegal Drugs While Pregnant
[NOTICE OF REPUBLICATION:
This article is republished here without formal permission solely for educational purposes. Neither the republisher nor any affiliated brand or organization claims authorship or receives any profit from its inclusion. Full credit belongs to Ian Vandewalker, copyright © January 31, 2007, originally published in 2008 in the NYU Review of Law & Social Change, Vol. 32, p. 423. The work is the property of Mr. Vandewalker and New York University – Brennan Center for Justice. The original article, which includes extensive footnotes omitted here for readability, can be found at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1932196. For rights inquiries or removal requests, please contact [email protected]. Mr. Vandewalker can be reached at [email protected]]
Several states allow a mother and child to be permanently separated for something the mother did before the child was born.¹ These states have made the use of illegal drugs while pregnant a ground for terminating a mother’s parental rights. The intuition motivating such a policy is that drug users are bad parents, and the state protects children by removing them from such parents. Setting aside for the moment the question of whether pre-childbirth behavior should ever be a basis for evaluating parenting ability, the presumption in favor of termination is fundamentally ill conceived. Termination of parental rights is a drastic and unwise response to the public health problems caused by illegal drug use: drug use or addiction does not, *ipso facto*, make someone unfit to care for a child, although it may cause behaviors which constitute bad parenting. If those behaviors do emerge and they rise to the level of abuse or neglect, they would be sufficient legal ground for government intervention to protect the child in every state in the union. So, making drug use itself a ground for breaking up a family is unnecessary. Given that it also has various negative effects, including trampling the constitutional rights of mothers and creating legal orphans,² the policy should be abandoned.
In this article, I argue that legal schemes that allow the termination of parental rights for prenatal drug use violate women’s Fourteenth Amendment procedural and substantive due process rights.³ The procedural due process issue is that, under these schemes, drug use during pregnancy creates a presumption that precludes an individualized determination as to parental fitness. The substantive due process problem is that these schemes fail the strict judicial scrutiny they deserve because there are alternative means to serve the proffered goal that are less restrictive of individuals’ constitutional rights. This article argues that laws terminating parental rights for prenatal drug use violate due process and should be struck down.
In Part II, I describe certain state schemes that allow a mother’s parental rights to be terminated if she used drugs during her pregnancy. I will introduce an Illinois statute on the subject, which serves as a focal point for much of the rest of the article. In Part III, I investigate the connections between these laws and both gender stereotypes and anti-abortion activism. Understanding these connections is an important step toward seeing that despite the putative public health justifications, the termination laws are unconstitutional. Part IV considers whether these laws violate the Fourteenth Amendment’s guarantee of due process, both procedural and substantive. Part V discusses an Illinois case, in re O.R.,⁴ which provides an interesting case study because of the state’s unique statute. In O.R., pursuant to the state statute, a child was removed from her mother because of positive drug tests, even though the mother had beaten her addiction. The court never inquired into her fitness as a parent per se.⁵ Throughout the article, I argue that laws making prenatal substance abuse a basis for the termination of the mother’s parental rights are both unconstitutional and disastrous social policy.
One theme that pervades the literature and case law on this issue deserves some discussion at the outset. There is a common misconception that the use of illegal drugs during pregnancy constitutes unique and inevitable harm to the fetus. Popular media reports in the 1980s of “crack babies,” children born retarded, unteachable, and aggressive because of fetal exposure to cocaine, were based on methodologically questionable studies that have since been discredited.⁶ It is simply not the case that every exposure to an illegal drug causes harm to a fetus. The point is not that there are no risks associated with illicit drug use during pregnancy, but rather that the risks should not be overstated in a way that leads to drastic and ultimately unhelpful reactions to the problem. The use of certain illegal drugs during pregnancy, like many other behaviors legal and illegal, does increase the risk of negative health outcomes and undoubtedly constitutes a public health issue that deserves the attention of the government. However, that does not mean that every measure taken in response to the problem is a sound policy.
In this article, I argue that terminating the parental rights of women who used drugs while pregnant is both unconstitutional and unwise. It destroys families, which mothers have a constitutional right to maintain and governments have a policy interest in keeping intact, and it does not effectively address the public health problem.
II. STATE LAWS ALLOWING THE TERMINATION OF PARENTAL RIGHTS FOR PRENATAL DRUG USE
A mother’s parental rights may be terminated in a number of states if she uses drugs while pregnant. Sixteen states have statutes providing that the use of illicit or controlled substances during pregnancy is child abuse.⁷ Other states allow prenatal drug use to be considered in determinations of child status as abused, neglected, dependent, in need of assistance, or the like, even without a statutory mandate.⁸ While only one state, Illinois, has a statute explicitly providing for termination due to prenatal drug use, child welfare laws in all states may be used by judges or social services agencies to permanently remove children from mothers who used drugs while pregnant.
In Illinois, a “neglected child” includes “any newborn infant whose blood, urine, or meconium contains any amount 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.”⁹ A neglected child may be removed from the parents’ custody if a court determines that removal would be “consistent with the health, safety and best interests of the minor.”¹⁰ The child may not be returned to the parent until a court finds that shelter care placement is no longer necessary for the child’s protection.¹¹ Parents who do not comply with the service plan the Department of Children and Family Services creates for them and “correct the conditions which require the child to be in care,”¹² risk the termination of their parental rights. For the mother of a child who was removed because of a positive toxicology at birth, complying with a service plan would presumably mean refraining from using drugs.
Illinois law goes further. It provides that mothers who give birth to babies with a controlled substance or metabolite thereof in their blood, urine, or meconium are thereby unfit parents. Courts are to presume a mother in this situation is “unfit to have a child, without regard to the likelihood that the child will be placed for adoption.”¹³ This presumption is not rebuttable if she has already had a child who was adjudicated neglected because of positive toxicology at birth.¹⁴ A determination that a parent is unfit does not automatically result in termination of her parental rights under Illinois law; a hearing on the best interests of the child is still necessary. It does, however, expose the mother to the possibility of termination and puts her at a “disadvantage” in the best interests hearing.¹⁵ This statutory scheme leads to the termination of mothers’ parental rights for giving birth to babies with positive toxicology and being unable to overcome their drug addiction within a relatively short period — with no showing of harm to the baby required.¹⁶ Even a mother who has made “outstanding” progress in overcoming her drug addiction will not be able to prevent the termination of her parental rights if she has given birth to more than one drug-exposed infant.¹⁷
In Florida, the law provides that “\[u]se by the mother of a controlled substance or alcohol during pregnancy when the child, at birth, is demonstrably adversely affected by such usage” is “harm” and therefore constitutes child abuse if done willfully.¹⁸ Child abuse is, of course, a ground for temporary removal of the child.¹⁹ It can also constitute grounds for termination of parental rights, if it is found to be “egregious conduct.”²⁰ So while the statute does not explicitly make prenatal drug use a ground for the termination of the mother’s parental rights, its interpretation in conjunction with that of the statute setting out the grounds for termination allows prenatal drug use to result in the termination of a mother’s parental rights. In addition, courts in Florida have considered prenatal drug use to be a ground for the termination of the mother’s parental rights even though no statute explicitly makes it so.²¹
Policies regarding abuse and neglect determinations and termination of parental rights can break up families even without statutes like those in Illinois and Florida. Courts in many states have found that evidence of drug or alcohol use by a mother during her pregnancy is relevant to removal or termination proceedings in the absence of an explicit legislative mandate.²² Ohio’s supreme court has held, in *In re Baby Boy Blackshear, that “[w]hen a newborn child’s toxicology screen yields a positive result for an illegal drug due to prenatal maternal drug abuse, the newborn is, for purposes of [the juvenile law], per se an abused child.”²³ The court avoided finding that a fetus is a “child” for the purposes of the state’s child abuse laws, reasoning instead that “a child born alive who tests positive at birth for addiction to cocaine suffers from abuse and continued abuse no matter when the original abuse occurred.”²⁴ Thus, the pregnant woman’s action before the birth of the child combined with the result that the child has a drug in its system after birth constitutes abuse.²⁵
The judicial extension of the law is troubling in its breadth. The Blackshear court makes all children born with illegal drugs in their systems per se abused children, regardless of whether the drugs have caused any harm. In Ohio, a child who is adjudicated abused may be placed in “permanent custody of a public children services agency or private child placing agency.” Thus, it is possible for a mother to lose her parental rights solely because she used an illegal drug while she was pregnant, regardless of whether the child was harmed at all.
Similarly, a Texas appellate court has explicitly noted that the use of cocaine during pregnancy is a ground for termination regardless of whether the fetus was harmed. Any child welfare scheme that allows a finding of child abuse or neglect based on perinatal positive toxicology can result in termination on basically the same ground, because reunification is typically conditioned on cessation of the mother’s drug use, and termination is likely to come before the mother can overcome her addiction.
Even in states without statutes or high court decisions on the matter, the parental rights of women who use drugs while pregnant may be subject to the zeal of state actors who are willing to interfere without a specific mandate from the legislature or judiciary. Child welfare agencies can institute removal proceedings based on creative interpretations of child welfare statutes, whether or not parental drug use poses any threat to the child’s welfare. Since judicial determinations in termination proceedings are guided by the wide-open “best interests of the child” standard, judges are free to remove children and terminate parental rights based on nothing more than their preconceptions about the harm that prenatal drug use causes and their conceptions of what mothers ought to be.
In general, once a child is determined to be abused or neglected because of prenatal substance abuse, the mother’s substance abuse can become the basis for terminating her parental rights. This can be so whether or not there is specific statutory language permitting termination based on prenatal or continuing substance abuse. In practice, judges are often willing to consider drug use as a ground for termination even without a specific statutory mandate. A child welfare agency’s determination that a child is abused or neglected based on prenatal substance abuse can be the first step in a governmental process that will end with the permanent removal of a child from her mother forever—a process the mother may be powerless to stop. In short, the power to decide whether these families will be destroyed lies in the hands of social workers and local judges. Statutes and reported appellate court decisions allowing or requiring termination of parental rights in cases of prenatal drug use reveal only part of the governmental practice of permanently breaking up families because of prenatal drug use.
III. THE POLITICAL CONTEXT
While it may seem at first glance that drastic responses to drug use by pregnant women are justified by public health concerns, the policy of terminating parental rights should be examined within a broader context. As I will argue in Part IV, these laws are irrational as a means of protecting public health because the threat of termination does not serve the government’s interest in fetal or children’s health, and may actually harm those interests in addition to threatening mothers’ constitutional rights. Though I contend that the public health rationale does not hold water, laws allowing termination of parental rights for prenatal drug users do serve other political goals. In this Part, I briefly discuss the connections between termination policies, patriarchal ideas of gender roles, and anti-abortion activism.
A. Patriarchal ideas of gender roles and ideal motherhood
Punitive governmental reactions to drug use during pregnancy are in line with historical efforts by the government to control women’s reproductive lives, and fit patriarchal notions of gender roles and “ideal mothers.” According to a patriarchal view, a pregnant woman’s role as reproductive machine is her most important characteristic, one to which her own interests and humanity must be secondary. Since women who deviate from this paradigm threaten not only the survival of the structure of gender roles, but also the survival of the race itself, they deserve to be punished. Within this framework, it is appropriate for the state to sever pregnant drug users’ relationships with their children, since misconduct during pregnancy is taken as proof that the woman fails the model of the ideal mother. From this perspective, it is the state’s place to decide which women satisfy the gender role stereotype of ideal motherhood and to separate those who do not from their children, for the good of those children. The fit between patriarchal ideas and termination policies for prenatal drug use does not necessarily mean that the governments behind these policies espouse patriarchy as an organizing principle of society or view it as a justification for the policies. Nor does it mean that the political problems with patriarchal thinking necessarily infect the policy of termination as a response to prenatal drug use. But it should make pressing a close examination of the proffered reasons for termination and its constitutionality, both of which I investigate in this article.
A possible influence from patriarchal structures is evident in the widespread failure to acknowledge that sexual abuse, domestic violence, and women’s drug addictions correlate to a high degree: seventy percent of drug-addicted women were sexually abused before the age of sixteen. Gender-based violence, harassment, and abuse are core social causes of substance abuse by women. Through harsh treatment of drug-addicted pregnant women, governments blame women for the consequences of the abuse they have suffered at the hands of men.
Of course, governments also employ punitive responses to prenatal drug use other than termination. Fourteen states have mandatory reporting laws requiring health care workers who suspect a pregnant woman is using drugs to report her to child welfare or law enforcement. Four states require drug testing on suspicion of prenatal drug use. Sixteen states designate prenatal drug use as child abuse by statute. Statutes in Wisconsin, South Dakota, and Minnesota authorize the civil commitment of women who use drugs while they are pregnant. In Wisconsin, the decision to take a pregnant woman into custody can be made by a law enforcement officer who “believes on reasonable grounds” that there is a substantial risk to the health of the child. There is no requirement in the statute that law enforcement officers receive the medical training necessary for them to have any reasonable grounds on which to base such a belief. Based on learning that a woman was pregnant and using drugs, judges have chosen to sentence women to incarceration, or to longer sentences than they would otherwise face, for any crime that puts them in court. Most disturbing, hundreds of women have been arrested and charged criminally for using drugs while pregnant under charges ranging from child abuse, to delivery of an illegal substance, to murder.
The health and welfare of children and fetuses is obviously a legitimate public health concern and, as such, an appropriate area for state action. Nevertheless, patterns in both the type of threats to public welfare that are addressed and the means chosen to address them reflect the enforcement of gender roles (as well as class and race consciousness). Environmental threats to child health, such as lead paint in urban areas of concentrated poverty, do not create the same level of public outcry and legislative will as prenatal drug use. Compassionate and proven methods of addressing drug use, like providing substance abuse treatment, are passed up in favor of throwing women in jail and taking their children away.
This analysis has thus far focused on the conceptual fit between termination policies and patriarchal thinking. There is also some evidence that outright gender discrimination can play a part in governmental reactions to drug use by pregnant women. A survey of California judges found that a large majority would change their sentencing decision in a criminal case if the defendant were pregnant and addicted to drugs, and almost half would put a woman in jail until childbirth to prevent further drug use while pregnant. The judges were also asked whether paternal drug use should be punished if drugs were shown to pass through male sperm to the fetus. Of those who said that fathers should not be punished, eleven percent said that “pregnant women should be incarcerated for harmful perinatal behavior.” These judges would punish women, but not men, for identical behavior having the same effect on the fetus. It is likely that these discriminatory attitudes are due to the construction of women’s unique role as reproductive machines and the duties associated with that role.
In addition to the potential for gender discrimination, some institutional features of the enforcement of punitive laws addressing drug use by pregnant women show great potential for disproportionate effects according to socioeconomic class.⁴⁹ Poor women are more likely than their wealthier counterparts to be in contact with government entities because of their use of government services like welfare and public hospitals.⁵⁰ This increased contact with the state in turn increases the likelihood that any prenatal drug use will be brought to the attention of the state. Furthermore, poverty itself is most often the root cause of neglect determinations.⁵¹ When a government shapes its child welfare policy around the stereotype of the ideal mother and that ideal is not compatible with the realities of poor people’s lives, the state ends up taking poor mothers’ children away regardless of the strength or quality of the family bond.
B. The intersection of anti-abortion activism and the “war on drugs”
While the connection between termination for prenatal drug use and patriarchal ideas of gender and motherhood is somewhat tenuous, the connection between these policies and anti-abortion activism is clear. Laws creating novel punishments for prenatal drug use are fueled by the rhetoric of the anti-abortion movement and its efforts to create fetal rights under the law.⁵² Since Roe v. Wade,⁵³ the anti-abortion movement has tried to add the concept of fetal personhood to all manner of laws.⁵⁴ That political force has combined with the frenzy of the “war on drugs” to make laws punishing women for being pregnant and addicted to drugs easy for legislatures to pass and courts to create.⁵⁵ The punitive nature of these laws is justified by the vilification of drug addicts, especially pregnant drug addicts. In the 1980s and 1990s, there was widespread, sensationalist media reporting on the effects of illicit drugs, mostly crack cocaine, on fetuses.⁵⁶ The studies on which these reports were based were plagued with methodological problems such as small sample size and failure to control for key variables like poverty, poor nutrition, and concurrent use of other drugs, including alcohol.⁵⁷ The dire conclusions about inevitable and permanent harm from prenatal exposure to cocaine were questioned or discredited by later studies,⁵⁸ which received little coverage in major media sources. The irresponsible media coverage created armies of legislators and judges with misconceptions about the medical facts with respect to prenatal drug use, especially cocaine.⁵⁹
Fetal rights advocates see any chance to give fetuses rights or to make them legal persons for any purpose as a potential nail in the coffin of Roe. The Roe Court specifically held that a fetus is not a person under the Fourteenth Amendment.⁶⁰ If fetuses were considered legal persons, the analysis of a woman’s right to abortion would presumably change; the woman’s right to control over her own reproduction would be countered not only by the state’s interest in fetal life, but also by the legal rights of the fetus itself. Anti-abortion activists hope that, if fetal legal personhood is established, the fetus’s right to life would outweigh the pregnant woman’s reproductive rights. This is why the anti-abortion movement supports laws like the Unborn Victims of Violence Act of 2004.⁶¹ Creating a separate crime for harming fetuses (as well as explicitly using the anti-abortion movement’s rhetoric in the title of the act) puts another chink in the armor protecting women’s reproductive rights.
Laws allowing the termination of parental rights due to prenatal drug use are a part of this broad strategy. Changing juvenile laws so that they cover fetuses is a way of changing the definition of “child” and related terms in state laws to include fetuses. Since children are persons for many legal purposes, the effect is to make fetuses legal persons as well. For example, Florida law provides that willful “[u]se by the mother of a controlled substance or alcohol during pregnancy when the child, at birth, is demonstrably adversely affected by such usage” constitutes child abuse.⁶² If the harm visited upon a fetus by the pregnant woman is child abuse, then the fetus must be a child.
The statutory scheme in Illinois does not redefine “child.” But it does arguably create an interest on the part of the fetus that can be vindicated after birth. At the least, it provides for civil consequences for pregnant women’s conduct, and such a scheme would surely be held up by someone arguing for fetal personhood in Illinois. Statutes providing that fetuses are persons for the purposes of wrongful death actions are routinely held up by prosecutors as establishing fetal rights that justify the arrest and prosecution of pregnant women who use drugs.⁶³
Judges in New York family courts have made feeble attempts to expand the definition of the term “child.” One judge held that an “unborn child” is a “person” under the Family Court Act, citing only a single law review article and distinguishing Roe and its progeny.⁶⁴ Another family court judge in New York held that the status of “legal personality” is conferred on fetuses by the state’s Family Court Act, even though the statute contains no language justifying that conclusion.⁶⁵ The court offered what meager support it could muster for this extension of the law by pointing to such obviously irrelevant statutory provisions as, inter alia, those allowing paternity petitions to be filed before birth, recognizing interests of unborn fetuses in the property disposition of estates, and providing for an increase in an indigent pregnant woman’s social services allowance. The court thought that these provisions establish “legislative intent to protect the fetus” and concluded that the fetus may sue its mother (through a law guardian) to seek a judgment that it is neglected.⁶⁶ The use of such thinly supported reasoning by both advocates and judges shows that imposing consequences for women’s prenatal conduct in the child protective arena can have far-reaching and perhaps unpredictable effects on the rights of fetuses and pregnant women.
Laws mandating the termination of the parental rights of women who use drugs while pregnant derive their conceptual justification from a patriarchal stereotype of ideal motherhood. They are politically supported by anti-abortion activists who see them as increasing fetal rights and thereby decreasing women’s reproductive rights. When evaluating these laws’ legitimacy it is important to understand how they relate to state endorsement of patriarchal gender roles and anti-abortion positions.
IV. FOURTEENTH AMENDMENT DUE PROCESS
There are two components to the Due Process Clause: procedural due process and substantive due process. The inquiry into whether a law comports with procedural due process has two parts. First, there is a threshold question of whether a protected interest is at stake.⁶⁷ If a legal scheme threatens a protected interest, the constitution demands procedural safeguards protecting that interest against government intrusion. To determine whether the process is adequate, a court must examine three factors: the individual’s private interest; the risk that the individual will be deprived of that interest under the procedure in place and the likelihood that a different process would prevent erroneous deprivation; and the state interest, including the burden of any additional procedural safeguards.⁶⁸
Substantive due process, on the other hand, is not really about process, but is rather a mechanism by which the Constitution protects certain liberty interests upon which the government may not infringe at all unless there is a pressing need and the means used are no more restrictive of individual liberty than necessary.⁶⁹ The judicial inquiry starts with a determination of whether there is a fundamental right threatened by the legal scheme in question. If so, the court applies strict scrutiny, and the law is found constitutional only if it is “narrowly tailored to further compelling governmental interests.”⁷⁰ As I argue below, the termination of parental rights because of prenatal drug use violates both elements of due process.
A. Procedural Due Process
The Supreme Court has held: “The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’ Only after finding the deprivation of a protected interest do we look to see if the State’s procedures comport with due process.”⁷¹ Mothers have a liberty interest in maintaining their status as legal parents. In Stanley v. Illinois, the Supreme Court said that the right to conceive and raise one’s children is “essential,”⁷² and that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”⁷³ Stanley stated that a presumption is not sufficient to establish parental unfitness; rather, a hearing and individual determination is necessary.⁷⁴ In Quilloin v. Walcott, the Court said, “[w]e have little doubt that the Due Process Clause would be offended if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness…”⁷⁵
In Santosky v. Kramer, the Court dealt specifically with the termination of parental rights.⁷⁶ The Court recognized that:
freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment… The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.⁷⁷
Since a parent’s interest in the care, custody, and management of her child is a protected liberty interest, it is appropriate to make an inquiry into whether a state’s procedures for terminating parental rights satisfy due process. The basic framework for determining what process is required under the Fourteenth Amendment is set out in Mathews v. Eldridge:
[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.⁷⁸
The Santosky Court applied this framework to parental rights to find that a clear and convincing evidentiary standard is necessary in termination proceedings, holding that “[i]n parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight.”⁷⁹
The Court’s characterization of the first element, the private interest, is common to all proceedings in which fundamental rights are at stake is the requirement that the individual be afforded “an opportunity to be heard at a meaningful time and in a meaningful manner.” 113 This means that the termination proceeding must occur at a time and in a manner that gives the individual a real chance to contest the termination and to assert her parental rights. When termination occurs under a presumption based on drug use, that opportunity is denied. It is denied because the drug-use presumption creates an almost irrebuttable conclusion of unfitness. It is denied because the timetables under ASFA do not allow enough time for recovery. It is denied because the procedural rules governing termination under ASFA do not require the state to provide assistance or make reunification a genuine possibility. And it is denied because courts interpreting ASFA have increasingly permitted termination to occur based on very brief and unsuccessful efforts to overcome addiction, even when the parent has made recent progress.
This is not a meaningful opportunity to be heard. It is, instead, a charade that permits the government to say that it has respected due process when in fact it has not. Constitutional due process requires that before a right as important as parenthood can be terminated, the proceeding must offer a real chance for the parent to succeed. A proceeding that starts from the presumption that the parent cannot succeed, that erects multiple barriers to success, and that limits the time for achieving success to far less than is reasonable or realistic, is not a proceeding that satisfies due process. It is a proceeding designed to look fair, while being fundamentally unfair. And that is not good enough when the right at stake is the right to raise one’s own child.
i. The ASFA timetables and the state’s interest in child welfare
The ASFA timetables are irrational. As a result, state laws developed in response to ASFA speeding termination fail the third Mathews factor, the government interest and the function of the proceeding. The avowed purpose of expediting, the deactivation of the gene occurs even in the presence of the activating signal. In another approach, by coupling the DNA-binding domain to a repression domain, such as the Krüppel-associated box (KRAB), researchers can directly inhibit gene expression. These tools have immense potential for therapeutic applications, including silencing of deleterious alleles or controlling gene dosage in a highly specific and tunable manner.
CRISPR-Cas systems have been particularly transformative in the development of gene drives — genetic systems that bias the inheritance of a particular gene to increase its prevalence in a population. By linking a desired gene to the CRISPR machinery, scientists can ensure that the gene is copied into both chromosomes of a diploid organism, thereby spreading it rapidly through populations. While gene drives offer solutions for controlling disease vectors, such as mosquitoes that transmit malaria, their ecological risks have prompted calls for stringent regulation and further study.
Ethical considerations surrounding genome editing technologies are vast and complex. While somatic cell editing, which affects only the treated individual, is generally more accepted, germline editing raises profound ethical, legal, and social questions. Changes made to germline cells can be inherited by future generations, introducing concerns about consent, long-term safety, and the potential for non-therapeutic enhancements. Moreover, access to these technologies may exacerbate existing inequalities, leading to a new form of genetic classism.
Regulatory frameworks for genome editing vary widely across countries. In the United States, the Food and Drug Administration (FDA) oversees clinical applications of gene therapy, while other nations have banned certain forms outright. International consensus remains elusive, though efforts such as those by the World Health Organization (WHO) aim to establish global governance standards. Meanwhile, scientific bodies advocate for self-regulation, transparency, and public engagement to guide responsible development and use of the technology.
The convergence of genome editing with other disciplines, including synthetic biology, artificial intelligence, and personalized medicine, is expected to accelerate innovation. AI-driven tools can enhance the design of guide RNAs, predict off-target effects, and optimize editing strategies. Integration with personalized genomics enables tailored interventions that consider individual genetic backgrounds, increasing the efficacy and safety of therapies. Such interdisciplinary approaches promise to overcome current limitations and expand the horizons of what genome editing can achieve.
In conclusion, genome editing represents a paradigm shift in biology and medicine. Its capacity to manipulate the fundamental code of life holds promise for curing genetic diseases, improving agriculture, and understanding biological systems. However, the profound power of these technologies necessitates careful deliberation, ethical foresight, and inclusive dialogue among scientists, policymakers, and the public. Only through such collective stewardship can we harness the benefits of genome editing while mitigating the risks it may pose to illicit drugs. In the face of overwhelming evidence of the risks to fetuses of prenatal exposure to cigarettes and alcohol, any law which is designed to deter only the use of illegal drugs during pregnancy is irrationally underinclusive.
Such laws are also irrationally underinclusive in picking out drug use, whether legal or illegal, among all the behaviors that a pregnant woman might engage in that might pose a risk to the fetus. Eating fish with high levels of mercury, failing to take folic acid, taking certain drugs prescribed by a doctor, taking fertility drugs, being overweight, spending time at high altitude, and standing still for prolonged periods of time are all behaviors that may pose a risk to fetal health. In fact, among the greatest risk factors to fetal health is poverty, with attendant nutrition and medical care deficiencies.
Another way in which these laws may be underinclusive is if they, like the Illinois statute, are triggered by a positive toxicology at birth, either in the newborn or the mother. Any use of drugs by the woman earlier in her pregnancy will not trigger juvenile law consequences, since it will not show up in drug tests at birth. However, fetuses are no less at risk of health effects from the woman's drug use early in pregnancy. Laws singling out drug use that generates a positive toxicology at birth are therefore systematically underinclusive.
Termination policies are also overinclusive. First, since prenatal drug use does not invariably harm the fetus, laws that provide for the termination of parental rights because of the presence of drugs alone infringe upon the interests of more women than is necessary to effect the state's purpose of protecting fetal health. Perfectly healthy children who test positive at birth for an illegal substance will be taken from their mothers despite the fact that the drugs in their system caused them no harm. Limiting termination of parental rights to those mothers whose prenatal drug use is established to have caused some medically identifiable harm should be a minimum requirement for a law to pass the narrow tailoring test.
Moving beyond the under and over inclusiveness problems, laws providing for the termination of parental rights because of prenatal drug use fail to be narrowly tailored to achieve the goal of fetal health because they are irrational or counterproductive. They are irrational because they are aimed at deterring drug use by pregnant women, which may be a uniquely undeterrable activity. Addiction is a powerful psychological force. Many pregnant addicts are highly motivated to quit when they learn that they are pregnant but find that it is just too difficult. In addition, pregnancy only lasts nine months, and the period during which a woman knows she is pregnant is likely to be significantly shorter. Drug treatment, however, is widely recognized to take at least nine months to be effective. The time window involved may just be too short to reasonably expect a pregnant drug addict to be able to beat her addiction. It is possible that the threat of termination of parental rights does not adequately deter very many pregnant women from using drugs. If not, such termination is an irrational means to the end of fetal health. Moreover, if the threat of termination actually does make a pregnant addict quit, say, heroin "cold turkey," withdrawal may harm the fetus, possibly even causing a miscarriage. It is perhaps counterintuitive, but stopping pregnant drug users from using drugs is not necessarily the best medicine for the fetus. Drug addiction, a disease, must be treated medically, not addressed by clumsy and counterproductive threats of painful and permanent legal consequences.
Even worse, these laws may actually have a net negative effect on fetal health. While the threat of termination is unlikely to deter many pregnant addicts from using drugs, it is very likely to deter them from seeking prenatal care. Women worried about losing their children (both the new baby and any older children they may have) will not seek out care when they know that medical health professionals will report their drug use to child welfare services. The lack of prenatal care is an enormous risk to fetal health. Indeed, since drug use increases the risk of fetal health problems, the state should be doing everything it can to encourage pregnant drug users to seek prenatal care, rather than frightening them away with threats.
Furthermore, using the termination of parental rights on the basis of prenatal drug use to protect fetal health fails the narrow tailoring test because there are other means available that do not restrict women’s fundamental right to the care and custody of their children. Providing robust social services to pregnant addicts, most obviously substance abuse treatment and subsidized prenatal care, would be a practical and effective means to protect fetal health from prenatal drug use. For example, the Mandela House, a residential treatment program designed for pregnant and postpartum women in Oakland, California, “provides twenty-four-hour supervision, support groups, nutritious food, medical appointments, parenting classes, job and life skills training, and administrative assistance in meeting court hearing dates and scheduling visitation with older children.” The program “has an eighty percent clean pregnancy rate among its clients, most of whom stay in the program for one year.” Center of CARE, an outpatient substance abuse treatment program at Children’s Hospital Medical Center in Oakland, provides a wide range of services to families with members suffering from drug addiction. The program has enabled eighty-six percent of the families it treats to remain intact. Furthermore, children in participating families often score as well on developmental tests as those of non-drug-exposed children. If the government were to provide services to prenatal drug users, such activities would not restrict the fundamental right those women have in the care and custody of their children. Therefore, the state cannot constitutionally choose to terminate parental rights rather than to provide services.
What is more, there is evidence that these other means would be both more effective and more cost-efficient, making the termination of parental rights all the more repugnant to the constitution. A government study in Minnesota concluded that most of the costs of substance abuse treatment would be offset “within one year by savings to the health care and criminal justice systems.” Residential treatment at Mandela House costs about $30 per person per day, and outpatient treatment is cheaper. The termination of parental rights involves additional litigation costs to the state and requires the state to pay for foster care, which is estimated to cost $10,000 to $20,000 per child annually. Add to that increased neonatal intensive care and long-term education costs potentially created by the failure to provide early substance abuse treatment and other services, and it is likely that any state that chooses breaking up families over providing treatment is both violating women’s constitutional rights and wasting taxpayer dollars.
The real threat to fetal health is poverty. If the state is truly concerned with fetal health, rather than with the vilification of disempowered women, it should move to eradicate poverty and its harmful effects on pregnant women. In addition, the state should protect pregnant women and fetuses from environmental hazards. Mercury and other pollutants are harmful to fetuses. Environmental hazards are found in disproportionate quantities in urban areas of concentrated poverty, where, for example, more children suffer from asthma. The state should serve its concern for fetal health by cleaning up the environmental hazards from which poor women literally cannot escape. This will better serve the state interest than would destroying their families to punish their “choice” to take a drug to which they were addicted while pregnant.
There are two lines of reasoning by which the state might think that the termination of parental rights because of prenatal drug use serves the goal of protecting the welfare of children. The first is that, since children can suffer postnatally from the effects of prenatal drug use, termination is needed to protect children, after birth, from the mother’s conduct, before birth. The idea must be that the threat of termination will deter pregnant women’s drug use, thereby shielding children from the possible after-birth effects of fetal drug exposure. But this argument is just another version of the argument that termination should be used to protect fetal health, with the coda that fetal health affects children’s health. As such, it is subject to the constitutional problems described above.
The second line of reasoning truly concerns child welfare, as opposed to fetal health. It is premised on the idea that a woman who uses drugs while pregnant gives the state reason to predict that she will be an unfit mother. Because she cannot care for the child, the state is supposed to be justified in terminating her parental rights. Of course, states terminate parental rights on grounds of unfitness all the time. There are, sadly, more than enough examples of horrific child abuse to justify this state power. The question here is whether prenatal drug use is an appropriate trigger for the use of that power.
The view that the state can predict that a woman who uses drugs while pregnant will necessarily be an unfit parent generates the kind of irrebuttable presumption that the Supreme Court held unconstitutional in Stanley. It is surely overinclusive, since not all women who use drugs while pregnant will be unable to care for their children. In fact, the prediction may get things exactly backwards. Recall the study discussed above, finding that cocaine-exposed babies who were left with their birth mothers often fared better than those who were placed in foster care. While women who use drugs while they are pregnant are likely to use drugs after the child is born, drug use by a parent should not be considered child neglect per se. The parent's ability to care for her child is the essence of a neglect determination. Drug use or addiction should not be used as a proxy for an inquiry into quality of care. It is easy enough to imagine someone who is an unfit parent because her addiction eats up all of her time, emotional strength, and financial resources, but it should be the failure to adequately parent that drives a determination of unfitness rather than the use of drugs itself.
One might object that a woman who uses drugs while she is pregnant, knowing of the risk to the fetus, manifests a lack of concern for the welfare of her offspring that can be expected to continue after birth. On this view, a woman willing to expose her fetus to the dangers of her drug use is likely to be willing to expose her child to other dangers after birth. This argument suffers from two main flaws. First, research shows that it is wrong on the facts. Second, it ignores the power of addiction. The inability to stop using a drug does not manifest recklessness or lack of concern when it is the result of addiction. It is the very definition of addiction that use of the substance continues despite adverse consequences. And even if it is often the case that mothers who use drugs do not demonstrate capacity to care for their children after birth, that fact would not defeat the Stanley rule against overinclusive presumptions in matters of fundamental family rights.
To look at the problem from another perspective, the dangers of the foster care system must be weighed when evaluating a law that results in placing more children in foster care in the name of child welfare. Indeed, the move toward child removal and termination of parental rights in cases of prenatal drug exposure led to an increase in the foster care population in the 1980s. Removing a child from a drug-using parent, where there is a weak prediction of neglect, in favor of a foster care placement, where there is a strong prediction of abuse, hardly seems to serve the end of child welfare. Furthermore, the more children the state puts in foster care, the more dangerous it becomes for all the children in the system. This is because a larger foster care population stretches already inadequate state resources for regulation and oversight. The same number of caseworkers is responsible for a greater number of cases. States may have actually diminished child welfare by removing children based on prenatal exposure to drugs and terminating their relationships with their parents.
For many addicts, their family relationships are their best and most pressing reasons to overcome their illnesses. Getting pregnant may be a powerful motivator for a woman to take steps to rid herself of her addiction. Drug treatment experts recognize the power of maintaining relationships with family, especially children, to provide motivation and psychic support to recovering addicts. Removing children from their mothers eliminates this familial contact that may be an important part of the healing process. Terminating an addict’s parental rights and forever removing that reason to get better is likely to decrease the chances that a mother’s substance abuse treatment will be successful. Under these circumstances, the termination of an addicted mother’s parental rights will be an obstacle to the state’s public health interest in the mother’s welfare and its criminal justice interest in reducing drug-related activity.
As with the state’s interest in fetal health, the goal of protecting child welfare could be served by means that do not impinge on mothers’ fundamental right to the care and custody of their children. Since drug use while pregnant itself is not probative of parental fitness, the termination of a mother’s parental rights on that ground alone is irrational. However, an addiction that continues after the birth of the child may be the cause of parenting difficulties, even to the point of child neglect. In such cases, the addiction, rather than the mother’s legal relationship to the child, should be the condition the state works to end. Eradicating addiction can be achieved best with subsidized, immediately available substance abuse treatment that is designed to be appropriate for pregnant and parenting women.
It may be tempting to think that the lack of effective drug treatment options creates the due process problem here, and that the solution is to improve the availability of treatment and other social services while maintaining the threat of termination as a “safety valve,” either to provide motivation for pregnant drug addicts to quit or to guarantee that the state will be able to remove children from mothers whose addiction is incorrigible and has destroyed their ability to care for their children. The most obvious problem with this argument is that there is no need to make prenatal drug use a ground for the termination of parental rights in order to serve the “safety valve” purpose. Since the termination of parental rights is always available in cases where the state can show that a parent is incapable of caring for her children (whether because of a drug addiction or some other problem), there is no need to provide a separate ground for termination for pregnant women who use drugs. Doing so creates an irrebuttable presumption of unfitness that is both unhelpful in identifying cases of actual unfitness and unconstitutional, as I have argued above.
Even worse, this position fails to avoid the due process problem. The proposal boils down to having the state threaten to trammel one fundamental right if an individual does not submit to having another fundamental right trammeled. In Cruzan v. Director, Missouri Department of Health, the Court held that there is a due process right to refuse medical treatment. Therefore, a state that forces individuals to choose between forced medical treatment for addiction and losing the custody and care of their children is necessarily impinging on one constitutional right or the other.
The counter‑objection is that the scheme as a whole can pass the narrow‑tailoring test. While the termination of parental rights for drug use during pregnancy by itself fails to be narrowly tailored (because the alternative of offering treatment and services would not restrict a fundamental right), offering treatment and taking the child away only if the mother refuses treatment or fails to defeat her addiction theoretically restricts the right to care and custody of children only in cases where the state must separate the family to serve its interests in fetal health or child welfare.
However, this reasoning is mistaken. Again, since the state can terminate the parental rights of any unfit parent, the mechanism that allows termination because of prenatal drug use serves no purpose in the scheme. The requirement that the law be narrowly tailored justifies terminating the parental rights of only those parents that the state can show are unfit. Any presumption based on past or continuing drug use fails to establish an inability to care for children, and so will fail the narrow tailoring test. Furthermore, the “choice” that the scheme offers individuals to have one or the other constitutional right violated surely cannot save the scheme as a whole from being unconstitutional.
V. CASE STUDY: In re O.R.
An Illinois statute expressly provides for the termination of the parental rights of a woman who gives birth to a child with a controlled substance in its system, when the woman has previously given birth to a child with controlled substances in its system and has since had the “opportunity to enroll in and participate in a clinically appropriate substance abuse counseling, treatment, and rehabilitation program.” The text of the statutory ground for termination in section 1(D)(t) seems to address a concern that the state should not remove the children of drug-addicted mothers who have had no help getting over their addiction. On closer inspection, however, the statute falls short of providing a real safeguard against hasty termination before the mother has a meaningful chance to conquer her addiction. It requires only that the mother had an “opportunity to enroll in and participate” since her last drug-positive newborn. It does not require that she have an opportunity to complete drug treatment. The text of the statute would be satisfied if a woman had enrolled in a treatment program and attended one session before the birth of the affected child.
The statutory safeguard in section 1(D)(t) also does not address the timetable problem discussed above with regard to ASFA-induced state schemes. It is biologically possible to become pregnant weeks after giving birth, and is considered safe to get pregnant again within a few months. Two births may be less than a year apart. As discussed above, substance abuse treatment often takes two years to get into and complete. Therefore, requiring that a mother have the opportunity to enroll and participate in treatment between births is not an effective safeguard. It does not ensure that which due process requires: that mothers who are addicted to drugs be given a meaningful opportunity to get over their illness with the help of substance abuse treatment before the state takes away their children on the basis of their addiction.
More importantly, the safeguard that there be an opportunity to enroll and participate in treatment before termination does not guarantee that parental rights will be terminated on the basis of concerns regarding competence and care, as required by Stanley. This problem is dramatically illustrated by a 2002 appellate decision in Illinois, In re O.R. The mother in that case, A.R., had a long‑standing drug problem and had given birth to at least one child with drugs in its system before the birth of the child at issue, O.R. A.R. used drugs three times in the two months after O.R.’s birth, but at the time of trial had been clean for twenty‑six months. She had successfully completed at least one substance abuse treatment program, continued to attend meetings, and had worked as a dietary aide at a nursing home for two years. A.R. had beaten her addiction; she was a drug treatment success story. The trial judge was convinced that A.R.’s rehabilitation made termination inappropriate. The appellate court, however, reversed that determination, arguing that the mother’s progress overcoming her addiction was not enough to warrant a decision that her parental rights should not be terminated under section 1(D)(t). The statutory ground for termination was still present: A.R. had given birth to a child with drugs in its system after already having given birth to one such child and having an opportunity to enroll in and participate in drug treatment. In short, even a mother’s success in beating an addiction is not enough to save a family from being torn apart by the state under the Illinois law. The condition that supposedly made A.R. a bad parent—her addiction—was no longer present, but her child was still permanently removed. Notice that at no point was there any inquiry into her parenting ability. Two positive drug tests were enough, according to the controlling statute.
In re O.R. gave the Illinois appellate court occasion to address the constitutionality of the statute providing that a positive drug screen at birth is a ground for termination. The court rejected A.R.’s contention that section 1(D)(t) violated her substantive due process rights. The court employed strict scrutiny in reviewing the law because a fundamental interest was at play and found a compelling interest, saying, “[c]learly, the State, as parens patriae, has a compelling interest in protecting children from abuse, both after and before the abuse occurs. Section 1(D)(t) promotes that interest by allowing courts to consider a mother’s abuse of one child when determining whether the mother is also fit to parent her other current or future children.” The court’s thinking in the first quoted sentence is confused: the state obviously cannot protect a child from abuse after it occurs; that would require the ability to change the past. Perhaps the court means that the state has an interest in protecting a child who has been abused from being abused again in the same way. Yet even this does not make sense in a case where the “abuse” is fetal exposure to a controlled substance and the child has since been born. Nevertheless, whatever the court meant, it is clear that the state has an interest in preventing abuse. The second quoted sentence only makes sense in reference to section 1(D)(t) if the prenatal exposure of the fetus to drugs is itself considered abuse. Illinois law does not define “abuse” as including prenatal drug use, although it does consider a child born with drugs in its system to be neglected. The analysis of the state’s compelling interest is also affected by the court’s assumption that prenatal exposure to controlled substances constitutes harm, regardless of whether any injury was in fact sustained by the fetus.
Contending that the state does not have the compelling interest identified, A.R. presented a scientific study showing that “prenatal cocaine exposure does not have the severe consequences for the child’s long‑term health as previously found.” However, the court refused to consider that evidence on procedural grounds, as it had not been introduced at trial. We cannot know how the court might have ruled if it had considered medical evidence about the effect of cocaine on fetuses. This is unfortunate, since understanding both the effects of drugs on fetuses and the effects of separation from their natural parents on children are relevant to the wisdom and constitutionality of laws like 1(D)(t). Perhaps the question of the constitutionality of section 1(D)(t) in Illinois would have come out differently had the In re O.R. court considered all the relevant evidence.
A.R. also attacked the tailoring of section 1(D)(t), arguing that it “imposes an impermissible irrebuttable presumption of unfitness because it does not give her the opportunity to rebut the presumption of unfitness with her current ability to discharge her parental responsibilities.” In the context of an Illinois supreme court decision, In re H.G., striking down a presumption of parental unfitness set forth in section 1(D)(m‑1) is not narrowly tailored to the compelling goal of identifying unfit parents because “in many cases, the length of a child’s stay in foster care has nothing to do with the parent’s ability or inability to safely care for the child but, instead, is due to circumstances beyond the parent’s control.”
Applying this reasoning to section 1(D)(t), the question is whether a woman’s drug use during two different pregnancies has anything to do with her ability to safely care for the child or, on the contrary, is due to circumstances beyond her control. As I noted above, drug use during pregnancy does not determine a woman’s ability to safely care for the child. In fact, a woman’s addiction gives some reason to think that the circumstances of drug use while pregnant are beyond her control.
Even if it is true that, all other things being equal, a drug-addicted mother is less likely to safely care for the child than one who does not have an addiction, section 1(D)(t) still violates the constitutional guarantee of due process. As the O.R. court recognized, the tailoring inquiry in cases of strict due process scrutiny requires that the legislature use “the least restrictive means consistent with the attainment of its goal.” Section 1(D)(t) is not the least restrictive means of establishing a parent’s ability to safely care for her child because it will result in fit parents having their children permanently taken away and because there are less restrictive means available—namely, making a direct inquiry into ability to care.
The Illinois statute, unique in expressly making prenatal drug use a ground for the termination of parental rights, was obviously drafted with some concern about its harsh impact on mothers who are addicted to drugs. It provides a safeguard, that a mother must have had the opportunity to enroll and participate in drug treatment since the birth of her last drug-exposed child before a new child can be permanently removed. However, this safeguard does not prevent section 1(D)(t) from resulting in the termination of the parental rights of fit mothers, and it should not save the statute from being found to violate constitutional requirements of due process, as the O.R. court might have done had it considered the evidence surrounding fetal drug exposure and the separation of children from their mothers.
I have argued that state schemes that allow the termination of parental rights on the basis of a woman’s drug use while pregnant violate individuals’ Fourteenth Amendment due process rights. While there are compelling state interests at play, these laws impinge on women’s fundamental right to care, custody and management of their children. Drug use and drug addiction cannot constitutionally be used as a presumption of parental unfitness. Since the government can address the public health problem of prenatal substance abuse without impinging on that right through the provision of drug treatment and social services, the termination of parental rights on the ground of prenatal drug use fails the “narrow tailoring” prong of the strict judicial scrutiny test.
The arguments against terminating pregnant drug addicts’ parental rights do not only go to the constitutionality of such a legal scheme, however. These policies are ineffective, needlessly destructive of families (especially poor families), and probably counterproductive to the ends of both fetal health and child welfare. As such, they are bad policies that should be avoided by legislators and judges, independent of their constitutional shortcomings. The National Association of Public Child Welfare Administrators has come out strongly against the termination of parental rights as a result of prenatal drug use:
Families and children are best served when treatment and family preservation services are central and when medical, education, mental health, and social work services are provided. Laws, regulations, or policies should strengthen, not hinder, families in need of help. . . . Laws, regulations, or policies that set unique time frames on decisions related to the termination of parental rights solely because of substance abuse are inappropriate. . . . Substance-abusing families need support to regain their well-being and to adequately care for their children. Society should seek the removal of children from their families only when there is serious risk to their well-being, and not as an automatic response when parents are substance abusers.
The state has an interest in the welfare of children who have been exposed to drugs prenatally. However, it frustrates that interest with its knee-jerk response of removing children from the developmentally beneficial natural-parent setting to unstable and potentially dangerous foster care, terminating mothers’ parental rights regardless of the availability of adoptive placements, and failing to offer services that address the problem’s root causes. In addition, the divisive response of termination frustrates the states’ related, but distinct interest in maintaining families. The irrationality of these laws given the governmental ends involved is both explained by and made all the more constitutionally and morally troubling when their connection to gender stereotypes about women’s roles as reproductive machines is pointed out. Women should not be punished by the destruction of their families for failing to live up to a patriarchal model of “ideal motherhood.”
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