Perspective of a Reproductive Rights Attorney Lynn M. Paltrow

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or some women in America, pregnancy is a crime. Women with addiction problems may be subject to a new array of punitive interventions by the government simply because they become pregnant. Prosecutors, acting like lawmakers, are prosecuting pregnant women under criminal laws never intended to apply to them. Similarly, child welfare advocates are promoting unfounded interpretations of civil child abuse and neglect laws to permit the removal of hundreds of children from their mothers, not because of evidence that the mothers will not properly care for their children, but rather because a single drug test indicates that the women used drugs once during pregnancy. At the heart of these punitive approaches is the willingness to view pregnancy as a hostile relationship between two separate parties: the “innocent” fetus and the “bad” woman who does not care if she hurts the fetus. The fetus becomes the focus of attention, while the problems the pregnant woman faces in getting help are ignored or neglected, as if somehow they had no effect on the fetus. If states are genuinely interested in promoting healthy children, they will stop ignoring women or treating them only as potential child abusers. They will address the needs of pregnant women, as well as fathers-to-be, rather than rely on counterproductive measures, such as criminal prosecutions, mandatory reporting, and automatic suspension of parental rights.

The Focus Should Be on Treatment In the United States, where in 1989 there were an estimated 67,000 people on waiting lists for drug treatment1 and where virtually all drug treatment programs explicitly or effectively exclude pregnant women,2 it is absurd to assume that coer-

cion is necessary to ensure that pregnant addicts get treatment. Instead of turning first to punitive approaches, states should complete an honest and comprehensive inquiry as to whether sufficient treatment is available and whether the form of treat-

Lynn Paltrow, J.D., is a senior staff attorney with the Reproductive Freedom Project of the ACLU Foundation located in New York.

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ment is appropriate. What they will undoubtedly find is that there is not enough treatment for men and that there is virtually no appropriate treatment available to women, especially pregnant women. Many drug treatment programs simply refuse to take women, a decision based on stereotypical notions of women addicts being more difficult to treat or on unfounded fears of increased risk of liability. Other programs effectively preclude women because they fail to provide child care. Without child care, women are forced to choose between their own recovery and

Most programs were designed for males and are not responsive to the psychological, social, and economic conditions in women’s lives. abandoning their existing children to overburdened foster care systems or to other members of their dysfunctional families. Far from being people who do not care about their children, many of these women care too much about their children to insist on help for themselves. In addition to assessing the availability of treatment programs to women, states should also evaluate the efficacy for women of those programs that do exist. Most programs were designed for males and are not responsive to the psychological, social, and economic conditions in women’s lives. For example, it is estimated that as many as 90% of women addicts were childhood victims of rape or incest, and many are currently in battering relationships.3 Additionally, many of these women grew up in homes with alcoholic or drugaddicted family members.4 Drug abuse for these women is not a self-indulgent pastime, but rather a form of self-medication in lives filled with pain and abuse. Phyllis Savage, the Family Center director at Odyssey House, New York City’s only drug treatment program where mothers and small children can live together, explained that the lives of the 21 women in the program “have never been anything but hellish . . . All they know is rage and anger and abuse . . . This is the first place that many of our women have been where they can’t get hit.”5 Programs that do not address these women’s past exposure to violence,

their lack of self-esteem, and their family relationships are unlikely to help them or their future children.6 States must, however, look beyond the narrow question of the availability of appropriate drug treatment programs and also examine the availability of abortion, family planning, and prenatal care services. Many women cannot afford or get access to prenatal care, which, regardless of an addiction problem, can be the crucial factor in ensuring a healthy pregnancy. Similarly, the availability of contraception and abortion can help those women who believe they cannot responsibly bring a child into the world because of their addiction problem. As one woman explained: “In the midst of this roller coaster ride of addiction . . . I realized I could be pregnant . . . I was frantic, frightened, drained physically, emotionally, spiritually from my alcoholism. I could not manage my own life. The prospect of a baby was overwhelming . . . I chose to have an abortion . . . I continued efforts toward recovery, and with the help and support of AA, I have not had a drink since April 13, 1982.”7 Many women, however, are denied the choice to decide whether to become pregnant or to continue a pregnancy to term because of decreasing access to abortion and contraceptive services. For example, in Michigan, where the state recently cut off Medicaid funding for abortion, Felicia, a 42-year-old, HIV-positive crack addict will have a child because she could not afford the abortion she wanted.8 Policymakers should not assume, as one judge did, that pregnant addicts actually make “a choice to become pregnant and to allow those pregnancies to come to term.”9 Because prosecutors and legislators have looked primarily at the fetus in isolation from the woman and have failed to evaluate the availability of services in their states, they have given little consideration to effective, nonpunitive approaches. Such approaches include the following: (1) prohibiting discrimination against women by existing drug treatment programs and other health care providers; (2) ensuring that funds already set aside for treating pregnant women are actually spent; (3) increasing coordination among existing health and family services programs; (4) increasing appropriations for comprehensive drug treatment for all citizens, including pregnant women; (5) funding reproductive health services, in-

Perspective of a Reproductive Rights Attorney

cluding prenatal care, contraception, and abortion; and (6) ensuring the confidentiality of the physician-patient relationship for women seeking help during pregnancy.4,10 These are just some of the nonpunitive approaches that would really help both women and their children.

Punitive Approaches Are Inefficient and Counterproductive Punishing women who become pregnant while addicted to drugs is not an effective means to get women to stop using drugs or to protect the health of their developing babies. Since 1925 the U.S. Supreme Court has recognized that addiction is a disease and more recently, in 1989, that “addicts may be unable to abstain even for a limited 11 period of time.” Thus, threats of imprisonment or the removal of children are not likely to succeed in inducing women to “go cold turkey.” Stopping an addiction without help is nearly impossible; even with help, rehabilitation takes time, often longer than a pregnancy. And, even if threats did induce some women to stop their drug use completely, sudden withdrawal from some drugs may cause damage to the fetus.12 Policymakers should prohibit government interventions that punish women, either through criminal prosecutions or civil abuse or neglect laws, because they are not only ineffective, they are counterproductive. Such measures deter women from seeking what little help may be available to them. As Senator Herbert Kohl stated at Congressional hearings on perinatal substance abuse, “Mothers—afraid of criminal prosecution—fail to seek the very prenatal care that could help their babies and them.”13 Each time a woman is arrested for

Punishing women who become pregnant while addicted to drugs is not an effective means to get women to stop using drugs or to protect the health of their developing babies. her behavior during pregnancy, other pregnant women are discouraged from seeking help. For example, in 1985, after Pamela Rae Stewart was arrested in San

Diego for allegedly causing her baby’s death by virtue of her prenatal behavior, fewer women who had a history of drug and/or alcohol use sought timely prenatal care.14 Similarly, in 1989 in Illinois, after a highly publicized arrest of a pregnant woman whose baby allegedly died as the result of her cocaine use, women were afraid to seek care. The Perinatal Center for Chemical Dependence at Northwestern University School of Medicine received numerous calls from women with drug problems who were frightened that they would also be arrested. These women, who had been receiving prenatal care at the Center, wanted to stop seeing the doctors to whom they had confided their drug problems rather than risk possible prosecution. As Angie, a former cocaine addict explained, “When I found out I was pregnant, I stayed away from any kind of services because of the threat of jail. There’s got to be a way to get help without having to lose.“16 According to a recent United States General Accounting Office study, drug treatment and prenatal care providers reported that it is not only the fear of incarceration, but also “losing children to foster care” that “is discouraging pregnant women from seeking care.“ They “fear that if their children are placed in foster care, they will never get the children back.”17

Punitive Approaches Undermine Medical Care Punitive approaches typically require doctors to report all positive drug test results and admissions by mothers of drug use during pregnancy to state authorities. Deputizing doctors to be police informers, however, will not help women or their babies. “The therapeutic process, if it is to be at all effective, depends on a bond of trust between a program’s staff and patients. Confidentiality is vital to that trust, for without it no patient is likely to share with staff the personal information needed to formulate and implement a workable treatment plan.”18 In Florida, for example, after uniformed officers wearing guns went to a hospital to investigate new mothers suspected of cocaine abuse, doctors reported that they could no longer “depend on the mothers to tell them the truth about their drug use . . . because the word ha[d] gotten around that the police will have to be notified.”19

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Because punitive approaches undermine good health care, national health groups, including the American Medical Association, the American Academy of Pediatrics, the American Public Health Association, the American College of Obstetricians and Gynecologists, and the American Society of Law and Medicine, are opposing prosecutions and universal neonatal screening for illegal drug use during pregnancy. 20

Punitive Approaches Are Unconstitutional Women are losing their children and their rights, based on unfounded interpretations of laws never intended to apply to their conduct during pregnancy. The constitutional guarantee of due process prohibits prosecutors from inventing new crimes and from interpreting existing crimes in new, unforeseeable, and unintended ways.21 As most courts reviewing the application of criminal child abuse

Women are losing their children and their rights, based on unfounded interpretations of laws never intended to apply to their conduct during pregnancy. laws or drug trafficking laws to women’s behavior during pregnancy have found, these prosecutors violate basic principles of due process.22 Similarly, child welfare workers violate due process guarantees a well as child welfare laws when they use a positive drug test results as a surrogate for a statute’s mandated investigation of the home environment and parental fitness.23 Threats to the Right to Procreate and Other Privacy Rights Punitive approaches unconstitutionally infringe on the woman’s right to decide “whether to bear a child.”24 In State v. Johnson, the prosecutor argued that Jennifer Johnson was guilty of delivering an illegal substance to a minor because cocaine was delivered to her infant through the umbilical cord during the moments after birth but before the cord was cut. In his closing argument, however, the prosecutor made clear that Johnson’s real crime was not the delivery of drugs, but the delivery of her child: “When she delivered that baby, she broke the law in the State.”25 In this context, women with drug addiction problems, particularly poor women and women of color, who cannot get help

for their addiction or cannot overcome it in the few months preceding the birth, are forced to choose between criminal or civil liability and continuing their pregnancies. Indeed, for a woman accused of prenatal child abuse, the only option to avoid punitive measures may be an unwanted abortion.26 Moreover, prosecutors who believe that they are “like trustees looking after the soon-to-be-born child” threaten to undermine altogether women’s rights to bodily integrity and personal privacy.27 Prosecutions have been based not only on the use of illegal drugs, but also on allegations that a woman’s legal behavior in some way threatens the well-being of the fetus. For example, Pamela Rae Stewart was charged with “failing to follow her doctor’s advice to stay off her feet during her pregnancy, to refrain from sexual intercourse . . . and to seek immediate medical attention if she experienced difficulties with the preg28 nancy. ” In Laramie, Wyoming, a pregnant woman was arrested for child abuse when she appeared at a police station to file a claim against her husband for battering her and admitted to the police that she had been drinking alcohol. She had appealed to the police because of her concern that her husband’s continued abuse would endanger her pregnancy, and the police arrested her instead.29 As a Massachusetts court recently ruled, “[b]ecause of the intrusion required by [such] prosecution[s], namely, the state’s attempt to reach and deter behavior during pregnancy . . . privacy rights are seriously threatened.”30 Application of civil child abuse laws similarly threatens to undermine women’s privacy rights. In In re Troy D., a California appellate court upheld a finding that a child was a dependent child of the juvenile court because he was born under the influence of various drugs.31 The court based its ruling on the finding that “the mother conducted herself in a manner that was dangerous to the child prior to the child’s birth.” One could also argue that women who are obese, women with cancer or epilepsy who need medications or other treatment that could harm the fetus, and women who are too poor to eat adequately or to get prenatal care could all be characterized as engaging in “conduct” that was dangerous to the fetus. So, too, could pregnant women who expose the fetus to health risks by flying to Europe32 or cleaning their cat’s litter box.33

Perspective of a Reproductive Rights Attorney

The rights and duties of a pregnant woman in relationship to the fetus have been discussed in other cases. At least two high courts, one reviewing a court order authorizing a cesarean section and the other reviewing a tort action for prenatal injury, relied on principles of privacy, bodily integrity, and informed consent to reject the argument that women have a legal duty to guarantee the mental and physical health of the fetus.34 Eighth Amendment Violations Criminal prosecutions also violate the Eighth Amendment’s protection against cruel and unusual punishment. To comply with the Eighth Amendment, criminal statutes may only punish conduct, not status.35 Prosecutions against pregnant women are typically not for their possession of drugs; existing criminal laws cover that behavior. Rather, these prosecutions are brought to punish the woman’s dual status as a pregnant woman and an addict. Gender Discrimination Because they single out women for special penalties solely because they can and do become pregnant, punitive approaches

[T]hese prosecutions are brought to punish the woman s dual status as a pregnant woman and an addict. may be challenged on the basis of gender discrimination.36 The purely biological event of conception should not be allowed to transform the woman from drug user into a “child abuser,” making her vulnerable to prosecution for much more serious crimes than male addicts who will never conceive. Race Discrimination Punitive measures, as applied, also discriminate on the basis of race. Although studies indicate that the rate of drug use by Black and White women are the same, 80% of the criminal prosecutions are directed against women of color.37 Moreover, because of bias in the criteria used to decide which women or newborns should be tested, health care workers are much more likely to report women of color to child welfare agencies than White women. Consequently, more women of color will suffer unfairly the trauma and injustice of having their

children taken away from them temporarily or permanently.38 Finally, mandatory drug testing and reporting laws violate women’s constitutional right to informational privacy and their right to informed consent.39

Punitive Approaches Harm Women and Their Children Civil proceedings have already pointlessly disrupted family relationships without ensuring a healthier or safer environment for the newborn. For example, in In re J. Jeffrey,40 a probate court judge removed a child from its mother for neglect several months after its birth, based on the mother’s alleged use of “illegal drugs.” The petition alleged that during the last few weeks of pregnancy the woman had taken without a prescription four valium pills to relieve the pain from injuries she had sustained in an automobile accident; the infant was born intoxicated but not addicted. The woman had no history of drug addiction, and the later drug screens to which she agreed were negative. In addition, she had no history of neglect or even of previous contact with protective services for her two other children. Nevertheless, it took over a year for the woman to get her baby back. Gina Carlson, a New York woman, smoked marijuana while she was in painful labor waiting to go to the hospital. Her friend, a nurse, advised her this would help her relax and would do no harm to the baby. The Department of Social Services and the hospital refused to let her go home with her baby, who stayed at the hospital as a “boarder baby” while legal proceedings began. Despite testimony from her doctor, from the hospital social worker who reported her to the Department of Social Services, and from the baby’s guardian, all of whom stated she would be a good parent and that she should have custody of her baby, the court refused and gave custody to Gina’s mother. Gina’s mother had to quit her job in order to supervise her daughter and granddaughter full time, eventually going into debt. Gina was required by DSS to get treatment for her drug problem but was sent home by the drug treatment center with a letter stating that she did not appear to have a drug problem. It took Gina 9 months to get custody of her child. Her name will be

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THE FUTURE OF CHILDREN – SPRING 1991 listed in the State Central Register for Child Abuse and Maltreatment until the year 2016.41 A positive toxicology should be used only as the basis for appropriate medical intervention, not as grounds for punitive state intervention.42 A positive drug test only indicates that a woman took a drug in the preceding 24–72 hours. It does not reveal whether the woman is an addict or a one-time user, and false positives are not uncommon. For example, in New York one woman had to fight to get custody of her child because the hospital’s drug test interpreted the drugs administered to her during a cesarean section to be illegal drugs. At least three other mothers had their babies removed and were denied the opportunity to bond with them in their first months of life, based on positive test results that turned out to be inaccurate.43

Conclusions

or legal drugs, or suffering as a result of the woman’s inadequate diet or prenatal health care, must be given the help and support they need. But the current focus on punishing women will not help children. Moreover, by blaming mom, policymakers conveniently avoid addressing major threats to children’s well-being such as poverty and homelessness as well as the effect that drugs and environmental hazards have on men, their sperm, and their children.44 We have known for years that solving the problem of prenatal drug exposure, like most causes of infant mortality and morbidity, requires long-term solutions involving significant societal commitments to rehabilitation, treatment, education, and coordination of programs and services for the mother and her infant. Policymakers must stop pretending that punishing pregnant women is a quick fix for the problems drug-addicted women and their children face.

Babies who are born with problems, whether from prenatal exposure to illegal 1. Davidson, Joe. Cries for help: Some addicts beg for drug treatment but programs are full. The Wall Street Journal, September 4, 1990 at A1. 2. Chavkin, W. Help, don’t jail, addicted mothers. The New York Times, July 18, 1989 at A21; Born hooked: Confronting the impact of perinatal substance abuse. Hearing before the U.S. House of Representatives, Select Committee on Children, Youth and Families, 101st Cong., 1st Sess. (April 27, 1989) (opening statement of Representative George Miller, chairman, Select Committee on Children, Youth and Families). 3. Amaro, Hortensia, Fried, Lise E., Cabral, Howard, and Zuckerman, Barry. Violence during pregnancy and substance use. American Journal of Public Health (May, 1990) 80:575; Violence breeds addictions. Medical News & Perspectives. Journal of the American Medical Association, (1990) 264:943 (citing Handbook of Family Violence); Leff, Lisa. Treating Drug addition with women in mind. The Washington Post, March 5, 1990 at E1; Finkelstein, Nora, Duncan, Sally Anne, Deman Laura, and Smeltz, Janet. Getting sober, getting well, A treatment guide for caregivers who work with women. Cambridge, MA: Women’s Alcoholism Program of CASPAR, Inc., 1990, 243-48. 4. Finkelstein, N. Treatment issues: Women and substance abuse. Paper prepared for the National Coalition on Alcoholic and Drug-Dependent Women and Their Children, Cambridge, MA, September, 1990, p. 12. 5. Big bribe helps mothers fend off allure of crack. The New York Times, March 7, 1990 at B9. 6. Reed, Beth Glover. Developing women-sensitive drug dependence treatment services: Why so difficult? Journal of Psychoactive Drugs (April-June, 1987) 19:151. 7. Excerpt from the Brief for the Amici Curiae, Women Who Have Had Abortions and Friends of Amici Curiae in Support of Appellees (1989) (No. 88-605) by Burns, S., NOW Legal Defense and Education Fund at 6-126. 8. Chargot, Patricia. Medicaid ban develops cycle of angry mothers, unwanted babies. Detroit Free Press, August 5, 1990. 9. Florida v. Johnson, No. E89-890-CFA, (Fla. Cir. Ct. July 13, 1989) Trial Transcript at 365, 367, appeal docketed, No. 89-1765 (Fla. Dist. Ct. App. August 31, 1989). 10. National Coalition on Alcoholic and Drug-Dependent Women and Their Children, State legislative and policy proposals. Wasington, DC: National Council on Alcoholism and Drug Dependence, April, 1990.

Perspective of a Reproductive Rights Attorney 11. Linden v. United States, 268 U.S. 5, 18 (1925) National Treasury Employees Union v. Raab, 109 S. Ct. 1384, 1396 (1989). 12. Finnegan, L. Management of pregnant drug-dependent women. Annals of New York Academy of Sciences (1978) 311:135. 13. Missing links: Coordinating federal drug policy for women, infants and children Hearings before the U.S. Senate Committee on Governmental Affairs, 101st Cong., 1st Sess. (1989) (opening statement of Senator Herb Kohl). 14. Affidavit, Cathy Hauer, California v. Stewart, No. M508197 (San Diego Mun. Ct., Feb. 23, 1987). 15. Affidavit, Ira J. Chasnoff, M.D., submitted in support of Defendant’s Motion to Dismiss Indictment, Michigan v. Hardy, No. 87-2931-F7 (Mich. Dist. Ct. Dec. 5, 1989). 16. Hoye, D. Fear of jail keeps pregnant addicts from seeking help. Arizona Daily Star, September 28, 1990. 17. Bowsher, C.A. Drug-exposed infants: A generation at risk. Statement before the Committee on Finance, United States Senate. Washington, DC: U.S. General Accounting Office (GAO/HRD-90-46) June 28, 1990. 18. Suffet, F., and Rafalshy, T. The addiction program, child maltreatment, and the child welfare system. In Pregnant addicts and their children, A comprehensive approach. Brotman, R. et. al., eds. New York: New York Medical College Center for Comprehensive Health Practice, 1985, p. 81. 19. Gentry, Carol. Angry doctors cut drug test after police interview moms. St. Petersburg Times, May 13, 1989 at 1B. 20. American Academy of Pediatrics, Committee on Substance Abuse. Drug-exposed infants. Journal of Pediatrics (October 4, 1990) 86:639-642; American College of Obstetricians and Gynecologists. Patient choice: Maternal-fetal conflict. (ACOG Committee Opinion No. 55). Washington, DC: ACOG, October, 1987, as discussed in correspondence between Elaine Locke, Kary Moss, and Lynn Paltrow, December 4, 1989; American Public Health Association. Illegal drug use by pregnant women, American Journal of Public Health (1991) 81; APHA Policy 9020. Brief of the American Public Health Association and Other Concerned Organizations as Amici Curiae in Support of Defendant Appellate, Michigan v. Hardy, No. 128458 (Mich. Ct. App.). 21. Bouie v. City of Columbia, 378 U.S. 347 (1964): Grayned v. Rockford, 408 U.S. 104 (1972). 22. Courts, confronted with requests to interpret statutes contrary to their legislative intent, have refused to extend the statutes to apply to women who give birth to drug-exposed or prenatally-injured babies. See Florida v. Gethers, No. 89-4454CF10A (Fla. Cir. Ct. Nov. 6, 1989) (refusing to extend aggravated child abuse, a crime against “persons” statute, to actions “directed against a fetus which only later results in an injury to a ‘person’”); Florida v. Gray, No. CR88-7506 (Ohio C.P. July 13, 1989) No. L-89-239, slip op. (Ohio Ct. App. Lucas Cty, Aug. 31, 1990) (refusing to extend child-endangering statute to include the fetus or prenatal conduct); Ohio v. Andrews, No. JU68459 (Ohio C.P. June 19, 1989) (refusing to usurp legislature’s role by extending the child-endangering law); California v. Stewart, No. M508197 (San Diego Mun. Ct., Feb. 23, 1987) (finding criminal child support statute that explicitly covered “a child conceived but not yet born” was not intended to impose additional duties on pregnant women); Reyes v. Superior Court, 75 Cal. App. 3rd 214 (1977) (holding that child-endangering statute did not include a woman’s prenatal conduct); Florida v. Ethel D. Carter, No. 89-6274, slip op. (Fla. Cir. Ct., Escambia County, July 23, 1990), appeal docketed, No. 90-2261 (Fla. App. 1 Dist. App., July 23, 1990); Massachusetts v. Pellegrini, No. 87970, slip op. (Mass. Sup. Ct., Oct. 15, 1990) (principles of statutory construction; due process of law and separation of powers do not permit extension of drug delivery statute to pregnant women). Michigan v. Bremer, No. 90-32227-FH (Mich. Cir. Ct., Muskegon County, Jan. 31, 1991) (interpreting the drug delivery law to cover ingestion of cocaine by a pregnant woman would be a radical incursion upon existing law). 23. Correspondence of Susan v. Demers, deputy commissioner and general counsel, New York State Dept. of Social Services, to Karen Goldstein, August 17, 1990. (On file with the ACLU Foundation, Reproductive Freedom Project, New York.) 24. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). 25. The court agreed with this formulation of the “crime,” noting that Jennifer Johnson “made a choice to become pregnant and to allow those pregnancies to come to term.” Florida v. Johnson, No. E89-890-CFA, (Fla. Cir. Ct. July 13, 1989) Trial Transcript at 365, 367, appeal docketed, No. 89-1765 (Fla. Dist. Ct. App. August 31, 1989).

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26. In Washington, D.C., a woman mysteriously “miscarried” days before a hearing which had been scheduled by a judge who had threatened to put her in jail because he believed she was using drugs while pregnant. Burgan, Sam W. Correspondence with author, January 22, 1990 (on file with the ACLU Foundation, Reproductive Freedom Project, New York.) 27. Tolchinsky, Abby. Prosecution of pregnant women: A convergence of the war on drugs and the right to life movement. Unpublished paper on file with the ACLU Foundation, Reproductive Freedom Project, New York, April, 1990. 28. California v. Stewart, No. M508197 (San Diego Mun. Ct., Feb. 23, 1987); Konon, M. Data access to fetus case put on hold. San Diego Tribune, October 24, 1986 at B1, B12. 29. Wyoming v. Pfannenstiel, No. 1-90-8CR (Laramie, Wyo. complaint filed on Jan. 5, 1990); Levendosky, Charles. Turning women into 2-legged petri dishes. Sunday Star Tribune, January 21, 1990 at A8. 30. Massachusetts v. Pellegrini, No. 87970, slip op. (Mass. Sup. Ct., Oct. 15, 1990). 31. In re Troy D. 263 Cal. Rptr. 869 (Cal. App. 4th Dist. 1989). 32. Because of concern about the effect of radiation from the sun and the stars on airline crews and passengers, Dr. Gineran, a researcher, advised: “If I were a woman in the critical period of pregnancy for [mental] retardation, I would tend to avoid flights to Europe.” Wald, M. Radiation exposure is termed a big risk for airplane crews. The New York Times, February 14, 1990 at 1A. 33. Pregnant women who come into contact with cat feces or raw meat can be exposed to toxoplasmosis. This parasitic disease can cause serious damage to the developing baby, often resulting in abortion, preterm birth, or death. Guttmacher, A.F. Pregnancy, birth and family planning. New York: New American Library, 1984, 188-89. 34. Stallman v. Youngquist, 531 N. Ed. 2d 355 (911. 1988); In re A.C., 573 A. 2d 1235 (D.C. App. 1990). 35. Robinson v. California 370 U.S. 660 (1962). 36. Johnsen, Dawn. From driving to drugs: Governmental regulation of pregnant women’s lives after Webster. University of Pennsylvania Law Review (1989) 138:179, 203-04. 37. American Civil Liberties Union Foundation, Reproductive Freedom Project, New York. Overview of ACLU national survey of criminal prosecutions brought against pregnant women: 80% brought against women of color. Memorandum issued May 7, 1990. 38. Chasnoff, I. J. The prevalence of illicit drug or alcohol use during pregnancy and discrepancies in mandating reporting in Pinellas County, Florida. New England Journal of Medicine (April, 1990) 332:1202; Winslow, R. Black cocaine mothers likely to be turned. The Orlando Sentinel, November 21, 1989; Winslow, R. Black pregnant women far more likely than whites to be reported for drug use. The Wall Street Journal, April 27, 1990 39. Moss, K. Legal issues: Drug testing of post-partum women and newborns as the basis for civil and criminal proceedings. Clearinghouse Review (February, 1990); Whalen v. Roe, 429 U.S. 589 (1977). 40. In re Jeffrey, No. 99851 (Mich. Ct. App. filed Apr. 9, 1987). 41. Singer, Cathy. The pretty good mother. Long Island Monthly, January, 1990 at 46. 42. A model for advocacy and treatment: The role of perinatal toxicology testing. California Advocates for Pregnant Women Newsletter (July/August, 1990) 11:1. 43. Ana R., et. al v. New York City Department of Social Services, et al., Complaint filed in the United States District Court, Southern District of New York. 44. Children 1990. Washington DC: Children’s Defense Fund, 1990; Blakeslee, S. Research on birth defects shifts to flaws in sperm. The New York Times, January 1, 1991 at A1.