Term Paper: Prosecuting Mothers for Substance Abuse During Pregnancy – Ethical Perspectives

Assignment Brief

Course: Ethics
Assignment Type: Term Paper
Length: 3 pages (approximately 750–900 words)
Citation Format: APA 7th Edition

Overview

This term paper requires you to examine the ethical dimensions of prosecuting mothers whose children are born with health problems resulting from the mother’s substance abuse during pregnancy. The central task is to identify, reference, and critically discuss two authors who hold opposing views on this issue. Your analysis must present both perspectives in a balanced manner, demonstrating a nuanced understanding of the ethical tensions involved. The paper should move beyond surface-level arguments to engage with the underlying moral, legal, and social principles that inform each position.

Task Description

Your paper must accomplish the following:

1. Identify two authors who represent opposing viewpoints on the prosecution of pregnant women who use substances. For each author, clearly articulate their core argument, the ethical framework they employ, and the evidence or reasoning they offer in support of their position.

2. Critically discuss both perspectives. This requires more than summarising each author’s view; you must analyse the strengths and weaknesses of each argument, consider the assumptions underlying each position, and explore the practical implications of adopting either approach.

3. Maintain balance and insight. The paper should not simply declare one side correct but should demonstrate an understanding of why reasonable people might disagree on this issue. Your discussion should reflect the complexity of the ethical terrain.

Requirements

• Length: 3 full pages, double-spaced, 12-point Times New Roman font, 1-inch margins.

• Sources: A minimum of four scholarly sources. At least two of these must be the primary authors whose opposing views you are discussing.

• Citation: APA 7th Edition in-text citations and a reference list.

• Thesis: Your paper must have a clear, arguable thesis that frames your discussion of the opposing views.

• Structure: Use standard academic essay structure with an introduction, body paragraphs organised by theme or author, and a conclusion.

Rubric / Marking Criteria

Sample Answer Excerpt

The ethical debate over prosecuting mothers for substance use during pregnancy crystallises around two competing moral claims: the state’s interest in protecting the unborn child from harm and the pregnant woman’s right to bodily autonomy and privacy. Bioethicist John A. Robertson articulates the former position, arguing that once a woman chooses to continue a pregnancy, she incurs a moral obligation to avoid actions that could foreseeably harm the fetus. Robertson contends that while a woman’s liberty interest is significant, it does not completely override the duty to prevent prenatal harm, particularly when the harm is severe and avoidable. In contrast, attorney and reproductive justice advocate Lynn Paltrow rejects criminalisation entirely, maintaining that prosecuting pregnant women for substance use violates fundamental constitutional protections and undermines public health goals. Paltrow and Flavin documented 413 cases of arrests and forced interventions on pregnant women between 1973 and 2005, finding that these actions disproportionately target poor women and women of colour. This empirical evidence, Paltrow argues, demonstrates that prosecution is not a neutral legal response but a mechanism of social control that punishes women for their status rather than their conduct. The tension between these perspectives is not merely academic; it has real-world consequences for how society responds to substance use disorders among pregnant women.

Robertson’s Defence of Prenatal Obligations

Robertson’s ethical framework rests on the harm principle applied to pregnancy. He maintains that ethical and legal traditions recognise prenatal duties to avoid harm to offspring, and that applying the harm principle to pregnancy requires a careful balancing of a baby’s welfare with a pregnant woman’s interest in liberty and bodily integrity. For Robertson, the balance tips in favour of fetal protection when the potential harm is significant and the mother’s burden in avoiding that harm is relatively low. He does not advocate for blanket criminalisation of all substance use during pregnancy; rather, he supports targeted interventions in cases where the risk of serious harm is clear and the woman has been informed of the risks. This position acknowledges that pregnancy creates a unique moral relationship between the woman and the fetus, one that entails special obligations.

Paltrow’s Rejection of Criminalisation

Paltrow’s opposition to prosecution is rooted in both constitutional arguments and public health evidence. She contends that criminalising pregnant women who use drugs creates a new class of “status crimes” that treat pregnancy itself as a basis for punishment. The Fourteenth Amendment guarantees due process and equal protection, yet prosecutions of pregnant women often proceed without clear legislative authorisation, relying instead on creative interpretations of child endangerment or drug distribution statutes. More fundamentally, Paltrow argues that prosecution is counterproductive from a public health standpoint. Research demonstrates that fear of prosecution deters women from seeking prenatal care and substance use treatment, ultimately increasing rather than decreasing harm to fetuses. Major medical and public health organisations, including the American College of Obstetricians and Gynecologists, have opposed coercive interventions and prosecution of pregnant women with substance use disorders, citing the lack of evidence for improved maternal or infant health outcomes.

Comparing Ethical Frameworks

The disagreement between Robertson and Paltrow reflects deeper philosophical divisions about the nature of rights, the scope of state authority, and the proper response to addiction. Robertson’s position aligns with a duty-based ethic that emphasises the fetus’s claim to protection from avoidable harm. This perspective treats pregnancy as a morally significant relationship that generates obligations on the part of the pregnant woman. Paltrow’s position, by contrast, reflects a rights-based ethic that prioritises bodily autonomy and warns against the expansion of state power into intimate aspects of women’s lives. She sees the prosecution of pregnant women as part of a broader pattern of reproductive coercion that undermines women’s citizenship and equality.

A crucial point of contention is whether addiction should be understood as a moral failing warranting punishment or a health condition requiring treatment. Robertson’s framework, while not explicitly punitive, opens the door to legal coercion in the name of fetal protection. Paltrow insists that addiction is a disease, and that criminalising disease is both unjust and ineffective. The empirical evidence largely supports Paltrow’s claim: studies consistently show that punitive approaches do not improve birth outcomes and may actually worsen them by driving women away from care.

Ethical Implications for Policy

The ethical analysis of this issue has direct implications for policy. If Robertson’s view is accepted, some form of legal intervention—whether criminal prosecution, civil commitment, or mandatory treatment—may be justified to protect fetuses from substance-related harm. However, even within this framework, the severity and scope of such interventions remain contested. If Paltrow’s view is accepted, policy should focus on expanding access to treatment, removing barriers to prenatal care, and addressing the social determinants of health that contribute to substance use disorders. This approach treats substance use during pregnancy as a public health problem requiring a public health solution, not a criminal justice problem demanding punishment.

FAQ

Q: Does prosecuting pregnant women for substance use actually reduce the incidence of substance-exposed births?

A: No. The available evidence indicates that criminalisation does not reduce substance use during pregnancy and may actually increase harm. Research shows that fear of prosecution deters women from seeking prenatal care and substance use treatment, leading to poorer health outcomes for both mothers and infants. Major medical organisations, including the American College of Obstetricians and Gynecologists, oppose prosecution of pregnant women for substance use, citing the lack of proven benefits and the potential for significant harm. Public health experts consistently recommend expanding access to treatment and support services rather than relying on criminal sanctions.

Why This Matters in Practice

For healthcare providers, social workers, and legal professionals, the question of how to respond to substance use during pregnancy is not abstract. Providers face ethical dilemmas when caring for pregnant women with substance use disorders, balancing their duty to the patient with concerns about fetal well-being. Understanding the ethical arguments on both sides equips professionals to navigate these dilemmas with greater clarity and to advocate for policies that genuinely improve outcomes for mothers and children. For policymakers, the debate highlights the need for evidence-based approaches that prioritise health over punishment.

Research, Writing, Citation & Referencing

• Authority and Credibility: Prioritise sources from peer-reviewed journals, academic books, and reports from reputable organisations such as the American College of Obstetricians and Gynecologists, the American Medical Association, and the Guttmacher Institute.

• Citation Density: Aim for 1–2 in-text citations per paragraph to support specific claims. Use a mix of direct quotes and paraphrasing.

• Primary Sources: Ensure that you are accurately representing the views of Robertson and Paltrow by referring to their original works. Secondary sources may be used for context but should not replace engagement with the primary texts.

• Avoid Over-Citation: Focus on the most impactful evidence for each point. A well-chosen citation is more effective than a long list of marginally relevant sources.

References

Robertson, J. A., & Schulman, J. D. (1987). Pregnancy and prenatal harm to offspring: The case of mothers with PKU. Hastings Center Report, 17(4), 23–33. https://doi.org/10.2307/3562510

Paltrow, L. M., & Flavin, J. (2013). Arrests of and forced interventions on pregnant women in the United States, 1973–2005: Implications for women’s legal status and public health. Journal of Health Politics, Policy and Law, 38(2), 299–343. https://doi.org/10.1215/03616878-1966324

American College of Obstetricians and Gynecologists. (2021). Committee Opinion No. 633: Substance abuse reporting and pregnancy. https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2021/06/substance-use-disorders-in-pregnancy

Toscano, V. (2005). Misguided retribution: The criminalization of pregnant women who take drugs. Journal of Law, Medicine & Ethics, 33(3), 457–468. https://doi.org/10.1111/j.1748-720X.2005.tb00508.x

Robertson, J. A. (1994). Children of choice: Freedom and the new reproductive technologies. Princeton University Press.

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