Paper Topic #3
The state of Olympus is proposing legislation to make it criminal for a woman who is pregnant to become intoxicated voluntarily. The punishment is up one year in prison or an alternative during which the woman will be on probation. During the probation period, the woman will be enrolled in mandatory treatment and counseling for alcohol abuse. If the probation is violated, the woman will face a year in prison, just like the other punishment when the woman is not on probation. The issue with this legislation is whether or not it is constitutionally legal to make it criminal for a pregnant woman who is of the age twenty one and older to become intoxicated at their own free will. The issues in this legislation also deal with the fundamental right for a legal, consenting adult to consume alcohol, and the liberty issue is that a woman has as much of a right to consume alcohol as anyone else, the issue is that when there is the possibility of another life involved such as a fetus then the state interest becomes an issue. The fact is that the government whether state or federal cannot stop a woman of age from consuming alcohol because the way the law is this legislation would violate the Equal Protection Clause by making just pregnant women unable to legally consume a legal substance, and the liberty or fundamental right to consume the legal substance.
The federal government and state governments have not been consistent when dealing with pregnant women and substance abuse. Several states have made statutes making it a crime for women to use illegal substances during their pregnancy. The statute usually penalizes women using an illegal substance in the third trimester and usually for illegal drugs such as crack/cocaine. There have been no statutes against pregnant women consuming alcohol. The reasoning of the law is that constitutionally, the law cannot stop a pregnant woman from drinking alcohol just like they cannot stop a pregnant woman from smoking cigarettes. Alcohol consumption is legal when the person drinking is of age and are not driving a vehicle or causing a ruckus in public. Even though alcohol abuse is linked to problems for a fetus, newborns, and can even effect someone for the rest of their life because of fetal alcohol syndrome, it is not legal to stop a woman from the freedom and liberty to consume alcohol, pregnant or not.
Most people follow the kind of rule that pregnant women generally don’t drink when they are pregnant because the effects it can have on their offspring. There is also a portion of society, even doctors that believe a drink of wine every once in a while when pregnant is okay. There are no current statutes or laws that prohibit or make it illegal for pregnant women to drink alcohol, even in a public bar. This is for a reason because there are however statutes in some states that vary, they still prohibit women from using any illegal substances when they are pregnant. The issue in law is whether a fetus is viable, when the fetus considered viable and can the fetus be considered a child under child endangerment or child abuse laws. In the case of Whitner v South Carolina (1997) a woman was convicted of criminal child neglect and sentenced to eight years in prison because she used crack cocaine in the third trimester of her pregnancy, causing her child to be born with an addiction to crack cocaine. The defendant then filed for a post-conviction relief stating that her counsel was ineffective and the court didn’t have the jurisdiction. The South Carolina Supreme Court was looking at the issues of if the trial court was correct in accepting the guilty plea and ineffective counsel and whether the viable fetus is a person or child under the child abuse and endangerment statute in South Carolina. The Supreme Court found that the court was wrong for accepting the ineffective counsel and plea, more importantly the court found that the viable fetus is a child or...