Published May, 2010

Lynn Paltrow and Katherine Jack, Pregnant Women, Junk Science, and Zealous Defense, 34 The Champion 30 (May 2010)

This journal article discusses the politicization and criminalization of reproduction, specifically the criminal prosecutions of drug use by pregnant women. Some of the prosecutions that women have faced include criminal child endangerment, attempted murder, and murder. Many of the women prosecuted under these statutes are socio-economically disadvantaged and disproportionately represent minority populations, particularly African Americans. The article's main focus is on the common usage of what the authors refer to as "junk science" in these prosecutions. Junk science is the misunderstanding that prosecutors, public defenders, judges, and even some health care professional still have that a pregnant woman who uses any amount of illegal drug during her pregnancy will harm or even kill the fetus, i.e. the "crack baby" myth. Recent studies have shown that cocaine use is no more harmful to a fetus than smoking cigarettes, drinking alcohol, poor nutrition, or lack of prenatal care, yet women who use illegal drugs while pregnant are singled out and can face prosecution and imprisonment.

The authors argue for using stringent and objective standards for admitting expert testimony to prevent convictions of pregnant women based on inadequate evidence. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court held that one must prove a causal connection between any drug use and affect on a fetus. Any expert testimony to prove or disprove the causal connection must be based on "scientific knowledge," requiring objective, independent and peer reviewed research. To that affect, the authors argue that there is no scientific knowledge that would justify the prosecution of a woman who is pregnant, gives birth, or suffers a stillborn birth while testing positive for drugs because there is no evidence to show that using drugs can, has or will harm the fetus. In fact, the available studies show little to no causation between drug use while pregnant and dangers to a fetus.

The authors conclude that prosecutors and defense attorneys must dismiss junk science as a basis for prosecuting these women. To effectively defend pregnant women from these types of prosecutions counsel must have access to scientifically correct information and expert witnesses who can refute the unfounded theories of the "crack baby" myth and provide scientifically supported testimony.