NOFAS opposes any law or policy that would impose a criminal penalty on pregnant women for drinking alcohol. Alcohol use during pregnancy is a serious problem, yet criminalization is not a solution.
Criminalizing alcohol use during pregnancy interferes with the private patient/doctor relationship and intrudes on the rights of women. Such laws could result in pregnant women choosing not to disclose their alcohol use to medical and allied health providers out of fear of criminal sanction. As a result, women with alcohol dependence or an alcohol use disorder could go unidentified and untreated. Alcoholism is a primary, chronic disease with genetic, psychosocial, and environmental factors and should be treated accordingly.
Some women may not be able to stop drinking alcohol on their own. Criminalizing alcohol consumption by pregnant women will shame and frighten expectant mothers who need help to abstain from alcohol or who consumed alcohol before they knew they were pregnant (The Centers for Disease Control and Prevention reports that 50% of pregnancies in the U. S. are unplanned.). Consequently, such policies will likely increase the stigmatization surrounding Fetal Alcohol Spectrum Disorders (FASD) and prenatal alcohol use.
There is no evidence that criminalizing alcohol use during pregnancy prevents FASD. Punitive alcohol and pregnancy laws can actually have the unintended result of increasing alcohol use by pregnant women, since some women may be inhibited from speaking openly with their doctor about their alcohol use. Criminal measures do not address alcohol problems and do nothing to improve public health. While alcohol use during pregnancy is a serious concern and an important matter of public health, it should not be handled as a criminal issue.
It is also important to consider the legal rights of pregnant women. Some courts have concluded that prosecuting women differently based on their pregnancy status and gender violates their right to equal protection of the laws under the Fourteenth Amendment of the Constitution. According to some studies, the attempted prosecution of pregnant women has also been applied selectively against economically disadvantaged and minority women, also potential constitutional violations.
Some states have criminally charged and convicted pregnant women for drinking alcohol under existing child endangerment or other statutes. However, NOFAS is not aware of any such conviction in the U.S. that has not ultimately been overturned. In many of these cases, the laws used to prosecute women do not make it clear that using alcohol while pregnant could be included in their scope or they have been judged unconstitutional.
NOFAS friend Morgan Fawcett, a young man living with FASD, has said, “When it comes to FASD, there are never perpetrators.” According to NOFAS Vice-President Kathy Mitchell, “No pregnant woman drinks in order to intentionally cause lifelong brain damage to her child. Women who drink during pregnancy and have children with FASD generally fall into three categories: 1) they suffer from the disease of alcoholism; 2) they are not aware that they are pregnant; or 3) they lack knowledge or are confused about the risks of alcohol to their baby.”
NOFAS applauds advocates and lawmakers that want to prevent alcohol-related birth defects through legislation and policies that support, rather than criminalize, women and children. NOFAS welcomes the opportunity to work with policymakers and governing bodies at all levels to ensure that systems of care are trained to screen women for alcohol use disorders and provide brief intervention and referral when necessary, and to develop policies that provide adequate diagnostic and treatment services for all living with FASD.