"Criminal prosecutions for prenatal substance abuse create a de facto gender classification in that only mothers are prosecuted for their children's injuries.86 Initially it may appear that men and women are not similarly situated for the purposes of childbearing, because women and not men carry children to term and it is women's lifestyle choices that most obviously impact the health of the fetus.87 In fact, at least one study indicates that drug use by men can likewise impact fetal health.88 Further, holding women alone responsible for injuries sustained by their children as a result of parental substance abuse perpetuates the stereotype that women alone bear the responsibility for childbearing and fetal health.89
"Although it is true that holding men responsible for drug use that harms future children is highly impractical90 it does not follow that women alone can constitutionally be prosecuted. '[A]dministrative ease and convenience' are not sufficiently important governmental objectives to permit otherwise impermissible gender classifications.91"
Meghan Horn, Mothers Versus Babies: Constitutional and Policy Problems with Prosecutions for Prenatal Maternal Substance Abuse, 14 Wm. & Mary J. Women & L. 635 (2008).
