Empirical scientific evidence has long established that the consumption of alcohol during pregnancy is associated with significant adverse health consequences for the fetus, and these consequences continue as the child develops. The use of alcohol during any stage of pregnancy is considered to be potentially harmful to the child.
The category of fetal alcohol spectrum disorders (FASD) is used to describe a broad range of defects to the fetus that are caused by the consumption of alcohol by pregnant women. FASD is considered to be the largest nonhereditary cause of mental retardation. The most severe form of these disorders is fetal alcohol syndrome, which is characterized by:
- Deficiencies in growth
- Facial defects
- Significant central nervous system (brain and spinal cord) impairment that leads to lifelong dysfunction
Children exposed to alcohol in the womb can have other abnormalities that can affect their organs or produce abnormalities of the skeletal system. Organizations like the National Institutes of Health strongly urge pregnant woman not to drink alcohol at any time during pregnancy. Women who find out they are pregnant and have been drinking are urged to stop consuming alcohol immediately and consult with their physician.
The legal situation regarding the use of alcohol by a pregnant woman is far more complex. The legal responsibility of a woman’s conduct prior to the birth of her child and any damage that is caused to the child by the woman’s behavior when she is pregnant is quite variable from state to state.
Currently, there are no federal laws that restrict pregnant women from using alcohol; however, the policy of most representatives of the federal government is that this practice should be avoided.
Some states do have laws or regulations that place restrictions or impose penalties on the use of alcohol by pregnant women.
State Laws and Policies
The data indicates that there are different states that have different legal provisions relating to the use of alcohol by pregnant women. Several of these different categories of regulations are discussed below.
According to the National Institute on Alcohol Abuse and Alcoholism (NIAAA), data collected in 2016 indicates that the following states have legal provisions that may define alcohol use by a pregnant woman as a form of child abuse:
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
In these states, women who have used alcohol while pregnant may face legal charges of child abuse, depending on the circumstances surrounding the case, so there is most likely some legal justification for individuals who refuse to serve pregnant women alcohol in these states. The range of penalties, including fines and jail time, will vary from case to case and state to state. However, any individual who serves alcohol in a professional establishment should make themselves aware of any legal responsibilities they have regarding serving alcohol to pregnant women. Businesses should consult with attorneys, and bartenders should be well aware of legal ramifications and stipulations within their state.
According to NIAAA, the following states have civil commitment laws that can be enforced on women who drink alcohol while pregnant:
- North Dakota
- South Dakota
How these statutes are actually enforced and the types of civil commitments that authorities in the states can pursue will depend on the state and the case.
According to NIAAA, the following states have limitations against use of medical tests as evidence in criminal prosecutions of pregnant women who may have exposed a fetus to alcohol:
Again, the actual stipulations involved within the states may vary from state to state and situation to situation.
According to NIAAA, there are numerous states that authorize priority treatment for pregnant women who are suspected of abusing alcohol. These include:
While many states have regulations or statutes that might be used to prosecute pregnant women who use alcohol, according to the data provided by NIAAA and other organizations, actual convictions are rare.
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Recent Controversy in New York
A recent case in New York where a pregnant lady who was refused alcohol pursued litigation has stirred controversy regarding pregnant women who wish to drink alcohol or abuse other substances. The New York City Commission on Human Rights issued guidelines stating that any individual who refused to serve alcohol to a pregnant woman in a public venue is practicing sex discrimination. This case produced some significant controversy across the country.
According to state and federal statutes, anyone treating a person in a poorer manner than others because of their pregnant state or because they are perceived to be pregnant is displaying a form of discrimination. These guidelines were really designed for discrimination in the workplace, but have been extended to include any policies that target or signal out pregnant women, including serving them alcohol. The opposing side argues that the safety of the fetus should be the top priority when determining the notion of discrimination, and this constitutes a legitimate nondiscriminatory justification of refusing pregnant women alcohol; however, at the time of this writing, that argument has not led to specific federal or state statutes in New York prohibiting or limiting the serving of alcohol to pregnant women in public places.
On the other hand, the policy in most states is that bartenders should not serve alcohol to individuals who may be at risk to harm others if they continue to drink. This makes the situation even trickier. Bartenders are expected to refuse to serve alcohol to patrons who are intoxicated or when the use of alcohol by the individual endangers that person or others.
Bartenders should be familiar with their specific state guidelines regarding the use of alcohol by pregnant woman (e.g., whether or not it is considered to be a form of child endangerment/abuse). In states where the statutes exist, bartenders could conceivably cite the statutes, and this might justify a refusal to serve alcohol in these conditions; however, this article is not designed to provide legal advice, and individuals should consult with an attorney regarding the policies and preferred actions in their specific state. In states like New York, where state lawmakers have explicitly stated that serving alcohol to a pregnant woman is a form of sexual discrimination, refusing to serve alcohol to a pregnant woman could most likely result in some form of civil action against the bartender and/or against the establishment.
Private individuals serving alcohol at parties or social gatherings in their homes are not subject to state regulations. Anyone can refuse to serve alcohol to anyone in their home who they wish to prohibit from drinking alcohol and cannot be held accountable legally. There may be a slight chance that someone may try and organize a civil action against a person who does not offer or serve alcohol to a pregnant woman at a private party, but this is highly unlikely, and most likely would not result in a justifiable lawsuit.
The bottom line is that in many situations it appears that a pregnant woman who is drinking alcohol will most likely not be arrested, and a bartender who serves someone who is pregnant most likely would not be arrested except in very extreme circumstances. While it is common knowledge that pregnant women who use alcohol are endangering the lives of their unborn child, the legal statutes appear to be aimed at protecting the constitutional rights of the mother and not considering the potential rights of the unborn child. Pregnant woman are left to their own conscience regarding their responsibility for the health of their unborn child when deciding whether or not to use alcohol in the same way they are held to their own standards when they decide whether or not to smoke tobacco products while they are pregnant.