ABSTRACT
Few provisions of the Bill of Rights are as utterly American as the Fourth Amendment of the Constitution. This amendment grew from the experience of the colonials in America as well as from their English roots. “Every man’s house is his castle.” But what of the body of a woman? This chapter evaluates how the courts attempt to balance the rights of a fetus with the rights of its mother. Is it right for the courts or Child Protective Services (CPS) to remove a child from its mother’s care if the newborn tests positive for a drug? Many of us would answer this query with an unquestioning “yes.” However, we tend to make that decision based on the assumption that the drug itself is damaging to the fetus. For most drugs (including cocaine and methamphetamine) this has been difficult to demonstrate using the scientific method. For some drugs (including alcohol and tobacco) the relationship between use and fetal damage is quite apparent. The problem with the current picture is that CPS is likely to remove a child from its mother’s care if there is evidence that the mother was using methamphetamine during her pregnancy, but not tobacco.
