Serving Alcohol To Pregnant Women: Discrimination or a Crime?

New York City’s Commission on Human Rights just issued new guidelines that state refusing to serve alcohol to pregnant women is sex discrimination. The Commission is the city agency in charge of enforcing the New York City Human Rights Law, which prohibits discrimination in employment, public accommodations, and housing.  It offers more protections than its federal counterpart, the Civil Rights Act.

Currently, the Commission is investigating over 40 cases of pregnancy-related discrimination, most of which are related to the workplace, but there are cases where pregnant women are specifically singled out outside of the workplace, like in restaurants and bars. It’s because of this that the Commission felt there was a need for specific guidelines protecting pregnant women.

In terms of incidents related to restaurants and bars, the Commission is investigating a case where a pregnant woman was denied entry to a bar and another that was denied entry to a concert because she was told it was an unsafe environment for a pregnant woman.

Not allowing entry into a bar or concert is an unnecessary and excessive policy, more so than one that allows a refusal to serve alcohol.  So, the question becomes, where do you draw the line?  Some states already make it a crime to drink while pregnant, but now it’s discrimination to refuse service?

Refusing Alcohol To Pregnant Women As Sex Discrimination?

According to the Commission, pregnancy discrimination is protected under the gender umbrella. Their guidelines state, “Treating an individual less well than others because of their pregnancy, or perceived pregnancy, is discrimination…”  While the guidelines are mostly geared towards discrimination in the workplace, they do specifically lay out guidelines providing that any policies singling out pregnant women constitute discrimination.

Businesses can demonstrate it has a non-discriminatory justification for any policies that single out a specific gender. However, the Commission also specifically stated using maternal or fetal safety as a pretext for discrimination was unlawful. Wouldn’t maternal and, more specifically, fetal safety be at the top of the list for a legitimate non-discriminatory justification?

Drinking Alcohol While Pregnant Is a Crime?

At least 18 states have laws on the books that deem the use of intoxicants by pregnant women child abuse, but Tennessee is the only state with specific statutory laws making substance abuse during pregnancy a crime under child endangerment and/or chemical endangerment laws.

In the case of Cornelia Whitner, who was charged with child abuse for using cocaine while pregnant, South Carolina high courts officially made it a crime to use any legal or illegal substance that could harm the baby while pregnant. Alabama courts have followed suit, but nearly every state has tried prosecuting women for drug use during pregnancies, most of which have failed to land a conviction.

Does Either Policy Have Merit?

New York’s new law puts restaurants and bars in an awkward position. The law requires restaurants and bars to post signs that warn about the dangers of alcohol to fetuses, but also requires them to refuse to serve a visibly intoxicated patron.  When should they make the distinction?  This is a slippery slope to head down, because now there’s an added risk of a sex-discrimination claim if a restaurant wants to cut off a pregnant patron from excessive drinking.

It’s obviously a big issue of personal autonomy to regulate what a woman can do with her body and the problem arises with the idea that the woman is potentially harming her unborn baby by drinking while pregnant. Significant amounts of alcohol, and arguably even little amounts, have been proven to be health risks to a baby. Fetal alcohol syndrome can cause premature births and developmental problems that can significantly affect the life of a child. If any laws are going to regulate the issue, they should be criminal in nature rather than discrimination based.

Sex discrimination involves treating someone unfavorably because of that person’s sex, but policies regarding serving pregnant women alcohol seem to be more about protecting the safety of the fetus rather treating the woman differently because of her gender and, therefore, that isn’t discrimination. If men could get pregnant, the policies would likely remain the same–so the issue shouldn’t be about discrimination, but rather about personal autonomy and whether consuming intoxicating substances while pregnant is a crime.