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Criminalizing Pregnancy: A Dangerous Front In The War On Women



A bill to allow criminal assault charges against women whose infants suffer harm from their mothers’ prenatal drug abuse may soon be on the books in Tennessee.

House Bill 1295 now awaits a signature from Republican Gov. Bill Haslam. The measure would allow prosecutors to press assault charges on women if an infant’s “addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant.”

Lawmakers brought the criminal penalty back after similar measures were defeated two years ago. The state shifted focus toward treating women and away from prosecuting them in light of growing concern that an increased number of infants in the state were being born dependent on drugs. Tennessee’s Safe Harbor Act, enacted last year, attempted to incentivize treatment for prescription drug abusers. The measure guaranteed that women wouldn’t lose custody of their newborns over drug abuse.

The Tennessee Department of Health reports a “ten-fold” rise over the last decade in babies born with Neonatal Abstinence Syndrome (NAS), typically associated with symptoms of withdrawal from opiates. The rise in infants born with NAS happened at a time when Tennessee law allowed for the prosecution of drug use during pregnancy, a clear sign that punitive approaches are an ineffective way to deal with the problem. But, eager to curb the trend, Tennessee lawmakers aren’t willing to wait and see whether treatment is more effective than punitive action – instead, they’re pushing forward, and moving backwards, to reintroduce laws that would criminalize addiction among pregnant women.

Currently, 17 states, including Tennessee, consider drug use during pregnancy to be child abuse under civil child welfare statutes, according to the Guttmacher Institute. Three states allow for “civil commitment” of pregnant women with drug habits — for instance, forced admission to an inpatient treatment program. No states currently have laws like the ones Tennessee proposed on the books, explicitly allowing a state to bring criminal charges against a pregnant woman because of a drug habit’s confirmed or potential effect on a fetus. But some states have tried and succeeded in bringing those charges, anyway, relying on existing laws that don’t pertain specifically to drug use in pregnant women. South Carolina courts seem particularly willing to convict drug-addicted pregnant women. In Whitner v. State, a South Carolina court convicted Cornelia Whitner of criminal child neglect for consuming cocaine during pregnancy when traces of the drug were found in her infant’s system, even though the infant did not suffer any apparent effects. The South Carolina Supreme Court upheld her eight-year sentence.

Beyond the fundamental problems of criminalizing addiction, women’s health advocates say that Tennessee’s new bill is so poorly worded that it could subject any woman with a poor pregnancy outcome, or potential drug users even in the absence of any apparent harm to the infant or fetus, to criminal investigation. In an interview with RH Reality Check, Farah Diaz-Tello, staff attorney with National Advocates for Pregnant Women said that the law doesn’t even limit the prosecution “to women who are illegally taking narcotics,” suggesting that women taking legal prescription drugs could potentially be prosecuted, or at the very least subject to criminal investigation. Diaz-Tello said that the law is so vague that any woman who gives birth to a baby with health problems, or who loses a pregnancy at any stage, could be subject to criminal investigation, “because criminal investigation is the only way to rule out an unlawful act.”

The Historical Context

pregnantwomaninprison-aThe criminalization of pregnant drug-addicted women emerged as a prosecutorial trend during the mid-1980’s, when hysteria over ‘crack babies’ reached its peak. We now know that the ‘crack baby’ phenomenon was nothing more than a myth: this past summer, researchers at the Albert Einstein Medical Center released the results of more than two decades of research, concluding that there are no statistically significant differences in the long-term health and life outcomes between babies exposed to cocaine in-utero and those who were not. The groundbreaking longitudinal study monitored the health and other life outcomes of cocaine-exposed and non-exposed babies from birth into early adulthood to investigate the long-term impact of crack/cocaine use during pregnancy. But while the results of this study clearly debunked the myth of the ‘crack baby,’ many of the punitive approaches used to target crack-addicted pregnant women are still in place today.

Between 1985—1995, prosecutors charged more than 200 women with taking drugs while pregnant. The offenses ranged from delivering drugs to a minor via the umbilical cord to child abuse, child neglect, and child endangerment. Many of these women ended up spending time in prison as a result of their arrest, and some lost custody of their children. Despite these aggressive prosecution strategies, punitive approaches to maternal drug use have proven unsuccessful at best, and harmful at worst. More than two decades of research shows that prosecuting drug-addicted pregnant women has not produced lower rates of drug use during pregnancy.

Criminalizing pregnant women characterizes mothers as “agents of harm” and considers the interests of the fetus separate to those of the mother. The belief in the mother and fetus as separate entities represents a critical element in the ability of prosecutors to charge and convict women for crimes against their unborn child. But the social construction of the ‘maternal-fetal conflict’ effectively individualizes women’s responsibility for producing healthy babies and ignores the much more critical structural problems that infringe upon their ability to do so. Even worse, this discourse is directly responsible for producing morenegative outcomes than the problem it purports to solve. Research shows that punitive approaches to maternal drug use discourage pregnant women from seeking routine prenatal care and getting treatment for their addiction. In one study, researchers conducted focus groups with pregnant women in substance use treatment, and every woman in the group reported that she would advise other pregnant drug users not to admit her drug use to medical professionals in order to avoid getting in trouble.

According to Nora S. Gustavsson, the war on drugs has amounted to nothing more than a war on women – particularly African American women. Women of color are disproportionately targeted for these prosecutions. White women and Black women use drugs during pregnancy at similar rates, but the vast majority of criminalized women are Black and Hispanic — studies indicate that up to 90 percent of prosecuted pregnant women are non-White. Child abuse and drug trafficking statutes are racially neutral, but here they’re being applied incredibly disproportionately along racial lines. Racial disparities in the application of punitive policies for maternal drug use exist from the doctor’s office into the courtroom: Black women are more likely to be tested for drugs during pregnancy and delivery, to be reported for positive drug tests, to be prosecuted for maternal drug use, and to be convicted of a crime for using drugs while pregnant.

The Wrong Remedy

babyMaternal drug use is one of my research interests, and in a little less than two weeks I will be attending a conference to present the results of a study on the comorbidity of substance abuse and mental illness among pregnant low-income and minority women. My coauthors and I collected data from more than 3,000 pregnant women over a three-year study period to investigate the links between race, socioeconomic status, maternal mental health and health behaviors, and adverse pregnancy outcomes including preterm birth and low-birthweight deliveries. Several findings from our research have important implications regarding how to best address maternal drug use – and it’s not by punishing women for having an addiction. In our study, the overwhelming majority of pregnant women who used drugs also had symptoms exceeding the threshold for a diagnosis of depression and/or anxiety, and a smaller but still significant proportion had symptoms of other mental disorders including posttraumatic stress disorder and bipolar disorder. Over two-thirds of the drug-addicted women said that their pregnancy was unintended, and over one-third reported experiencing physical, sexual, or psychological abuse during their pregnancy. All of these findings indicate that women who use drugs during pregnancy are struggling with multiple problems including mental illness and social disadvantage. Punishing women for their drug use dismisses the significance of the challenges faced by many low-income and minority pregnant women, reducing what is a major social problem to one of individual ‘choice.’ These findings also show that women who use drugs during pregnancy need treatment, not prosecution — the high prevalence of mental illness among maternal drug users indicates that the drug use is just a symptom of a deeper problem; until the underlying cause is addressed, the problem will persist. Among women with substance use disorders and comorbid psychiatric diagnoses, the psychiatric diagnosis is almost always the primary diagnosis – meaning that the mental illness came first and the substance use followed, likely in an attempt to self-medicate or escape from the distress of mental illness.

Perhaps most importantly, when we looked at birth outcomes, we found that smoking cigarettes during pregnancy was significantly more harmful (i.e., more strongly associated with both preterm birth and low-birthweight deliveries) than drug use – and far more women tested positive for cotinine (a biological marker of nicotine use) than for illicit drugs, indicating that smoking during pregnancy is actually a much bigger problem than drug use. If this is the case, then why are state lawmakers going after drug use, which affects fewer pregnancies and is less harmful than smoking?

Pregnancy is often referred to as a ‘window of opportunity’ for health care professionals to identify and address health problems among pregnant women. For women without access to regular health care, the prenatal period may be the only time to reach these women and intervene on important health issues ranging from mental illness and smoking or drug use to diabetes, heart disease, and cancer. Punitive policies that scare women away from prenatal care present a huge barrier to medical and public health professionals, who overwhelmingly recommend a harm reduction approach to maternal drug use (actually, to all drug use). Harm reduction is a set of strategies recognizing that any step toward reducing drug and alcohol use is moving in the right direction; harm reduction also emphasizes safety and reduction of health-related consequences of drug use. And research shows that prenatal care can actually significantly reduce the negative impact of drug use during pregnancy – so if reducing the harm of maternal drug use is the goal, any policy that discourages women from seeking prenatal care should be abandoned.

Social problems are collectively created and defined; the social construction of ‘maternal-fetal conflict’ is no different. Prosecutors around the country seized upon the idea of the maternal-fetal conflict to hold mothers singularly responsible for negative pregnancy outcomes that are caused by a plurality of factors, many of which are societal (such as poverty, lack of access to health care, and even air pollution). Although some convictions of maternal drug users have been overturned, this has not translated into a rejection of the philosophies underlying criminalization. Maternal-fetal conflict represents a dangerous illusion that depicts mothers as agents of harm and inhibits those most in need of care from seeking it. A better, and more honest alternative is to recognize that women’s drug use evolves in response to innumerable personal, social, and environmental factors including depression, physical and emotional abuse, entrenched poverty, and the concomitant absence of adequate housing, nutrition, or healthcare. Moreover, all of these factors contribute to poor pregnancy outcomes. Acknowledging this means that society has a collective responsibility to provide services aimed at achieving optimal health for women and children. Abandoning the falsehood of maternal-fetal conflict is a necessary step in the direction of healthy mothers and healthy babies.


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