What's Wrong With Making It a Crime to be Pregnant and to Have a Drug Problem?

March 09, 2006

Laws that make it a crime to be pregnant and addicted undermine women's and children's health and seriously threaten women's reproductive rights. Moreover, they are based on a number of unsubstantiated and costly myths.

Myth #1: All Drug-Exposed Children Are Seriously Damaged At Birth.

Some newborns exposed prenatally to some substances do suffer adverse short or long-term consequences. These infants include those whose mothers lacked access to quality prenatal care and adequate nutrition, smoked or drank while pregnant, or used fertility-enhancing medications that cause multiple births associated with prematurity and other life-threatening hazards. However, sensational, inaccurate, and misleading news reports, especially about crack/cocaine, have convinced many people of the necessity of punitive responses to the problem of drug-exposed children. Today, dozens of carefully constructed studies establish that the impact of cocaine on newborns has been greatly exaggerated and that other factors are responsible for many of the ills previously associated with cocaine use -- with poverty chief among them.

Myth #2: Women Who Use Drugs Could Simply Stop.

Women who are addicted to drugs cannot simply stop their use. Addiction is a chronic relapsing disease whose recovery takes time. Nevertheless, addiction is frequently regarded as a moral failing, and pregnant addicted women are presumed to be selfish and uncaring. Many of these women, however, were sexually abused as children or beaten as adults, and turned to drugs to numb the pain of the abuse and trauma they were experiencing. Then, they become addicted.

Once addicted, pregnant women face numerous barriers to getting help. The lack of adequate treatment for women has been well documented, despite evidence of drug treatment's success and cost-effectiveness. Research shows that comprehensive treatment programs that do not separate mothers from their children help women and their families. They are also cost-effective, especially when one compares their price tag to the staggering financial and social costs of imprisonment and separating mother and child

Relapse, however, is a part of the disease. Even when there is meaningful treatment available recovery is a process that occurs over time. Pregnant women should not be jailed and punished when they exhibit symptoms of a disease. Similarly, pregnant women should not be singled out for a form of medical vigilantism that requires them to accept and comply with treatment that may not even be medically appropriate for them or face arrest and imprisonment.

Myth #3: Threatening Pregnant Women Who Use Drugs With Criminal Penalties Will Protect Their Children And Improve Their Health

Far from protecting children, the threat of prosecution deters women from seeking prenatal care and what little drug treatment may be available. That is why every leading health group to address the question has opposed the use of criminal laws to address this public health question. These organizations include the American Medical Association, the American Academy of Pediatrics, the American Public Health Association, the American Nurses Association, and the American Society on Addiction Medicine. Similarly organizations such as the Center for the Future of Children and The March of Dimes that are concerned specifically with children’s health oppose the use of criminal laws in this area. As the March of Dimes explains: "targeting substance-abusing pregnant women for criminal prosecution is inappropriate and will drive women away from treatment."

Fortunately, research demonstrates that even when women can't abstain completely from drugs, they can nevertheless have healthy pregnancies if they get prenatal care and help for other problems, especially those associated with poverty. Putting women in jails and prisons where health care is notoriously inadequate and where drugs are nevertheless often available, is certainly not child protective. Similarly forcing a pregnant woman to go cold turkey in prison or out of fear of arrest can in some cases cause her to lose the pregnancy.

Finally, there already exist numerous laws criminalizing drugs. Clearly criminilzation has not been a successful strategy in curing addiction. There is no evidence that yet another drug law will work any better.

Myth 4: Prosecuting Pregnant Drug Users Will Not Interfere With Women’s Reproductive Rights.

The premise underlying criminal laws that punish drug using pregnant women is that fetuses may be viewed as separate legal entities with rights hostile to and in conflict with those of the pregnant woman. Each decision that recognizes such interests eats away at the basic premise of Roe v. Wade and the health and interests of women and their future children. Moreover, for some women, an unwanted abortion may be the only way to avoid arrest and imprisonment for continuing a pregnancy to term despite a drug problem. Coerced abortions violate the fundamental constitutional right to procreate.

South Carolina: A Lesson To Learn From

In 1997, the South Carolina Supreme Court held that viable fetuses are persons under state law, and as a result, that a pregnant woman who uses an illicit drug, or engages in any other behavior that might endanger a viable fetus, may be prosecuted as a child abuser. Shortly after the decision, the S.C. Attorney General's Office explicitly stated that the case provides a basis for prosecuting women who have post-viability abortions -- for any reason and regardless of method -- with murder and imposing the death penalty on the women as well as their physicians. Since the decision:

* Infant mortality in the state increased for the first time in a decade.
* The state saw a twenty percent increase in abandoned babies.
* Drug treatment programs providing services to women saw a dramatic decline in the number of women seeking drug treatment.

What Should Be Done?

As the Center for the Future of Children recommends, "[w]omen who use illegal drugs during pregnancy should not be subject to special criminal prosecutions or special civil commitment provisions." Instead research should be done to "determine the effectiveness of drug treatment and intervention programs" and drug treatment "should be available for all drug [using] pregnant women, parents and infants."