Criminalizing pregnant women who use illegal drugs: ‘Throwing a lit match’

When the Tennessee General Assembly voted last week to criminally prosecute women who use illegal narcotics during pregnancy, it ignored, among other things, the major medical community’s longstanding warnings about the negative and counterproductive effects of such punitive measures.

The bill, sent to Gov. Bill Haslam for consideration April 16, allows for felony assault charges against a woman “if her child is born addicted to or harmed by the narcotic drug, and the addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant.” (A conviction can get you 15 years in prison.)

A woman may be protected from prosecution, the bill says, if she “actively enrolled in an addiction recovery program before the child is born, remained in the program after delivery, and successfully completed the program, regardless of whether the child was born addicted to or harmed by the narcotic drug.”

But the threat of prosecution is the very thing that prevents women with substance use disorders from seeking help, medical professionals say — and not all women will have equal access to care and treatment options.

Here’s a sampling of their many cautionary statements over the years:

The American Society of Addiction Medicine: “Incarceration of pregnant women as a means of preventing fetal exposure to alcohol or other drug use may compromise both maternal and fetal health and inhibit the pregnant woman’s opportunity to receive effective treatments to address her long-term recovery from her substance-related disorder.”

The American College of Obstetricians and Gynecologists: “Seeking obstetric–gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing. These approaches treat addiction as a moral failing. Addiction is a chronic, relapsing biological and behavioral disorder with genetic components. The disease of substance addiction is subject to medical and behavioral management in the same fashion as hypertension and diabetes.”

The American Psychiatric Association: “APA urges that societal resources be directed not to punitive actions but to adequate preventive and treatment services for these women and children. APA strongly advocates the development and funding of the necessary inpatient, outpatient, and residential programs for mothers with their children. Services should address and foster the parental functions, as well as the care of individual mother and child.”

Bratcher Goodwin

Michele Bratcher Goodwin, Everett Fraser Professor in Law at the University of Minnesota Law School, has made a close study of such policing efforts, especially their impact on drug-addicted poor women of color.

Tennessee’s proposed law, she said in an interview this week, “is like throwing a lit match in a very dry and hot place, and the kerosene is already there.” Here’s a summary of her many issues with this and other such laws.

They criminalize drug dependency, which is an illness:

Taking away women’s liberties for something that we know is a medical condition, such as drug dependency, is criminalizing drug dependency. The U.S. Supreme Court said decades ago that criminalizing drug dependency is like criminalizing someone for having the flu.

They target women of color:

For decades, across the United States, we have been criminalizing poor women of color for drug use during pregnancy. And there are significant disparities. For example, we know that physicians are 10 times more likely to report an African American woman for her illicit drug use during pregnancy than a white woman.

And … because they’re poor, they usually don’t have access to good criminal defense attorneys. And even the criminal defense attorneys who are sympathetic are often not well-versed in cases such as this.

So those who end up in situations where they are prosecuted under laws for posing some sort of harm to their fetuses usually end up accepting some plea bargain. Their cases rarely end up fully adjudicated in front of a jury because they’re coerced and pressed into taking a plea deal.

Anyone can see what kind of leverage a prosecutor can use. For example, a woman who happens to be less educated and poor is told, “Oh look, we’ve got this evidence that your drug use killed your baby.” Or “Your drug use affected your baby in this way.” They don’t have the resources to mount a good defense that would include bringing in witnesses who testify, and say, “That’s not true.”

They apply different standards based on class:

Let’s face it: Any woman who happens to be well-to-do who suffers psychological challenges during her pregnancy can seek medical treatment through her doctor and receive prescription medication. And many women do. In fact the empirical evidence suggests that the wealthier a woman is, the more educated [and white] she is … chances are that during her pregnancy, she’s taking a prescription medication — often cocktails of prescription medications.

The truth of it is … there’s a different level of moral scrutiny applied based on the type of drug that a woman takes during pregnancy. If it’s prescription medication, we treat that as a morally neutral thing or morally appropriate that the woman receive what we consider to be that type of care — to help and assist her during her pregnancy. And yet a woman who is poor, who lacks access to a physician, and who takes essentially the same kind of drug, except that it’s provided by a dealer on the corner, loses any of that of compassion, any of that moral authority to treat the challenges that she has during her pregnancy, which are no different from the challenges that a woman who happens to be wealthier and more educated has during her pregnancy.

So there is a very different lens that is applied simply based on class.

They reinforce stereotypes and misinformation:

For example, the “crack-baby” scare was incredibly successful during the 1980s, 1990s, and the beginning of the 2000s — based on very faulty information that was spread in the media. In fact, last year the New York Times … acknowledged that they and other media outlets got it wrong, that they relied on faulty information and published stories that could not be verified and that we know today happen to be simply untrue in terms of crack causing conditions that would lead to the babies being malformed, with smaller brains, with distended genitalia — all sorts of crazy things that were written about in the 1980s that now we know are absolutely just not true. So one of the problems with this, too, is that it helps to reify certain types of stereotypes that are quite problematic.

They corrupt the doctor-patient relationship:

Part of what happens is that states seek to use doctors as gatekeepers, as law enforcement. And this is bad because the public understands their relationship with their doctors to be based on something that involves a fiduciary relationship, which suggests that it’s a very special kind of relationship, where the doctor owes his or her loyalty to his or her patient. The doctor must place all other interests to the side because the primary interest has to be serving the needs of the patient. This also includes preserving the confidentiality of the communications between the doctor and the patient.

Now when law enforcement gets involved in that, it completely distorts this relationship that we come to — expecting care, expecting trust, and expecting that we are the primary beneficiaries of the doctor’s work. That goes out the window in these cases where the state expects the doctors to become their enforcers, to become their snitches. It reprioritizes the medical relationship. So the doctor might otherwise say, “What I need you to do is to get into this rehab program. So here’s a course of action that I recommend for you.”

Instead, when law enforcement places this kind of onus and burden on doctors, then law enforcement … expects for doctors to just call the prosecutor’s office and call police. That completely shortchanges the doctor’s attempt to try to get appropriate medical services to the patient.

And one final thing that I think is really problematic in terms of the physician-patient relationship is that our criminal justice system requires that when a person is being sought by the state for breaching the law in some way, the state has to inform that person that what that person says, what that person does, may in fact incriminate that person. They have to inform the person that this is a criminal matter and that the person has the right not to respond and that the person also has the right to engage an attorney.

Doctors do not provide that information, but this is the gateway to prosecution. Women are being arrested right after seeing their physicians and disclosing information that they believe will be held in confidence. It’s a complete a breach of our constitutional norms in the criminal justice system.

They break up families, and funnel the children of prisoners into the criminal justice system:

Many of these women are already moms, they’re primary caregivers … [and] children end up in the criminal justice system pipeline because they end up in foster care, and foster care is a criminal justice pipeline. There are very provocative studies being done at the University of Chicago and the University of Wisconsin that detail these horrific outcomes for children who are in foster care who age out [turn 18] and … have parents who are in prison. They have higher incidence of dropping out and higher incidence of being involved in the criminal justice system. For the girls, over 70 percent end up pregnant themselves by the time they age out.

They allow the state to try to achieve a public good in an unconstitutional manner:

No one wants to see a woman using drugs during pregnancy, and ideally we want all babies to be born healthy. But we cannot discriminate between classes of pregnant women, and target only poor pregnant women. Nor is it permissible for the state to try to achieve a good goal in an unconstitutional way. Hundreds of years of constitutional law tells us that even when the state thinks that it’s going to be something good, it can’t break the law to do it. It can’t violate someone’s constitutional right in order to try to achieve a good, including a public-health good with fetuses.