Pregnant Women Increasingly Face Criminal Prosecution for Positive Drug Tests

Hello fetus, goodbye civil liberties

The "crack baby" panic may have gone the way of the cassette tape, but America's womb-based war on drugs is alive and kicking. Fueled by a potent mix of drug war propaganda and fetal rights advocacy, states have been charging pregnant women who use drugs—however casually or legally—with everything from child neglect and "chemical endangerment" to contributing to the delinquency of a minor and felony assault.

A study from the National Advocates for Pregnant Women (NAPW) highlighted 413 cases of pregnant women being incarcerated or forced into drug treatment in the U.S. between 1973 and 2005. Since then, there have been at least 300 more cases, a number that NAPW said is a severe under-count.

This is in addition to the untold number of pregnant women who are reported to child protective services (CPS) agencies because of positive drug tests. Protocols vary between states, counties, and hospital systems, but in many, pregnant women are automatically tested for drugs at maternity wards or in the course of prenatal care. The U.S. Supreme Court ruled in 2001 that drug testing pregnant women without consent was unconstitutional—but only when it could lead to criminal charges. And consent is a fuzzy concept here anyway, often given in the signing of general pregnancy medical forms.

In New York City, more than a dozen maternity wards regularly drug test new mothers, turning any positive results over to child protective services. City attorneys estimate that 100 to 200 neglect cases each year stem from these tests.

New York is one of 17 states that specifically address pregnant women's drug use in civil child neglect laws. In some, it's possible to take away a child based on a single positive drug test, regardless of whether the newborn exhibits symptoms of such exposure, whether the mother was using the drug as part of prescribed medical treatment, and absent any other reasons to suspect maternal drug addiction or unfitness to parent. The zero-tolerance policy has resulted in neglect investigations and even temporary child removal for positive drug tests stemming from poppy seeds, medical marijuana, and prescription opioids.

But some states aren't content merely taking away women's kids for these transgressions. NAPW warns of "an increasing trend toward viewing pregnancy as a proper subject of the criminal law."

At the forefront of these efforts is Tennessee, which recently passed a law allowing women to be charged with assault, punishable by up to 15 years in prison, for babies born "addicted to or harmed by" a narcotic drug. Newborns cannot, medically speaking, be "addicted," though they can experience withdrawal symptoms. The Tennessee law is largely concerned with something known as "neonatal abstinence syndrome," (NAS) a possible (but not certain) side effect of prenatal exposure to opiates.

NAS can come from a pregnant woman's use of any opioid, including painkillers, heroin, or the "maintenance" drugs—such as methadone and Suboxone—used to minimize withdrawal symptoms in folks giving up painkillers and heroin. Abrupt discontinuation of these drugs in dependent women can pose more risk to a developing fetus than the drugs do. Though NAS is being branded as a horrific syndrome that will mark a child for life—much like the apocryphal "bio-underclass" of crack babies we were going to see—it can be readily treated without leading to any known long-term, adverse effects for a child.

"While NAS is being singled out and criminalized, there are other drivers of negative neonatal health outcomes that are far more damaging, such as cigarette smoking and poverty," said Whitney O'Neill Englander, government relations manager for the Harm Reduction Coalition. "The implications of singling out one condition over another and criminalizing it, without a basis in science or medicine, is very concerning."

A wide swath of mainstream medical groups, including the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association, object to tactics like Tennessee's, which they say will deter pregnant women from seeking prenatal care and/or addiction help. Policies that punish women for substance abuse during pregnancy are "contrary to the welfare of the mother and fetus," asserted ACOG in a committee opinion. "Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse."

Around the same time as Tennessee Gov. Bill Haslam was signing his state's misguided new law, the Alabama Supreme Court upheld the conviction of Sara Hicks, charged for giving birth to a healthy baby who tested positive for cocaine.

Under Alabama's "chemical endangerment" law, passed in 2006, people are prohibited from exposing children to a controlled substance. The law was intended to keep people from bringing children to meth labs. But it's been used more than 100 times since its passage to prosecute women who use drugs while pregnant.

Alabama courts have continually held that the meaning of the word "child" in the law unambiguously includes fertilized eggs. The Supreme Court upheld this interpretation 8-1, with Chief Justice Roy Moore writing a separate concurring opinion "to emphasize that the inalienable right to life is a gift of God that civil government must secure for all persons," born and unborn:

Legal recognition of the unborn as members of the human family derives ultimately from the laws of nature and of nature's God, Who created human life in His image and protected it with the commandment: 'Thou shalt not kill.'

Chief Justice Moore went on to compare courts that uphold established abortion laws to Nazi war criminals.

Justice Tom Parker also wrote a separate opinion to emphasize Alabama's stance on the inalienable rights of the unborn, which apply "to life at every point in time and in every respect," including "a life free from harmful effects of chemicals at all stages of development." This, he notes, is what makes Alabama a "refuge" for liberty.

These justices had already ruled on a similar case, and it's "very unusual for a state supreme court to take a case to address a settled issue of law," said Lynn Paltrow, founder and executive director of NAPW. "It appears that the court accepted the Hicks case for the purpose of more fully articulating a view that pregnant women are proper subjects of Alabama's criminal justice system and a growing state and national system of mass incarceration."

They are, indeed. In Utah, a 24-year-old woman was recently charged with second degree felony child endangerment after giving birth to a child at 39 weeks—40 weeks is considered full term—and admitting that she had used meth several times during pregnancy. In Texas, women who smoke marijuana while pregnant can be charged with "delivery of a controlled substance to a minor," a second-degree felony punishable by two to 20 years incarceration. Ohio lawmakers are seeking to add extra penalties for selling drugs to a pregnant woman. And despite the now-legal status of marijuana in Colorado, using it while pregnant can still get you cited for child abuse.

"I would love to say that I see a shift towards the understanding that pregnant women can still be medical marijuana patients—indeed they sometimes are advised to use it for pregnancy ailments like morning sickness, for which it has historically been used by midwives for thousands of years," says Sara Arnold, co-founder of the Family Law & Cannabis Alliance.

"However, as the drug warriors grab at straws to try to stay relevant, the shift is towards greater invasion into pregnant women's bodies, their babies, and their homes via child protective services and family court, and sometimes criminal court as well."

These policies are not pro-children or pro-family.  They mete out punishments based not on actual harm or risk but some combination of moral panic, fetal personhood propaganda, and selective interpretation of that risk. In their rush to usher newborns into the arms of state protective services, they frequently fail to consider what's best for babies at their most vulnerable. [What's worse for a child: a mother who smokes the occasional joint or is undergoing addiction treatment or being shuffled around from foster home to foster home for the first few weeks or years of life?]

It would all be highly objectionable even if it were working to decrease harm to babies and mothers. In reality, it fails to accomplish even this—and may actually drive up health risks—while managing new and powerful infringements on pregnant women's privacy and personal liberty.