Enhanced Criminal Penalties for Pregnant Women Must End, Groups Urge DOJ

Reproductive-rights and drug-policy groups are calling for an end to the harsher sentencing of pregnant women charged with drug crimes.



Women's advocacy and drug-policy reform organizations are calling on the Department of Justice (DOJ) to "publicly renounce" enhanced criminal penalties for pregnant women. It's an issue that's been gaining more attention since the July 2014 conviction of Lacey Weld, a Tennessee woman who was found guilty of conspiracy to manufacture methamphetamine. Because Weld was pregnant at the time she made (and used) meth, she received an extra six years of prison time for child endangerment. 

At the time of Weld's conviction, U.S. Attorney William C. Killian said enhanced sentencing policies were necessary in light of the "tragic rise in the number of babies born addicted to drugs. Through this prosecution, the U.S. Attorney's Office sends a message that, should a child, born or unborn, be exposed to a substantial risk of harm through the manufacture of methamphetamine, we will pursue any available enhancements at sentencing." 

Babies can't actually be born "addicted" to a drug, though they may develop a physical dependence that leads to withdrawal symptoms. This is sometimes seen when women use opioids or drink excessively during pregnancy. There's little evidence that meth, however, results in any particular withdrawal symptoms. The American College of Obstetrics and Gynecology's position is that there "is no syndrome or disorder that can specifically be identified for babies who were exposed in utero to methamphetamine." And as Jacob Sullum noted here recently

The Food and Drug Administration puts methamphetamine (a.k.a. Desoxyn) and other amphetamines (e.g., Adderall) in Pregnancy Category C, meaning "animal reproduction studies [using doses much higher than people generally take] have shown an adverse effect on the fetus," but "there are no adequate and well-controlled studies in humans." Doctors will prescribe Category C drugs, which include antidepressants such as Prozac and Zoloft, for pregnant women if they believe the benefits outweigh the risks.

Many object to charging a pregnant meth user with "child endangerment" on the grounds that an embryo or fetus is not yet a "child". But we also lack sufficient evidence of endangerment, or at least that this danger is greater than that posed by common legal substances. Research indicates that heavy drinking and poor nutrition are much more dangerous to developing fetuses than exposure to methamphetamine, which would seem to have an impact similar to that of prescription drugs like Adderall. 

"The effort to impose an enhanced penalty is based on the argument that Ms. Weld exposed her 'unborn' child to 'a substantial risk of harm'," notes Lynn M. Paltrow, executive director of National Advocates for Pregnant Women (NAPW), in an October 7 letter to the DOJ.

This claim not only provides the basis for separate and unequal treatment of pregnant women, it is also one that cannot legally, logically, or medically be limited to use of or exposure to criminalized substances. … Numerous actions, conditions, circumstances, and substances have been found to create equal or greater risks of harm to fertilized eggs, embryos, and fetuses than any of the criminalized drugs, including methamphetamine. 

The DOJ's support for Weld's enhanced sentence "suggests that actions that are not ordinarily criminal may become criminal if performed by a pregnant woman," Paltrow continued, pointing out that drug possession, not use, is a crime under Tennessee and federal law.

That possession rather than use is criminalized is based in part on the recognition that some use is the result of addiction, a health condition over which people have limited control. According to the DOJ press release and the sentencing decision in this case, drug use (including addiction) has effectively been criminalized for one class of persons—women who become pregnant and seek to continue their pregnancies to term.

The letter was sent on behalf of nearly 50 nonprofit orgnizations, including the Drug Policy Alliance and the American Civil Liberties Union's Reproductive Freedom Project. The groups allege that enhanced penalties for pregnant women defy the constitutional principles of equal protection and due process as well as the ban on ex post facto laws.