Arresting Pregnant Women for Drug Use
Compiled by Drug Policy Alliance. Sept 27, 2000.
Does arresting pregnant women for using drugs promote the health of mothers and children?
No. Research shows that drug-using pregnant women who fear prosecution and the potential loss of their children, rather than being deterred from drug-use, are less likely to seek essential prenatal and medical care.(1) The threat of criminal punishment fosters a climate of fear and mistrust between doctors and patients, imperiling the health both of women and their future children. As a Pennsylvania court noted:
Criminal prosecution of women for their conduct during pregnancy fosters neither the health of the woman nor her future offspring; indeed, it endangers both. Criminal prosecution cruelly severs women from the health care system, thereby increasing the potential for harm to both mother and fetus.(2)
Does the threat of prosecution make pregnant women more likely to seek drug treatment?
No. Though drug-treatment is the most effective method of reducing substance abuse and related harms,(3) government and private research demonstrates that punitive criminal-justice approaches discourage women from seeking treatment.(4) According to the American Society of Addiction Medicine:
Criminal prosecution of chemically dependent women will have the overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increasing, rather than preventing, harm to children and society as a whole.(5)
Is adequate drug treatment available to pregnant women and mothers?
No. Pregnant women and women with children have specialized drug treatment needs, such as prenatal care, child care and medical care for infants and children. In addition, studies indicate that many women drug-users have experienced sexual and physical abuse.(6) Comprehensive treatment programs that address these therapeutic, educational and logistical needs - and do not separate mothers from their children - are proven to help women and their families.(7) Nevertheless, according to government estimates, drug treatment is available to only one-third of all Americans who need it.(8) For pregnant women and women with children this number is even lower.(9)
Should doctors act as law enforcement agents when it comes to pregnant women who use drugs?
No. Patients who fear that sensitive information will be shared with police are unlikely to communicate openly and honestly with doctors about their drug use. The cooperation of health care providers with law enforcement in the prosecution of pregnant women gravely compromises the atmosphere of trust required for the provision of sound medicine(10) - including referral to voluntary drug treatment.(11)
Leading public health and medical organizations - such as The American Medical Association, the American Public Health Association, The March of Dimes and the National Council on Alcoholism and Drug Dependence - are united in their opposition to the cooperation of doctors with police in prosecuting pregnant women.
Does isolating maternal use of a drug - such as cocaine - effectively address the developmental needs of poor children?
No. In the years following the "crack baby" media scare of the 1980s and early 1990s, dozens of carefully constructed studies have established that other factors related to poverty are responsible for many of the ills previously attributed to pregnant women's use of cocaine.(12) Indeed, a 1999 study found that poverty has a greater impact than cocaine on a child's developing brain. According to the study's lead author, Dr. Hallam Hurt, Chairman of the Division of Neonatology at the AlbertEinsteinMedicalCenter:
A decade ago, the cocaine-exposed child was stereotyped as neurologically crippled….But this is unequivocally not the case. And furthermore, the inner-city child who has had no drug exposure at all is doing no better than the child labeled a "crack baby." (13)
Does removing children from drug-using mothers necessarily protect them and improve their health?
No. Studies have found that removing children from their parents' care can unnecessarily inflict great harm on the children.(14) Yet in many states and localities women are assumed to be neglectful parents for the detection of any illegal drug use - including the one-time failure of a marijuana test. Given the magnitude of the decision to remove a child, experts agree that determinations of parental fitness should be made on a case-by-case basis with all relevant factors considered. A comprehensive study of the effects of foster care by StanfordUniversity law professor Michael Wald concluded that "removing a child from his family may cause serious psychological damage - damage more serious than the harm intervention is supposed to prevent."(15)
* Much of the current research is summarized in The Lindesmith Center’s and Women’s Law Project’s Amicus Curiae Brief in Whitner v. State, 492 S.E.2d 777 (S.C. 1997), cert denied, 523 U.S. 1145 (1998). See Daniel N. Abrahamson et al., Amicus Curiae Brief: Cornelia Whitner vs. The State of South Carolina, 9 Hastings Women’s L.J. 139 (1998); See also The Lindesmith Center,Research Brief: Cocaine and Pregnancy.
Notes:
  1. See U.S. General Accounting Office, GAO/HRD-91-80, ADMS Block Grant, Women’s Set Aside Program Does Not Assure Drug Treatment for Pregnant Women 20 (1991); Institute of Medicine, Prenatal Care: Reaching Mothers, Reaching Infants 79 (Sarah S. Brown, ed., 1988); Mary Ann Curry, Nonfinancial Barriers to Prenatal Care, 15 Women and Health 85 (1989); Center for Health Policy Research, George Washington University, An Analysis of Resources to Aid Drug-Exposed Infants and Their Families 78 (1993).
  2. Commonwealth v. Kemp, 75 Westmoreland L.J. 5, 11 (Pa. Ct. C. P. 1992), 643 A.2d 705 (Pa. Super. Ct. 1994).
  3. See Charles Marwick, Physician Leadership on National Drug Policy Finds Addiction Treatment Works, Journal of the American Medical Association 1149 (1998).
  4. Marilyn C. Poland et al., Punishing Pregnant Drug Users: Enhancing the Flight from Care, 31 Drug and Alcohol Dependence 199 (1993). See also supra note 1.
  5. American Society of Addiction Medicine Board of Directors, Public Policy Statement on Chemically Dependent Women and Pregnancy 47 (Sept. 25, 1989).
  6. See Marsha Rosenbaum, Women: Research and Policy, in Williams & Wilkins, Substance Abuse 654-65 (1997); Jacqueline Wallen, A Comparison of Male and Female Clients in Substance Abuse Treatment, 9 Journal of Substance Abuse Treatment 243 (1992).
  7. See Margaret E. Goldberg, Substance Abusing Women: False Stereotypes and Real Needs, 40 Social Work 789 (1995); Stephen Margura et al., Effectiveness of Comprehensive Services for Crack-Dependent Mothers with Newborns and Young Children (1998); Center for Substance Abuse Treatment, Pregnant, Substance-Abusing Women 6 (1993) (U.S. Dept. of Health & Human Servs. Publication No. (SMA) 93-1998); Claire McMurtrie et al., A Unique Drug Treatment Program for Pregnant and Postpartum Substance-Abusing Women in New York City: Results of a Pilot Project, 1990-1995, 25 Am. J. Drug & Alcohol Abuse 701, 701-02 (1999)
  8. Office of National Drug Control Policy, National Drug Control Policy Strategy Report 2000.
  9. See A. Woodward et. al.,The Drug Abuse Treatment Gap: Recent Estimates, Health Care Financing Review 18 (1997); Wendy Chavkin, Mandatory Treatment for Drug Use During Pregnancy, 266 Journal of the American Medical Association 1556 (1991); Julie Petrow, Addicted Mothers, Drug Exposed Babies: The Unprecedented Prosecution of Mothers Under Drug-Trafficking Statutes, 36 New York Law School Law Revue 573, 604-06 (1991); Molly McNulty, Pregnancy Police: The Health Policy and Legal Implications of Punishing Pregnant Women for Harm to Their Fetuses, 16 New York University Review of Law & Social Change 277, 292-303 (1987); Wendy Chavkin et al., National Survey of the States: Policies and Practices Regarding Drug-Using Pregnant Women, 88 American Journal of Public Health 117 (1998); Vicki Breitbart et al., The Accessibility of Drug Treatment for Pregnant Women: A Survey of Programs in Five Cities, 84 American Journal of Public Health 1658 (1994).
  10. See Robert Arnold, et al., “Medical Ethics and Doctor-Patient Communication,” in The Medical Interview: Clinical Care, Education and Research,Mack Lipkin, Jr. et al., eds., New York: Springer-Verlag, 1995; Mary Ann Curry, Nonfinancial Barriers to Prenatal Care, 15 Women and Health 85 (1989); Ann Lazare, “Shame, Humiliation, and Stigma in the Medical Interview,” in The Medical Interview: Clinical Care, Education and Research,Mack Lipkin, Jr. et al., eds., New York: Springer-Verlag, 1995.
  11. Mary Ann Curry, Nonfinancial Barriers to Prenatal Care, 15 Women and Health 85 (1989); Ann Lazare, “Shame, Humiliation, and Stigma in the Medical Interview,” in The Medical Interview: Clinical Care, Education and Research,Mack Lipkin, Jr. et al., eds., New York: Springer-Verlag, 1995.
  12. See Mary Ann Curry, Nonfinancial Barriers to Prenatal Care, 15 Women and Health 85 (1989) See alsosupra Notes 1 and 4.
  13. Alan Mozes, Poverty Has a Greater Impact than Cocaine on Young Brain, Reuters Health, Dec 6, 1999 (citing Hallum Hurt, 20 Journal of Developmental and Behavioral Pediatrics 418-419 (1999).
  14. See, e.g. Bonita Evans, Youth In Foster Care: The Shortcomings of Child Protection Services. New York: Garland Pub., 1997; Scott J. Preston, Note, “Can You Hear Me?”: The United States Court of Appeals for the Third Circuit Addresses the Systemic Deficiencies of the Philadelphia Child Welfare System in Baby Neal v. Casey, 29 Creighton Law Review 1653 (1996).
  15. Michael Wald, State Intervention on Behalf of Neglected Children: A Search for Realistic Standards, 27 Stanford Law Review, 985 (1975).