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241
UNSHACKLING ADDICTION:
A PUBLIC HEALTH APPROACH TO DRUG USE DURING
PREGNANCY
Seema Mohapatra, JD, MPH
INTRODUCTION ................................................................................................ 242 I. THE CURRENT PUNITIVE APPROACH TO DRUG USE DURING
PREGNANCY: A BRIEF HISTORY .......................................................... 246 II. CRITIQUES OF THE CRIMINALIZATION APPROACH TO SUBSTANCE
ABUSE DURING PREGNANCY AND THE NEED FOR A PUBLIC
HEALTH BASED APPROACH ................................................................. 252 A. Why Pregnant Drug Users Need Public Health Support, Not
Criminal Sanctions ....................................................................... 253 B. Critiques By Medical and Public Health Organizations .............. 254 C. Critique Based Upon Bioethical Principles.................................. 255 D. Critique Based on Selective Enforcement of Drug Testing and
Drug Reporting ............................................................................ 257 III. EXAMINING THIS ISSUE THROUGH A PUBLIC HEALTH LAW LENS ............ 259
A. Defining A Public Health Approach ............................................ 260 B. The Need For Evidence-Based Policy ......................................... 262 C. Prevention .................................................................................... 264 D. Harm Reduction ........................................................................... 266 E. Using Public Health Ethics to Determine an Appropriate
Policy Related to Drug Use During Pregnancy............................ 270 F. Limitations of a Public Health Based Approach .......................... 271
CONCLUSION ................................................................................................... 273
Assistant Professor of Law, Barry University Dwayne O. Andreas School of Law,
Orlando, Florida. B.A., Johns Hopkins University; M.P.H., Yale University; J.D., Northwestern University School of Law. An earlier version of this paper was presented at the Wisconsin Journal of Law, Gender & Society Symposium ―Gender, Justice, & Victim Rights: A Gendered Perspective of Victims in the Criminal Justice System‖ held on February 25, 2011 at the University of Wisconsin School of Law in Madison. Thanks to the participants for their insightful comments and suggestions. I would also like to thank my research assistant Patrick Burton and the editors of the Wisconsin Journal of Law, Gender & Society for their invaluable help. This Article was supported by a Barry University Dwayne O. Andreas School of Law School of Law Research Grant. Much gratitude to Sanjay Reddy, Asha Reddy, Aleena Reddy, Ram Mohapatra, Jhunu Mohapatra, and Manas Mohapatra for their encouragement and support.
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INTRODUCTION
In December 2006, Rennie Gibbs, a black sixteen-year-old addicted to
cocaine, lost her baby at thirty-six weeks due to a stillbirth. 1 These facts alone
describe a public health tragedy involving fetal death, 2 teenage pregnancy, and
drug addiction. However, this situation worsened when Rennie Gibbs was then
arrested for murder. 3 Although there was no evidence showing that her drug use
caused the stillbirth, Mississippi prosecutors charged Rennie Gibbs with
depraved heart murder due to her cocaine use during pregnancy. 4 Scientists,
however, have found that determining the cause of stillbirth is difficult. 5
Therefore, as many as half of stillbirths have no known cause. 6 Medical studies
show that even in cases where a woman tests positive for cocaine, it is
extremely difficult to establish that such use caused the stillbirth due to the
variety of factors that may contribute to stillbirth. 7 Despite this difficulty, the
prosecutors are pursuing this charge. 8 Although she was a minor at the time of
the stillbirth, Gibbs was charged as an adult, and her case will be heard in
1. Ed Pilkington, Outcry In America As Pregnant Women Who Lose Babies Face Murder Charges, GUARDIAN, June 24, 2011, http://www.guardian.co.uk/world/2011/jun/24/america-pregnant-women-murder-charges.
2. A stillbirth refers to fetal death at twenty weeks gestation. Linda C. Fentiman, Rethinking Addiction: Drugs, Deterrence, and the Neuroscience Revolution, 14 U. PA. J.L. & SOC. CHANGE 233, 240 n.35 (2011) [hereinafter Fentiman, Rethinking Addiction] (citing Michael B. Brimacombe et al., Comparison of Fetal Demise Case Series Drawn from Socioeconomically Distinct Counties in New Jersey, 26 FETAL & PEDIATRIC PATHOLOGY 213, 213-14 (2007)).
3. Pilkington, supra note 1.
4. Id. Gibbs was charged with depraved-heart murder under section 97-3-19(1)(b) of the Mississippi Code, which provides:
(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
. . . .
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.
MISS. CODE ANN. § 97–3–19(1)(b) (2006).
5. Some factors associated with stillbirth include poverty, lack of prenatal care, and low levels of maternal education. See Fentiman, Rethinking Addiction, supra note 2, at 240 n.35.
6. Id.
7. See T.A. Campbell & K.A. Collins, Pediatric Toxicologic Deaths: A 10-Year Retrospective Study, 22 AM. J. FORENSIC MED. & PATHOLOGY 184, 187 (2001), available at http://journals.lww.com/amjforensicmedicine/Fulltext/2001/06000/Pediatric_Toxicologic_D eaths__A_10_Year.15.aspx. This ten year study found that in ―eight neonatal and fetal deaths with maternal histories of cocaine use . . . five victims showed positive b ut nonlethal toxicology results for cocaine or metabolites.‖ Id. Upon autopsy, all five of these deaths were ruled either natural or undetermined. Id. The study concludes by finding that ―[c]ocaine appears to be contributory in many fetal and neonatal deaths in which the mother uses cocaine. [However, t]he direct cause and effect is still under much investigation.‖ Id.
8. Pilkington, supra note 1.
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December 2011. 9 If convicted, Rennie Gibbs will face a mandatory life
sentence. 10
While this is the first case in Mississippi where a pregnant woman
(or girl in this case) has been charged with murder due to a stillbirth, similar
prosecutions have occurred in other states. 11
Cases such as this are far from
uncommon.
In the last three decades, state prosecutors have dealt with the problem of
drug use during pregnancy as a criminal rather than a public health or medical
issue. 12
Such a policy disadvantages pregnant women who are drug addicts. 13
Addiction is defined as ―‗a chronically relapsing [disorder] characterized by
compulsive drug taking, an inability to limit the intake of drugs, and the
emergence of a withdrawal syndrome during cessation of drug taking
(dependence).‘‖ 14
Numerous experts have written about the need to cease
prosecutions of drug dependent women based on their addictions. 15
Despite
this, rather than dealing with this issue as a medical issue focusing on treatment
of the pregnant mother or as a public health crisis aimed at prevention and harm
reduction, states have largely treated this issue as a criminal law problem for
the last several decades. 16
Medical and public health consensus is that this is not
the proper approach to this issue. However, women continue to be arrested for
drug use during or soon after their pregnancies for political reasons and because
9. Id.
10. Id.
11. Linda C. Fentiman, Pursuing the Perfect Mother: Why America‟s Criminalization of Maternal Substance Abuse is Not the Answer - A Comparative Legal Analysis, 15 MICH. J. GENDER & L. 389, 405 (2009) [hereinafter Fentiman, Perfect Mother] (noting several cases where women have been charged with homicide due to drug use during their pregnancy).
12. See Krista Stone-Manista, Protecting Pregnant Women: A Guide to Successfully Challenging Criminal Child Abuse Prosecutions of Pregnant Drug Addicts, 99 J. CRIM. L. & CRIMINOLOGY 823, 823-24 (2009).
13. Julie B. Ehrlich, Breaking the Law by Giving Birth: The War on Drugs, the War on Reproductive Rights, and the War on Women, 32 N.Y.U. REV. L. & SOC. CHANGE 381, 382 (2008).
14. Sana Loue, The Criminalization of the Addictions: Toward a Unified Approach, 24 J. LEGAL MED. 281, 282 (2003) (noting that addiction is often referred to as ―substance dependence‖) (citation omitted).
15. See, e.g., Ehrlich, supra note 13, at 382-83; Julie B. Ehrlich & Lynn M. Paltrow, Jailing Pregnant Women Raises Health Risks, WOMEN‘S ENEWS, Sept. 20, 2006, available at http://www.womensenews.org/story/health/060920/jailing-pregnant-women-raises-health- risks.
16. Stone-Manista, supra note 12, at 823-24. Most of the convictions of pregnant women under child endangerment statutes have been overturned based on the lack of the inclusion of a fetus in the child endangerment statutes or because of judges holding that drugs cannot be delivered through an umbilical cord. Fentiman, Perfect Mother, supra note 11, at 399. In fact, South Carolina is the only state that has upheld such convictions. Id. (citing Whitner v. South Carolina, 492 S.E.2d 777, 789-90 (S.C. 1995), cert. denied, 523 U.S. 1145 (1998)). However, this has not prevented certain states from continuing to arrest pregnant women. For example, eight women in one Alabama jurisdiction with a population of 37,000 were prosecuted in an eighteen-month period in 2007 and 2008 for drug use during pregnancy. Stone-Manista, supra note 12, at 825.
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of fears of the health effects of drugs and alcohol during pregnancy 17
—effects
which are less severe than previously thought and are still not completely
understood. 18
This ―war on the fetus‖ is part of the larger ―War on Drugs,‖
which punishes illicit drug use through the criminal justice system. 19
This
model sees illicit drug use as a crime that must be punished, rather than as a
symptom of the medical problem of addiction. 20
There is no evidence that dealing with this issue via the criminal justice
system does anything to help the fetuses these women are carrying or the
babies they bear. 21
Scientists have found that the health effects of using illegal
drugs during pregnancy are no more harmful than using alcohol or tobacco,
both legal substances. 22
However, an illicit drug-abusing mother is not the most
sympathetic of characters and is easily vilified by the public and prosecutors as
giving birth to a ―crack baby,‖ or more recently, a ―meth baby.‖ In fact,
scientists have noted, there is no such thing as a ―crack‖ or ―meth‖ baby. 23
Regardless of the fact that the scientific basis for these labels has been
questioned, judges and prosecutors continue to arrest or jail women due to their
drug use during pregnancy. 24
Such criminalization has not created a strong
deterrent effect, as the rate of drug use in pregnant woman has remained fairly
consistent. 25
Scholars have written extensively about cases where pregnant women
have been arrested due to their substance abuse during pregnancy. 26
Many note
the need for a public health, rather than a punitive approach to this problem. 27
This article builds upon these recommendations and attempts to define what
17. Fentiman, Perfect Mother, supra note 11, at 459 (arguing that because prosecutors are politically accountable, they are more apt to cater to the public‘s demand for the prosecution of pregnant mothers).
18. Barry M. Lester et al., Substance Use During Pregnancy: Time for Policy to Catch up with Research, 1 HARM REDUCTION J. 5, 6 (2005) (noting that the recent findings suggest neural abnormalities that might occur in humans depends on other factors, which may include genetic vulnerability); id. at 31 (―[W]e do not know the long-tem developmental effects of prenatal drug exposure per se.‖).
19. See Marne L. Lenox, Neutralizing the Gendered Collateral Consequences of the War on Drugs, 86 N.Y.U. L. REV. 280, 285-86 (2011) (noting that the ―War on Drugs‖ was declared by President Richard Nixon in 1971).
20. See Lester et al., supra note 18, at 3.
21. Fentiman, Rethinking Addiction, supra note 2, at 239-41.
22. Susan Okie, The Epidemic That Wasn‟t, N.Y. TIMES, Jan. 27, 2009, at D1.
23. Id.
24. See Stone-Manista, supra note 12, at 823-24.
25. In a recent study detailing substance use among women between 2002 and 2007, it appears that the percentage of pregnant women using drugs or alcohol has remained constant. See OFFICE OF APPLIED STUDIES, SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., ALCOHOL USE AMONG PREGNANT WOMEN AND RECENT MOTHERS: 2002 TO 2007 (2008), available at http://www.oas.samhsa.gov/2k8/pregnantAlc/pregnantAlc.pdf.
26. See, e.g., Michele Goodwin, Prosecuting the Womb, 76 GEO. WASH. L. REV. 1657, 1741-43 (2008).
27. See, e.g., Fentiman, Rethinking Addiction, supra note 2, at 237; Stone-Manista, supra note 12, at 856.
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such an approach entails. While a punitive approach involves judges,
prosecutors, and child welfare officials, a public health approach utilizes
community partners, prevention programs, and harm reduction efforts. This
article argues the benefits of using public health methodologies and approaches
to address the issue of substance abuse during pregnancy. Public health as a
field attempts to analyze the root causes of a health issue and aid in preventing
such problems from occurring in the first place. 28
In the last few decades, states
have approached the issue of drug use during pregnancy primarily from a
criminal law perspective. 29
The focus has been to identify and punish those who
use drugs during their pregnancy. This article argues that the criminal law and
punitive focus may adversely affect the health of pregnant women by
discouraging women using drugs from seeking prenatal care and even
encouraging them to terminate their pregnancies for fear of criminal sanctions.
Also, such an approach appears to do nothing to curb drug addiction or drug
use during or after pregnancy. 30
This article expounds upon how public health
methodologies could be best used to address such drug use and argues that such
an approach would be more effective in curbing the problem than the current
punitive approach.
Part I of this article outlines a brief history of how pregnant women
suffering from drug addiction have been treated by the criminal justice and
child welfare system in the United States. This section details cases where
women have been arrested or incarcerated when their drug use during
pregnancy has been revealed. It also details how prosecutors have used fetal
protection laws to punish pregnant women for their drug addictions.
Additionally, this Part notes the legislative trend towards removing children
from the homes of mothers who have been found to use illegal substances to
foster care.
28. Lawrence O. Gostin, A Theory and Definition of Public Health Law, 10 J. HEALTH CARE L. & POL‘Y 1, 10 (2007).
29. Stone-Manista, supra note 12, at 823-24.
30. See Fentiman, Perfect Mother, supra note 11, at 462. Linda Fentiman and Lynn Paltrow have written about how the effects of drug use during pregnancy may have been exaggerated in the 1980s and 1990s for politically motivated purposes. See, e.g., LYNN M. PALTROW ET AL., YEAR 2000 OVERVIEW: GOVERNMENTAL RESPONSES TO PREGNANT WOMEN WHO USE ALCHOHOL OR OTHER DRUGS (2000), available at http://advocatesforpregnantwomen.org/file/gov_response_review.pdf [hereinafter PALTROW ET AL., YEAR 2000 OVERVIEW]; Linda Fentiman, The New “Fetal Protection”: The Wrong Answer to the Crisis of Inadequate Health Care for Women and Children, 84 DENV. U. L. REV. 537 (2006) [hereinafter Fentiman, New “Fetal Protection”]; Lynn M. Paltrow, Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, 62 ALB. L. REV. 999 (1999); Lynn M. Paltrow, Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs, 8 DEPAUL J. HEALTH CARE L. 461 (2005) [hereinafer Paltrow, Governmental Responses]. However, regardless of the effect on the fetus, curbing drug addiction is a public health goal worth striving for. Criminalization has not helped achieve this goal. April L. Cherry, The Detention, Confinement, and Incarceration of Pregnant Women for the Benefit of Fetal Health, 16 COLUM. J. GENDER & L. 147, 196-97 (2007).
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Part II of this article critiques the punitive handling of drug abuse during
pregnancy and outlines why a public health approach is preferable. This section
first outlines different approaches to handling the problem of drug use during
pregnancy and advocates for an approach that minimizes the role of the courts
and the criminal justice system. To support this, this section discusses critiques
by medical and public health organizations on the criminal treatment of drug
use during pregnancy. Then, it provides a bioethical critique of prenatal drug
use. Finally, Part II discusses how a criminal approach unfairly targets poor and
minority women.
Part III of this article outlines what is needed to achieve a public health
law approach to the issue of substance abuse during pregnancy and discusses
potential shortcomings of such an approach. This section first defines a public
health approach to addressing prenatal drug use. Then it discusses the need for
evidence-based policy making and a public health approach that focuses on
prevention and harm reduction. This section also utilizes public health ethics to
support its contentions. Finally, this section notes the limitations of a public
health based approach.
I. THE CURRENT PUNITIVE APPROACH TO DRUG USE DURING PREGNANCY:
A BRIEF HISTORY
Part I of this article briefly discusses statistics related to drug use in the
United States. It then introduces readers to examples of cases where women
have been arrested or incarcerated due to their drug use. Although the drug du jour may have changed through the years from marijuana to cocaine to heroin to crystal ―meth,‖
31 drug addiction appears to be as common today as it was
twenty years ago in the prime of the ―War on Drugs.‖ 32
The ―War on Drugs‖
meant those convicted of drug offenses faced harsh criminal sanctions,
including lengthy jail sentences. 33
In the last several decades, there has been
effort to treat drug addiction as a mental illness that demands treatment rather
31. See Richard A. Rawson et al., Will the Methamphetamine Problem Go Away?, 21 J. ADDICTIVE DISEASES 5, 6 (2002).
32. In 1988, the percentage of the American population using illicit drugs in the past month was 7.3 percent. DIV. OF EPIDEMIOLOGY & PREVENTION RESEARCH, NAT‘L INST. ON DRUG ABUSE, NATIONAL HOUSEHOLD SURVEY ON DRUG ABUSE 34 (1988). In 2009, the percentage of the American population using illicit drugs in the past month was 8.7 percent. OFFICE OF APPLIED STUDIES, SUBSTANCE ABUSE & MENTAL HEATLH SERVS. ADMIN., NATIONAL SURVEY ON DRUG USE AND HEALTH available at http://www.oas.samhsa.gov/NSDUH/2k9NSDUH/2k9ResultsP.pdf (last visited July 31, 2011).
33. MARC MAUER & RYAN S. KING, SENTENCING PROJECT, A 25-YEAR QUAGMIRE: THE WAR ON DRUGS AND ITS IMPACT ON AMERICAN SOCIETY 1-2 (2007), available at http://www.sentencingproject.org/doc/publications/dp_25yearquagmire.pdf. For example, in Minnesota, a person convicted of possessing half an ounce of cocaine can spend as much as eighty-six months in prison. John Stuart & Robert Sykora, Minnesota‟s Failed Experience with Sentencing Guidelines and the Future of Evidence-Based Sentencing, 37 WM. MITCHELL L. REV. 426, 429 (2011).
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than prison time. 34
An example of this trend was demonstrated in 1994 when
the American Psychiatric Association diagnosed drug addiction as a mental
disorder. 35
Many advocates of a medical model of addiction point to the
inclusion of drug addiction in the DSM-IV as proof that such addiction should
be treated at a disease. 36
Regardless of such advocacy, law enforcement is still
more heavily funded and utilized than treatment. 37
Drug addiction affects all segments of the population, including pregnant
women. Approximately 5-6 percent of American mothers use illegal drugs
during their pregnancy. 38
As with other segments of the population, using
criminal punishment as a means of deterring drug use prevails over the option
of treatment. 39
Numerous articles and newspaper accounts detail examples of
pregnant women being incarcerated or charged with crimes associated with
their drug use. 40
Some women have even been charged with crimes only
tangentially related to such use. For example, in United States v. Vaughn, a pregnant woman who tested positive for cocaine pleaded guilty to second-
degree theft, a crime unrelated to her drug use. 41
The judge then sentenced the
woman to be imprisoned for the entire length of her pregnancy. 42
Although the
judge recognized that the crime the woman was convicted of would typically
not be punished with a jail sentence, he nevertheless sentenced her to six
months incarceration, stating that he wanted ―to be sure she would not be
released until her pregnancy was concluded . . . [due to] concern for the unborn
child.‖ 43
This punishment was an attempt to ensure she would not harm her
fetus with her drug use. 44
34. Ellen M. Weber, Bridging the Barriers: Public Health Strategies for Expanding Drug Treatment in Communities, 57 RUTGERS L. REV. 631, 632 n.2 (2005). In fact, some states (including Alabama, Arizona, California, Hawaii, Kansas, New Mexico, Oklahoma, Oregon, and Washington) have instated programs that permit or even mandate the diversion of drug offenders from prisons and jails to treatment. Id.
35. AM. PSYCHIATRIC ASS‘N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 181 (4th ed. 1994) (defining substance dependence as ―[a] maladaptive pattern of substance abuse, leading to clinically significant impairment or distress . . . occurring at any time in the same 12-month period‖).
36. See, e.g., Peggy Fulton Hora & Theodore Stalcup, Drug Treatment Courts in the Twenty-First Century: The Evolution of the Revolution in Problem-Solving Courts, 42 GA. L. REV. 717, 729 (2008).
37. Lenox, supra note 19, at 285-86 (stating that the Nixon era marks the only time in the history of the war on drugs in which more funding went toward treatment than law enforcement).
38. Fentiman, Perfect Mother, supra note 11, at 395. This is a hard number to substantiate due to the nature of drug addiction. It is likely that this is an understated percentage as there is some detection bias regarding who gets tested for drug use.
39. Fentiman, Rethinking Addiction, supra note 2, at 234.
40. See, e.g., Pilkington, supra note 1.
41. See Cherry, supra note 30, at 172-73.
42. Id. at 173.
43. Id. (citation omitted).
44. Id.
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No state has enacted a law that directly criminalizes the conduct of the
mother during pregnancy. 45
However, pregnant mothers have still been
prosecuted for their actions during their pregnancy through a variety of legal
theories. In 1977, Margaret Reyes was indicted on felony child endangerment
charges due to her heroin use during pregnancy. 46
Although she was not
ultimately prosecuted, she became the first woman in the United States to be
indicted for drug use during pregnancy. 47
In the late 1980s and early 1990s, one
of the approaches for prosecuting a pregnant mother for causing harm to her
fetus through drug use was to convict her of delivering drugs to a minor. 48
Under this approach, pregnant mothers were prosecuted for the delivery of
drugs through their umbilical cord. 49
State appellate courts routinely overturned
such prosecutions after finding that the legislature did not intend for ―minor
children‖ to include fetuses nor could delivery of drugs to a minor be construed
to include delivery via the umbilical cord. 50
However, South Carolina has
upheld such prosecutions, arguing that the language of ―minor children‖ did in
fact include fetuses. 51
In the late 1990s, prosecutors began taking a different approach—
prosecuting the mother for criminal homicide or assault. 52
State homicide and
assault laws were originally designed to protect fetuses from harm from
someone other than the pregnant mother, such as an abusive partner. 53
These
laws, originally intended to bolster women‘s rights, were in effect being used to
punish women for violations of fetal rights. 54
A typical illustration of this type
of arrest occurred in 2003 with Tayshea Aiwohi. Aiwohi was convicted of
45. CTR. FOR REPRODUCTIVE RIGHTS, PUNISHING WOMEN FOR THEIR BEHAVIOR DURING PREGNANCY 2, available at http://reproductiverights.org/sites/default/files/documents/pub_bp_punishingwomen.pdf (last visited July 31, 2011).
46. See Linda C. Fentiman, In the Name of Fetal Protection: Why American Prosecutors Pursue Pregnant Drug Users (And Other Countries Don‟t), 18 COLUM. J. GENDER & L. 647, 648 (2009) [hereinater Fentiman, Fetal Protection] (citing Reyes v. Superior Ct., 141 Cal. Rptr. 912, 912 (Ct. App. 1977), where the California Supreme Court ruled against the prosecution because the legislature did not intend to include ―unborn children‖ within the meaning of the term child).
47. Id. Professor Fentiman has written several articles about the ill use of fetal protection statutes to prosecute pregnant women. See, e.g., Fentiman, New “Fetal Protection”, supra note 30; Fentiman, Perfect Mother, supra note 11.
48. Fentiman, Perfect Mother, supra note 11, at 398-99.
49. CTR. FOR REPRODUCTIVE RIGHTS, supra note 45; see, e.g., Johnson v. State, 602 So. 2d 1288 (Fla. 1992) (holding that cocaine passing through an umbilical cord, even if occurring after birth, was not contained within the meaning of ―delivery‖ of an illegal drug to a minor within the language of the statute).
50. Fentiman, Perfect Mother, supra note 11, at 399.
51. Whitner v. South Carolina, 492 S.E.2d 777, 779-80 (S.C. 1995), cert. denied, 523 U.S. 1145 (1998).
52. Fentiman, Perfect Mother, supra note 11, at 400.
53. Carolyn B. Ramsey, Restructuring the Debate Over Fetal Homicide Laws, 67 OHIO ST. L.J. 721, 721-22 (2006).
54. See Cherry, supra note 30, at 152-53.
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manslaughter because her use of methamphetamines while pregnant allegedly
caused the death of her baby two days after the infant‘s birth. 55
Ultimately, the
Hawaii Supreme Court overturned the conviction by holding that at the time of
the Aiwohi‘s conduct, the child was not a person. 56
Just as in the Rennie Gibbs case discussed earlier, prosecutors have also
attempted to directly charge a pregnant mother with murder when her child was
stillborn. The first American mother charged under this scheme was Regina
McKnight of South Carolina. 57
McKnight was a black, homeless woman, with
an IQ of 72, who was addicted to crack cocaine. 58
South Carolina police
charged her with ―homicide by child abuse.‖ 59
Although her first trial ended in
mistrial, she was eventually convicted and sentenced to twenty years in prison,
with the South Carolina Supreme Court upholding her conviction. 60
In 2008,
after nine years in prison, McKnight was granted post conviction relief on
grounds of ineffective assistance of counsel. 61
Each individual case has unique
traits, but the common factor is these women are being prosecuted for drug use
during pregnancy, rather than being offered treatment options for their drug
addiction. In addition, in almost all of these cases, the women involved are poor
and often black. 62
Prosecutors have also demonstrated their creativity in using statutes by
prosecuting pregnant mothers through statutes that prohibit the exposure of a
child to controlled or chemical substances or drug paraphernalia. 63
For
example, section 26-15-3.2 of the Alabama Code prohibits the knowing,
55. Fentiman, Perfect Mother, supra note 11, at 403 (citing State v. Aiwohi, 123 P.3d 1210, 1210-11 (Haw. 2005)). I say ―allegedly‖ because there is not substantial evidence to show that methamphetamine use has detrimental effects on a fetus. As with other drugs, the fear of the effects is much more substantial that the real effect of such drug use. See Barry Lester, One Hit of Meth Enough to Cause „News Defects‟, NATIONAL ADVOCATES FOR PREGNANT WOMEN, Aug. 17, 2005, http://advocatesforpregnantwomen.org/main/publications/articles_and_reports/one_hit_of_m eth_enough_to_cause_news_defects.php.
56. Fentiman, Perfect Mother, supra note 11, at 403-04.
57. Id. at 402 (citing State v. McKnight, 576 S.E.2d 168, 171 (S.C. 2003)).
58. Id.
59. Id. at 402 n.44.
60. Id. at 402.
61. Id. at 403.
62. Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 HARV. L. REV. 1419, 1420-21 (1991) (noting women most often charged with criminal penalties in fetal prosecution cases are poor and black).
63. See Fentiman, Perfect Mother, supra note 11, at 407-408. Statutes aimed at this behavior have been passed in many states. See ALA. CODE § 26-15-3.2 (2011); ALASKA STAT. § 11.51.110 (2011); DEL. CODE ANN. tit. 11, § 1102 (2011); HAW. REV. STAT. § 709- 904 (2011); IDAHO CODE ANN. § 37-2737A (2011); KY. REV. STAT. ANN. § 218A.1441-1443 (LexisNexis 2011); LA. REV. STAT. ANN. § 14:93 (LexisNexis 2011); MINN. STAT. ANN § 609.378 (West 2011); NEV. REV. STAT. § 453.3325 (2011); N.D. CENT. CODE § 19-03.1-22.2 (2011); OHIO REV. CODE ANN. § 2919.22 (West 2011); OR. REV. STAT. § 163.575 (2011); UTAH CODE ANN. § 76-5-112.5 (2011); WYO. STAT. ANN. § 6-4-405 (2011).
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reckless, or intentional exposure of a child to a controlled substance. 64
Violations of this statute are considered a felony, and if the child dies, the crime
carries a sentence of ten years to life. 65
Despite clear legislative intent for the
statute not to apply to pregnant women—it was originally designed to
prosecute parents and others who expose children to methamphetamine labs—
Alabama prosecutors in several rural counties have for the last five years
prosecuted pregnant women who used drugs. 66
In addition to illegal drugs, pregnant mothers have also been prosecuted
for alcohol use. 67
Approximately 25 percent of pregnant mothers consume
alcohol during their pregnancy. 68
Prosecutors have been quick to charge
pregnant mothers with harming their fetus with this legal drug as well. In
Wisconsin, an alcoholic woman was charged with attempted first-degree
intentional homicide and first-degree reckless injury after going into labor in a
bar and telling a hospital nurse of her alcoholism. 69
Although the Wisconsin
Court of Appeals ultimately ruled that the fetus was not a human being and
barred the criminal prosecution, 70
this is yet another example of a criminal,
rather than treatment, model. The court ruled that to allow the statute to be used
in this way could have illogical results, stating that, ―[t]aken to its extreme,
prohibitions during pregnancy could also include . . . the failure to secure
adequate prenatal medical care, and overzealous behavior, such as excessive
exercising or dieting.‖ 71
This same reasoning could be applied to many
prosecutions of women for drug use during pregnancy. Often it is not clear that
drug use or alcohol use actually caused harm to the fetus. 72
However, due to the
fear of such harm, these women are prosecuted by the criminal justice system.
64. ALA. CODE § 26-15-3.2 (2011).
65. If the exposure causes the death of a child the act is considered a class A felony, § 26-15-3.2(3), and the punishment is imprisonment of a period of time not less than ten years and up to life, ALA. CODE § 13A-5-6(a)(1) (2011).
66. Cassandra Burrows, Health Experts Warn Alabama Court of Criminal Appeals That Prosecuting Pregnant Women as Drug Labs Is Bad for Babies, NATIONAL ADVOCATES FOR PREGNANT WOMEN, July 12, 2010, http://advocatesforpregnantwomen.org/blog/2010/07/health_experts_warn_alabama_co.php.
67. Cherry, supra note 30, at 147-48.
68. Fentiman, Perfect Mother, supra note 11, at 395.
69. Id. at 400; see also Erin N. Linder, Punishing Prenatal Alcohol Abuse: The Problems Inherent in Utilizing Civil Commitment to Address Addiction, 2005 U. ILL. L. REV. 873, 885-96 (outlining the history of civil commitment laws in Wisconsin and the constitutional problems with these laws). Several pregnant women have been arrested and imprisoned for drug use during pregnancy based on fetal rights and the desire to protect fetuses from harm based on the mother‘s drug use.
70. Fentiman, Perfect Mother, supra note 11, at 400.
71. Id. at 401 (quoting State v. Deborah J.Z., 596 N.W.2d 490, 494-95 (Wis. Ct. App. 1999)).
72. Many feel that the effects of drug use during pregnancy have been largely exaggerated. See, e.g., Susan Okie, supra note 22.
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Without proof of causation, this could be interpreted as a slippery slope, which
may limit a pregnant woman‘s behavior and autonomy. 73
Overall, in the last twenty-five years, over two hundred mothers in the
United States have been prosecuted for causing harm to their fetuses by using
drugs while pregnant. 74
This phenomenon is not limited to a few jurisdictions
either, as pregnant women in over thirty states have been prosecuted for using
alcohol or illegal drugs while pregnant. 75
Closely related to pure criminal law approaches, several states require
physicians and health care professions to report prenatal drug use to law
enforcement officials and child protective services. 76
There are several
problems with such reporting requirements. First of all, not all women get
tested for drug use during pregnancy. 77
Often, poor minority women are tested
at a higher rate than white, middle, and upper-class women. 78
Further, there are
concerns about how this affects the physician‘s relationship with the patient. 79
In addition, many states have legislation that regards a positive drug test
or other evidence of prenatal drug exposure as prima facie evidence of child
abuse or neglect. 80
Such evidence often leads to a woman‘s newborn and
existing children being placed in foster care. In addition to the fear of
incarceration, it is argued that women with addiction issues fail to seek prenatal
care or disclose their addiction due to fears of their children being taken away
from them. 81
Such fears are founded in reality as thousands of women have had
their children taken away from them on the basis of a positive drug test. 82
73. Another related problem is that often these arrests are based on one drug test,
which may be unreliable. See Troy Anderson, False Positives are Common in Drug Tests on New Moms, L.A. DAILY NEWS, Jun. 28, 2008, http://www.mapinc.org/drugnews/v08/n631/a06.html.
74. Mary E. Reynolds, Under the Influence: Policy Approaches to Substance Abuse During Pregnancy, 7 PRAXIS 16, 16 (2007), available at http://www.luc.edu/socialwork/praxis/pdfs/vol7_chapter2.pdf.
75. Fentiman, Fetal Protection, supra note 46, at 648.
76. Cynthia Dailard & Elizabeth Nash, State Responses to Substance Abuse among Pregnant Women, GUTTMACHER REPORT ON PUB. POL‘Y, Dec. 2000, at 3-4, available at http://www.guttmacher.org/pubs/tgr/03/6/gr030603.pdf.
77. Reynolds, supra note 74, at 18.
78. Id.
79. See infra notes 105 and 106 and accompanying text outlining a bioethical analysis of such reporting.
80. Jean Reith Schroedel & Pamela Fiber, Punitive Versus Public Health Oriented Responses to Drug Use by Pregnant Women, 1 YALE J. HEALTH POL‘Y & ETHICS 217, 222 (2001).
81. Dailard & Nash, supra note 76, at 5–6.
82. Paltrow, Governmental Responses, supra note 30, at 482.
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Even some laws that espouse a public health approach do not seem to
protect against this. For example, Oregon law states that:
If during routine pregnancy or prenatal care, the attending health care
provider determines that the patient uses or abuses drugs or alcohol
or uses unlawful controlled substances, or the patient admits such use
to the provider, it is the policy of this state that the provider
encourage and facilitate counseling, drug therapy and other
assistance to the patient in order to avoid having the child, when born, become subject to protective services.
83
Though this provision seems to advocate counseling and treatment, it is silent
about how such evidence would be viewed by child protective services. 84
Some states, such as California, take a public health approach towards a
pregnant woman‘s positive drug test. According to California law,
A positive toxicology screen at the time of the delivery of an infant is
not in and of itself a sufficient basis for reporting child abuse or
neglect. However, any indication of maternal substance abuse shall lead to an assessment of the needs of the mother and child . . . .
85
California‘s provision requires evidence of more than a positive drug test
to determine whether there is child abuse and neglect. Additionally, if there is
neglect ―due to the inability of the parent to provide the child with regular care
due to the parent‘s substance abuse,‖ the statute specifies that such report
should be made to child welfare authorities, not law enforcement. 86
Provisions
such as California‘s are unique. However, under a public health approach, such
legislation is needed in each state.
II. CRITIQUES OF THE CRIMINALIZATION APPROACH TO SUBSTANCE ABUSE
DURING PREGNANCY AND THE NEED FOR A PUBLIC HEALTH BASED APPROACH
Punishing pregnant women for their addictions by arresting them does
nothing to curb drug or alcohol addiction or protect the fetus. Section A of this
Part critiques the criminalization of drug abuse during pregnancy and advocates
for an approach that requires public health, rather than criminal law,
intervention. Section B discusses the consensus in the medical and public
health communities that locking up pregnant drug users is counterproductive.
Section C introduces a bioethical critique of the criminalization of drug use
during pregnancy. It analyzes the issue as a medical one and warns that a
pregnant woman who abuses drugs or alcohol may be reluctant to carry her
pregnancy to term or seek prenatal care if she is afraid she will be arrested due
83. OR. REV. STAT. § 430.915 (2011).
84. Id.
85. CAL. PENAL CODE § 11165.13 (West 2011).
86. Id.
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to her drug use. Section C also notes the greater risks to the fetus due to lack of
prenatal care than to illegal drug use during pregnancy. Section D details how
enforcement of drug testing and reporting seems to unfairly harm poor,
minority, urban women.
A. Why Pregnant Drug Users Need Public Health Support, Not Criminal Sanctions
In the United States, states have taken various approaches to the issue of
drug use during pregnancy. Common approaches include incarceration,
confinement, detention, or treatment. 87
America‘s ―War on Drugs‖ has
emphasized law enforcement, arrest, prosecution, and imprisonment. 88
If we are
serious about combating drug use amongst pregnant women, we cannot focus
on punitive measures such as confinement and detention. Punishment alone
does nothing to further the goal of reducing such drug use. It also ignores the
reality that women do not abuse drugs in a vacuum. There are a variety of
societal factors, such as poverty, domestic violence, lack of social support and
education, related to drug use. 89
Additionally, after a woman is already addicted
to drugs, she may not just will herself to stop even if she is pregnant. Women
need access to effective treatment options to properly overcome their
addictions. Without addressing these societal factors, a criminal model fails in
helping the woman or her baby. A public health model is broader in scope and
addresses these concerns. 90
The purpose of this article is to introduce to a legal audience what a public
health approach may entail. For a public health approach to work, pregnant
women cannot continue to face the risk that they will be arrested, committed,
incarcerated, confined, or otherwise detained due to drug use during
pregnancy. 91
The legal community needs to follow the advice of the medical
and public health community for this approach to work. If drug use during
pregnancy were discovered, a public health model would utilize treatment and
harm reduction efforts, not criminal penalties.
This article does not advocate the decriminalization of all drug use.
However, in the context of drug use during pregnancy, women cannot continue
to be criminally targeted merely for being drug addicts. In Robinson v. California, the Supreme Court held that it was unconstitutional to criminalize the status of addiction.
92 In fact, Justice Douglas wrote in his concurrence that
treating a drug addict as a criminal merely due to his or her addiction amounts
to ―cruel and unusual punishment.‖ 93
Despite such guidance, prosecutors and
judges have used law in creative ways to do just that—punish a woman for
87. PALTROW ET AL., YEAR 2000 OVERVIEW, supra note 30, at 1, 3.
88. Lester et al., supra note 18, at 3.
89. Reynolds, supra note 74, at 21.
90. Id. at 21-22.
91. See Paltrow, Governmental Responses, supra note 30, at 495.
92. Robinson v. California, 370 U.S. 660, 667 (1962).
93. Id. at 668.
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becoming pregnant when she is addicted to drugs. For a public health approach
to work, this type of punitive measure cannot exist.
Additionally, the punitive approach is not grounded in science. Legal
drugs, such as tobacco and alcohol, have been shown to have much greater risk
to the fetus than illegal drugs such as cocaine. 94
However, a criminal law
approach ignores such harms. A public health approach addresses educating
women about all of the risks associated with use of illicit and legal drugs during
pregnancy. This helps protect fetal health better than the criminal law model.
Additionally, a punitive approach discourages pregnant women to seek
treatment for their drug use. For example, the South Carolina Association of
Alcoholism and Drug Abuse Counselors reported that when South Carolina
began aggressively prosecuting women who used drugs during pregnancy,
there was an 80 percent reduction in admissions of pregnant women into drug
treatment programs. 95
B. Critiques By Medical and Public Health Organizations
For the last two decades, prominent medical organizations have criticized
the practice of the criminalization of addiction in pregnant mothers. The
American Medical Association has said that ―[p]regnant women will be likely
to avoid seeking prenatal or open medical care for fear that their physician‘s
knowledge of substance abuse or other potentially harmful behavior could
result in a jail sentence rather than proper medical treatment.‖ 96
Also troubled
that criminalization will result in lack of prenatal treatment, the American
Academy of Pediatrics has said that arresting drug addicted women who
become pregnant ―may discourage mothers and their infants from receiving the
very medical care and social support systems that are crucial to their
treatment.‖ 97
The American Public Health Association has echoed these sentiments,
stating ―women who might want medical care for themselves and their babies
may not feel free to seek treatment because of fear of criminal prosecution
related to illicit drug use.‖ 98
The American College of Obstetricians and
Gynecologists has also chastised this practice, saying that ―punitive approaches
[to maternal behavior] threaten to dissuade pregnant women from seeking
health care and ultimately undermine the health of pregnant women and their
94. Deborah A. Frank et al., Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review, 285 J. AM. MED. ASS‘N 1613, 1621-1624 (2001) [hereinafter Frank et al., Systematic Review].
95. See Dailard & Nash, supra note 76, at 6.
96. Am. Med. Ass‘n Bd. of Trustees, Legal Interventions During Pregnancy, 264 J. AM. MED. ASS‘N 2663, 2667 (1990).
97. Comm. on Substance Abuse, Am. Acad. of Pediatrics, Drug Exposed Infants, 86 PEDIATRICS 639, 641 (1990).
98. Am. Pub. Health Ass‘n, Illicit Drug Use by Pregnant Women, Policy Statement No. 9020, 8 AM. J. PUB. HEALTH 240 (1990).
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fetuses.‖ 99
These medical and public health organizations recognize the
counterproductive nature of criminal sanctions for what is a public health
problem.
C. Critique Based Upon Bioethical Principles
Applying bioethical principles to situations where women are using drugs
during pregnancy also demonstrates the detriment of requiring physicians to
police and report such use. A bioethical analysis helps highlight the error of
submerging the rights of a pregnant woman in favor of the rights of a fetus as a
victim in the criminal justice system. 100
In addition to the prosecutions
discussed earlier, some states require health care providers to directly report a
pregnant woman‘s drug or even alcohol use when a fetus appears to have been
harmed by the actions of the mother. For example, a Wisconsin statute allows
in some instances, and requires in others, physicians and other health care
professionals to disclose confidential medical information about the mother
without first seeking her consent when the physician feels that any physical
injury to a fetus was caused by the use of alcohol or controlled substances. 101
Such laws have effectively turned health care providers into state agents, 102
and
the information reported has been used to involuntarily confine pregnant
mothers, who may or may not receive actual treatment. 103
One of the common fears expressed by addicted women is that their health
care provider will report their drug use to their local department of child and
family services, who will place them in jail and their newborns and any older
children into the foster care system. 104
Therefore, studies have shown that
addicted women actively hide their drug use habits from their health care
provider. 105
This is counterproductive both for the woman and her fetus. When
a patient trusts her physician, she is more likely to reveal her continuing drug
use or other personal issues she may be facing, such as domestic violence.
Reporting requirements can jeopardize the doctor-patient relationship and may
raise some bioethical concerns. 106
Autonomy, beneficence, nonmaleficence, and
99. Comm. on Ethics, Am. College of Obstetrics & Gynecology, Committee Opinion 321 Maternal Decision Making, Ethics and the Law, 106 OBSTETRICS & GYNECOLOGY 1127 (2005).
100. Cherry, supra note 30, at 165.
101. Id. at 166-67 (citing WIS. STAT. § 905.04(4)(e)(3) (2006)).
102. Id. at 152 n.19.
103. Id. at 169-70. Cherry references one instance where a mother was confined to a locked ward with people suffering from eating disorders for several months without receiving any actual treatment for her drug addiction. Id. at 170.
104. See NANCY POOLE & BARBARA ISAAC, APPREHENSIONS: BARRIERS TO TREATMENT FOR SUBSTANCE-USING MOTHERS 17 (2001), available at http://www.hcip- bc.org/readings/documents/apprehensions.pdf.
105. See, e.g., id.
106. See Kristin Pulatie, The Legality of Drug-Testing Procedures for Pregnant Women, 10 VIRTUAL MENTOR: AM. MED. ASS‘N J. ETHICS 41, 41-43 (2008).
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justice have been identified as the most important bioethical principles. 107
This
section contends that physicians should consider each of these principles when
treating pregnant women who may be facing a drug or alcohol problem.
Autonomy refers to the idea that a physician must respect that her
pregnant patient may make her own decisions regarding her body and her
prenatal care. 108
A physician should educate a pregnant woman about the health
effects of drug and alcohol use on her fetus and attempt to reduce the harm to
the fetus by encouraging the woman to lessen or eliminate such use. However,
the woman ultimately has the right to decide whether she will continue to use
drugs and alcohol during pregnancy, especially when it comes to legal
substances. 109
By focusing on optimizing a woman‘s behavior during
pregnancy, we may be going down a slippery slope that could severely curtail
pregnant women‘s autonomy in areas beyond illegal substances. 110
A physician
must balance the autonomy concern for the pregnant woman with concerns
about the rights of the unborn fetus.
The physician must also heed the principle of nonmaleficence, which
refers to the duty to do no harm unto the patient. 111
The reporting of drug use
by pregnant women appears to violate this bioethical principle. Although
physicians may have such a reporting requirement imposed on them, they also
have the responsibility to consider the ill effects of such reporting, such as the
arrest of the pregnant woman or new mother, her children being taken away
from her, and her distrust of the medical and criminal justice system. 112
One
may argue that an obstetrician has a duty of nonmaleficence to two patients—
the soon-to-be-born fetus and the mother. Even if this is the case, the
obstetrician must properly balance these rights. The health effects of drug use
during pregnancy are variable. Some children born to mothers who used drugs
during pregnancy show some developmental delays and minor effects in their
long-term health. 113
Others develop without any such disadvantages. 114
For
pregnant users, fear of reporting may cause more harm to the soon-to-be-born
fetus than the drug use itself due to lack of proper nutritional advice and other
prenatal care. 115
Additionally, it is more likely for the woman to be harmed in
107. See generally T.L. Beauchamp & J.F. Childress, PRINCIPLES OF BIOMEDICAL ETHICS (4th ed. 1994).
108. Id. at 120-21.
109. See Sue Thomas et al., The Meaning, Status, and Future of Reproductive Autonomy: The Case of Alcohol Use During Pregnancy, 15 UCLA WOMEN‘S L.J. 1, 14 n.76 (2006).
110. For example, a pregnant woman‘s autonomy would be restricted if a physician attempted to restrict her exercise, her diet, or the amount of weight she could gain.
111. Beauchamp & Childress, supra note 107, at 189.
112. See Am. Med. Ass‘n Bd. of Trustees, supra note 96.
113. Janet W. Steverson & Traci Rieckmann, Legislating for the Provision of Comprehensive Substance Abuse Treatment Programs for Pregnant and Mothering Women, 16 DUKE J. GENDER L. & POL‘Y 315, 316 (2009).
114. Okie, supra note 22.
115. Fentiman, Rethinking Addiction, supra note 2, at 240.
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measurable ways by being arrested and having her children put into foster
care. 116
Thus, nonmaleficence appears to favor considering the woman‘s
interests over that of her fetus or newborn.
Another bioethical principle that physicians must abide by is beneficence,
which means that physicians should do only good unto their patients. 117
If a
physician counsels a pregnant woman to seek drug treatment, this would be an
example of a physician attempting to be beneficent towards his patient.
However, it is difficult to see as beneficent a physician‘s reporting a woman‘s
drug use to the authorities, if the physician knows that such reporting will likely
result in her arrest or incarceration. Even if the physician in question has to
consider two patients—the unborn fetus and the pregnant woman—reporting a
woman for using drugs during her pregnancy seems to conflict with
beneficence.
Finally, the bioethical principle of justice mandates fairness in distribution
and aims to achieve social justice. 118
Due to the over-testing and over-reporting
of minorities who rely on public assistance, 119
physicians need to be keenly
aware of how their own stereotypes may affect their own testing behavior. In
order to gain trust, a physician must consider each of these principles when
interacting with pregnant women who may be facing addiction issues.
D. Critique Based on Selective Enforcement of Drug Testing and Drug Reporting
The criminalization of drug use during pregnancy is perhaps most
troubling due to the uneven policing of pregnant women. Although studies
show drug and alcohol use during pregnancy occurs in similar percentages
amongst women of all races, those women arrested for such use are
overwhelmingly minority women. 120
Statistics show that ―[d]espite the fact that
seventy-two percent of regular drug users are white, fifteen-percent are African
American, and ten percent are Latino, of those incarcerated in state prisons on
drug charges, forty-five percent are African American, twenty-one percent are
Latino, and twenty-six percent are white.‖ 121
Minority drug users who live in
urban communities are incarcerated at a much higher rate than drug users in
suburban areas. 122
This is in part because physicians working in private
116. See Sarah C.M. Roberts & Amani Nuru-Jeter, Women‟s Perspectives on Screening for Alcohol and Drug Use in Prenatal Care, 20 WOMEN‘S HEALTH ISSUES 193, 194-98 (2010).
117. Beauchamp & Childress, supra note 107, at 259-60.
118. See Sidney Dean Watson, In Search of the Story: Physicians and Charity Care, 15 ST. LOUIS U. PUB. L. REV. 353, 358 (1996).
119. See infra Part III, Section B.
120. Hora & Stalcup, supra note 36, at 722.
121. Id.
122. Roberts, supra note 62, 1432-33. Professor Dorothy Roberts discusses how black women are ―the least likely to obtain adequate prenatal care, the most vulnerable to government monitoring, and least able to conform to the white middle-class standard of motherhood. They are therefore the primary targets of government control.‖ Id. at 1422.
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hospitals are less likely to test for drug use than physicians in public
hospitals. 123
According to a Casey Family Report, both public and private
hospitals over-report abuse and neglect among blacks while they under-report
maltreatment among Caucasians. 124
Professor Dorothy Roberts has noted that
―[t]here is a strong stereotype that black mothers are irresponsible . . . and the
entire image of the ‗crack baby‘ is that of a black child. So people who have to
identify substance-abusing mothers and make decisions about it are influenced
by these stereotypes.‖ 125
The ill prospects of ―crack babies,‖ who were overwhelmingly perceived
as babies born to black, inner-city mothers, were largely exaggerated based on
fear. 126
Newspaper headlines such as ―Cocaine: A Vicious Assault on a Child,‖
―Crack‘s Toll Among Babies: A Joyless View‖ and ―Studies: Future Bleak for
Crack Babies‖ appear to have been overblown due to fears of the long-term
effects of cocaine use during pregnancy. 127
The long-term effects of cocaine
exposure on children‘s brain development and behavior appear relatively
small. 128
Although cocaine is harmful for the fetus, its effects appear to be less
severe than those of alcohol and are comparable to those of tobacco, which are
both legal substances. 129
There has been a strong racial component to the drug arrests of pregnant
women. It appears that black women were vilified for harming their fetuses due
to their crack and cocaine use, despite the lack of scientific data to support such
a contention. There are staggering percentages of racial differentials in foster
care as well. For example, nearly 90 percent of all children in Los Angeles
County‘s foster-care system are minorities. 130
While only 10 percent of the
county‘s general population is black, black children make up nearly 36 percent
of all children in the county‘s foster-care system. 131
This has led to concern that
hospitals are performing the vast majority of drug screening tests 132
on minority
pregnant women and removing the children of those who fail the screening
123. Gina Kolata, Bias Seen Against Pregnant Addicts, N.Y. TIMES, July 20, 1990, at
A13 (―[P]oor women are more likely to be prosecuted because public hospitals, where poor women go for care, are most vigilant in their drug testing and more likely than private hospitals to report women whose tests show drug use.‖).
124. Troy Anderson, Race Tilt In Foster Care Hit: Hospital Staff More Likely To Screen Minority Mothers, L.A. DAILY NEWS, June 30, 2008, at A1 [hereinafter Anderson, Race Tilt] (discussing that a study published in the Journal of Women‟s Health found black women and their newborns were one-and-one-half times more likely to be tested for illicit drugs than women of other races).
125. Id.
126. Okie, supra note 22.
127. Id.
128. See Frank et al., Systematic Review, supra note 94.
129. Pilkington, supra note 1.
130. Anderson, Race Tilt, supra note 124.
131. Id.
132. Id.
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tests into foster care. 133
It has been suggested that such targeting of minorities is
purposeful and represents a new eugenics movement. 134
III. EXAMINING THIS ISSUE THROUGH A PUBLIC HEALTH LAW LENS
In the last several years, as arrests of pregnant women for drug and
alcohol abuse persist, experts in the medical and public health field have called
for an end to the criminalization of addiction. 135
Such criminalization has not
reduced or prevented drug and alcohol abuse among pregnant women. 136
Public
health scholars generally distrust law-enforcement-only based approaches due
to the lack of evidence that such approaches change behavior or reduce harm. 137
A public health based approach towards drug use would likely include drug
treatment as a necessary complement to such enforcement. 138
This article contends that a comprehensive public health based approach is
needed to address this issue. Although several scholars advocate such an
approach, 139
there are no articles in the literature that detail what such an
approach entails with regards to addicted pregnant women. This article
describes what public health methodologies need to be used to appropriately
address the issue of drug use during pregnancy. A public health approach
deemphasizes criminal sanctions and focuses on changing societal views and
133. Id.
134. Roberts, supra note 62, at 1472. Eugenics refers to the concept that only those who are deemed genetically superior by virtue of their race or lack of disability should be able to reproduce. Id. at 1473. In Buck v. Bell, Justice Cardozo infamously stated that ―three generations of imbeciles are enough‖ in the context of forced sterilizations of a woman who was deemed mentally feeble. 274 U.S. 200, 207 (1927). Scholars, such as Dorothy Roberts, have drawn parallels between the eugenics movement of the early 1900s and the War on Drugs, especially in the context of pregnant drug users. See generally DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE MEANING OF LIBERTY (1998).
135. See supra notes 96-99 and accompanying text discussing professional recommendations. One of the reasons for this recommendation is due to the acceptance in medical and public health circles that addiction is a mental disease that should not be stigmatized, but that instead should be treated as any other mental disease. In fact, scientific evidence suggests that drugs create lasting changes in the brain that are responsible for distorting a user‘s cognitive and emotional functioning. See Ellen M. Weber, Bridging the Barriers: Public Health Strategies for Expanding Drug Treatment in Communities, 57 RUTGERS L. REV. 631, 638-39 (2005) (―Twenty years of scientific research . . . has convinced the majority of the biomedical community . . . that addiction is a brain disease: a condit ion caused by persistent changes in brain structure and function.‖).
136. See Fentiman, Perfect Mother, supra at note 11, at 462.
137. See, e.g., Scott Burris et al., Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial, 39 ARIZ. ST. L.J. 467, 468 (2007) (noting that passing laws regarding risky HIV behavior does not influence people‘s normative beliefs about such risky behavior).
138. See NAT‘L CONFERENCE OF STATE LEGISLATURES, ONLINE SENTENCING AND CORRECTIONS POLICY UPDATES 3 (2010) (describing how state efforts to curb substance abuse include both criminal sanctions and drug treatment), available at http.ncsl.org/portals/l/Documents/cj/bulletinFeb-2010.pdf.
139. See, e.g., Fentiman, Rethinking Addiction, supra note 2, at 269-70.
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behaviors. 140
Looking at this issue through a public health lens focuses on
prevention or harm reduction rather than simply punishment. 141
Additionally,
examining this issue through a public health lens allows one to identify and
confront the underlying causes of drug use by pregnant women. 142
This Part will define a public health approach and detail how such an
approach, with its emphasis on prevention and harm reduction, may be
implemented. It will also apply public health ethics to the issue of drug use
during pregnancy to show the benefits of a public health approach. Finally, this
Part will address potential shortcomings of a public health based approach.
A. Defining A Public Health Approach
Before delving into public health methodologies, it is important to define
them. Public health scholars focus on differences in health between
populations, rather than individuals. Social epidemiology is an important public
health tool that focuses on how social determinants, such as socioeconomic
status, affect health. 143
A public health law lens requires taking a structural
approach to health that identifies the population-based factors that may
influence health, rather than focusing on an individual‘s personal behavior. 144
Applying the public health tool of social epidemiology to the issue of drug use
during pregnancy would require us to systematically examine whether factors
such as women‘s economic backgrounds, insurance status, access to health
care, access to child care, access to social services and drug treatment, access to
prenatal care and education, family and community support structures, or
education level correlate to a likelihood of abusing drugs and alcohol in general
and during pregnancy in particular.
In addition to social epidemiology, this issue may be properly analyzed
using population-based legal theory, which emphasizes the key role of
140. Jonathan Todres, Moving Upstream: The Merits Of A Public Health Law Approach to Human Trafficking, 89 N.C. L. REV. 447, 452-53 (2011) (applying public health methodologies to the issue of human trafficking).
141. See PUB. HEALTH AGENCY OF CAN., WHAT WE HAVE LEARNED: KEY CANADIAN FASD AWARENESS CAMPAIGNS 21 (2006), http://www.phac-aspc.gc.ca/publicat/fasd-ac- etcaf-cs/pdf/fasd-ac-etcaf-cs_e.pdf; Elizabeth E. Coleman & Monica K. Miller, Assessing Legal Responses To Prenatal Drug Use: Can Therapeutic Responses Produce More Positive Outcomes Than Punitive Responses?, 20 J.L. & HEALTH 35, 61-63 (2006-07); Luis B. Curet, Drug Abuse During Pregnancy, 45 CLINICAL OBSTETRICS & GYNECOLOGY 73, 77 (2002); Lester et al., supra note 18, at 26.
142. See PUB. HEALTH AGENCY OF CAN., supra note 141, at 21; Coleman & Miller, supra note 141, at 61-63; Curet, supra note 141, at 77; Lester et al., supra note 18, at 26.
143. Lisa F. Berkman & Ichiro Kawachi, A Historical Framework for Social Epidemiology, in SOCIAL EPIDEMIOLOGY 3, 3-6 (Lisa F. Berkman & Ichiro Kawachi eds., 2000); see, e.g., Michael Marmot, Social Determinants of Health Inequalities, 365 LANCET 1099, 1099 (2005).
144. See Lawrence O. Gostin et al., The Law and the Public‟s Health: A Study of Infectious Disease Law in the United States, 99 COLUM. L. REV. 59, 71 (1999).
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population-based or structural factors in health. 145
Wendy Parmet, a pioneer in
the field of public health law, describes public health law as the impact of laws
and judicial decisions on the population as a whole, rather than individual
parties to a lawsuit. 146
Parmet notes that the promotion and protection of public
health is a fundamental objective of the law. 147
Her approach emphasizes the
need for empirical and quantitatively based legal studies with the populations
affected by certain laws. 148
Such legal studies are missing in the area of the
criminal treatment of drug use during pregnancy. 149
Prosecutors continue to
arrest women for drug use during pregnancy for violation of fetal protection or
similar laws, without the aid of empirical or quantitative studies examining the
effects of such methods. 150
In order to enact sound public health policy, it is
important to study the impact of laws related to addicted pregnant women, such
as fetal protection laws. Systematic evidence-based research is particularly
challenging in the context of addicted mothers, due to the stigma associated
with drug and alcohol use during pregnancy.
Population-based legal theory also relies upon empirical methods that
focus on how the law is actually implemented and how it influences population
factors. 151
In this context, it is important to examine whether the use of laws
targeting drug use during pregnancy is being directed towards certain segments
of the population, such as women who receive public aid or minority women.
Using such a lens, the law itself can be thought of as a structural determinant of
health and one that can evolve to promote better outcomes. 152
A public health
law approach would require empirical studies to be designed and conducted to
determine how the use of certain fetal protection statutes to incarcerate drug-
addicted pregnant women affects women‘s health and prenatal care in general.
Similar studies have been conducted in other contexts. 153
A public health law
approach would attempt to explore how the laws relating to reporting of drug
145. See generally WENDY E. PARMET, POPULATIONS, PUBLIC HEALTH, AND THE LAW 1-77 (2009) (discussing the framework of a population-based legal approach).
146. Id. at 2.
147. Id.
148. Id.
149. See Steverson & Rieckmann, supra note 113, at 15.
150. See Fentiman, Rethinking Addiction, supra note 2, at 266.
151. See PARMET, supra note 145, at 53-54; see Zita Lazzarini, Assessing The Public Health Response During And After The Emergency: Lessons From The HIV Epidemic. 4 ST. LOUIS U. J. HEALTH L. & POL‘Y 187, 201-203 (2010) (discussing the desirability of empirical studies to link law and behavior).
152. Scott Burris et al., Integrating Law and Social Epidmiology, 30 J.L. MED. & ETHICS 510, 510 (2002).
153. Kim M. Blankenship et al., Black-White Disparities in HIV/AIDS: The Role of Drug Policy and the Corrections System, 16 J. HEALTH CARE POOR & UNDERSERVED, Nov. 2005, at 140 (examining how drug policy impacts HIV/AIDS).
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use and pregnant women are enforced—whether they are enforced fairly or in a
way that leads to disparities. 154
A public health law lens also requires us to examine laws and policies in
the social context in which the law works. 155
This includes what people believe
about what is legal and how they act upon it. 156
Therefore, even if a woman
lives in a jurisdiction that has adopted a public health based approach to drug
treatment, if she believes that revealing her drug use would result in her going
to jail, the public health based policy has failed. Those affected by public health
policies must be educated about their existence if the policies are to have their
desired impact.
B. The Need For Evidence-Based Policy
A public health based approach requires evidence-based research to
determine what laws and policies are appropriate. 157
There is a need for
systematic public health law research in this area. 158
In order to do this,
researchers must use a scientific approach that involves defining the issue of
drug use during pregnancy. Public health experts must collect demographic
information about those who use drugs and alcohol during pregnancy and study
what risk factors seem to lead to such behavior. 159
As a first step in any public
health law analysis, we would need to determine the incidence of substance
abuse during pregnancy in the population of a certain county, state, or
geographic region.
Drug use is typically detected by self-reporting, past history, or drug
testing. 160
Examples of national databases that are helpful to determine this data
are the National Pregnancy and Health Survey and the National Household
Survey on Drug Abuse. Both of these databases contain rich data with regards
to demographic information. These are good starting points for epidemiological
research, but there are many problems with the numbers.
161 Self-reporting has
154. See PARMET, supra note 145, at 1 (describing ―salus populi suprema lex‖ (―the well being of the community is the highest law‖) as meaning that attainment of public good was the rationale for civil society).
155. See Susan S. Silbey, Legal Culture and Legal Consciousness, in INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL & BEHAVIORAL SCIENCES 8623, 8623 (Neil J. Smelser & Paul B. Baltes eds., 2001).
156. Id. at 8624
157. Marsha Garrison, Reforming Child Protection: A Public Health Perspective, 12 VA. J. SOC. POL‘Y & L. 590, 600 (2005) (examining child maltreatment through a public health lens).
158. See Fentiman, Rethinking Addiction, supra note 2, at 239-40 (citing the lack of studies in this area).
159. Todres, supra note 140, at 470-71 (detailing how evidence-based strategies could be used in human trafficking).
160. Lester et al., supra note 18, at 5.
161. Lana Harrison, The Validity of Self-Reported Drug Use in Survey Research: An Overview and Critique of Research Methods, in 167 NATIONAL INSTITUTE ON DRUG ABUSE RESEARCH MONOGRAPH 17, 18 (Lana Harrison & Arthur Hughes eds., 1997).
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been shown to be an underestimate of true incidence of drug and alcohol use
during pregnancy because of the stigma involved with such use. 162
For
example, self-reporting has been shown to underestimate cocaine use during
pregnancy. 163
Additionally, reporting by health professionals of such use is an
inaccurate measure, due to detection bias. 164
Due to racial and cultural
stereotypes, a physician may fail to ask a suburban white mother about her drug
habits during pregnancy, let alone test her, while the physician may be more
likely to ask and test a black pregnant woman living in the inner city. 165
If not
all women are tested, the statistics can be misleading and skewed. All of these
caveats must be taken into consideration when designing evidence-based
studies.
A nuanced analysis is required to truly determine incidence of drug and
alcohol use during pregnancy. Public health researchers focus on the causes of
the incidence of cases, which focuses on population measures of disease, rather
than on causes of the cases themselves, which only measure individual
measures of disease. 166
Some public health tools that could be incorporated into
evidence-based studies could be public health surveillance, risk group
identification, risk factor exploration, and program implementation and
evaluation. 167
Public health surveillance refers to the ongoing data collection
and interpretation of health data essential to the ―planning, implementation, and
evaluation of public health practice.‖ 168
Surveillance in this context would be to
identify geographic and demographic patterns of drug and alcohol use among
pregnant women. This information would be used to identify high-risk
populations and develop programs to help support those populations. Risk
group identification would help determine which populations are most at risk
for drug use during pregnancy. Risk factor exploration would allow researchers
to systematically determine what risk factors are present in order to prevent
women from using drugs and reduce the harm from such use. 169
The most effective study designs will need to be developed by
epidemiologists working in this field. This article suggests the need to tie such
research studies to health policy and drug policy. We need to determine what
the effects of our current drug policy are as it relates to reducing rates of
162. Id.; see also Lester et al., supra note 18, at 5 (noting the underestimates of self- reporting of cocaine).
163. Deborah A. Frank et al., Cocaine Use During Pregnancy: Prevalence and Correlates, 82 PEDIATRICS 888, 888 (1988) (noting that up to 24 percent of mothers with positive cocaine tests denied using cocaine).
164. See MICHAEL S. KRAMER, CLINICAL EPIDEMIOLOGY AND BIOSTATISTICS 53 (1988).
165. See supra Part II, Section D and accompanying notes.
166. See Geoffrey Rose, Sick Individuals and Sick Populations, 14 INT‘L J. EPIDEMIOLOGY 32, 34–35 (1985).
167. Id.
168. World Health Org., Public Health Surveillance, http://www.who.int/topics/public_health_surveillance/en/ (last visited Nov. 5, 2011).
169. See Rose, supra note 166, at 32 (stating that the discovery of risk factors ―identif[ies] certain individuals as being more susceptible to disease‖).
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prenatal drug use. When developing such a study, it would be useful to have
data that compares a state or city that has adopted a comprehensive public
health based drug policy 170
to a state or city that has focused heavily on
criminalization of drug use, especially for pregnant women. States such as
South Carolina and Alabama may fall within this latter category. 171
Tracking
how drug use rates have changed over a period of time after the adoption of
such policies and how the prevalence of drug use among women of
childbearing age has changed would be useful tools to determine future policy.
Such retrospective studies may help policy makers enact an effective legal and
law enforcement approach to drug use in pregnancy.
Additionally, more studies should be designed to test the
recommendations of the public health community that criminalizing drug use
during pregnancy has negative health consequences on pregnant drug users and
their babies due to lack of utilization of prenatal care and lack of drug
treatment. 172
Using the results of properly designed studies that are fashioned to
minimize bias, public health officials could determine what interventions, such
as education campaigns and legislation, may be most effective.
C. Prevention
Prevention is a key component of any public health based policy. 173
One
of the justifications used for criminalizing drug use during pregnancy via fetal
protection statutes or similar laws is that the threat of punishment will have a
deterrent effect on such drug use. 174
However, there is no evidence to this
assumption. Rather, if anything, it appears that the numbers of infants exposed
to drugs and alcohol in utero is increasing. 175
Additionally, those who work
with pregnant women with addiction issues report that fears of criminalization
170. For example, Vancouver has decriminalized almost all drug use. It has implemented a citywide drug policy incorporating harm reduction, prevention, treatment, and enforcement. City of Vancouver, Four Pillars Drug Strategy, http://vancouver.ca/fourpillars/index.htm (last visited November 4, 2011).
171. See Fentiman, Fetal Protection, supra note 46, at 661.
172. One potential study could retroactively determine how utilization rates of prenatal care in public clinics vary according to how actively that state or county pursues criminalization of drug use during pregnancy. This could be measured by whether the state has a narrow ―fetal protection‖ statute or regulation that specifically targets drug use by pregnant women. If such a study could show varying rates of prenatal care, it could prove the hypothesis that such prosecution has ill health effects on the babies born to such mothers. One problem with such a study is that it will not be able to measure how many women choose to terminate their pregnancy due to fear of being arrested due to their drug use.
173. Todres, supra note 140, at 480.
174. See Fentiman, Rethinking Addiction, supra note 2, at 239.
175. David C. Brody & Heidee McMillin, Combating Fetal Substance Abuse and Governmental Foolhardiness Through Collaborative Linkages, Therapeutic Jurisprudence and Common Sense: Helping Women Help Themselves, 12 HASTINGS WOMEN‘S L.J. 243, 244 (2001).
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result in these women avoiding prenatal care and lying about their drug use. 176
Furthermore, a criminal-law-based approach only deals with the drug use after
it has occurred. This does not make sense from a public health point of view. 177
A public-health-centered approach to this issue focuses on preventing drug and
alcohol abuse, especially among women of childbearing age. 178
This method
moves from ―reacting to [a problem] to a focus on changing the social,
behavioral, and environmental factors that cause [the problem].‖ 179
In order to identify the root causes of drug and alcohol use amongst
pregnant women, it is necessary to examine both individual risk factors for
such drug use and the role of societal factors. 180
A key facet of prevention is
early intervention and education by schools, community groups, and health care
providers. 181
Prevention may include the use of peer programs in elementary
and middle schools. 182
Mentoring programs have also been shown to benefit
high-risk populations, such as those likely to abuse drugs and alcohol. 183
In
fact, one study found that youths with mentors were 46 percent less likely to
start using drugs and 27 percent less likely to start using alcohol. 184
The study
showed that the effects were even more dramatic amongst minority youth. 185
Another tool for prevention may be educational campaigns in schools and
community-wide about the health, social, and criminal consequences of drug
use. 186
Members of law enforcement, prosecutors, and even judges could play a
role in educating community members about the criminal consequences of
illicit drug use. By focusing on prevention, the hope is that fewer individuals
begin to use drugs and, therefore, fewer need to face the criminal justice
system.
The public health model can be effectively implemented by state and
federal legislatures. At least sixteen states have legislation requiring education
176. NANCY POOLE, BRITISH COLOMBIA CTR. OF EXCELLENCE FOR WOMEN‘S HEALTH, EVALUATION REPORT OF THE SHEWAY PROJECT FOR HIGH-RISK PREGNANT AND PARENTING WOMEN 11-17 (2000), available at http://www.hcip- bc.org/readings/documents/shewayreport.pdf.
177. See Todres, supra note 140, at 481 (comparing such an approach to the ludicrous example of government not vaccinating individuals in favor of a policy allowing an infectious disease outbreak to occur and trying to hold responsible parties accountable after the fact).
178. See Fentiman, Perfect Mother, supra note 11, at 462.
179. Todres, supra note 140, at 482 (quoting James A. Mercy et al., Public Health Policy for Preventing Violence, HEALTH AFFAIRS, Winter 1991, at 8).
180. Id.
181. Id.
182. Id. at 483.
183. David L. Dubois et al., Effectiveness of Mentoring Programs for Youth: A Meta- Analytic Review, 30 AM. J. COMMUNITY PSYCHOL. 157, 189 (2002).
184. JOSEPH P. TIERNEY & JEAN BALDWIN GROSSMAN, PUBLIC/PRIVATE VENTURES, MAKING A DIFFERENCE: AN IMPACT STUDY OF BIG BROTHERS BIG SISTERS 30 (2000), available at http://www.ppv.org/ppv/publications/assets/111_publication.pdf.
185. Id. at 22.
186. Id. at 8.
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of women about the ill effects of drug use during pregnancy. 187
Many states
have legislation requiring medical providers to inform pregnant women of the
adverse effects of drug use on the fetus during pregnancy. 188
As a public health
tool, this is of limited use. 189
It does not address the real concern that drug-
addicted women are not seeking prenatal care due to fear of punitive sanctions.
Such an educational campaign occurs too late. However, other legislative
proposals are good models for states to implement. For example, Arizona has
legislation that requires middle- and high-school students to be educated on
―the nature and harmful effects of alcohol, tobacco, narcotic drugs, marijuana .
. . and other dangerous drugs on a human fetus.‖ 190
Such legislation allows
young girls to learn about the dangers of such drug use, hopefully before they
become pregnant or use drugs. A public health approach to prevention is
bolstered by legislation such as this.
Additionally, a public health approach to prevention requires a
comprehensive analysis on what societal, economic, educational, and health
policies lead to certain populations being more likely to abuse drugs. 191
More
studies linking law enforcement policy towards drug use and outcomes would
aid in such analysis. Such an analysis is necessary to address the root causes of
drug use in general and among pregnant women specifically. Some states have
legislation that requires research to be conducted about substance abuse during
pregnancy. 192
This article gives examples of tools that may be used to prevent
drug use, but it is only a starting point. The main purpose of this discussion is
to demonstrate the importance of focusing on prevention, rather than criminal
penalties, when dealing with the complex issue of drug use during pregnancy.
D. Harm Reduction
A public health approach to drug use during pregnancy would also focus
on harm reduction. 193
Harm reduction refers to the process of reacting to the
problem (drug use) once it has occurred and trying to minimize the effects as
much as possible. 194
An important facet of harm reduction is accepting drug use
as a health or medical issue, rather than a criminal issue. 195
Those who favor a
187. Schroedel & Fiber, supra note 80, at 224.
188. Id. at 224-25.
189. Id. at 225.
190. ARIZ. REV. STAT. ANN. § 15-712 (2011).
191. It is necessary to examine how various factors, such as the lack of a primary health care provider or the lack of education, help facilitate drug use. See Todres, supra note 140, at 485.
192. Schroedel & Fiber, supra note 80, at 224.
193. Andrew Tatarsky, Harm Reduction Psychotherapy: Extending the Reach of Traditional Substance Use Treatment, 25 J. SUBSTANCE ABUSE TREATMENT 249, 249 (2003), available at http://www.andrewtatarsky.com/pubs/journalofsubstanceabuse_tatarsky_2003.pdf.
194. Id.
195. Joanna N. Erdman, Access To Information On Safe Abortion: A Harm Reduction and Human Rights Approach, 34 HARV. J.L. & GENDER 413, 426 (2011) (―Medicalization,
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harm reduction approach realize that drug-abusing women need support,
treatment, and family friendly policies, not jail time. 196
Scholars have suggested
that a harm reduction approach would require judges and law enforcement to
stop removing newborn infants and other children from a pregnant substance
abuser‘s custody without other evidence of harm or neglect. 197
Those who
abuse drugs may be able to take care of their children better than the foster care
system. 198
Allowing a mother to keep custody of her children while seeking
treatment may cause more women to seek out treatment. 199
Some states, like
California, currently have legislation that states that drug use alone cannot be
the basis of a finding of child abuse or neglect. 200
However, this is the
exception. Under a harm reduction model, legislation like California‘s would
be required, coupled with treatment opportunities giving mothers a chance to
recover from their addiction.
One of the most important facets of a successful harm reduction approach
would be availability of appropriate and comprehensive drug treatment. 201
There is a need for more drug treatment programs aimed at pregnant women. 202
Further, there is a need for more women-only drug treatment programs, which
have been shown to be more effective. 203
Even when there is a desire to provide
treatment to addicted pregnant women, a ―cure‖ may be difficult. Drug
particularly the shift from crime to health, thus accounts for the strength of harm reduction as a public discourse. With its focus on public health harms and its rational claims to a normatively neutral, pragmatic approach, harm reduction can bring together disparate political and other actors, maximize the appeal of an intervention, and afford political legitimacy to action on an otherwise controversial issue.‖).
196. Lynn M. Paltrow, The War on Drugs and the War on Abortion: Some Initial Thoughts on the Connections, Intersections and the Effects, 28 S.U. L. REV. 201, 216 (2001).
197. Brody & McMillin, supra note 175, at 266.
198. See Lester et al., supra note 18, at 26.
199. Id.
200. Schroedel & Fiber, supra note 80, at 223.
201. CAN. CTR. ON SUBSTANCE ABUSE, RESPECT IS KEY TO HELPING PREGNANT WOMEN WITH SUBSTANCE ABUSE PROBLEMS: A CONVERSATION WITH PAM WOODSWORTH 2 (2001), available at http://www.hcip-bc.org/readings/documents/RespectisKey.pdf [hereinafter CAN. CTR. ON SUBSTANCE ABUSE, RESPECT IS KEY]. Additionally, rather than ―blame the woman who was using and say that the fetus has rights and she needs to be incarcerated and we need to force her into sobriety,‖ it is important to treat pregnant women who may be addicted to drugs or alcohol with respect and dignity. Id. A judgmental or punitive approach results in ―push[ing] underground all the other women who are using.‖ Id. One educator noted that when she approaches the subject of fetal alcohol syndrome (FAS) with the women in her group, she attempts ―to eliminate any of the elements of blaming and shaming‖ so they will continue to come back to their sessions. Id.
202. Steverson & Rieckmann, supra note 113, at 322-23 (noting that as of 2007, out of 13,648 mental health and substance abuse facilities nationwide, only 1,926 had programs specifically designed for pregnant and postpartum women).
203. Id. at 320 (―[A] women-only program is most often preferred because, overall, (1) women in women-only drug abuse treatment programs were more than twice as likely to complete treatment as women in mixed-gender programs and (2) pregnant women in women-only drug abuse treatment programs averaged more days in treatment than did those in mixed-gender programs.‖).
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treatment is a costly, time consuming, and complicated endeavor. In cases of
addicted women who are pregnant, barriers to treatment include distrust of the
medical community, lack of support systems, and lack of childcare for other
children. 204
Advocates in this area note that even when a pregnant woman
realizes she needs help for her addiction, she may not seek such treatment
because of the concern that her baby or other children will be taken away from
her and put into the foster care system. 205
Treatment must be a viable option for pregnant women. Although women
are as likely, if not more likely, as men to suffer from drug addiction, they
represent a small fraction of those receiving treatment. 206
One of the reasons for
this is likely the lack of childcare at treatment centers. 207
In fact, one survey
found that only 0.1 percent of those in treatment had access to childcare
services. 208
Many treatment facilities refuse to accept pregnant women due to
fears of liability if drug-affected children are born to these women. 209
Legislation that limits such liability may be effective in allowing for more
access to such facilities to pregnant women.
One way the legal system has attempted to incorporate drug treatment into
the criminal justice system is by utilizing ―drug courts.‖ 210
The first official
drug court was established in Florida in 1989. 211
In 2004, there were over 1600
drug treatment courts in the United States. 212
Such courts embrace the concept
that addiction is a disease and attempt to place drug-addicted offenders into a
treatment program. 213
While this is certainly a better approach to drug use than
a purely criminal model, it does not address the unique case of drug use during
pregnancy. In most cases where women are arrested for drug use during
pregnancy, the drug use is not incidental—it is actually the ―crime.‖ That is, the
woman is being brought on criminal neglect, child abuse, manslaughter, or
even murder charges merely due to the fact that she used drugs during
pregnancy. 214
Therefore, although laudable, drug courts are not an appropriate
method to deal with the issue of drug use during pregnancy.
Additionally, even if it is not possible to ―cure‖ or even stop pregnant
women from drinking or using alcohol, there are steps that can be taken to
reduce the harm of such use. For example, improving the nutritional status of
these women has been shown to result in better outcomes for the babies these
204. Id. at 322.
205. Id. at 318.
206. Schroedel & Fiber, supra note 80, at 225.
207. Id.
208. Id.
209. Id.
210. Hora & Stalcup, supra note 36, at 725.
211. Id.
212. Id.
213. Id.
214. See Fentiman, Perfect Mother, supra note 11, at 398-408.
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women are carrying. 215
To reduce harm, women must be provided with
education about how to best take care of themselves and their children, even
when facing addiction issues. 216
In order to be successful, such topics require
sensitivity and trust. 217
A public health approach requires a nonjudgmental,
respectful attitude towards women who may be using drugs or alcohol during
their pregnancy. 218
Both governmental and non-governmental community-
based organizations should aim to work together to reduce harm in these
situations.
Food for Thought, a community-based project in Saskatchewan, Canada,
funded by Canada‘s Prenatal Nutrition Program, 219
is a good example of how
community and government efforts may aid in harm reduction. Food for
Thought is designed ―to assist low income, high-risk pre- and post-natal women
to achieve an optimal level of health.‖ 220
It works with several organizations,
including an inner-city health clinic, social services, addiction services, and a
pregnancy outreach program to help achieve this goal. 221
They have several
community sites and work with women who are pregnant and mothers whose
children are less than six months of age. 222
Food for Thought provides
transportation, on-site childcare, and afternoon sessions to help women. 223
Such
sessions include a nurse, a nutritionist, and past graduates (―peer leaders‖) of
the program. 224
Even if these women do not stop drinking or using drugs during
pregnancy, they are offered support and education about prenatal care and
nutrition. 225
These types of efforts are necessary on a large scale to reduce
harm. There are some reports of smaller scale efforts in communities in the
United States to help pregnant women seek help for drug addiction. 226
215. CAN. CTR. ON SUBSTANCE ABUSE, RESPECT IS KEY, supra note 201, at 2.
216. Id.
217. Tatarsky, supra note 193, at 251-53. See, e.g., CAN. CTR. ON SUBSTANCE ABUSE, NURTURING CHANGE: WORKING EFFECTIVELY WITH HIGH RISK WOMEN AND AFFECTED CHILDREN TO PREVENT AND REDUCE HARMS ASSOCIATED WITH FASD 18 (2004), available at http://www.hcip-bc.org/readings/documents/NurturingChangeFinal-GR1.pdf [hereinafter CAN. CTR. ON SUBSTANCE ABUSE, NURTURING CHANGE] (noting that in order to assist pregnant mothers with substance abuse problems a trusting relationship must be formed with the mother).
218. See CAN. CTR. ON SUBSTANCE ABUSE, NURTURING CHANGE, supra note 217 at 17.
219. CAN. CTR. ON SUBSTANCE ABUSE, RESPECT IS KEY, supra note 201, at 1.
220. Id.
221. Id.
222. Id.
223. Id.
224. Id.
225. Id. at 3. Furthermore, the more time mothers spend at these community, the less time they will be alone and possibly engaging in addictive behavior. As one of the employees for Food for Thought puts it, ―When someone [is] with us for 2 ½ hours in an afternoon, I [know] for a fact that they didn‘t drink during that period. Id. at 2.
226. See, e.g., Sarah C. M. Roberts & Amani Nuru-Jeter, Women‟s Perspectives on Screening for Alcohol and Drug Use in Prenatal Care, 20 WOMENS‘ HEALTH ISSUES 193 (2010), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2869475/ (discussing a
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However, these efforts are not on a macro level. These types of harm reduction
endeavors need to become more commonplace for a public health approach to
drug use during pregnancy to succeed.
In an ideal harm reduction model, legislation would be enacted to allow
for the treatment of drug addiction during pregnancy without punitive
measures. This would involve removing legal obstacles that drug-abusing
women may face in terms of treatment. This may include addressing the issue
of child custody. Some have suggested that creating family drug courts that
would allow a woman to keep her children as long as she is attending treatment
and testing clean may reduce harm. 227
Under a harm reduction approach, judges
and prosecutors would not punish women for suffering from drug addiction
while pregnant by incarcerating them or removing their children from them
without other proof of neglect or harm. Ideally, women‘s drug addiction would
be dealt with in the medical and public health realm.
E. Using Public Health Ethics to Determine an Appropriate Policy Related to Drug Use During Pregnancy
Despite the lack of evidence to support it, certain criminal prosecutors still
believe that the policy of charging pregnant women for drug use advances
public health by deterring drug use during pregnancy. 228
Examining this issue
using public health ethics may contradict this assertion. According to accepted
public health ethics, a public health policy must have proof that moral
considerations, such as protecting privacy, avoiding harms, or promoting
autonomy, need to be violated to achieve a public health goal. 229
Additionally,
if there are two competing policies that provide the same public health benefit,
policymakers should choose the one that infringes least upon those moral
considerations. 230
This theory is known as the least infringement principle. 231
Thus, looking through a public health lens, a policy of arresting a woman for
evidence of drug use during pregnancy would only be valid if it achieved the
public health goal sought and there were no other similar competing policies
that would cause less harm. 232
When examining the issue through this paradigm, several flaws in the
policy of criminalization become apparent. First, there is no evidence to
study related to whether pregnant women trust the medical system enough to seek aid for their addictions).
227. Lester et al., supra note 18, at 26-30.
228. Fentiman, Rethinking Addiction, supra note 2, at 239.
229. See James F. Childress et al., Public Health Ethics: Mapping the Terrain, 30 J.L. MED. & ETHICS 170, 171-73 (2002) (citing additional moral considerations such as avoiding, preventing, and removing harms, producing the maximal balance of benefits over harms and other costs distributing benefits and burdens fairly).
230. Id. at 173.
231. Id.
232. Id.
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suggest that targeting women who use drugs during pregnancy prevents such
use, protects children, or serves any other public health purpose. 233
Secondly,
there is evidence that such targeting actually prevents pregnant women from
seeking prenatal care or drug treatment. 234
Thus, under this framework, the
policy of prosecuting women due to their drug use during pregnancy is invalid.
It infringes upon moral considerations without showing any public health
result. ―A policy that infringes one or more general moral considerations in the
name of public health but has little chance of realizing its goal is ethically
unjustified.‖ 235
If it is not necessary to infringe upon a general moral
consideration to implement a public health policy, one should adopt the
alternative strategy that is ―less morally troubling.‖ 236
Here, under a public
health approach, it appears that the policy of offering treatment and harm
reduction offers a plausible alternative.
Under a public health based policy to drug use, legislators may need to
advocate for legislation that requires more than a positive drug test to have a
woman‘s children taken away and legislation that provides more drug treatment
facilities aimed at women. 237
Prosecutors and judges must realize that throwing
a pregnant woman or new mother in jail due to proof of her illegal drug use
may not help her or her baby. Rather, sentences that allow for effective
treatment may be necessary. To achieve this, a public health based approach
must also allow for education of judges and prosecutors. Many judges and
prosecutors honestly believe they are helping families and babies and even
women themselves by arresting and incarcerating women who use drugs during
their pregnancy. Just as education is needed in schools to help prevent drug use,
education is needed for decision makers in the legal system to understand this
as a public health problem that requires a public health based solution, not a
punitive solution.
F. Limitations of a Public Health Based Approach
Although there are upsides to a public health based approach to drug use
during pregnancy, it is necessary to acknowledge the limitations of such an
approach. First, unfortunately, state and local budgets are tight, 238
and the
programs suggested would likely require increased public health funding
focusing on drug and alcohol abuse prevention and prenatal education. To
move towards a public health approach to drug use during pregnancy, the
priorities of the national and state governments towards drug use must change
233. Fentiman, Perfect Mother, supra note 11, at 409-10.
234. Fentiman, Rethinking Addiction, supra note 2, at 239-40.
235. See Chidress et al., supra note 229, at 173.
236. Id.
237. See Steverson & Rieckmann, supra note 113, at 342-44.
238. NICHOLAS JOHNSON ET AL., CTR. ON BUDGET AND POL‘Y PRIORITIES, AN UPDATE ON STATE BUDGET CUTS: AT LEAST 46 STATES HAVE IMPOSED CUTS THAT HURT VULNERABLE RESIDENTS AND THE ECONOMY (2011), available at http://www.cbpp.org/cms/index.cfm?fa=view&id=1214.
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from enforcement to treatment and prevention. For example, the Office of
National Drug Control Policy has stated, ―[f]ederal spending on drug control
has increased from 1.5 billion in 1981 to 19.2 billion in 2002.‖ 239
However, the
percentage of that budget devoted to drug abuse prevention, drug abuse
treatment, and prevention and treatment research has remained the same. 240
If
we are to focus on public health measures such as prevention and treatment, an
increased proportion of that budget needs to go towards these goals. There are
no easy answers when it comes to prevention. Even though politicians pay lip
service to adopting a public health based approach to drug use, they shy away
from decriminalization to avoid looking ―soft on crime.‖ 241
One of the key problems to a public health based approach is that
prevention takes time. 242
Long-term policies that may have great public health
benefits may not be glamorous or politically beneficial. For example, an elected
official may be more likely to be re-elected for being ―hard on drugs,‖ rather
than for implementing mentorship and educational programs that may affect
drug use years in the future. It may be easier for a politician to brag about how
he or she throws drug-abusing women in prison than to show how he or she has
spent limited resources implementing effective drug treatment and prevention
programs. This is a realistic and practical critique of a public health based
approach.
Additionally, even if a public health based approach emphasizes
treatment, we need to recognize that there are barriers to drug treatment. A key
barrier, as mentioned earlier, is that when a woman is able to get into a drug
treatment facility, she may be forced to give up custody of her children, either
to relatives or into foster care. A public health approach must recognize this.
Definitions of neglect or abuse must be changed to reflect a public health
approach, and regulations must be amended so that it is no longer assumed that
addicted women are unable to take care of their children. Even still, there may
be reluctance for poor, minority women to seek treatment due to their general
distrust of the criminal law and even public health system. 243
In an ideal world, a woman would get proper prenatal care, be educated
about the effects of her drug use on her health and the health of her fetus, and
239. Lester et al., supra note 18, at 3.
240. Id. (noting that only 10 percent of the budget is spent on research and 15 percent of the budget is spent on treatment).
241. See Jacob Sullum, Obama Supports a “Public Health” Approach to Drugs But Only in Theory, REASON, July 27, 2011, http://reason.com/blog/2011/07/27/obama-supports- a-public-health. In a recent town hall meeting, President Obama spoke about his commitment to a public health based approach to drug policy. Id. However, he specifically said he did not support decriminalization. He stated that ―we need to have an approach that emphasizes prevention, treatment, a public health model for reducing drug use in our country. We‘ve got to put more resources into that. . . . [A]m I willing to pursue a decriminalization strategy as an approach? No.‖ Id.
242. See NAT‘L INST. ON DRUG ABUSE, U.S. DEP‘T OF HEALTH & HUMAN SERVS., PRINCIPLES OF DRUG ABUSE TREATMENT FOR CRIMINAL JUSTICE POPULATIONS 20-22 (2006), available at http://www.nida.nih.gov/PDF/PODAT_CJ/PODAT_CJ.pdf.
243. POOLE, supra note 176, at 39.
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be readily admitted into a drug treatment facility that would allow her to keep
her child with her. However, there is a lack of drug treatment facilities
nationwide and a small minority of drug treatment programs in the United
States focus on the unique needs of pregnant women. 244
This dearth of
resources would be addressed under a public health model.
Another potential concern with a public health based approach is whether
it will adequately safeguard women‘s privacy. The evidence-based research
studies, surveillance, and other public health efforts discussed earlier have the
potential to infringe upon women‘s privacy. 245
There must be privacy
safeguards in place to ensure that accurate data may be collected, without
making these women subject to criminal prosecutions due to their participation
in such research and surveillance efforts. This is especially important when
dealing with minorities or other populations already distrustful of public health
and medical officials and law enforcement officials.
CONCLUSION
This article attempted to methodologically critique the punitive treatment
of drug abuse during pregnancy and advocate for a public health based
approach, rather than a criminal law based approach. The article then detailed
what such a public health law approach would look like, emphasizing harm
reduction, prevention, public health law research, and treatment. Laws that
criminalize women for public health problems such as drug addiction may have
the unintended consequence of preventing women from seeking prenatal care
or aid to overcome such problems. Such laws, instead of protecting the fetal
victim, may work to encourage women to avoid prenatal care and even
terminate their pregnancy in certain circumstances.
Despite a body of scholarship critiquing criminalization of pregnant
women for public health problems, such as drug addiction, prosecutors
continue the practice of penalizing pregnant mothers for illicit drug use.
Additionally, states continue to pass laws that seek to penalize pregnant women
in the name of fetal rights. This article has critiqued such an approach and
attempted to analyze this public health issue using public health methodologies.
Such an approach may reduce harm that could occur due to drug use during
pregnancy in a more effective and just manner, as compared to criminalization.
Many scientists note that the harm caused by drug use during pregnancy is
―almost entirely preventable.‖ 246
One of the main problems with the current
criminalization approach is that the focus is on punishing such use, not
minimizing the impact of drug use during pregnancy. The punitive model
harms the woman and harms the infant because it does nothing to improve her
health outcomes or the infant‘s health outcomes, and may even encourage the
244. See Fentiman, Perfect Mother, supra note 11, at 463.
245. See Michael A. Stoto, Public Health Surveillance in the Twenty-First Century: Achieving Population Health Goals While Protecting Individuals‟ Privacy and Confidentiality, 96 GEO. L.J. 703, 704 (2008).
246. See, e.g., Reynolds, supra note 74, at 21.
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woman to terminate the pregnancy. A public health model is a win-win with its
potential to improve both the woman‘s and infant‘s health outcomes. 247
247. Peter D. Jacobson et al., Reciprocal Obligations: Managing Policy Responses to
Prenatal Substance Exposure, 81 MILBANK Q., 475, 480 (2003).
