3 Reasons Why Criminalizing Pregnant Women for Drug Use is a Bad Idea

Photo: (CC) Javier Moreno Serrano

By Amie Newman — March 16, 2017

by Amie Newman

The research is clear: criminalizing pregnant women who use or abuse drugs doesn’t help them or their babies. A new resource from Bridging the Divide, a project of the Jacobs Institute for Women’s Health, highlights the dangers of policies that punish pregnant women for using drugs, rather than providing appropriate treatment or care.

Alexandra Laird was 21 years old when she was arrested in Alabama for the crime of chemical endangerment of a child. She gave birth to a newborn in 2015 who tested positive for opioids. Laird was released on bond, became pregnant again, and tested positive for heroin use. At that point, her bond was revoked and she was confined to jail for the duration of her pregnancy by a judge who was “very concerned about the welfare of the unborn child.”

After she suffered a fall at the jail, however, she was transported to the University of Alabama at Birmingham (UAB) Hospital. When the addiction treatment specialists found out she wasn’t receiving any treatment for her heroin addiction, they refused to release her back into the hands of law enforcement.  The specialists were clear: the best way to keep Alexandra Laird and the fetus as healthy as possible lay in treating Alexandra’s addiction.

The Bridging the Divide paper, titled Pregnant Women and Substance Use: Overview of Research & Policy in the United States, explores what’s at stake for pregnant women who use drugs and which public health strategies can help. The research shows that criminalizing pregnant women for drug use is ineffective and harmful because: 1) it can lead to worse health outcomes for both women and newborns, 2) the policies are often discriminatory, and 3) harm reduction strategies are better at making sure pregnant women receive appropriate care.

Despite this research, most states (a minimum of 45, according to the paper) have at least tried to prosecute pregnant women for exposing their fetuses to drugs; some, like Alabama, have harsh laws in place that allow police officers to arrest pregnant women and charge them with a crime, which is what happened with Alexandra. The paper also notes that:

Other states consider certain drug use during pregnancy to be grounds for civil commitment, and may involuntarily detain women in inpatient treatment programs. Several states require healthcare providers to report suspected prenatal drug use. When such reporting results in children being removed from their mothers and placed in foster care, both mothers and children can suffer.

This is one reason why criminalizing pregnant women’s drug use harms women and newborns. Pregnant women who use drugs may be too afraid to access prenatal care or drug treatment, out of fear of being arrested, detained, or jailed if they do. As the March of Dimes explains, “targeting substance-abusing pregnant women for criminal prosecution is inappropriate and will drive women away from treatment.” It’s why, notes the advocacy group National Advocates for Pregnant Women (NAPW), “every leading health group” opposes the use of criminal laws to address pregnant drug-users.

The second reason? These policies, like many laws that seek to control women’s reproductive lives, disproportionately affect low-income women and women of color. According to the paper, when health care providers are forced to report positive drug tests of pregnant women to child protective services (CPS), research shows that mothers or children of color are referred to CPS at higher rates than the cases involving white children.

In Indiana, the discrimination is blatant. A law mandating that health care professionals report pregnant or birthing women they suspect are using drugs applies only to women and infants who are eligible for Medicaid.

The paper’s release is timely given the United States is in the midst of an opioid epidemic. At the same time, the number of women dying from complications related to pregnancy and childbirth is increasing. If we’re going to tackle these issues, we need to be clear about what works and what doesn’t, says Susan F. Wood, Ph.D., Associate Professor and Director of the Jacobs Institute of Women’s Health:

What shows promise are public health models that incorporate harm reduction strategies and focus on assuring access for pregnant women to appropriate services. We hope policymakers will keep this research in mind when considering how to improve maternal and child health.

This is the third reason why criminalization is bad for pregnant women. Harm reduction strategies focus on providing appropriate programs for a woman’s needs and on reducing the harm that drugs can do without forcing a pregnant woman to completely stop drug use, which can be risky and difficult.

Depending upon the substance, abuse can no doubt be dangerous both to a woman’s health and to the health of her growing fetus. But in the case of opioids, for example, withdrawal can cause fetal distress or even death. Instead of detoxing during pregnancy, it’s recommended that pregnant women addicted to opioids use methadone. But if a pregnant woman is thrown in jail or even detained for a few days, withdrawal is a more likely outcome. As NAPW warns, “forcing a pregnant woman to go cold turkey in prison or out of fear of arrest can in some cases cause her to lose the pregnancy.”

The evidence in this resource clearly indicates that laws and policies that punish pregnant women for drug use and addiction are harmful. This is a health issue; not a criminal one. It’s why Alexandra Baird’s health care providers refused to release her from the hospital into the criminal justice system. It’s why treatment that centers the health of the pregnant woman is the best way to ensure the best possible outcome for both the mother and the newborn. The threat of punishment is not a drug abuse prevention or treatment strategy — it’s simply punitive.

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