Analysis Maternity and Birthing

Sensationalizing Drug Use in Pregnant Women: How the Media Perpetuates Racist and Ineffective Policies

Marianne Møllmann

The prosecution of drug use in pregnant women does nothing to fulfill a legitimate policy goal and in fact seems to be racially motivated—at least in the implementation—rather than spurred by a concern for children.

Well before anyone could be certain of how Whitney Houston died, several news outlets rushed to describe her as a “crack cocaine user.” And in all likelihood many will think of the popular singer as succumbing to illegal drugs, even if alcohol eventually is found to be more closely related to her demise.

This is not all that different from how the media deals with infant and child health.

Regardless of the actual causes behind low birth weight, infant mortality, and early childhood health issues, media reports are sure to blame the “crack baby syndrome” or, more recently, women’s abuse of prescription pain killers.

This kneejerk reaction is unhelpful for a number of reasons.

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First of all, a pregnant woman’s use of illicit drugs is neither the only nor the most damaging pregnancy phenomenon from the point of view of infant health.

Take, for example, legal drugs, such as alcohol and cigarettes. Peer reviewed research shows that over-consumption of alcohol can cause fetal alcohol syndrome (linked with permanent mental retardation), whereas cocaine seems to act only as one contributing factor in some pregnancies to increase non-permanent risk factors such as low birth weight. Approximately twice as many pregnant women drink alcohol frequently as use illicit drugs frequently during their pregnancies.

Epidemiological research published in the mid 1990s shows that the use of tobacco products in the United States at the time was responsible, each year, for tens of thousands of tobacco-induced miscarriages, infants born with low birth weight, infants who require admission to neonatal intensive care units, as well as an estimated 1900 to 4800 infant deaths. Though smoking has gone down over the past decades, around 17 percent of adult women in the United States still smoke, and generally continue to smoke during their pregnancies.

Even drugs administered to women who are in fertility treatment have been associated with low birth weight and premature birth.

Or let’s set aside drugs altogether. Malnutrition in pregnant women is one of the main causes of low birth weight and infant mortality worldwide. In this sense, it is worth noting that food insecurity and hunger has grown steadily in the United States since the start of the latest financial crisis in 2008. (Food insecurity exists whenever the availability of nutritionally-adequate and safe foods or the ability to acquire foods is limited or uncertain). According to the latest figures, about 17.2 million households in the United States suffered food insecurity in 2010, the highest number ever registered. Yet the government’s food stamp program is increasingly under attack by pundits and politicians.

Secondly, even a superficial read of arrest and prosecution figures for drug use during pregnancy reveal such a severe race and class bias that the very legitimacy of the approach must be questioned.

Since 1985, 80 percent of the more than 200 pregnant women or new mothers in over 20 states who have been arrested and charged with crimes related to substance use during pregnancy were black or Latina. In 2000, research in Pinellas County in Florida found that while white women and women of color used illegal drugs at comparable rates, black women were 10 times more likely than white women to be reported for child abuse related to substance use during pregnancy. That same year, data from the National Institute on Drug Abuse showed that while black women had a higher overall rate of illicit drug use than white women, most women who use illegal drugs during pregnancy were white. Even so, 41 of the 42 women arrested in South Carolina under a mandatory drug testing program were black. (The program was suspended in the mid-1990s because of allegations of racial discrimination).

Meanwhile, research published in 2006 shows that newborns with white mothers are much more at risk of alcohol and tobacco exposure than newborns with black or Latina mothers.

Moreover, in many cases women with private health insurance are not mandatorily tested for illicit drug use during pregnancy. In this sense, poverty itself is what singles a pregnant woman out for persecution. It is no coincidence that the main focus for drug prosecutions for pregnant women in the United States is crack cocaine, a drug almost exclusively used by the resource-poor. As Whitney Houston herself famously said in an interview in 2002: “I make too much money to ever smoke crack.”

The point here is not that pregnant women should use cocaine, or that the government—and society as a whole—does not have a legitimate interest in ensuring infant and child health.

The point is that the prosecution of drug use in pregnant women does nothing to fulfill a legitimate policy goal and in fact seems to be racially motivated—at least in the implementation—rather than spurred by a concern for children.

In fact, if the objective is to improve infant and child health, efforts to overcome poor nutrition, alcohol addiction, lack of adequate health care, physical abuse, and/or homelessness would make for much better investments. Sadly, such policies don’t make for as sensational news.

Commentary Maternity and Birthing

Pregnant and Punished: How Our Drug Policies Hurt Women

Farah Diaz-Tello & Cynthia Greenlee

The sad truth is that pregnant women with drug problems are overwhelmingly likely to be criminalized rather than getting the help they need.

Throughout the world, pregnant women involved in illicit drugs as users, producers, or sellers are roundly vilified. They are viewed, as described by conservative Tennessee state legislator Rep. Terri Lynn Weaver (R-Lancaster), as the “worst of the worst.”

The sad truth is that pregnant women with drug problems are overwhelmingly likely to be criminalized rather than getting the help they need. At this week’s U.N. General Assembly Special Session (UNGASS) on the world drug problem, dozens of organizations worldwide are pushing global leaders to reconsider punitive drug policy in a declaration that explains how such laws hurt women and families.

In the eyes of the law and often the broader society, a woman’s pregnancy can compound any crime she may have committed. In countries as different as Russia and the United States, a pregnant woman charged with a drug offense may be harshly punished-and often treated more severely than a woman who is not pregnant. In addition, she is very likely to lose custody of any child born while she is incarcerated or undergoing legal proceedings.

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In 2014, for example, the U.S. Department of Justice’s Knoxville, Tennessee, office issued a press release about the prosecution of Lacey Weld, who had six years added to a prison term because she was pregnant when she participated in methamphetamine manufacturing. Weld pleaded guilty to the offense, but the court increased the penalty because she had used methamphetamine during the manufacturing, which the prosecutor argued risked the health of her fetus.

Notably, none of the men who were involved in the manufacture of the drugs, who were equally responsible for any toxic fumes Weld may have inhaled, were given enhanced penalties.

Tennessee legislators in 2014 also passed a controversial and wrong-headed fetal assault law that allowed pregnant drug users to be prosecuted for harming their fetus—even if there was no medical evidence of harm or no chronic health effects. It was a law that had the chilling effect of scaring women who used drugs away from seeking help; at least one gave birth without medical assistance.

The good news is that in March, after a long fight by activists and public health authorities, Tennessee legislators voted to let the law expire. That was a heartening but single victory. The bigger fight is overcoming the notion that jail is an appropriate place for a pregnant woman—or any person—who has committed a nonviolent drug crime.

Too often, women are on the wrong end of conventional wisdom that is based on bad science and knee-jerk sensationalism. In the 1980s and 1990s, media reported countless lurid stories of a generation of “crack babies” forever harmed by this new form of cocaine. But the link between cocaine use and chronic health and developmental issues in infants and children turned out to be unclear, at minimum, and sometimes spurious. Factors like poverty and the level of neonatal care were as important as cocaine use or many other licit and illicit drugs, including alcohol.

And that generation of crack babies who would overwhelm and threaten our health-care and educational systems? Never materialized.

Still, the mythology persists.

The same tropes are now reappearing in connection with neonatal abstinence syndrome (NAS), a treatable and temporary condition that may affect drug-exposed infants. We are now seeing a groundswell of anxiety about NAS and opioid use, particularly in the United States. While research suggests that NAS is but one of many factors affecting a child’s health, infants with NAS are the subjects of the same panicked rhetoric of a generation ago.

And their mothers are condemned even when they seek help. Public health authorities recognize that medication-assisted treatment (MAT), such as methadone, is the gold standard of treatment for pregnant women experiencing drug dependency. But on the ground, probation officers, social workers, and judges in family courts and drug courts often have shockingly little knowledge about the benefits of MAT and order women off the very medication that can help them carry a pregnancy to term.

For a woman behind bars, denial of MAT during pregnancy is just the start of her worries. Even if she has a healthy delivery, her baby can be removed from her within hours. The state is supposed to prefer placing the infant with a family member, but some will end up in the foster-care system-a bleak outcome that challenges the official line that the goal is really to defend the vulnerable and preserve healthy families. In too many cases, children whose mothers could have safely parented them with just a little support wind up cycling through foster care and, for some, a permanent placement with another family or guardian.

A minor drug offense shouldn’t mean the splitting of a family. Being pregnant is not a crime. Instead of being criminalized, a woman who needs help for problematic drug use should be given appropriate health care outside the criminal justice system and services that can help her lead a healthy life and support her parenting. Time and time again, public health research has shown that supportive services that focus on the whole woman and preserve the family bond, can mean better health outcomes for both mother and child.

But public health consensus means little in the context of the War on Drugs and mass incarceration. The United States is a world leader in how many of its people it puts in jails and prisons. According to data compiled by the Sentencing Project, the number of incarcerated women in the country has risen almost 650 percent between 1980 and 2010. Statistics from the Department of Justice estimated that, in 2004, 3 percent of inmates in federal corrections facilities and some 4 percent in state institutions were pregnant when they arrived in detention.

The United Nations’ Bangkok Rules on the treatment of women offenders and prisoners, adopted in 2010, urge authorities to seek alternatives to imprisonment for women, especially if they are pregnant or a sole or primary caretaker, and to take into consideration women’s special needs as prisoners.

Instead, what we have are U.S. states and many nations investing more in the drug war than they’ve invested in the health and human rights of the women, children and families they claim to protect.

Analysis Violence

Missing and Murdered: No One Knows How Many Native Women Have Disappeared

Mary Annette Pember

“When Native women go missing, they are very likely to be dead," said Carmen O’Leary, coordinator of the Native Women’s Society of the Great Plains in South Dakota.

This piece, the second installment, was cross-posted from Indian Country Today with permission as part of a ​joint series​ about the missing and murdered Native women in the United States and Canada. You can read the other pieces in the series here.

Although Trudi Lee was only 7 when her big sister went missing back in 1971, she wept when she talked about that traumatic event 45 years later. “Sometimes I would catch our mom crying alone,” Lee said. “She would never tell me why, but I knew it was over Janice.”

Janice was 15 when she went missing near the Yakama reservation in Washington. Although her parents reported her missing to tribal law enforcement, there was never any news of the lively, pretty girl. “Mom died in 2001 without ever knowing what happened,” Lee said. “We still think of Janice and would at least like to put her to rest in the family burial plot.”

“It happens all the time in Indian country,” said Carmen O’Leary, coordinator of the Native Women’s Society of the Great Plains in South Dakota, a coalition of Native programs that provide services to women who experience violence. “When Native women go missing, they are very likely to be dead.”

Indeed, on some reservations, Native women are murdered at more than ten times the national average, according to U.S. Associate Attorney General Thomas Perrelli, who presented that gruesome statistic while addressing the Committee on Indian Affairs on Violence Against Women in 2011.

Unlike Canada, where Indigenous leaders and advocates have pressured the government to begin to confirm the numbers of missing and murdered Indigenous women, the United States has done little to address the issue.

Although the Violence Against Women Act (VAWA) and the Tribal Law and Order Act (TLOA) have helped bring attention to this high rate of violence and have begun to address gaps in law enforcement for tribes and federal authorities, there is no comprehensive data collection system regarding the number of missing and murdered women in Indian country.

Under VAWA 2005, a national study authorized by Congress found that between 1979 and 1992 homicide was the third leading cause of death among Native women ages 15 to 34, and that 75 percent were killed by family members or acquaintances.

And that horrific toll might actually be higher. “The number of missing Native women was not addressed in the study,” noted Jacqueline Agtuca, lawyer and policy consultant for the National Indigenous Women’s Resource Center. “Currently, we do not have adequate information on the numbers of missing Native women in the U.S.”

The high rates of sexual violence against Native women are inextricably tied to the likelihood of them going missing; violence, disappearance, and murder are closely interconnected. “Tribal leaders, police officers, and prosecutors tell us of an all-too-familiar pattern of escalating violence that goes unaddressed, with beating after beating, each more severe than the last, ultimately leading to death or severe physical injury,” Perrelli said in his 2011 speech.

According to advocates like O’Leary, there is little hard data about missing and murdered women, only anecdotes that tell of the pain, loss, and anger of loved ones. “Missing and murdered Native women are a non-story in this country. You really don’t hear about them unless you happen to know the family. Officially, these cases seem to get brushed under the rug. No one wants to talk about them,” she said.

Indeed, law enforcement officials questioned for this article seemed reluctant to discuss the issue.

According to NamUS, the National Missing and Unidentified Persons System, there are approximately 40,000 unidentified human remains either in the offices of the nation’s medical examiners and coroners or that were buried or cremated before being identified. NamUs, operated by the U.S. Department of Justice (DOJ), is a national repository and resource center for missing persons and unidentified decedent records. It offers a free online search system.

Troy Eid, former U.S. attorney for the State of Colorado, notes that protocols for taking missing person’s reports and sharing with other agencies vary widely among tribal law enforcement. “Some offices may simply write down the information or may not record it at all,” Eid said.

Eid served on the Indian Law and Order Commission created under TLOA. After two years of field research, he and fellow commissioner released the report, A Roadmap for Making Native America Safer, in 2013. The report describes law enforcement jurisdiction in Indian country as “an indefensible morass of complex, conflicting and illogical commands,” and blames the U.S. government for creating the situation.

Of the 12 tribal law enforcement agencies contacted for this article about procedures for taking missing person’s reports, just three responded: The Navajo Nation of Arizona, New Mexico, and Utah; the Barona Band of Mission Indians in California; and Red Lake Band of Chippewa in Minnesota. All reported that they have designated protocols for taking reports as well as computer terminals that can access the National Crime Information Center (NCIC) database.

As far as tribal law enforcement working with other agencies, federal and local, Eid noted that those relationships also vary widely: “The relationships swing from good to almost nothing, and even to outright hostility.”

To help address such issues under the direction of the 2010 TLOA, the DOJ announced the launch of the initial phase of the Tribal Access Program for National Crime Information in 2015, in which tribes would be able to both report and access crime information in the federal NCIC database. Ten tribes were selected to participate in the pilot program and were to receive NCIC terminals. DOJ officials did not respond to questions about the number of tribes that currently have access to the NCIC terminals nor to questions regarding funding for future tribal access.

Although the Tulalip Tribe is among the ten participating in the project, it has yet to receive a NCIC terminal despite offering to pay for it, according to tribal attorney Michelle Demmert. “We need full access now to this database. I doubt that any other municipality or state would need to work so hard to justify meeting the needs of the community,” she said.

Native peoples are not the only ones who are underserved by America’s approach to helping to find and identify missing persons. Reveal, a project with the Center for Investigative Reporting, published an extensive investigation in 2015, “Left for Dead: How America Fails the Missing and Unidentified,” which lays out how U.S. authorities mishandle these reports. According to the article, the FBI refused to provide access to its data on unidentified remains despite requests from Reveal under the Freedom of Information Act.

Clearly, missing persons and unidentified remains are not a top priority for law enforcement. But for Native women, whose numbers may be greater and whose loss may go unreported, the issue reflects a wider systemic failure of the United States to meet its trust agreement with tribal nations.

“There is so much fear and distrust of law enforcement among our people that they are often reluctant to report loved ones as missing or to report sexual assault,” noted O’Leary.

This fear adds to the lack of accurate data not only about missing and murdered women but also about those who have been raped. Contacting law enforcement can bring unwanted scrutiny to women who are victims of violent crime.

As an example of that, O’Leary pointed to the 2015 abduction of Edith Chavez from Minnesota, in which Chavez suspects she was drugged and taken to Williston, North Dakota. She managed to escape and reported the incident to Williston police who refused to take her statement and instead checked her record. The result? They detained and charged her for an unpaid traffic ticket from 2011.

According to the Guardian, the Williston police department did not respond to requests for comment but instead issued a press release claiming Chavez had smelled of alcohol and had been to a casino. Police later dropped charges against Chavez.

“Native women are not often seen as worthy victims. We have to first prove our innocence, that we weren’t drunk or out partying,“ said O’Leary.

According to Laura Madison, who along with Lauren Chief Elk helped launch the Save Wiyabi Project, “Indigenous women go missing twice: Once in real life and a second time in the news.”