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.

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