A woman who uses drugs can be punished just for the assumption that using drugs has harmed her fetus.
February 11, 2013 |
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Editor’s note: America has a long history of treating the poor like criminals, from legislation banning the transportation of poor people across state lines to anti-vagrancy laws that could land you in jail if you didn’t have a job or a home. We’ve come to rely on the criminal justice system to deal with the poor, even as more and more Americans fall into poverty. The following article is part of a series that looks at the diverse ways our countrycriminalizes poverty, including laws targeting the homeless, the surveillance of welfare recipients, the re-emergence of debtor prisons, and extreme policing tactics like stop-and-frisk.
After suffering a stillbirth in South Carolina, 21-year-old Regina McKnight was arrested and charged with murdering her fetus because she used cocaine while pregnant. McKnight served eight years in prison for a loss that, as it turned out, she did not even cause. In 2008, with four years of her sentence left to serve, the South Carolina Supreme Court said the state used “outdated” research to make its case and overturned McNight’s conviction.
While prosecutors had claimed McKnight’s cocaine use caused her stillbirth, the Court said McKnight’s attorneys failed to secure testimony from experts who would have explained how “recent studies show[ed] that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor.”
McKnight’s case is not unusual. A recent study examining the outcome of pro-life policies since Roe v. Wade through 2005 identified more than 400 pregnant women who were arrested, incarcerated or forced into health “treatment” they did not want or need. As the data make clear, drug war stigma and racism were central to such prosecutions: 84 percent of these cases alleged that the woman, “in addition to continuing her pregnancy, had used an illegal drug,” particularly cocaine. Fifty-two percent of the women targeted are black.
Legal Rights for Fetuses
The cases do not necessarily include the death of a fetus, as in McKnight’s case. A woman who uses drugs can be punished for the assumption that she has harmed her fetus, even if her drug use is the only evidence against her. In states where feticide or “personhood” measures define an egg, embryo or fetus as a child, “child abuse” can occur in the womb.
In South Dakota, a 12-weeks pregnant, homeless, 28-year-old Native American woman, Martina Greywind, was charged with “reckless endangerment” for using inhalants during her pregnancy. After two weeks in jail, she was able to obtain a release for a medical appointment where she received an abortion. Her case was dismissed, with the state noting that her pregnancy’s termination made her charges “no longer ripe for litigation,” while the prosecutor told media it was “no longer worth the time or expense to prosecute her.”
One such precedent was established last month in the Alabama Supreme Court, which ruled that “the crime of chemical endangerment” — exposing a child to a controlled substance or the environment in which it was produced — applies to a fetus in a womb. The concurring opinion defined a fetus as a child, noting that the state has the responsibility to “protect life.” In these cases, the pro-life rhetoric works with equally flawed drug war stigma to criminalize women for crimes against an “unborn child.”
While the Alabama ruling rests firmly on the belief that a fetus is a child, it also stems from the notion that exposing infants to methamphetamine is so damaging it should be labeled a crime. Studies have repeatedly found that the developmental effects of prenatal exposure to methamphetamine are not clear. According to the American College of Obstetrics and Gynecology’s special information sheet about meth exposure in-utero, “the effects of maternal methamphetamine use cannot be separated from other factors,” and there “is no syndrome or disorder that can specifically be identified for babies who were exposed in utero to methamphetamine.”
On February 7, the New Jersey Supreme Court ruled that a positive drug test does not prove parental neglect and that the state’s child protection services do not have jurisdiction over pregnant women. “The court’s decision protects the rights of all pregnant women and in so doing actually protects maternal, fetal, and child health,” Lynn Paltrow said.
While the Alabama ruling interpreted a criminal statute, the New Jersey law interpreted a civil statute. The former provides for a criminal case and prosecution, while the latter turns the matter over to child protective services, which is not always as benign as it sounds.
“Facing jail or the loss of custody of child are both devastating consequences, both likely to deter a mother from getting care,” Paltrow said. “But one does send you to jail, potentially for life, and the other puts you in the civil child welfare system.”
Lawrence S. Lustberg, an attorney who worked on the case, told AlterNet, “Nobody is endorsing the use of drugs while one is pregnant, but the problem with regulating it and allowing for state interference or state scrutiny of women who are pregnant leads to two problems.” The first is that threatening a woman with the removal of her children due to behavior while pregnant “is going to disincentivize women from doing the right thing, from getting care,” Lustberg said. “Women who are drug-addicted, alcoholics, or have other problems while pregnant should be encouraged to seek help, and if you threaten to take their children away they will be discouraged from seeking help, and that’s damaging to women and children.”
Another issue, Lustberg said, is that punishing pregnant women for crimes against a fetus encourages much broader oversight of children and mothers’ lives. “The research shows that drug use…while potentially harmful, is no more harmful than a number of other things that are legal. Not just alcohol, but working too hard, not getting enough exercise, getting too much exercise, not eating the right things, sleep – all kinds of things that correlate with problems upon childbirth,” he said. “Once you start allowing the state to intrude into that whole decision-making process, there is no end to it, and you would be subjecting pregnant women to a level of oversight by the government that you would not be subjecting any other people in our entire society to, and that is very troubling indeed.”
“The prosecutors typically charge the least popular most politically vulnerable women in town — usually drug-using, African-American women,” said Lynn Paltrow. She adds that prosecutors “try to get a court to decide that the word ‘child’ in the child-abuse statute applies to eggs, embryos, and fetuses” by suggesting that the law would only be used “against drug-using women,” and then setting the precedent for “unequal system of law for all pregnant women.”
The majority of these kinds of cases involve black women, and cocaine is the mostly commonly cited drug used to justify an arrest for fetal harm. The crack era of the ‘90s portrayed black women as enemies in the war on drugs. Media coverage of the crack cocaine “epidemic” churned out images of the “crack whore” whose reckless pleasure-seeking unknowingly or even intentionally harmed her unborn child. The media sensationalized the “crack baby,” providing an emotionally charged icon of victimization, while pregnant, black drug users were scapegoated for a policy failure to prevent crack cocaine use.
Researchers following children who were exposed to cocaine before they were born have found that the long-term effects are relatively minor. The infants exposed to crack cocaine in the ‘90s are now growing up, and most of them are leading normal, healthy lives.
One study found that cocaine exposure slows fetal growth, but the difference went away as cocaine-exposed children grew up.
“Just because it is statistically significant doesn’t mean that it is a huge public health impact,” Belcher told the Times. In 1997 for example, a study found that clinicians could not distinguish “crack-addicted babies” from babies born to comparable mothers who did not use cocaine.
Most women using crack cocaine while pregnant were also using other substances, and most of the children in these studies are poor, and are subject to a variety of other risk factors that affect cognitive development and behavior, like inadequate healthcare and schools, unstable family situations, and exposure to lead. In 2001, a comprehensive study concluded: “[T]here is no convincing evidence that prenatal cocaine exposure is associated with any developmental toxicity difference in severity, scope, or kind from the [consequences] of many other risk factors.”
“Society’s expectations of the children,” Deborah A. Frank, a Boston pediatrician, told the Times, “and reaction to the mothers are completely guided not by the toxicity, but by the social meaning” of the drug.
Barriers to Treatment
Even seeking treatment for substance addiction does not safeguard a pregnant woman from persecution. Wisconsinite Rachael Lowe, 20, learned this the hard way, when her attempt to seek treatment for her Oxycontin addiction landed her in a psychiatric ward more than an hour away from her husband and 2-year-old son. While she was held against her will in the psychiatric ward, she did not receive prenatal care, but was prescribed several medications, including Xanax. Lowe’s fetus received legal representation, but Lowe did not receive legal counsel until 12 days after she was taken into custody.
At a later hearing, a doctor testified that Lowe’s addiction posed no significant risk to the health of the fetus, and the court said Lowe would be released from what the study called her “hospital-based incarceration.” But the state was still allowed access to her womb, as Lowe was under surveillance and supervision for the remainder of the pregnancy, required to provide urine samples and cooperate with law enforcement and health professionals. As a result of the intervention, Lowe lost her jobs, and her husband had to take a leave of absence from his job.
For pregnant addicts, withdrawing from drugs like narcotic painkillers and heroin can be a greater danger to both the woman and the fetus. Nonetheless, prosecutors and judges who demand full abstinence have criminalized pregnant women who are taking methadone to curb their drug cravings. The legal system’s failure to recognize the complexity of a pregnant woman’s health decisions can have the effect of scaring women out of treatment — causing danger to both them and their fetus.
Prenatal exposure to opiates like heroin and oxycodone is not associated with birth defects or impeded growth and development, but it is associated with withdrawal symptoms in newborns that trained professionals can manage and eliminate.
The U.S. Department of Health and Human Services advises:
If you’re pregnant and using drugs such as heroin or abusing opioid prescription painkillers, it’s important that you get help for yourself and your unborn baby. Methadone maintenance treatment can help you stop using those drugs. It is safe for the baby, keeps you free of withdrawal, and gives you a chance to take care of yourself.