A growing number of American women face criminal charges for allegedly harming their own fetuses through drug use and other behaviors. In a 2013 study published in the Journal of Health Politics, Policy, and Law, Lynn M. Paltrow of the National Advocates for Pregnant Women and Jeanne Flavin of Fordham University found that nationally, between 1973 and 2005, there have been at least 413 arrests or other state actions against women for their conduct while pregnant. Eighty-four percent of the women were using drugs. In a November op-ed in The New York Times, Paltrow and Flavin wrote that they had identified an additional 380 cases involving pregnant women since 2005, representing an upswing in prosecutions per year. Cases like these may become more common as painkiller and heroin addiction increasingly affect infants: A recent study in The New England Journal of Medicine found that between 2004 and 2013, the rate of intensive-care admissions for infants withdrawing from drugs rose nearly four-fold.
Legal actions against pregnant addicts are unusual, as far as drug busts go, because it was the women’s use—not possession—of the substance that led to jail. Typically, simply getting high doesn’t lead to incarceration.
“If you were to look at the number of people who go to prison for doing something related to drugs, upward of 99 percent would be there for either sale or possession,” says James Forman Jr., a law professor at Yale University. “This use idea is very rare.”
Everyone wants to stop pregnant women from using drugs, but women’s-rights advocates, law-enforcement officials, and doctors are at odds over how best to accomplish that.
Hospital workers and cops are disturbed by what they believe to be withdrawal symptoms, such as sleeplessness, crying, and agitation, that some drug-exposed newborns exhibit. “These babies are born into the world addicted to methamphetamine,” says Elena Cannon, an investigator with the prosecuting attorney’s office in Mena, Arkansas. “It’s not a very good way to come into the world.”
A growing body of evidence, though, suggests that in-utero exposure to illegal drugs does not hobble children for life in the way that some state officials fear. Many advocates, doctors, and other experts say jailing new mothers for using drugs during pregnancy is counterproductive—and might exacerbate the harms suffered by both the women and their children. Other nations pursue a far less punitive approach to pregnant addicts, with seemingly better results.
Picture: Øyvind Holmstad (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)%5D, via Wikimedia Commons