Punishing Women for their Behavior During Pregnancy: An Approach That Undermines Women's Health and Children's Interests: Part I

Introduction

For more than a decade, law enforcement personnel, judges, and elected officials nationwide have sought to punish women for their actions during pregnancy which may affect the fetus they're carrying (1). Women who are having children despite substance abuse problems have been a particular target, finding themselves prosecuted for such non- existent crimes as "fetal" abuse and delivery of drugs through the umbilical cord. In addition, pregnant women are being civilly committed or jailed, and new mothers are losing custody of their children even when they would be capable parents. Meanwhile, state legislators have repeatedly introduced substance abuse and child welfare proposals that would penalize only pregnant women with addiction problems.

Some proponents of these efforts are motivated by the misguided belief that they are promoting fetal health and protecting children. Others hope to gain legal recognition of "fetal rights" - the premise that a fetus has separate interests that are equal to or greater than those of a pregnant woman. Creation of such rights would require women to subordinate their lives and health including decisions about reproduction, medical care, and employment - to the fetus. In fact, doctors and hospital officials have already relied on this theory to seek court orders to force pregnant women to undergo cesarean sections or other medical procedures for the alleged benefit of the fetus (2). Some advocates of fetal rights have argued that children should be able to sue their mothers for "prenatal injuries" (3). In some industries, employers have adopted "fetal protection" policies, which barred fertile women of childbearing age from certain high-paying, unionized jobs (4).

Women's and children's advocates agree that women should engage in behaviors that promote the birth of healthy children. Nevertheless, they recognize that a woman's substance abuse involves complex factors that must be addressed in a constructive manner (5). Punitive approaches fail to resolve addiction problems and ultimately undermine the health and well-being of women and their children. For this reason, public health groups and medical organizations uniformly oppose measures that treat pregnant women with substance abuse problems as criminals. Moreover, courts have repeatedly rejected attempts to prosecute women under existing criminal laws for their prenatal actions, impose restrictions on women's activities because they are fertile or pregnant, or coerce women to undergo medical procedures to benefit their fetuses. Some of these decisions have explicitly recognized that the fetal rights theory poses a significant threat to women's reproductive rights and the best interests of children.

Criminal Prosecution

Although no state has enacted a law that specifically criminalizes prenatal conduct, prosecutors have used statutes prohibiting abuse or neglect of children to charge women for actions that potentially harm the fetus (6). Some have also argued that pregnant women "delivered" drugs to "minor" children - fetuses - through the umbilical cord (7). In addition, a mother's or newborn's positive drug test has led to charges of assault with a deadly weapon (cocaine), contributing to the delinquency of a minor, and possession of a controlled substance (8). In cases in which infants tested positive and died soon after birth, women have been charged with homicide or feticide (9). Some women have even been prosecuted for drinking alcohol (10) or failing to follow a doctor's order to get bed rest or refrain from sexual intercourse during pregnancy (11).

Estimates based on court documents, news accounts, and data collected by attorneys representing pregnant and parenting women indicate that at least 200 women in more than thirty states have been arrested and criminally charged for their alleged drug use or other actions during pregnancy (12). The majority of women prosecuted have been low-income women of color (13), despite the fact that rates of illegal drug use are similar across race and class lines (14). According to one analysis, "[p]oor Black women have been selected for punishment as a result of an inseparable combination of their gender, race, and economic status" (15). Often, information indicating possible drug use has been provided to law enforcement officials by medical personnel - possibly in violation of constitutional and statutory guarantees of confidentiality (16). In many of the cases, women have been pressured into pleading guilty or accepting plea bargains, some of which involve jail time. However, those women who have challenged their charges have succeeded in reversing penalties imposed on them for their prenatal conduct. In fact, every appellate panel and most trial courts to rule on the use of existing criminal statutes to punish women for their conduct during pregnancy have found that these prosecutions are without legal basis, unconstitutional, or both.

Most courts reviewing criminal charges and guilty verdicts based on a woman's prenatal conduct have ruled on grounds of "statutory construction" - the principle that criminal statutes must be strictly construed in favor of defendants and that words such as "child" may not be expanded to include fetuses. In cases in which women were charged with violating child abuse laws, courts have consistently found that those statutes cover only children already born, not fetuses (17). As one judge noted, "[n]o appellate court in our nation has interpreted its child abuse laws to apply to a woman who takes illegal drugs during pregnancy" (18). Similarly, appeals courts have unanimously held that drug delivery laws apply solely to circumstances in which drugs are transferred between two persons already born (19). In evaluating unlawful possession charges based only on a woman's or newborn's positive drug test, several courts have held that drug use alone is not proof of the crime (20). Courts have also refused to apply murder or feticide statutes in such cases, concluding that those laws were never intended to punish a woman for prenatal conduct affecting her fetus or to hold a woman criminally liable for the outcome of her pregnancy (21).

Criminal charges based on prenatal conduct also raise serious constitutional concerns (22). In dismissing these cases, some courts have recognized that the prosecutions violated women's rights to due process and privacy. Due process prohibits prosecutors and courts from interpreting or applying an existing law in an unforeseeable or unintended manner. A number of courts have thus found that the unprecedented application of statutes - such as child abuse provisions - to prenatal conduct violates due process guarantees because women did not have the required notice that such laws would be applied to fetuses or prenatal conduct (23). Other courts have recognized that interpreting a child abuse statute to include prenatal conduct would render the measure unconstitutionally vague because women would not know what behavior would be criminal (24). As one appellate court explained:

Many types of prenatal conduct can harm a fetus, causing physical or mental abnormalities in a newborn. For example, medical researchers have stated that smoking during pregnancy may cause, among other problems, low birth weight, which is a major factor in infant mortality. Drinking alcoholic beverages during pregnancy can lead to fetal alcohol syndrome, a condition characterized by mental retardation, prenatal and postnatal growth deficiencies, and facial [sic] anomalies.

A pregnant woman's failure to obtain prenatal care or proper nutrition also can affect the status of the newborn child. Poor nutrition can cause a variety of birth defects.... Poor prenatal care can lead to insufficient or excessive weight gain, which also affects the fetus. Some researchers have suggested that consuming caffeine during pregnancy also contributes to low birth weight.

Environmental hazards, such as exposures to solvents used by painters and dry cleaners, can cause adverse outcomes. The contraction of or treatment for certain diseases, such as diabetes and cancer, also can affect the health of the fetus.

Allowing the state to define the crime of child abuse according to the health or condition of the newborn child would subject many mothers to criminal liability for engaging in all sorts of legal or illegal activities during pregnancy. We cannot, consistent with the dictates of due process, read the statute that broadly (25).

Prosecutions of women for their behavior during pregnancy also implicate the right of privacy, which includes the right to decide whether to have a child, the right to bodily integrity, and the "right to be let alone" (26). Thus, both coerced abortions and the imposition of criminal penalties for going through with a pregnancy violate the right to procreate. Several courts have already recognized that criminal sanctions could compel women to terminate their pregnancies in order to avoid arrest. As one court noted, "[p]rosecution of pregnant women for engaging in activities harmful to their fetuses or newborns may also unwittingly increase the incidence of abortion" (27). Some courts have also explicitly held that application of drug delivery statutes to prenatal drug use would unconstitutionally infringe on the broader right to privacy that protects all people from improper state interference in their personal lives (28). As one court stated: "[b]ecause of the intrusion required by this prosecution; namely, the state's attempt to reach and deter behavior during pregnancy, [the woman's] privacy rights are seriously threatened" (29) ; the court further found that the state could protect fetal health through less restrictive means "such as education and making available medical care and drug treatment centers for pregnant women" (30).

Some courts that have overturned prosecutions based on prenatal conduct have indicated that these punitive measures are also counterproductive or run contrary to public policy. One state high court has observed that "[r]ather than face the possibility of prosecution, pregnant women who are substance abusers may simply avoid prenatal or medical care for fear of being detected" (31). Similarly, another court concluded that:

(c)riminal prosecution of women for their conduct during pregnancy fosters neither the health of the woman nor her future offspring; indeed, it endangers both. Criminal prosecution cruelly severs women from the health care system, thereby increasing the potential for harm to both mother and fetus. Pregnant women threatened by criminal prosecution have already avoided the care of physicians and hospitals to prevent detection (32).

Case Study: Charleston, South Carolina

Most criminal charges filed against women for their behavior during pregnancy are the result of an individual prosecutor who pursues one or two cases. However, in 1989, the city of Charleston, South Carolina, went a step further and established a collaborative effort among the police department, the prosecutor's office, and a state hospital, the Medical University of South Carolina (MUSC), to punish pregnant women and new mothers who tested positive for cocaine (33). Under the policy, the hospital provided the city prosecutor's office with information on these pregnant and postpartum women. The prosecutor's office then maintained detailed lists that contained a woman's name, drug test result, and other sensitive information, including whether she "had AIDS" or had had an abortion. With the hospital's assistance, police arrested women days or even hours after delivery, removing them from their hospital beds in handcuffs and, in some cases, in shackles. Some women were taken to jail while still bleeding from giving birth. Others were arrested and jailed while they were pregnant, even though the prison could not provide prenatal care or drug treatment. When the incarcerated women went into labor, they were returned to the hospital in shackles. One woman was handcuffed to her bed during her entire labor.

Approximately six months after the policy was instituted, it was revised so that women would be threatened with arrest but also told that they could avoid being charged if they immediately stopped using drugs and entered the single drug treatment program available to them. At the time, MUSC's own inpatient treatment did not accept pregnant women. The program that did enroll pregnant women failed to provide services designed to meet the needs of pregnant and parenting women. When MUSC's facility was finally opened to pregnant women, the policy forced some women to enter without receiving a civil commitment hearing or any other proceeding to protect their rights. One woman, who was threatened with arrest if she did not immediately go to MUSC's program, was denied the use of a telephone to make arrangements for someone to meet her son after school. Another woman was unable to comply with a nurse's order that she enter MUSC's two- week program because she had no one to care for her older children. Although she repeatedly explained her child-care problem and requested an outpatient referral, she was arrested because she could not go to the inpatient treatment.

The prosecutor sought to justify the reporting and arrests by claiming that he was merely enforcing the state's child abuse laws. Yet the policy was implemented only at the state hospital, which serves a low-income population that is predominantly African American. And at that one institution, the practice affected only certain patients. In fact, nearly all of the women who were reported to the police and arrested were African American. Moreover, the hospital was using these women without their consent - in an ill-conceived experiment to test the hypothesis that threats of prosecution would stop pregnant women from using drugs and would improve fetal health. Contrary to the publicly stated goals of the policy, the hospital's own initial research and reports from women affected show that the coordinated effort ultimately frightened many pregnant women away from prenatal care and the little drug treatment that was available. Those who did obtain medical attention at MUSC were placed in the impossible position of choosing between inappropriate treatment and jail.

In October 1993, two women challenged the Charleston policy in federal court, alleging that it was racially discriminatory and violated a number of constitutional guarantees, including the right to privacy in medical information, the right to refuse medical treatment, and the right to procreate (34). Three months later, the women filed a complaint with the National Institutes of Health (NIH), asserting that MUSC had engaged in research on human subjects without obtaining the necessary institutional review and patient consent. The Office for Civil Rights (OCR) of the Department of Health and Human Services subsequently began to investigate MUSC for possible violations of Title VI, the federal law that prohibits race discrimination by programs receiving federal funds. Apparently to avoid a full-scale inquiry, in September 1994, MUSC signed an agreement with OCR to discontinue most of the policy (35). Later that month, the separate NIH investigation found that MUSC had violated federal regulations designed to protect human subjects of research (36). The federal lawsuit is still pending.

Termination of Parental Rights or Temporary Loss of Custody

Currently, only a small number of states have modified their civil child protection laws to mandate reporting to child welfare authorities or to define child neglect to encompass cases in which a newborn is "physically dependent on" (37) or tests positive for (38) an illegal drug. A few of these states also require reporting of fetal alcohol syndrome or evidence of alcohol use, (39) while only one mandates reporting a positive drug test prior to birth (40). In some instances, such a report may only trigger an evaluation of parenting ability and the provision of services; in others, it may become the basis for temporarily removing custody of the newborn (41). One state specifically prohibits the use of a lone positive drug test as the basis for a report to child welfare authorities, (42) and several others prohibit basing criminal proceedings solely on a positive toxicology (43). Another state, recognizing that such reporting raises serious issues of doctor-patient confidentiality, provides reporting to the health department for "service coordination," but only if the woman consents (44). Still another state provides that, if a woman is informed, health care providers may test new mothers and newborns for alcohol and other drugs, but allows a physician discretion in determining whether abuse or neglect has occurred and reporting is required (45).

Nevertheless, hundreds, if not thousands, of women across the country have had their children taken away from them because of a single positive drug test. As in the criminal context, women of color have been particularly vulnerable to losing their children, even though white women use illegal drugs at the same rate as women of color. One study conducted in Pinellas County, Florida found that black women were ten times more likely than white women to be reported to civil authorities if an infant was prenatally exposed to an illegal drug (46).

While the government should clearly intervene to protect a child from someone who cannot parent, a single positive drug test should not be used as a substitute for an evaluation of parenting ability. Drug tests are sometimes inaccurate, do not measure the severity of drug dependency, and fail to predict parental fitness. Public health groups, such as the California Medical Association and a division of the American College of Obstetricians and Gynecologists, oppose relying on such tests, explaining:

prenatal substance abuse by an addicted mother does not reflect willful maltreatment of a fetus, nor is it necessarily evidence that the mother will abuse her child after birth. A woman with a substance abuse problem may genuinely desire to terminate the use of such substances prenatally but may be unable, without access to substance abuse treatment programs, to act on her desire. However, after the child is born, the mother may be able to provide the child with an adequate home environment. In the absence of tangible evidence that she will be unable to do so, she should be permitted to raise her child, with the assistance of family, friends and voluntary social services.... If a health care provider or hospital social worker reasonably suspects from a parent's current behavior or past conduct that a child's home environment, including but not limited to the parent's or parents' substance abuse, poses a danger, that person is authorized ... to report the facts to a child protective agency for further investigation... (47).

Indeed, existing provisions of civil child abuse laws already mandate reporting in those cases in which it is necessary and appropriate (48). When the law has allowed a single test to be the basis for requiring reporting, however, some women have lost custody of their children based on false positive test results. In one known case, a positive test resulted from drugs administered by the woman's doctor during labor (49).

State statutes mandating reporting a newborn's positive drug test to civil authorities have yet to be challenged. As for the reported court opinions regarding prenatal application of civil child abuse statutes, all apply to measures that were not specifically amended to include newborns exposed to drugs (50). A majority of the lower court opinions have upheld termination of parental rights or temporary loss of custody based on drug use during pregnancy. However, the only two state Supreme Courts to address this issue have explicitly refused to terminate a woman's parental rights solely because of her prenatal drug use (51).

Civil Commitment, Emergency Protective Custody, and Harsher Sentences

Only one state has specifically amended its laws to authorize civil commitment of a woman who engages in the "habitual and excessive use" of drugs during pregnancy (52). Yet pregnant women in other states continue to face attempts to civilly commit them for the sole purpose of protecting their fetuses from some potential harm (53). According to constitutional requirements for civil commitment statutes, there must be at least clear and convincing evidence that an individual is mentally ill and dangerous to herself or others before she may be committed to a treatment facility for some limited period of time (54). Efforts to civilly commit pregnant drug addicts have been based on the claim that a woman is a danger to an "other" person - the fetus. At least one court has rejected the interpretation of the word "other" to include the fetus, finding that to commit a woman "solely because she is, in the state's view, a danger to her fetus" violates her rights to liberty and equal protection (55).

Officials have also attempted to treat the fetus as a "dependent child," over whom the state could exercise jurisdiction through the juvenile court system. In one proceeding, fetal rights advocates filed a dependent child petition after a prosecutor found that a pregnant woman did not fit the criteria for civil commitment and dropped efforts to have her committed to a psychiatric facility. Although the juvenile court declared the fetus a dependent child and ordered the mother detained for the two months until birth, a state appellate court ultimately held that a fetus is not a child for purposes of dependency laws (56).

Finally, although rarely recorded in written opinions, some judges have sought to use the sentencing phase of a criminal trial to incarcerate a pregnant substance-dependent woman in order to protect her fetus (57). For example, in a check forging case, a judge sentenced a woman to six months in prison, admitting that he gave her jail time rather than the customary probation because she was pregnant and had reportedly used cocaine (58). The judge stated that the length of the sentence was necessary to be sure she would not be released until her pregnancy was concluded ... because of ... concern for the unborn child... (59). None of the sentences based on fetal protection has been challenged in the courts.

Legislative Efforts Concerning Substance Abuse and Pregnant Women

In numerous states, legislators have introduced measures that would provide prosecutors and courts with explicit authorization to penalize pregnant and parenting women with substance abuse problems. To date, no state has expanded its criminal code to punish women who are pregnant and use drugs, and only a handful have revised their civil child protection laws to require reporting of a newborn's positive drug test (60).

The failure to pass any criminal statutes and the very limited adoption of prenatal drug use as evidence of civil child neglect reflects, in part, the overwhelming opposition by the medical community and recognition of the extreme shortage of drug treatment for pregnant women (61). As a result, states have been far more likely to pass legislation to set up task forces to study the problem of substance abuse and pregnancy, (62) establish treatment programs or coordinate services, (63) provide pregnant women priority access to treatment, (64) encourage health care practitioners to identify substance abusing pregnant women and to refer them to treatments, (65) or mandate increased education - of the public and/or medical providers - on substance abuse and pregnancy (66). Some states have also passed measures to prohibit discrimination against pregnant women seeking drug treatment, (67) remove barriers to methadone treatment for pregnant women, (68) increase access to child care for pregnant addicts seeking treatment, (69) ensure that pregnant women in certain health maintenance organizations can receive substance abuse treatment, (70) and enhance criminal penalties for people who sell or give drugs to pregnant women (71).

The Coalition on Alcohol and Drug Dependent Women and their Children recommends the following legislative action to improve maternal and child health:

Provide that pregnant women may not be subjected to arrest, commitment, confinement, incarceration, or other detention solely for the protection, benefit or welfare of her fetus or because of her prenatal behavior. Any person aggrieved by a violation of such a provision should be allowed to maintain an action for damages;

Provide that positive toxicologies taken of newborns at birth may be used for medical intervention only, not for removal without additional information of parental unfitness which assesses the entire home environment ....

Provide that child abuse reporting laws may not be triggered solely on the basis of alcohol or drug use or addiction without reason to believe that the child is at risk of harm because of parental unfitness;

Provide that alcohol and drug treatment programs may not exclude pregnant women and increase appropriations for comprehensive alcohol and drug treatment programs ....

Utilize existing funds for the prevention and treatment of alcoholism and drug dependency among women and their families;

Review agency services and propose the coordination of related programs between the alcohol and drug treatment programs, social services, education and the maternal health and child care field in order to improve maternal and child health (72).

Punitive Approaches Fail To Protect Children

Leading public health organizations, including the American Medical Association and the American Public Health Association, oppose the prosecution of pregnant women who use drugs (see page 11). These groups recognize that such an approach undermines maternal and fetal health because the threat of criminal charges and the fear of losing their children deter women from seeking prenatal care and drug treatment. The Institute of Medicine similarly asserts:

Pregnant women who are aware that their life-styles place their health and that of their babies at risk may also fear seeking care because they anticipate sanction or pressure to change such habits as drug and alcohol abuse, heavy smoking, and eating disorders. Substance abusers in particular may delay care because of the stress and disorganization that often surround their lives, and because they fear that if their use of drugs is uncovered, they will be arrested and their other children taken into custody (73).

Government and private researchers have also concluded that punitive approaches frighten women away from needed care (74). One federal report found that "women are reluctant to seek treatment if there is a possibility of punishment," civil or criminal, noting that "some women are now delivering their infants at home in order to prevent the state from discovering their drug use" (75). Moreover, fear of being reported to the authorities discourages women from communicating honestly about their addiction problems to health care professionals who need that information to provide appropriate medical care to both the woman and her newborn (76).

Many groups that are primarily concerned with the health and rights of children, such as the American Academy of Pediatrics, the Center for the Future of Children, and the March of Dimes, also recommend against punitive approaches to substance abuse and pregnancy. As the American Academy of Pediatrics has stated, "[p]unitive measures taken toward pregnant women, such as criminal prosecution and incarceration, have no proven benefits for infant health" (77). In fact, studies indicate that drug-using women who receive prenatal care have healthier children (78).

In addition, prosecutions have focused particularly on women who allegedly use cocaine during their pregnancies, reflecting a reliance on exaggerated and inaccurate media reports on the "epidemic" of "crack babies" (79) rather than sound medical findings (80). Researchers have concluded that:

available evidence from the newborn period is far too slim and fragmented to allow any clear predictions about the effects of intrauterine exposure to cocaine on the course and outcome of child growth and development (81).

Moreover, the effect of substances on fetal development depends on dose, timing and duration of exposure, genetic, or other biological factors, as well as other influences (82). As one court noted when it refused to civilly commit a pregnant woman, "a hospital simply cannot present clear and convincing evidence that [cocaine] use during pregnancy, particularly during the third trimester of pregnancy, is certain or even likely to cause fetal injury" (83). Thus, while reports in the scientific literature provide ample ground for concern about the potential health effects of cocaine use during pregnancy - and form an appropriate basis for additional research - the data do not justify prosecuting pregnant women and new mothers, committing them to mental institutions, or automatically removing their children (84).

Furthermore, focusing on cocaine ignores the potential impact of other drugs, such as nicotine and alcohol. It is estimated that between two to four percent of pregnant women have used cocaine and approximately twenty-seven percent of pregnant women smoke cigarettes (85). A meta-analysis of the effect of smoking during pregnancy concluded that the use of tobacco products is responsible for an estimated 32,000 to 61,000 low- birthweight infants born annually, and 14,000 to 26,000 infants who require admission to neonatal intensive care units (86). Currently, research

does not shed much light on the subject of which particular substances contribute to which later disability. Polydrug exposure, impoverished home life, and chaotic communities make it impossible to attribute developmental effects to one particular drug. The research has not controlled for other important variables, such as the role of the father, the mother's personality, her health, and her access to social supports (87).

Addressing the True Crisis: Lack of Drug Treatment

Both the World Health Organization and the American Psychiatric Association classify substance abuse as a disease (88). The American Medical Association explains that "addiction is not simply the product of a failure of individual willpower. [It] is caused by complex hereditary, environmental, and social factors" (89). Substance abuse is difficult to overcome, even for pregnant addicts who are especially motivated to stop (90). Moreover, according to experts, such factors as a history of abuse specifically affect a woman's drug use and thus raise important issues for treatment (91). In one study, up to seventy-four percent of alcohol- and drug-dependent women reported that they had experienced sexual abuse (92). In another survey of pregnant women, seventy percent reported that they had been beaten as adults (93). Many specialists in the field believe that women who are abused self-medicate with alcohol, illicit drugs, and prescription medication to alleviate the pain and anxiety of living under the constant threat of violence (94).

As the National Association for Perinatal Addiction Research and Education points out: "These women are addicts who become pregnant, not pregnant women who decide to use drugs..." (95). Their substance abuse is best addressed through treatment, not punishment (96). One court to rule against criminal prosecution of women for alleged prenatal drug use has also acknowledged that treating addiction during pregnancy as a disease and addressing the problem through treatment rather than prosecution is the approach "overwhelmingly in accord with the opinions of local and national medical experts" (97).

Despite the fact that drug treatment programs tailored for pregnant and parenting women help them overcome their addiction problems, greatly improve birth outcomes, and are cost-effective, such programs are extremely rare and overburdened (98). The 1991 Federal General Accounting Office (GAO) Report found that the most critical barrier to women's treatment "is the lack of adequate treatment capacity and appropriate services among programs that will treat pregnant women and mothers with young children. The demand for drug treatment uniquely designed for pregnant women exceeds supply" (99).

A 1989 study of ninety-five percent of the drug treatment programs in New York City found that fifty-four percent refused to treat any pregnant women, sixty-seven percent would not accept pregnant women on Medicaid, and eighty-seven percent refused to treat pregnant women on Medicaid who were addicted to crack cocaine (100). Although many programs now say they will accept pregnant women, a review of drug treatment programs in southern states found that pregnant women were less than one percent of the patients actually served (101). A recent survey also suggests that few physicians or nurses detect substance abuse problems in pregnant women or make referrals to treatment (102). Even when programs do accept women, there are numerous barriers to successful treatment. For example, if a program does not provide child care services, that fact "effectively precludes the participation of women in drug treatment" (103). Similarly, despite significant evidence that long-term (twelve to eighteen months) residential care may be the most effective for chronic alcohol or drug dependent pregnant and parenting women, such services are virtually nonexistent (104). Moreover, when women are imprisoned during their pregnancies or shortly after giving birth, they and their children are even less likely to receive appropriate care. Putting women in jail - where drugs may be available (105) but treatment and prenatal care are not - jeopardizes the health of pregnant women and their future children and does little to solve the underlying problem of addiction (106).

Conclusion

Punitive approaches to the problem of substance abuse during pregnancy threaten the health of women and children and seriously erode women's rights to privacy. Further, they ignore the serious shortage of drug treatment programs for pregnant and parenting women and fail to address the overall lack of access to reproductive health care services. Policymakers, legislators, and those who purport to care about the well-being of women and their children must work to find better ways to address the needs of women with drug and alcohol abuse problems. As the author of a recent study on the effectiveness of mandatory treatment concluded, "the children of drug-using mothers may be most effectively served by the development of available, efficacious, and welcoming services for women and families" (107).

Excerpts from Statements by Public Health And Public Advocacy Groups

American Academy of Pediatrics: "The public must be assured of nonpunitive access to comprehensive care which will meet the needs of the substance-abusing pregnant woman and her infant." Committee on Substance Abuse, Drug-Exposed Infants, 86 Pediatrics 639, 642 (Oct. 1990).

American Medical Association: "Pregnant women will be likely to avoid seeking prenatal or other medical care for fear that their physicians' knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment." Board of Trustees Report, Legal Interventions During Pregnancy, 264 JAMA 2663, 2667 (1990).

American Nurses Association: "ANA ... opposes any legislation that focuses on the criminal punishment of the mothers of drug-exposed infants. ANA recognizes alcohol and other drug problems as treatable illnesses. The threat of criminal prosecution is counterproductive in that it prevents many women from seeking prenatal care and treatment for their alcohol and other drug problems." Task Force on Drugs and Alcohol Abuse/Addictions Position Statement (Apr. 5, 1991).

American Public Health Association: The APHA "recommends that no punitive measures be taken against pregnant women who are users of illicit drugs when no other illegal acts, including drug-related offenses, have been committed." Policy Statement No. 9020, Illicit Drug Use by Pregnant Women (reprinted in 81:2 Am. J Pub. Health 253 (1991)).

American Society of Addiction Medicine: "The imposition of criminal penalties solely because a person suffers from an illness is inappropriate and counterproductive. Criminal prosecution of chemically dependent women will have the overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increasing, rather than preventing, harm to children and to society as a whole." Board of Directors, Public Policy Statement on Chemically Dependent Women and Pregnancy 47 (Sept. 25, 1989).

Association of Family and Conciliation Courts: "Many poor parents, particularly single mothers, have been partially abandoned by our medical, legal and political system. These parents are more likely to consume alcohol and other drugs in a manner that creates an unacceptable risk of harm to their present and future children.... Our national failure to provide comprehensive, universal pre and post-natal care for women and their babies constitutes systemic child neglect.... AFCC finds that ... criminalization of maternal substance abuse is not in the best interests of the child...." Maternal Substance Abuse Policy and Recommendations (May 9, 1992).

Center for Substance Abuse Treatment, U.S. Department of Health and Human Services Consensus Panel on Pregnant, Substance-Using Women: "The Consensus Panel strongly supports the view that the use of alcohol and other drugs by women during pregnancy is a public health issue, not a legal problem.... The panel does not support the criminal prosecution of pregnant, substance-using women. Furthermore, there is no evidence that punitive approaches work." Pregnant, Substance-Using Women, DHHS Pub No. (SMA) 93-1998 (1993).

Center for the Future of Children: "A woman who uses illegal drugs during pregnancy should not be subject to special criminal prosecution on the basis of allegations that her illegal drug use harms the fetus. Nor should states adopt special civil commitment provisions for pregnant women who use drugs." Recommendations 1 The Future of Children 8, 9 (1991).

Coalition on Alcohol and Drug Dependent Women and Their Children: "[T]he interests of women and their children are best served through the health care and social service systems. Women should not be singled out for punitive measures based solely on their use of alcohol and other drugs during pregnancy." Coalition Statement of Purpose (passed by Coalition Jan. 23, 1990).

The March of Dimes: "The March of Dimes is concerned that legal action, which makes a pregnant woman criminally liable solely based on the use of drugs during pregnancy, is potentially harmful to the mother and to her unborn children.... [W]e call upon the American people to work together to support efforts that will ... [m]ake available upon demand the comprehensive therapeutic interventions which meet the specific needs of the pregnant woman suffering from the disease of addiction." Statement on Maternal Substance Abuse (Dec. 1990).

National Association for Perinatal Addiction Research and Education: Criminalization of prenatal drug use "will deter women who use drugs during pregnancy from seeking the prenatal care which is important for the delivery of a healthy baby.... The prospect of criminal prosecutions ... also places health care practitioners in a conflict position, forcing them to choose between maintaining their patient's confidentiality or reporting them, ultimately to the police, a position many doctors and nurses find intolerable .... [these women] do not want or intend to hurt their unborn children by using drugs. But, they need help, not threats, to overcome their problems.... The key to intervention will be access to health care for high risk women, not the threat of criminal prosecution." NAPARE Policy Statement No. 1, Criminalization of Prenatal Drug Use: Punitive Measures Will Be Counter-Productive (July 1990).

National Association of Public Child Welfare Administrators: "If a jurisdiction elects to mandate drug testing of pregnant women, such testing must be universal (i.e., testing would be conducted on all pregnant women and newborns at all medical facilities and not targeted at specific populations) Test results should be used only to identify families in need of treatment and make referrals. Positive test results should not be used for punitive action." Guiding Principles For Working With Substance-Abusing Families and Drug-Exposed Children: The Child Welfare Response (Jan. 1991).

National Council on Alcoholism and Drug Dependence: "[A] punitive approach is fundamentally unfair to women suffering from addictive diseases and serves to drive them away from seeking both prenatal care and treatment for their alcoholism and other drug addictions. It thus works against the best interests of infants and children.... Moreover, there is increasing evidence of disparities regarding the screening and reporting of positive toxicologies of newborns, with women of color, poor women and women receiving care in public hospitals having the greatest likelihood of being subject to drug testing and subsequent reporting to legal authorities." Policy Statement, Women, Alcohol, Other Drugs and Pregnancy (1990).

Southern Legislative Summit on Healthy Infants and Families: "[S]tates should adopt, as preferred methods, prevention, intervention, and treatment alternatives rather than punitive actions to ameliorate the problems related to perinatal exposure to drugs and alcohol." Policy Statement, High Risk Pregnancies / Substance Abuse (Oct. 1990).