Many States Prosecute Pregnant Women for Drug Use. New Research Says That’s a Bad Idea.

In November, a California woman who gave birth to a stillborn baby and admitted to using methamphetamine while she was pregnant was charged with murder. The case touched a nerve, igniting a debate over whether mothers should be held accountable for their drug use or treated with compassion for their addictions.

California is one of dozens of states with laws on the books that criminalize drug use during pregnancy, some of which have been passed in recent years in response to growing concerns about the opioid epidemic. Studies have found that the rate of children born with neonatal abstinence syndrome, a form of withdrawal, increased by more than 500% between 2004 and 2014, and opioid overdoses have become a significant contributor to maternal deaths in some states.

A November study published in the Journal of the American Medical Association tracked the rise of laws that criminalized taking drugs while pregnant, as well as classifying drug use during pregnancy as child abuse that could result in loss of custody rights or as grounds for a civil commitment. From 2000 to 2015, the number of states that implemented these policies rose from 12 to 25, while almost the same amount of states also began requiring health care professionals to report suspected drug abuse.  

The study also tracked NAS rates in states that enacted what the study called “punitive policies” and those that did not, finding that the odds of a child being born with the syndrome were significantly higher in states that took the harsher approaches. The results suggested the women “are disengaging from the health care system in states where punitive policies regarding substance use during pregnancy have been enacted” and “missing key opportunities for interventions” due to fear of criminalization.

Stephen Patrick, a professor of pediatrics and health policy at Vanderbilt University and an author of the report, said that their findings show that laws criminalizing drug use while pregnant or using addiction to terminate parental rights don’t work. “I think the question now is how we deal with the problem,” he said. “There isn’t one easy fix, and when state’s look for that, they end up with punitive policies.”

For some lawmakers, taking a consequence-based approach seems like the only immediate option in the face of a crisis. In 2018, Kentucky passed a law that amended the state’s child welfare laws to include a consideration of parental drug use during pregnancy, following reports of the skyrocketing number of children in the state born with NAS—from just 46 babies in 2001, to 1,115 babies in 2016. 

Kentucky’s law, which is similar to another passed in Arizona that same year, requires the mother of a child born with NAS to enroll in drug treatment within 90 days and keep a regular schedule of postnatal care or else face termination of her parental rights. State Reps. David Meade and Joni Jenkins, the Republicans sponsors of the Kentucky measure, said that the “consequence” was intended to “encourage mothers to get help” with their addictions. “The epidemic of so many children being born straight into withdrawal from NAS is a growing plague on our society and cause for great alarm,” Meade and Jenkins wrote in an op-ed. “That is why we sought to incentivize parents to enter substance abuse treatment and recovery programs, in hopes that we can help save not only their children, but their own lives as well.”

In some jurisdictions, prosecutors are aggressively cracking down on drug or alcohol use by women while pregnant. In one case, a prosecutor in Mississippi has used a state law that defines poisoning as child abuse to prosecute 20 cases since 2015. 

Some prosecutors have said that their decisions were influenced by the life-altering effects of being born with NAS, a stance contested by the American Congress of Obstetricians and Gynecologists. “The only time drug withdrawal is harmful is when it isn’t diagnosed immediately after birth,” Patrick said. It’s important that mothers are willing to tell medical professionals about drug use during pregnancy, he said, because problems arise when babies go home undiagnosed.

The National Perinatal Association has cautioned against punitive mechanisms to encourage treatment, saying they can backfire, driving women to skip prenatal visits or have their baby outside a hospital. “The threats of discrimination, incarceration, loss of parental rights, and loss of personal autonomy are powerful deterrents to seeking appropriate prenatal care,” reads a statement from the group released in 2017. “Perinatal providers promote better practices when they adopt language, attitudes, and behaviors that reduce stigma and promote honest and open communication about perinatal substance use.”

Several other organizations, including March of Dimes, Amnesty International, the American College of Obstetricians and Gynecologists, and the National Organization on Fetal Alcohol Syndrome have all similarly condemned legislation that may have a chilling effect on a pregnant mother’s willingness to seek out help. The American Medical Association, in their recommendations for policymakers to end the opioid epidemic, said that “non-punitive public health approaches to treatment result in better outcomes for both moms and babies.”

Patrick said making treatment more accessible should be the first step states take to get better outcomes. “There’s really been a focus on the supply side, and we’ve seen broad state approaches to deter opioid prescribing, but there hasn’t been a corresponding expansion of treatment,” he said. “We need to see more effective options, like methadone assisted treatment, particularly targeting pregnant women.”

Some states have made strides in expanding treatment options. Texas, for example, has begun to offer health support to pregnant and postpartum women with substance abuse issues, as well as providing access to residential centers where women and their new babies can receive treatment together.

In Montana, state Sen. Diane Sands this year sponsored a new law that provides pregnant women who seek addiction treatment protection from prosecution. “Being addicted is not a crime,” said Sands, a Democrat. “We wanted to send a clear message that if you come forward to ask for help, we’re not going to prosecute you or take away your child.”

The bill passed unanimously in the Senate and overwhelmingly in the House, but Sands said she wasn’t surprised by the support, even though other states with Republican-controlled legislatures have tended to embrace more punitive approaches. Four years ago, the state launched a bipartisan effort to review the criminal justice system. The state has since also made efforts to reduce their rate of child removal to foster care, the second highest in the nation, where  two-thirds of cases are tied to drug abuse. “Our entire government has said we can’t go on like this. It’s not sustainable,” she said. “We had to come to grips with the reality of the numbers, and deal with the underlying causes of these overlapping problems.”

Sands said the bill was meant to work in conjunction with other efforts to expand treatment options across the state to pregnant women and new moms with addictions. “We realized criminalization doesn’t help anyone,” Sands said. “Instead of charging more people, we need to divert them to treatment.”