Sorry Kid, But Your Mom’s in Jail for Having You

by Patricia Mayer, MD, Bioethics Program Alumna (2009)

Last week the Tennessee legislature voted to approve a bill that criminalizes drug use in pregnancy. Mothers can now be charged with criminal assault if a child is born addicted, harmed or dies as a result of pre-natal use of narcotics. The bill, amended to preclude charges for women who voluntarily enter treatment, now goes to Governor Bill Haslam for signature or veto.

Tennessee eliminated these same criminal penalties just two years ago, deciding treatment made more sense than jail time. The state is now planning to reinstate these sanctions. This would make Tennessee the only state that allows criminal charges against drug-using pregnant women. Seventeen other states consider drug use during pregnancy to be child abuse subject to civil penalties.

Resurrecting criminal penalties for drug-using mothers is a response to pressure to halt the “epidemic of drug dependent newborns” reported by the Tennessee Department of Health. Interestingly, that same Department of Health report reports that the largest percentage of narcotic-addicted newborns was born to mothers taking “substances prescribed to them for legitimate treatment”. That, of course, is another conversation.

While no one is arguing that drug-addicted babies are a good thing, this approach is wrong in every way. First, it creates a new status of criminal. It is not illegal to be a drug addict according to the US Supreme Court (Robinson v. California). It is not illegal to be pregnant. But a person who is drug addicted and pregnant at the same time can be charged with a crime.

Second, this law flies in the face of all medical recommendations, including those by the American Medical Association, the American Pediatrics Association, and the American College of Obstetricians and Gynecologists (ACOG). The latter group issued a formal opinion in November 2005 that specifically condemned “punitive and coercive” approaches to addicted pregnant women. That opinion summarizes legal cases up to that point, reviews pertinent ethical principles, and reports six main objections to the punitive approach Tennessee is considering. In particular, medical societies, professional organizations and substance-abuse experts are convinced this law will discourage pre-natal care. What woman will admit to use of narcotics (legal or otherwise) if she thinks she might go to jail or have her baby taken away? Pro-choice advocates also oppose the bill, fearing that it will cause more women to get abortions in order to avoid criminal sanctions.

Third, the law makes no medical sense as written. The law refers to children addicted, harmed or who die as a result of a mother’s narcotic use. But far too many pregnancies have poor outcomes. Often, the exact causes of a poor outcome are unclear. The ACOG report particularly highlights the limitations of medical knowledge and predictions of birth outcomes. Will prosecutors now investigate every woman who has the misfortune of delivering a child with birth defects? Are we then going to prosecute women for stillbirths? In 1999, South Carolina did this with a cocaine-addicted mother whose child was stillborn. In that case, the grieving mother was convicted of homicide by child abuse, and sentenced to 12 years in jail. That case, upheld by the South Carolina Supreme Court, was refused a hearing by the US Supreme Court.

Fourth, these types of prosecutions disproportionally are directed at women of color. Despite similar rates of addiction in Caucasian and non-Caucasian women, multiple studies have found that women of color are uncommonly subject to criminalization of pregnancy related behaviors.

Finally, it is unclear who will benefit under this scheme. It certainly won’t benefit the addicted mothers, who will be in jail instead of in treatment. It won’t benefit the affected babies, who will have no chance to be with their families; mom will likely be in jail and unavailable to her baby. This is despite the fact that there is no proof drug addicted mothers do not care about their children. In fact, the opposite is true, and there is compelling evidence that women who have custody are more likely to complete treatment for addiction. Society is also unlikely to benefit. Taxpayers in Tennessee will end up paying for more inmates in prison and more children in foster care. Abortion rates and infant mortality rates could rise, as drug-using mothers selectively terminate their pregnancy or avoid pre-natal care out of fear that they will be arrested. None of these outcomes benefits society.

There are fatal flaws in this bill, and the Governor should not sign it. Tennessee (and all states) can do better than this.

[The contents of this blog are solely the responsibility of the author and do not represent the views of the Bioethics Program or Union Graduate College.]


4 thoughts on “Sorry Kid, But Your Mom’s in Jail for Having You

  1. Pingback: Awful, just awful! | Stuartsorensen's Blog

  2. As you point out, it is not illegal to be a drug addict according to the US Supreme Court (Robinson v. California). That means this law is unconstitutional on its face and will probably be tossed out by the courts. The Supreme Court and many appellate courts have said multiple times that you can’t have a law apply to one kind of person and not another, most recently in reference to same-sex marriage cases. If it’s illegal to be a pregnant drug addict, it has to be illegal for anybody to be a drug addict, and–oh, whoops, that’s unconstitutional, as the Court’s already said.

    The sad part will be the lives ruined before the case actually gets to court, the families that will be torn apart, and the women who will be thrown in jail (and separated from their infants) for being drug addicts. Meanwhile, it remains legal to drink, drive, inhale polluted air, slip and fall, stay with an abusive partner, work with mercury, gallium arsenide or selenium, and go skiing/ surfing/ bullriding/Rocky Mountain climbing while pregnant, all of which are a lot more dangerous to an unborn child than mere heroin or cocaine.

  3. I would remove your first argument (really two arguments). You state “First, it creates a new status of criminal.” You assert this to be “bad” by definition. But as society and technology evolves and criminal law evolves with it, new classes of criminals are created all the time; and this is not only appropriate, but necessary. Think cybercrime, identity theft, illegal wiretapping. These classes were all developed in response to new capabilities that threaten people’s privacy and happiness. Then, the other argument. I’ll call it, the “two rights should never make a wrong” argument. Allow to dispatch with this blatant fallacy:

    “First, it creates a new status of criminal. It is not illegal to drink alcohol according to the US Supreme Court (Smith v. Rhode Island). It is not illegal to drive. But a person who is drinking alcohol and driving at the same time can be charged with a crime.”

    I should also mention, if you want to be respected, make sure you don’t give short shrift to inconvenient facts that mellow your zealous narrative, which are, the law only jails the mother if she refuses drug treatment. While you do mention this in the first paragraph, it is never explored, let alone celebrated. To me, this crucial section is meant to make the addict an offer they can’t refuse, to put them in a bind which forces them to seek treatment. I find this quite clever. For the addicts who opt for jail instead of treatment, perhaps you can analyze the bioethics of THAT decision! It seems, though, you are fixated on vilifying the state. How would you rewrite the law to incentivize treatment and disincentivize addicted pregnancies?

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