Drug Abuse

Pregnancy policing: Policy of harm

Denise Paone, Julie Alperen

Abstract

Women who use illicit drugs, particularly those Who use them while pregnant, have commonly been characterized as immoral and unfit for parenting. The sharp rise in prenatal drug use during the 1980s. Fueled by the conservative political climate in the USA at that time, and the somewhat tenuous data of the harmful effects of drugs on the fetus. provoked an unprecedented backlash against these women. Thus began a campaign to punish Women through Civil and criminal action in it manner which is plagued with racial and gender bias. This paper discusses the conditions which led to these punitive responses, as well as alternative. more harm-reduction-based approaches to addressing the issue of prenatal drug use. 

1. Introduction

"From their first breath they are abused children --thousands of' American babies poisoned in the womb by their own mothers ... The mother who would do that to her child is so far gone spiritually she can be expected to mistreat it as it grows older." Rosenthal, The Poisoned Babies, January 16, 1996

This quote appeared in a New York Times editorial which commented on the behavior of' women who use illicit drugs during pregnancy.

The statement typifies three assumptions which are common in reference to prenatal exposure to illicit drugs: that drug use during pregnancy causes devastating and irreparable harm to the fetus~ that such behavior is derived from immorality rather than from illness, and that women who take drugs during pregnancy can be expected to be 'unfit' mothers.

While these assumptions have always been characteristic of attitudes toward women who use drugs, the concurrent increases in prenatal drug exposure and the rates of' cocaine use among women during the 1980s, fueled by the conservative political climate in the USA, caused an unprecedented backlash against women who use drugs during pregnancy. Despite the lack of evidence, these assumptions have been used to justify a shift in policy regarding prenatal drug users over the decade. Rather than provide support to drug-addicted women, in order to help them abstain from or minimize then- drug use, authorities began to use coercive measures as a means of controlling women and punishing them for their behavior. As a result, thousands of women have lost custody of' their children, been forced into treatment programs against their will, and, in some cases, undergone criminal prosecution due to their prenatal drug use.

These approaches, justified as a means of protecting fetuses, have the potential to damage the health and well-being of children who are born to women who used drugs prenatally. This paper describes this policy of harm. the political and social forces which have facilitated its implementation, and the policy implications resulting from these practices.

2. The Reagan/Bush era

In the 1980s, the focus on illicit drugs intensified due to the rapid increases in the numbers of women using drugs while pregnant. In New York City, from 1980 to 1988. the number of birth certificates indicating prenatal drug exposure rose from 1 of every 137 newborns to 1 of every 33 (New York City Department of Health, 1989). One widely-publicized study of' 36 mainly urban hospitals reported that approximately I I percent of women used illicit drugs at some point while pregnant (Chasnoff et at., 1989).

Not coincidentally, these trends were observed subsequent to the introduction by the Reagan administration of' an extremely conservative approach to drug control, coined the 'war on drugs'. Drug addiction shifted from being viewed as an illness to a criminal pathology. Punitive measures for drug-related crimes were harshened, with an emphasis placed on street level activity. Ironically, in just the first half of the decade, federal funding for prevention, treatment, and education was cut by about 40% (Kandall, 1996). By the end of the 1980s, slots in public treatment programs were available for only 148000 of the nation's estimated 1.3 million drug users.

In addition, first lady Nancy Reagan's 'just say no' campaign reframed the issue of drug addiction into one of individual morality and personal responsibility. Her recommended treatment for addiction-love, support, and affection -placed the onus of preventing drug use on the family, thereby exonerating the government of any obligation to provide treatment for drug addiction or to address the underlying social and economic conditions which contributed to the use of illicit drugs.

The political climate during this period allowed conservative movements to flourish. The New Right gained power and influence through its self-determined 'family' agenda. With its narrow definition of family characterized by father as breadwinner and mother at home caring for dependent children, they rejected any alternative household structure as being a threat to the sanctity of the US family (Reeves and Campbell, 1994).

In addition, the anti-abortion plank of the Conservative platform was challenging women's reproductive rights and autonomy, and calling for increased government intervention in pregnancy. Its emphasis on 'fetal rights' positioned the needs of the fetus as being exclusive of and superior to the needs of women.

3. Media spin

By the end of the decade, studies were published documenting the effects of maternal drug use on fetal health. Researchers linked the use of crack/cocaine and/or heroin during pregnancy with numerous medical and neurobehavioral complications. Children exposed to drugs prenatally were purported to suffer from low birth weight; congenital malformations; withdrawal; problems with memory, auditory functioning, and attention; hyperactivity; and behavioral disturbances (Berger et al., 1990; Chasnoff et al., 1985, 1987, 1989).

Soon after this, the mass media began chronicling the horrors resulting from the reported epidemic of maternal crack use. Newspaper and magazine articles declared crack-using mothers dangerous and unfit to parent ('Crack babies: the worst threat is mom herself', Washington Post, (Besharov, 1989)  'Addiction to crack kills parental instinct'. New York Times, (Hinds, 1990)). The 'crack baby' made headlines as the unfortunate innocent victim of the epidemic, in 'Childhood's End' in Rolling Stone (Hopkins, 1989). Characterized as a 'biological underclass, 'oblivious to any affection', and 'brain damaged in ways yet unknown', the crack baby became an icon of the seemingly selfish and immoral behavior exhibited by female addicts (Hopkins, 1989).

4. Policy response to maternal drug use

4. 1. Civil action

Law enforcement authorities, judges, and elected officials responded to the incidents of neonatal drug use by taking punitive action. Through civil proceedings, informal estimates suggest that hundreds if not thousands of women have been investigated and lost custody of their children as it result of maternal drug use (Center for Reproductive Law and Policy. 1993). In some cases, a positive urine toxicology was considered prima facie evidence of' abuse or negl4ct and the children were removed regardless of any other signs of mistreatment.

The only two state Supreme Courts to address the issue have ruled that prenatal activity could not be used as a basis for the termination of parental rights. In re Valerie D.. 223 Conn. 492 (1992), the Connecticut Supreme Court, rejecting the opinions of lower courts, explained, "(We are unpersuaded by the reasoning of these decisions because they do not rely, as do we, on close examination of the language, constitutional background, and available legislative history of the statutory framework purporting to support a petition for termination of parental rights." However, most lower court opinions have accepted prenatal conduct as a justification for the termination of parental rights or temporary loss of custody (Center for Reproductive Law and Policy. 1993).

4.2. Criminal action

Spurred by the political and media furor, women began to be pursued through the criminal courts its well. On July 13, 1989, Jennifer Johnson, of Altamonte Springs, FL, became the first woman convicted on charges of delivery of a controlled substance to a minor based on her prenatal cocaine use. The prosecution argued that Johnson, during two pregnancies, had 'delivered' drugs to her children through tile umbilical cord in the 30 90 s front the time she gave birth to the time the cord was cut (Florida v. Johnson, 1989).

While the Johnson conviction was overturned, it ushered in a series of' cases where prosecutors attempted to interpret existing statutes in a similarly unintended or unforeseen manner. In addition to drug delivery charges, women who used drugs during pregnancy were charged with child abuse, drug possession, assault with it deadly weapon, contributing to the delinquency of' a minor, and even murder. In some cases, women were charged based on a positive neonatal urine toxicology alone, Lind information was provided to criminal authorities by medical personnel in violation of patient confidentiality.

In one extreme incident in Charleston, SC, in 1989, a collaborative effort was established among the police department, the prosecutor's office, and a state hospital, the Medical University of South Carolina, to systematically identify and pursue women who used drugs prenatally. Under their protocol, women who had recently given birth Lind had tested positive for drugs were arrested and detained until they could make bail. Their babies were removed from their care by the state. A total of 18 women were charged with criminal neglect of their fetuses before the practice ceased as the result of' a court challenge (Center for Reproductive Law Lind Policy, 1996).

Presently, 70% of states have prosecuted women for taking illicit drugs while pregnant (Center for Reproductive Law Lind Policy, 1996). Recognizing that penal laws were being stretched beyond their limits and that the charges may have been brought in violation of the women's constitutional rights, courts have generally either dropped the charges or ruled in favor of the defendants.

However, in July of 1996, the South Carolina Supreme Court became the first to uphold the conviction of a woman for child abuse as a result of prenatal drug use. The Court ruled that state child abuse law,, were intended to apply to fetuses. Cornelia Whitner, despite the fact that her baby was born healthy and that she had requested a drug treatment placement from the court, received an 8-year sentence for unlawful neglect of a child (State of South Carolina Supreme Court, 1996). A petition for a rehearing is pending.

4.3. Mandatory treatment

In some cases mandatory treatment, the requirement that an individual attend substance abuse treatment, has been offered to women as an alternative to incarceration. Mandatory treatment can be imposed as a result of involvement with the judicial system or by involuntary civil commitment, where individuals who have not committed any crime but are addicted to drugs are committed because they are determined to be incapable of caring for themselves or are a potential threat to public safety. Individuals must remain in treatment in order to avoid criminal prosecution.

Evaluations of treatment programs designed specifically as alternatives to incarceration have drawn varied conclusions regarding their effectiveness (Chavkin, 1991). Regardless, of whether they are effective, however, the constitutional rights to bodily integrity, privacy, and the right to refuse medical treatment suggest that this strategy may prove as unjustifiable as more blatantly punitive approaches.

5. Policies of harm

Although policy-makers pursue punitive and coercive measures with the overt intention of' protecting the fetus, the approach fails in achieving this outcome. Fear of punishment, rather than intimidating women into abstaining from drug use, has the potential to discourage them from seeking substance abuse or prenatal care altogether. In addition, women may still have access to drugs in jail, but at the same time may be denied prenatal care or medical care during their pregnancies.

In addition, child welfare services may be unable to find suitable homes for these children once they are taken from their mothers- especially children bearing the deleterious brand of' 'crack baby'. This outcome was witnessed during the 'boarder baby' explosion, when crack-exposed infants were kept in the hospital for extended periods after birth because suitable homes were not available. As a result, these children may be condemned to living conditions that pose greater harm to their well-being than the ones from which they were removed.

While mandatory treatment is often thought of as a 'humane' alternative to civil or criminal sanctions, it still functions on the basis of coercion with a possible punitive result if the individual is not compliant. Its implementation is often determined based on the same deviant mother/ vulnerable fetus dichotomy which underlies the explicitly punitive approaches.

The labeling of otherwise healthy children as being damaged by crack will have negative implications through the duration of' the children's lives. The expectations of parents and teachers may be lowered if they perceive the children to be incapable of any reasonable measure of achievement. Research has shown that when child care professionals are aware of prenatal cocaine-exposure in children, they consistently evaluate the performance of the cocaine-exposed children to be substandard to that of the 'normal' children (Thurman et al., 1994, Woods et al., 1994).

The intense and singular focus on prenatal drug use as a potential source of harm to the fetus detracts attention from other known and hypothesized causes of' fetal harm, which in some cases accompany illicit drug use. The influence of risk factors such as lack of prenatal care, smoking, consumption of alcohol, environmental conditions, and socioeconomic status are often overlooked when illicit drug use is present (Parker, 1988; MacGregor et al., 1989; Rush and Callahan, 1989; Streissguth et al., 1989; Zuckerman et al.. 1989; Chazotte et al., 1995~ Nordentoft et al., 1996). As a result, efforts to research and prevent such causes may not receive the attention and resources which they deserve.

6. Scapegoating

-Prosecutors have selected women whom society views as undeserving to be mothers in the first place ... Society is much more willing to condone the punishment of' poor minority women who fail to meet the middle class ideal of' motherhood." Roberts, New York Times. 1990.

Regardless of whether punitive approaches actually protect the health of' the fetus, it should be recognized that this 'goal' may not, in fact, be the primary motivation for punishing women who use drugs during pregnancy. Women's roles during the 1980s, fueled by the backlash against feminism, continued to be based on a culturally conservative view of women which elevated then, functions as mothers and caregivers to positions of' primary importance. Prenatal drug use challenges the 'sanctity' of motherhood, while the construct of drug use as immoral reinforces the status of' these women its unfit mothers. Based on these notions, maternal drug users were punished not for their drug use per se, but because they had the audacity to deviate from preestablished gender roles to participate in behaviors which seemed to place then- own needs above those of their children and, therefore, did not deserve ~be privilege of' being mothers.

Racial bias was apparent in the manner in which women were pursued and punished, as 80% of women prosecuted for delivering drug-exposed children are black or Latino, despite the fact that rates of drug use are similar across races. In a Florida study, it was determined that although the rates of positive urine toxicologies were actually slightly higher among white women, black women were ten times more likely to have their prenatal drug use reported to child welfare agencies (Chasnoff et al., 1990). This racial bias parallels that which is observed in prison sentencing for drug possession. Federal sentences for possession of crack, where an estimated 80'V,~ of the defendants are African American or Latino, is far greater than sentences for possession of cocaine, where only 27V, of defendants are minorities. (Federal sentencing mandates 5 years for possession of 5 g of crack versus 500 g of cocaine.)

Many of the studies which showed harmful effects of prenatal drug use were subsequently found to contain numerous methodological flaws. A closer examination of these studies revealed short-comings such as a lack of' control groups; a 1'ailurc to distinguish cocaine use from use of other drugs; ill defined populations which could not be generalized to the larger population of prenatal cocaine users~ and a failure to control for socioeconomic characteristics, among numerous other flaws (Lutiger et al., 1991).

In addition, while other studies conducted during this time found the effects of' prenatal cocaine use on the fetus were questionable or had varied or inconclusive results, these Studies were less likely to find a forum to disseminate their results. According to a 1989 paper published in Lancet, studies describing the harmful effects of prenatal cocaine use were five times more likely to be accepted for publication or presentation than studies of' equal or superior methodology which found fewer or no effects (Koren et al., 1989).

Still, the issue remains that since the effects, if' any, of' maternal drug use oil fetal health and development remain unclear, pregnant women should abstain from drug use until it is proven that there is no risk. Many barriers exist which prevent pregnant women from obtaining substance-abuse treatment. The demand for drug treatment vastly surpasses the availability. For example, in New York State, existing programs can only accommodate 25'V,, of all individuals in need of treatment (New York State Office of' Alcoholism and Substance Abuse Services, 1995).

Many programs will not accept pregnant women or limit their acceptance based on the method of payment. A 1994 study on the availability of drug treatment for women in five US cities showed that 30% of residential and detox programs do not accept pregnant women, and almost hall' did not accept pregnant women on Medicaid or for free. In addition, only 20% of programs accept pregnant women and provide child care--a critical issue for female addicts.

Furthermore, for women who manage to obtain treatment, the programs are often inappropriate or inadequate for their needs. Most treatment programs are based on a male-oriented model which uses confrontation and punishment to Induce behavior change. Female addicts often don't respond to this treatment approach due to a lack of' sell'-esteem and may even find it hostile or threatening, increasing the likelihood that they will not complete their treatment. The psychological services they receive may also be inappropriate, because female drug users differ from males in terms of' background and causal attributes.

7. Recommendations

7.1. Take a harm reduction approach

Pregnancy has been found to often be a 'window of' opportunity' for women to modify or cease drug use. In a study of' drug-using mothers and pregnant women in New York City, three quarters of the women reported concern for how drug use was affecting their children as a reason for initiating drug treatment (Chavkin et aL, 1993). Therefore, in order to maximize the health and well-being of' both mother and child, it is essential that drug treatment be both quickly and easily accessible and suitable for women's needs.

The current system of' rationed care often prevents women from initiating treatment when they decide they are ready. In addition, the complicated screening processes, waiting lists, and demands placed on potential clients discourage drug users l7rom pursuing treatment. Thus, modeling treatment in accord with the concept of' harm reduction, with treatment available on request, and facilitated enrollment, would engage pregnant women into services at a time when they are extremely motivated to get well.

Government programs offering treatment of this nature have been successfully implemented in Australia and the Netherlands. The Australians increased the number of methadone-maintenance programs by 3-fold from 1985 to 1989. In the Netherlands, methadone maintenance is offered on street corners by mobile vans. These programs operate as 'low threshold programs'. Admissions criteria have been relaxed to allow clients to by pass the usual lengthy screening process. In addition, they make few demands on clients who are enroled and reject punitive measures in response to illicit drug use, making them a more reasonable option than the typical abstinence-based programs for many addicts (Wenger and Rosenbaum, 1994). Programs of this nature could provide a model for future initiatives in the USA.

 

7.2. Create treatment which is appropriate and effective for women

Drug treatment programs need to be developed which address the unique needs of women drug users. It is important to recognize that services should include not only those directly related to substance abuse, but also programs which address the social, economic, and emotional conditions which contribute to their use of drugs.

In a study of' treatment for crack-using mothers, 150 addicted women and 50 experts in drug dependency identified components which they believe were essential to effective treatment for women. Among the features they identified which are often missing from currents programs are (I) services for children (e.g. day care, play therapy, child developmental monitoring, and parental training), (2) comprehensive health care (e.g. prenatal, family planning, and HIV prevention); (3) appropriate staffing (e.g. female staff', non-confrontational, and culturally /racially sensitive), Lind (4) an advocacy role (e.g. contact with child protective services, welfare). Apparent in the study's findings is the preference among women and experts for a program which combines drug treatment, medical and therapeutic services for mother and child, education and job training, assistance with concrete needs such as day care and housing, and long term after-care to prevent relapse (Chavkin et al., 1993).

7.3. Increase federal funding for drug abuse prevention and treatment

From 1980 to 1992, federal expenditures on drug control increased 54old from $1.5 billion to $11.7 billion (Reuter, 1994). The amount spent for prevention and treatment initiatives, however, remained as little as one-quarter and never more than one-third of the total throughout that period (Reuter, 1994). In addition, in the early 1980s, funding for treatment shifted from direct federal funding to state block grants, giving state and local officials greater control in deciding how funds would be disbursed. Consequently. many states cut public funding of drug treatment and replaced them with private fee-for-service programs (Weriger. and Rosenbaum, 1994), which are inaccessible to most drug users.

8. Conclusion

Punitive responses to prenatal drug use do not serve to protect children but rather are designed to punish women for their behavior. Thus, pregnancy policing fueled by the drug war, the conservative political climate, and the media, and the pursuit of women through legal means demonizes women while allowing policy-makers to ignore the underlying social and economic conditions which contribute to drug use.

Despite the tenuous causal link between prenatal drug use and fetal harm, criminalization of this practice remains the primary policy in the United States. As part of the general 'moral rollback', the ongoing criminalization of this social problem allows us to ignore the divisions of gender, class, and race and to continue on a policy path of harm rather than formulating policy based on solid and conclusive data.

Acknowledgements

The authors gratefully acknowledge the editorial comments of Anthony Henman and Judith Milliken.

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