At least 20 states have resorted to prosecuting women for using drugs during pregnancy, often through convoluted interpretations of drug trafficking laws. But this law enforcement practice is counterproductive in the long run because it frightens drug-using women away from seeking treatment and prenatal care once they become pregnant. Drug czar Martinez should use his national pulpit to urge states to cease this prac-tice, so that pregnant women can fully utilize prenatal care and drug treatment programs without fear.

Drug War is Bad for Medicine

In one of its most destructive intrusions, the drug war has moved into the realm of medicine. Putting police and prosecutors in charge of doctors has harmed health care in a number of ways. People are denied medicines of proven efficacy, drug users and addicts are afraid to seek medical treatment of any kind, and research on drugs with potential medical uses is stunted. Doctors are afraid to prescribe adequate amounts of powerful painkillers due to the threat of unwarranted pros-ecution. As a result hundreds of thousands of innocent Americans live and die in pain every year.

This recommendation focuses on one specific example of the per-verse effects that arise when drug war tactics are used to handle medical problems. In short, the use of criminal prosecutions may have resulted in more drug-exposed babies being born than would have existed otherwise. It is now time to reverse this basic strategic error and reduce the damage caused by criminalizing pregnant women.

Prosecutions: A Counterproductive Reaction to the Crack Baby Problem

As the problem of crack babies has received wider national attention, many states have tried to use criminalization to reduce the number of babies born to drug-using mothers. Several women have been pros-ecuted under a bizarre legal doctrine: "drug trafficking through the umbilical cord." This theory holds that in the 30 to 60 seconds between birth and the severing of the umbilical cord, a mother passes illegal drugs to her baby, thereby trafficking drugs to a minor.

Several states have made pregnant drug use a violation of civil codes, with punishments ranging from fines to loss of custody of the mother's children. In 1991, according to the ACLU, efforts were made in at least seven states to create the new and separate crime of drug use during pregnancy.

The problem is that such laws and prosecutions — aimed at deter-ring pregnant women from using drugs — have the effect of discouraging drug-using mothers-to-be from entering drug treatment programs or seeking proper prenatal care. Thus laws targeting pregnant drug users risk increasing the incidence of the very problem they were designed to curtail. Surely the threat of law enforcement action contributes to the fact that less than 11 percent of pregnant women who need drug treatment actually get it, as estimated by the National Association of State Alcohol and Drug Abuse Directors (NASADAD).

Drug Czar Should Support a Moratorium on Prosecutions

Drug czar Martinez can help reverse this trend by encouraging a moratorium on prosecutions of pregnant women. That would be an essen-tial part of any genuine effort to reduce the crack baby problem. When women caught up in the cycle of drug use and addiction become preg-nant, they must know they can get immediate help for themselves and for their babies without risk of jail time or other harsh repercussions. Otherwise they will avoid help or try, against all odds, to help themselves — with disastrous results.

Supporting a moratorium on state-level prosecutions of pregnant women should be consistent with stated administration views. In the 1991 National Drug Control Strategy (page 53), the ONDCP wrote:

Some states have brought criminal prosecutions against preg-nant addicts on the grounds of fetal endangerment. Such prosecutions, however, have generally been unsuccessful, and the administration views criminal incarceration of these women as a last resort.

From these words, it is not clear whether the administration merely con-siders prosecutions too blunt an instrument or if it sees the genuine dangers posed by a continuation of the criminal threat against women. But it should resolve any uncertainty now and make an effort to stop this trend. A message delivered by the drug czar to the National Association of Attorneys General and the National Association of District Attorneys could instantly halt the practice.

Until women get the message that a helping hand is available, the nation risks creating more crack babies by means of laws aimed at preventing them.