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Fight continues against punitive measures targeting pregnant women

October 12, 2015
by Gary A. Enos, Editor
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Judicial developments in two states in recent weeks worked in favor of advocates who fight against state laws used punitively against pregnant women over substance use. But with women appearing to be targeted on many fronts at the state level, these advocates react largely by bracing themselves for the next controversy to unfold.

In Wisconsin on Sept. 30, a federal district judge denied the state's request to dismiss a civil-rights challenge to a 1997 state law allowing pregnant women to be detained over current or past substance use. The plaintiff in the case was jailed for 18 days after admitting to healthcare workers that she used illegal drugs to self-medicate a serious thyroid condition before she knew she was pregnant.

Then last week, the Arkansas Supreme Court overturned the conviction of a woman who was sentenced to 20 years in prison under a law that opponents say was originally adopted to punish individuals who deliver “knock-out” drugs to an unsuspecting person. The Arkansas law, say advocates for pregnant women, reflects a pattern in several states where laws are being applied well outside their initial intended purpose, with pregnant women and their families becoming the victims of this expansive mindset. Perhaps the most-watched of these laws is the broad 2014 Tennessee law that subjects women to arrest and prosecution if they use substances while pregnant and do harm to their child.

Lynn Paltrow, executive director of the group National Advocates for Pregnant Women (NAPW), places the Tennessee law at the top of the list of laws “that use drug issues and drug panic to justify state control and punishment of pregnant women,” she tells Addiction Professional.

Neonatal abstinence syndrome

Where that sense of panic from policy-makers and the public once focused on concern over crack-exposed infants, the issue today centers on prenatal exposure to opioids. The specter of neonatal abstinence syndrome (NAS) is now driving legislative and enforcement activity at the state level, with Tennessee last year becoming the first state to subject pregnant women explicity in law to arrest and prosecution. Paltrow says states such as North Carolina, Oklahoma and Mississippi have all seen attempts to adopt a law similar to Tennessee's; the expectation is that this activity will continue.

A brief from NAPW states that while women in Tennessee can defend themselves against charges if they have entered and completed a substance use treatment program, there is no defense available to women who are refused treatment or otherwise can't find it. The brief adds that “while the law suggests that pregnant women arrested specifically for using narcotic drugs may only be charged with a misdemeanor (a crime that carries a maximum one-year penalty), such women have been charged with felonies (punishable with up to 15 years in prison).”

Paltrow says laws that have been enacted for one stated purpose often end up being used more punitively, and in a manner not supported by science in terms of the claims of harm being made. “Any legislation that increases tracking involving women becomes the basis for coercion and punishment,” she says.

The NAPW summary of Tennessee's law concludes by making the case for ongoing advocacy activity in the state because the law is an amendment scheduled to sunset next July, meaning it would have to be re-enacted if lawmakers wanted it to stand.

NAPW is one of several entities representing plaintiff Tamara Loertscher in the case challenging the Wisconsin law that was originally dubbed “the cocaine mom law” in the state. In the Arkansas case, the state Supreme Court ruled that a state law designed to prevent someone from introducing a controlled substance into another's body should not have been used to sentence Melissa McCann Arms to 20 years in prison for substance use during pregnancy.

“There is a vital underlying message in both cases,” Paltrow said in a news release last week. “The legal rules that prohibit prosecutors from making up new crimes, require them to prove their cases, and provide access to the federal court system all apply to pregnant women—no less than other persons.”

Role of health professionals

Medical professionals, led generally by the physician community, have tended to align in opposition to laws that threaten prosecution of women found to use substances while pregnant.

Beyond their concerns about how these laws' provisions are defined and enforced (for example, harm to the child is not defined at all in the Tennessee law), health professionals argue that the presence of these laws serves to discourage women from treatment services that ultimately could benefit both themselves and their families.