When Regina McNight, a young African American woman, suffered an unexpected stillbirth, she was convicted of homicide by child abuse on grounds that she had used cocaine during her pregnancy. She was sentenced to twelve years in prison. In 2008, the South Carolina Supreme Court overturned her conviction based on ineffective counsel at trial. Her attorney failed to establish that the state had relied on outdated research and had failed to call experts who would have testified about “recent studies showing that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor.” To avoid re-trial, McNight pleaded guilty to manslaughter and was sentenced to the eight years she had already served.
The case exemplifies a broader trend to punish pregnant women for drug and alcohol use, particularly low-income women of color. A majority of states impose sanctions on women whose newborns test positive for controlled substances. One survey by Lynn Paltrow and Jeanne Flavin of some 400 cases of arrests, convictions, and detentions of women for conduct during pregnancy found that most were brought under criminal statutes such as child endangerment or child abuse. Although some convictions have been overturned because these statutes are not intended to encompass fetuses, women continue to be arrested and to plead guilty to avoid the risk of trial. A few jurisdictions have relied on other legislation. For example, Missouri’s Abortion Act includes a preamble stating that life begins at conception. Although the statute includes an explicit provision protecting pregnant women from punishment, prosecutors have used the law to arrest pregnant women for using alcohol and drugs, including marijuana. A 2006 Alabama law prohibits a “responsible person” from exposing a child to “an environment in which he or she ... knowingly recklessly or intentionally causes or permits a child to be exposed to, ... a controlled substance, chemical substance or drug paraphernalia.” Although the law was intended to protect children from the dangers of methamphetamine labs, a 2012 New York Times article reports broader application, including some 60 prosecutions of new mothers for drug use since the law was passed. The minimum sentence is ten years. Sixteen states also consider substance abuse during pregnancy to be child abuse under civil child welfare statutes, and three consider it grounds for civil commitment. In 14 states, healthcare professionals must report suspected drug use by pregnant women. Even women who are no longer using drugs can be confined for failure to take anti-addiction medication.
Women who are no longer using drugs can be confined for failure to take anti-addiction medication.
A large group of women are at risk of prosecution under such statutes. Government statistics indicate that about 5 percent of pregnant women use illicit drugs, 11 percent use alcohol, and 16 percent use tobacco. Although cocaine was once considered to be the most harmful form of substance abuse, many of its supposed symptoms have since been linked to poor nutrition, inadequate prenatal care, and other drugs. Considerable recent evidence indicates that cocaine’s effects are less severe than those of alcohol and are comparable to those of tobacco. Yet cocaine use is far more likely than alcohol or tobacco use to be a basis for prosecution. In Paltrow and Flavin’s study, 84 percent of cases of prosecution or other intervention involved illicit drugs, mainly cocaine. Such selective prosecution reflects class and racial biases that are also evident in reporting practices. In one study, black women were ten times more likely than white women to be reported to governmental authorities for substance use, despite similar rates of addiction. In another survey of New York hospitals, those serving low-income women were much more likely than those serving wealthier patients to test new mothers for drugs, and to turn positive results over to child protection authorities.
Virtually every leading health organization, including the American Medical Association, the American Academy of Pediatrics, the American Public Health Association, and the American Society on Addiction Medicine, has opposed prosecution. As they note, the primary effect of punitive policies is to force substance abuse underground and to deter women from seeking drug treatment and prenatal care. A case in point comes from South Carolina, after the State Supreme Court upheld a woman’s child abuse conviction for using cocaine while pregnant. In the year following the decision, the state’s drug treatment programs witnessed an 80 percent drop in the admission of pregnant women. As the director of one treatment facility explained, “Women are doing one of three things. They’re getting abortions, having babies over the ... state line or not seeking prenatal care.” Incarcerating pregnant women also does little to ensure a healthy birth because drugs are often available in prison, and prenatal care is frequently inadequate.
Experts universally agree that a preferable alternative is a public health approach that stresses education and treatment. Yet some women have even been arrested despite the fact that they were voluntarily participating in drug treatment. In other cases, women facing prosecution had sought assistance but were unable to find a program that would accept them. In one New York study, 87 percent of drug treatment programs rejected pregnant Medicaid patients addicted to crack cocaine, even though these were the women most at risk for prosecution. Although recent federal legislation has expanded subsidies for drug treatment programs, including those that target substance abuse during pregnancy, much more needs to be done. Funding is often minimal even though treatment is more effective and less expensive than incarceration. Only nine states require drug treatment facilities to give priority to pregnant women, and only four prohibit facilities from discriminating against those women. That has to change, and a promising approach is to integrate substance abuse treatment into standard prenatal programs. Society has a compelling interest in protecting fetal health, but the most effective way to do so is by respecting the needs of women as well.
Reprinted from WHAT WOMEN WANT: An Agenda for the Women's Movement by Deborah L. Rhode with permission from Oxford University Press. Copyright © 2014 by Oxford University Press
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Deborah L. Rhode is the Ernest W. McFarland Professor of Law and Director of the Stanford Center on the Legal Profession.