Challenging Dogma - Fall 2007

...Using the social and behavioral sciences to improve the practice of public health.

Monday, December 10, 2007

The Negative Effects of Criminalizing Mothers Who Use Illicit Drugs During Pregnancy – Marilyn M. St. Fleur

Over the last two decades several states have passed legislation to punish pregnant women for behavior that endangers their fetuses. The laws prosecute pregnant women who use drugs on the basis of child abuse, neglect, delivery and distribution of controlled substances, and involuntary manslaughter (6). Over 200 women in 34 states have been prosecuted in criminal courts for substance use during pregnancy. Many others have faced charges of child endangerment or neglect in civil proceedings, or have had their children removed from their care because they tested positive for drugs at the time of birth (6).

The behavior of pregnant women is closely monitored, largely because children are socially viewed as a vulnerable population. As a result the welfare of children is often widely protected through effective legislation. However, the current punitive approach that prosecutes pregnant women who use illicit drugs in an effort to protect the fetus is flawed. The new drug legislation fails to adequately solve this public health problem because it does not address the experiences of the mothers who use illicit drugs; the extreme punitive measures deter mothers from seeking proper healthcare, and it fails to protect from discriminatory application.

The Lives of Mothers

A weakness in the drug legislation is its inability to address the lives of pregnant mothers who use illicit drugs. For several of these mothers’ illicit drugs use is one of many factors present in their lives that can negatively impact their fetus. Studies have shown that up to half the women with drug and alcohol problems are depressed or have other diagnosed mental illnesses (1). Studies also found that women who use substances during pregnancy suffer higher rates of sexual abuse and domestic violence (1). Further studies demonstrate that without careful consideration of additional factors protection and incarceration of mothers can harm of the fetus prior to and post birth. As a result the individualistic approach that addresses drug use alone is simply a “band aid” on a large wound.

The approach of protecting the fetus but not the mother is flawed because the health of the mother has a direct effect on the fetus prior and post birth. In essence protecting one without the other has a high potential of leading to a chain of negative health outcomes. The focus of this intervention is on the fetus rather than the mother. The legislation is analyzing drug use independent of other factors that have large effects on the situation at hand. This approach focuses on the fetus, blames the mother, and has therefore become an intervention that can be harmful (11).

A situation that can parallel the harmful affects of this legislation in found in an individuals access to health care. Studies have proved the unhealthy behaviors and inadequate access to health care among people of low socioeconomic status account for only 10-16% of the socioeconomic differences in health (9). This is not to discredit the impact of addressing unhealthy behavior and access to health care, but to demonstrate the need to take other contributing life factors, like education level attainment and race/ethnicity, into account when creating policies. The legislation that seeks to protect the fetus of mothers who use drugs fails to take an adequate holistic approach and is therefore flawed and ineffective.

Fear - A Counteractive Tactic

Furthermore, the drug legislation prosecuting pregnant woman is a counteractive approach. Drug use and trafficking is part of a socially constructed “underground” silent economy (4). Women who are tested for drugs, for example during doctors’ visits, are often tested without their consent (1,6). In several states those that test positive are turned over to police, threatened with prosecution, forced into treatment, tried as criminals, and often sentenced to prison (1,6). These measures are likely to entice fear amongst pregnant woman who use illicit drugs and push them further underground. In essence the punitive measures close a line of communication between health care providers and mothers. Pregnant women who wish to avoid criminal prosecution may avoid seeking health care, which in turn can harm both the mother and the fetus.

Legislators must also be weary of the fact that very fearful mothers may even go to the extreme of terminating their pregnancy through self-inflicted harm to avoid punishment (6). For some very fearful or confused mothers it is the destructive nature of illicit drugs that motivates and supports their risky behavior -in addition to the addictive nature of the drugs - (12). Rather than scaring pregnant women away from health care, the legislation should be getting mothers who use drugs into health care and into treatment on a voluntary rather than punitive basis. Punishing women who have used drugs or alcohol during pregnancy by prosecuting them or incarcerating them may feed a sense of social retribution but does nothing to promote infant well-being (1,10). In efforts to protect the fetus these policies place pregnant women in prison exposing them to violence, infectious diseases, extreme stress, humiliation, stigma, and emotional distress (1,10) Nevertheless, legislators must understand that there is a psychological root as to why drug users choose to participate in such risky behavior, and it is important that the legislation passed not have counteractive effects that lead to further risky behavior.

Discriminatory Applications

Though the legislation seems broad and neutral it has been applied using discriminatory practices. Studies have shown that illicit drug laws of all kinds are used more often on racial minorities and the poor. Selectivity in drug screening is an example of how this is done. In South Carolina healthcare personnel look for indicators such as the absence of prenatal care as criteria to drug test mothers (1,6). The criteria targets low-income and minority populations because both groups have a greater tendency to not seek healthcare (5). Their lack of use of the health care system is due to a number of reasons, such as inadequate access to care, cost, quality, mistrust, religious beliefs and a lack of or restricted insurance policies(5). Discriminatory application of the legislation has lead to higher rates of prosecution and imprisonment in minority and poor communities. In Charleston, a city in South Carolina, forty-one mothers were arrested for illicit drug use during pregnancy (1). Forty of the forty-one mothers were black women (1). Nevertheless, when legislation enforcers use the number prenatal care visits as criteria to test mothers they place minority and poor mothers at a higher risk of punishment than other mothers.

In addition to screening, several states are enforcing the legislation only in public hospitals located in poor communities (1,6,3,7). The legislation in South Carolina – and other states – has not been equally applied to white and affluent neighborhoods. Physicians who found substances often associated with middle and upper class populations, such as methamphetamine and heroin, made referrals to social services, not to law enforcement (7). Evidence shows that criminal sanctions against pregnant women are applied unequally. Poor and minority women bear the brut of suspicion and prosecution. Punishing pregnant mothers who use illicit drugs during pregnancy by prosecuting or incarcerating them may seem lawfully right in protection of the fetus, but does nothing to promote infant well being (10). The legislation is flawed because it does not provide regulation or means to protect against discriminatory affects. Instead the legislation contributes to the social pressure and injustice faced by poor and minority groups.

Implications for Future Public Health Recommendations

Legislation that prosecutes drug users should incorporate a method to offer women help and control over their lives prior to taking any punitive measures. Once addicted to illicit drugs pregnant women face many barriers to getting help. Programs need to be put in place to help pregnant mothers who use illicit drugs understand the epidemic and provide them with ways of getting safe health care. A great deal can be done to safeguard maternal and child health, including providing universal access to high quality pre-and postnatal maternal care, mental health care, drug and alcohol treatment, health education, and healthy living environments in early childhood (1,5,6). Offering pregnant women medical, social, and educational services is a sustainable way of helping both the mother and the child.


The health of a woman is as important as the health of their fetus. Legislation must start supporting women, so that they, in turn, can be there for their children. Pregnant mothers, who turn to drugs as the result of their mental health or abusive and traumatic childhoods, need our compassion and access to treatment, not imprisonment (1). The new drug legislation fails to adequately solve this public health problem because it does not address the experiences of the mothers, instead it deter mothers from seeking proper healthcare, and does not protect from discriminatory application.

Several states are currently debating on whether women who abuse drugs during their pregnancies should be subject to criminal punishments. If the goal of such policies is to protect the health of future children, we as a society must question policies that drive underground women who need and may want treatment, and criminalize those brave enough to seek care (1). The power-coercive measure that states like South Carolina has taken to address the issue, is an ineffective approach. Criminalizing maternal drug use can lead to potentially tragic consequences for pregnant women, their fetuses, and their families. When pregnant women fear that they will be prosecuted for their drug use, they are less likely to seek prenatal care (1). It appears to drive drug-using women out of the health-care system and isolates them in their drug use rather than helping them have healthy pregnancies and healthy babies. Legislators must recognize this as truth and provide a means for pregnant woman who use illicit drugs to receive help for both themselves and their fetus.


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