Arresting Pregnant Women for Drug Use
Compiled by Drug Policy Alliance. Sept 27, 2000.
Does arresting pregnant women for using drugs promote the health of mothers and
children?
No. Research shows that drug-using pregnant women who fear prosecution and the
potential loss of their children, rather than being deterred from drug-use, are less likely to
seek essential prenatal and medical care.(1) The threat of criminal punishment fosters a
climate of fear and mistrust between doctors and patients, imperiling the health both of
women and their future children. As a Pennsylvania court noted:
Criminal prosecution of women for their conduct during pregnancy fosters neither the
health of the woman nor her future offspring; indeed, it endangers both. Criminal
prosecution cruelly severs women from the health care system, thereby increasing the
potential for harm to both mother and fetus.(2)
Does the threat of prosecution make pregnant women more likely to seek drug
treatment?
No. Though drug-treatment is the most effective method of reducing substance abuse and
related harms,(3) government and private research demonstrates that punitive criminaljustice approaches discourage women from seeking treatment.(4) According to the
American Society of Addiction Medicine:
Criminal prosecution of chemically dependent women will have the overall result of
deterring such women from seeking both prenatal care and chemical dependency
treatment, thereby increasing, rather than preventing, harm to children and society as a
whole.(5)
Is adequate drug treatment available to pregnant women and mothers?
No. Pregnant women and women with children have specialized drug treatment needs,
such as prenatal care, child care and medical care for infants and children. In addition,
studies indicate that many women drug-users have experienced sexual and physical
abuse.(6) Comprehensive treatment programs that address these therapeutic, educational
and logistical needs - and do not separate mothers from their children - are proven to help
women and their families.(7) Nevertheless, according to government estimates, drug
treatment is available to only one-third of all Americans who need it.(8) For pregnant
women and women with children this number is even lower.(9)
Should doctors act as law enforcement agents when it comes to pregnant women
who use drugs?
No. Patients who fear that sensitive information will be shared with police are unlikely to
communicate openly and honestly with doctors about their drug use. The cooperation of
health care providers with law enforcement in the prosecution of pregnant women
gravely compromises the atmosphere of trust required for the provision of sound
medicine(10) - including referral to voluntary drug treatment.(11)
Leading public health and medical organizations - such as The American Medical
Association, the American Public Health Association, The March of Dimes and the
National Council on Alcoholism and Drug Dependence - are united in their opposition to
the cooperation of doctors with police in prosecuting pregnant women.
Does isolating maternal use of a drug - such as cocaine - effectively address the
developmental needs of poor children?
No. In the years following the "crack baby" media scare of the 1980s and early 1990s,
dozens of carefully constructed studies have established that other factors related to
poverty are responsible for many of the ills previously attributed to pregnant women's use
of cocaine.(12) Indeed, a 1999 study found that poverty has a greater impact than cocaine
on a child's developing brain. According to the study's lead author, Dr. Hallam Hurt,
Chairman of the Division of Neonatology at the Albert Einstein Medical Center:
A decade ago, the cocaine-exposed child was stereotyped as neurologically
crippled….But this is unequivocally not the case. And furthermore, the inner-city child
who has had no drug exposure at all is doing no better than the child labeled a "crack
baby." (13)
Does removing children from drug-using mothers necessarily protect them and
improve their health?
No. Studies have found that removing children from their parents' care can unnecessarily
inflict great harm on the children.(14) Yet in many states and localities women are
assumed to be neglectful parents for the detection of any illegal drug use - including the
one-time failure of a marijuana test. Given the magnitude of the decision to remove a
child, experts agree that determinations of parental fitness should be made on a case-bycase basis with all relevant factors considered. A comprehensive study of the effects of
foster care by Stanford University law professor Michael Wald concluded that "removing
a child from his family may cause serious psychological damage - damage more serious
than the harm intervention is supposed to prevent."(15)
* Much of the current research is summarized in The Lindesmith Center’s and Women’s
Law Project’s Amicus Curiae Brief in Whitner v. State, 492 S.E.2d 777 (S.C. 1997), cert
denied, 523 U.S. 1145 (1998). See Daniel N. Abrahamson et al., Amicus Curiae Brief:
Cornelia Whitner vs. The State of South Carolina, 9 Hastings Women’s L.J. 139 (1998);
See also The Lindesmith Center, Research Brief: Cocaine and Pregnancy.
Notes:
1. See U.S. General Accounting Office, GAO/HRD-91-80, ADMS Block Grant,
Women’s Set Aside Program Does Not Assure Drug Treatment for Pregnant
Women 20 (1991); Institute of Medicine, Prenatal Care: Reaching Mothers,
Reaching Infants 79 (Sarah S. Brown, ed., 1988); Mary Ann Curry, Nonfinancial
Barriers to Prenatal Care, 15 Women and Health 85 (1989); Center for Health
Policy Research, George Washington University, An Analysis of Resources to Aid
Drug-Exposed Infants and Their Families 78 (1993).
2. Commonwealth v. Kemp, 75 Westmoreland L.J. 5, 11 (Pa. Ct. C. P. 1992), 643
A.2d 705 (Pa. Super. Ct. 1994).
3. See Charles Marwick, Physician Leadership on National Drug Policy Finds
Addiction Treatment Works, Journal of the American Medical Association 1149
(1998).
4. Marilyn C. Poland et al., Punishing Pregnant Drug Users: Enhancing the Flight
from Care, 31 Drug and Alcohol Dependence 199 (1993). See also supra note 1.
5. American Society of Addiction Medicine Board of Directors, Public Policy
Statement on Chemically Dependent Women and Pregnancy 47 (Sept. 25, 1989).
6. See Marsha Rosenbaum, Women: Research and Policy, in Williams & Wilkins,
Substance Abuse 654-65 (1997); Jacqueline Wallen, A Comparison of Male and
Female Clients in Substance Abuse Treatment, 9 Journal of Substance Abuse
Treatment 243 (1992).
7. See Margaret E. Goldberg, Substance Abusing Women: False Stereotypes and
Real Needs, 40 Social Work 789 (1995); Stephen Margura et al., Effectiveness of
Comprehensive Services for Crack-Dependent Mothers with Newborns and Young
Children (1998); Center for Substance Abuse Treatment, Pregnant, SubstanceAbusing Women 6 (1993) (U.S. Dept. of Health & Human Servs. Publication No.
(SMA) 93-1998); Claire McMurtrie et al., A Unique Drug Treatment Program for
Pregnant and Postpartum Substance-Abusing Women in New York City: Results
of a Pilot Project, 1990-1995, 25 Am. J. Drug & Alcohol Abuse 701, 701-02
(1999)
8. Office of National Drug Control Policy, National Drug Control Policy Strategy
Report 2000.
9. See A. Woodward et. al., The Drug Abuse Treatment Gap: Recent Estimates,
Health Care Financing Review 18 (1997); Wendy Chavkin, Mandatory Treatment
for Drug Use During Pregnancy, 266 Journal of the American Medical
Association 1556 (1991); Julie Petrow, Addicted Mothers, Drug Exposed
Babies: The Unprecedented Prosecution of Mothers Under Drug-Trafficking
Statutes, 36 New York Law School Law Revue 573, 604-06 (1991); Molly
McNulty, Pregnancy Police: The Health Policy and Legal Implications of
Punishing Pregnant Women for Harm to Their Fetuses, 16 New York University
Review of Law & Social Change 277, 292-303 (1987); Wendy Chavkin et al.,
National Survey of the States: Policies and Practices Regarding Drug-Using
Pregnant Women, 88 American Journal of Public Health 117 (1998); Vicki
Breitbart et al., The Accessibility of Drug Treatment for Pregnant Women: A
Survey of Programs in Five Cities, 84 American Journal of Public Health 1658
(1994).
10. See Robert Arnold, et al., “Medical Ethics and Doctor-Patient Communication,”
in The Medical Interview: Clinical Care, Education and Research, Mack Lipkin,
Jr. et al., eds., New York: Springer-Verlag, 1995; Mary Ann Curry, Nonfinancial
Barriers to Prenatal Care, 15 Women and Health 85 (1989); Ann Lazare,
“Shame, Humiliation, and Stigma in the Medical Interview,” in The Medical
Interview: Clinical Care, Education and Research, Mack Lipkin, Jr. et al., eds.,
New York: Springer-Verlag, 1995.
11. Mary Ann Curry, Nonfinancial Barriers to Prenatal Care, 15 Women and Health
85 (1989); Ann Lazare, “Shame, Humiliation, and Stigma in the Medical
Interview,” in The Medical Interview: Clinical Care, Education and
Research, Mack Lipkin, Jr. et al., eds., New York: Springer-Verlag, 1995.
12. See Mary Ann Curry, Nonfinancial Barriers to Prenatal Care, 15 Women and
Health 85 (1989) See also supra Notes 1 and 4.
13. Alan Mozes, Poverty Has a Greater Impact than Cocaine on Young Brain,
Reuters Health, Dec 6, 1999 (citing Hallum Hurt, 20 Journal of Developmental
and Behavioral Pediatrics 418-419 (1999).
14. See, e.g. Bonita Evans, Youth In Foster Care: The Shortcomings of Child
Protection Services. New York: Garland Pub., 1997; Scott J. Preston, Note, “Can
You Hear Me?”: The United States Court of Appeals for the Third Circuit
Addresses the Systemic Deficiencies of the Philadelphia Child Welfare System in
Baby Neal v. Casey, 29 Creighton Law Review 1653 (1996).
15. Michael Wald, State Intervention on Behalf of Neglected Children: A Search for
Realistic Standards, 27 Stanford Law Review, 985 (1975).