Punishing Pregnant Women & Their Babies

Watch a pregnant woman at a cocktail party sip a glass of wine. You will see lots of scowls and looks of disapproval. Even if this is the only glass of wine this woman has had in the last month (and the only one she will have over the course of the evening), everyone will have something to say about it.

When you are pregnant, many choices you make have consequences for your growing fetus, but no choice you make is without public scrutiny.

Many pregnant women abstain from many of the drugs – such as coffee, cigarettes, alcohol, and Advil – that might be harmful to their pregnancy. The decision to abstain is a choice, and reflects accepted wisdom, but practices still vary. While one woman may abstain from alcohol throughout her entire pregnancy, another may choose to enjoy a glass of wine now and then during the later months. Some women substitute green tea for coffee.

But what if she can’t change? What if she has undiagnosed depression, and is using drugs to feel better? What if she can’t stop using them?

Should she seek help?

Most people would say, unquestionably, “Yes.”

But what most people don’t know is some pregnant women who ask for help get punished.

In 38 states, there exist “feticide laws.” These were originally passed to protect pregnant women and their unborn fetuses from battery and assault. If the fetus was killed as the result of battery and assault by a partner, husband, or someone else, that person could be arrested for murder.

But the laws are now being used against pregnant women themselves. In states like Alabama and Tennessee, women can be prosecuted for using drugs that were not prescribed to them during pregnancy. This criminalization of drug abuse can dissuade an expectant mother from seeking help. Admission of her drug use will trigger scrutiny of her pregnancy. If she is unable to successfully stop using drugs during her pregnancy, she will be charged with endangering her child.

Essentially, these laws make a pregnant woman criminally liable for the outcome of her pregnancy. If she is unhealthy, suffering from mental illness, and unable to kick her drug habit, she will be locked up after she delivers her baby. If she is depressed and attempts suicide, she will be jailed for putting her unborn fetus in danger.

The National Advocates for Pregnant Women estimates there have been 700 instances since 1973 where women were arrested, detained, or subjected to forced medical intervention because of issues related to their pregnancies. Lynn Paltrow, Executive Director, has presciently seen the legal ramifications of these laws, which, she says, constitute separate and unequal treatment for pregnant women. “What it means is that all fertile women are responsible for knowing at every single moment whether they’re pregnant,” said Paltrow….“Because at that moment an entirely different legal system comes into play.”

Low-income women of color are especially vulnerable. Since they depend largely on Medicaid and government support for their healthcare, their reproductive choices are more scrutinized by public authorities. The availability of pre-natal drug treatment is already rare, and Medicaid or public coverage for this service is exceedingly rare, and often hundreds of miles from a woman’s home. Like most disadvantaged women in America, she will experience difficulties getting adequate prenatal medical care in general. If she delivers a baby and is found to be criminally liable for the baby’s poor health following delivery, she will not have money for legal resources to defend herself, and there is a serious possibility she will go to prison.

These punitive measures inflicted on pregnant women and mothers come amid an unprecedented rise in opioid abuse across the country. The CDC found around 259 million prescriptions for painkillers were written in 2012, the equivalent to one bottle for every adult in the US.

According to the Journal of Perinatology, between 2009 and 2012, the number of babies born in the US with neonatal abstinence syndrome – symptoms of drug withdrawal – almost doubled (from 3.4 births per 1,000 in 2009 to 5.8 births per 1,000 in 2012). Indeed, it is reported that one baby is born with NAS every 25 minutes.

When a pregnant woman is suffering from mental illness or addiction, she should be encouraged to seek help, and there should be support networks in place to help her and her baby. The medical and public health community are all in agreement on this. The experts also agree that making a pregnant woman criminally liable for the outcome of her fetus will reduce the possibility she will ever seek help in the first place.

Needing help with an illness, while pregnant, should not be a crime. It is shameful that we make it one.