Criminalizing substance use in pregnancy: misplaced priorities

‘Chemical endangerment’ laws in the United States mark an increasingly growing trend to punish women with substance use disorder. These measures are counterproductive. They create barriers to substance use treatment and prenatal care, disproportionately affecting minority and low-income women. Contingency management programs and expansion of social services would be more effective in protecting children and women and improving the problem more generally. In July 2016, Tennessee allowed its ‘fetal-assault’ statute to expire. This controversial law was the first to criminalize substance use explicitly during pregnancy. While the law's expiration is a positive development, its enactment 2 years prior reflects a growing trend in pregnancy control measures in the United States, where there has been a dramatic increase in punitive policies toward women who use alcohol during pregnancy 1. These measures are part of a broader surge in restrictive provisions regarding sexual and reproductive health; 30% of all such restrictions enacted since 1973 have been established only during the past 6 years 2. Unlike Tennessee, more than one-third of US states punish pregnant women for substance use through pre-existing laws, erecting considerable barriers to treatment and co-opting the medical profession through mandatory testing and reporting. Although the United States is an outlier in this respect, these practices deserve special attention, both to advocate for change and to caution against the international adoption of similar policies, an ever-present risk, as long as the criminalization of substance use can be seized upon for political gain (as demonstrated by events in the Philippines). States should, instead, work towards comprehensive treatment of women with substance use disorders, an essential public health need. Other US states use pre-existing child abuse statutes to prosecute mothers who test positive for substances. The Alabama Supreme Court accepted the understanding of ‘child’ to include ‘viable fetus’ and ‘environment’ to include ‘womb’ in established ‘chemical endangerment’ laws (intended originally to prevent child exposure to drug-related environments, such as living on the site of methamphetamine laboratories) (Kimbrough v. Alabama; Ankrom v. Alabama) 3. Since the enactment of the law, prosecution of pregnant mothers in Alabama has tripled 4. In New Jersey, a pregnant woman using methadone prescribed for treatment of her opioid use disorder—the accepted standard of care—was faced with a civil child abuse/neglect charge and removal of her newborn (N.J. Division of Youth and Family Services v. Y.N.). Currently, 17 states hold that substance abuse during pregnancy qualifies as child abuse under civil child welfare statutes 5. No other countries punish pregnant women with substance use disorders in this manner apart from Norway, where women can be incarcerated in the name of fetal protection (Norwegian Municipal Health and Care Services §10–3) (we are not aware of literature regarding these practices in other nations; this would be a fruitful area for future research). In Canada, no laws specifically target pregnant substance users 6. In the United Kingdom, case law has affirmed that a mother cannot be held responsible for fetal harm during pregnancy [CP (A Child) v. First-tier Tribunal (Criminal Injuries Compensation)]. Nevertheless, the door is open for punitive measures to be adopted more widely. For now, these practices appear to be limited, perhaps reflecting an appreciation of the risks of criminalizing substance use during pregnancy. The threat of incarceration drives pregnant women away from prenatal care and addiction therapy, compromising both maternal and fetal health. The prosecution of these women through US state law dates back to the ‘crack scares’ of the 1980s and 1990s, and while research remains limited, studies suggest that deterrence efforts have no effect on lowering rates of substance use and may lead to avoidance of prenatal care for fear of arrest or loss of child custody 7, 8. These measures may infringe on fundamental constitutional protections. New mothers are treated differently under the law because of their gender, which may violate Fourteenth Amendment equal protection provisions. Drug testing in pregnancy may also violate the Fourth Amendment's prohibition against unreasonable search and seizure (Ferguson v. City of Charleston). Moreover, these policies falsely assume exaggerated risk to the fetus from illicit compared to licit substance (e.g. alcohol and tobacco) exposure. While maternal illicit drug use may impact child-rearing negatively 9, the long-term effects of cocaine, marijuana and methamphetamines in pregnancy is modest 10, 11. Furthermore, abrupt detoxification of certain substances may harm fetuses 12. Punitive measures mistakenly pit the interdependent interests of the mother and fetus against each other. Substance use disorders are medical conditions that exist before a woman knows she is pregnant; sanctions fail to address and may exacerbate the complex biopsychosocial factors that contribute to the problem. When rehabilitation is available as an alternative to incarceration, few treatment facilities provide adequate services to mothers; only 17% of centers have programs specifically for pregnant and postpartum women 13. Punitive approaches place physicians in ethically problematic positions and turn them inappropriately into agents of the state. Eighteen states mandate reporting of suspected prenatal substance use and four mandate testing, despite dissenting statements from numerous medical organizations 14. Even in the absence of such mandates, hospital staff have been found to violate confidentiality by reporting patients to authorities 15. Alarmingly, low-income and minority women may be affected disproportionately. Rates of substance use during pregnancy across racial and socio-economic groups are comparable, yet women of color are more likely to be reported to child protective services, even with universal drug screening practices 16. There is no evidence that punitive measures improve maternal or fetal outcomes. More effective interventions would address the complex factors that contribute to substance use during pregnancy. Carrots, rather than sticks, should be considered; contingency treatment programs offer rewards for abstaining from substance use and appear to promote long-term abstinence and retention in treatment programs, even in vulnerable populations such as low-income pregnant smokers 17. While it remains to be seen if incentive programs are economically feasible and scalable, in general, multi-pronged approaches including investment in family and community supports and promotion of contact with health-care and social support services hold the most promise 18. Reducing the rates and severity of substance use disorders in pregnancy is a worthy goal, but punishment is not an effective solution. We do not lack for better alternatives, including the expansion of public services, increased funding for care of marginalized populations and access to evidence-based treatment, which will best support women and children and drive down rates of substance use disorders. Present punitive methods will only increase the magnitude of medical and social problems facing this vulnerable population. None. We are grateful to Adrian Carter and Kate Seear from Monash University for their input on international criminalization practices.

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