American Law and the Risks to Children’s Health
Americans have long had a love affair with drugs, and pregnant women are no exception. Drugs include both legal substances—alcohol, tobacco, and prescription medications—and illegal, “controlled” substances. While pregnant women’s use of illegal drugs captures the bulk of the headlines, in fact it is two legal drugs—alcohol and tobacco—that cause the most harm to the greatest number of children. In the colonial era, Americans of all ages drank wine, beer, and hard spirits regularly, at home and in public. Tobacco products were consumed regularly by Americans of all social strata, following the successful introduction of tobacco at the English colony at Jamestown, Virginia. Caffeine was also freely consumed, in coffee, tea, and cocoa. Pregnant women use drugs for the same reason that everyone else does: it makes them feel good. It is hardly surprising that drug use and pregnancy frequently occur together, because the twenties are the peak years for both drug abuse and childbearing. Pregnant drug users come from all races and social classes. Their rates of drug use are similar across ethnic and income groups, although the drug of choice may vary.
This …[book] reviews more than a quarter-century of criminal prosecutions and involuntary “civil” commitments of pregnant women based on their use of legal and illegal drugs. Criminal prosecutions are the ultimate occasion for risk construction. They examine past acts and events and seek to determine, with the benefit of hindsight, whether a particular person’s actions created an objectively foreseeable risk of harm, whether that harm was realized, and whether the person acted with a blameworthy state of mind or mens rea. Many individuals play key roles in criminal prosecutions, by rendering decisions to initiate criminal proceedings, bring a case to trial, convict or acquit, and impose a sentence. These players include health care workers, social services investigators, police officers, prosecutors, judges, and jurors; each makes decisions with a great degree of unconstrained discretion. Inevitably, their decisions are shaped by a host of unconscious biases and prejudices, stereotypes, and cognitive shortcuts that affect their perceptions of risk and assessments of responsibility for creating risk and causing harm. Similar psychological factors are at play with involuntary commitment, where the risk assessment is prospective. Here decisionmakers ask whether a pregnant woman who has admitted to past drug use will continue to use drugs and consider whether the potential risk to her fetus is so severe that she needs to be locked up to prevent future harm. Involuntary commitment …[of pregnant women involves] …concerns [similar to those raised by] …court-ordered caesarean sections and other compelled medical treatments.
A brief history of criminal prosecutions brought against pregnant women based on their drug use is revealing. Over the past forty years, prosecutors, often working in tandem with physicians, have taken increasingly punitive actions. In 1977 California prosecutors became the first to indict a pregnant woman for using drugs. Margaret Reyes was charged with felony child endangerment based on her use of heroin while pregnant. However, the California Court of Appeals halted the prosecution, concluding that the legislature did not intend the term “child” to encompass harm to fetuses.
After Reyes there was a brief lull in prosecutions. Then, in the late 1980s and early 1990s, Presidents Ronald Reagan and George H.W. Bush declared a “War on Drugs.” The media devoted extensive coverage to an “epidemic” of crack cocaine use. The War on Drugs was roundly criticized by many medical and public health experts. They charged that its battle cry, “Just Say No,” ignored the complex genetic, biological, and social factors that contribute to drug abuse and addiction. Others saw the War on Drugs as a cynical political ploy, designed to appeal to the racial prejudices and economic insecurities of low-income whites, particularly in southern states. Although the War on Drugs was popular with law enforcement and some members of the public, by the mid-1990s criminal prosecutions of drug-using pregnant women for child abuse or endangerment had been declared unconstitutional by courts everywhere they were brought, except for Alabama and South Carolina.
In 1999, the criminal landscape changed dramatically. That year Regina McKnight, a young South Carolina woman, became the first woman to be charged with murder based on her drug use while pregnant, after she delivered a stillborn child at thirty-four to thirty-seven weeks. Ms. McKnight was a homeless African--American woman with an IQ of 72; she was also addicted to crack cocaine, which she began using after her mother died. After the stillbirth, cocaine metabolites were found in the bodies of Ms. McKnight and her child; she was charged with homicide by child abuse, a form of murder under South Carolina law. A jury convicted Ms. McKnight of murder, the judge sentenced her to twenty years in prison, and the South Carolina Supreme Court affirmed her conviction.
The trend toward prosecution and other punitive sanctions appears to have accelerated over the past decade, with more than 300 pregnant women facing either criminal charges or involuntary civil commitment. Women have been charged with crimes ranging from child abuse to first-degree murder and have received prison sentences of up to twenty years.
In addition to facing criminal charges, scores of women have been civilly committed to inpatient drug treatment programs after they admitted to use of alcohol or other drugs. The most recent cause célèbre involved the involuntary civil commitment of Alicia Beltran, a twenty-eight-year-old pregnant Wisconsin woman who had become addicted to prescription painkillers but had weaned herself off them. In 2013, after acknowledging her prior drug use at a prenatal visit, she was arrested, handcuffed, and involuntarily committed for drug treatment, despite the fact that she was then drug-free. She spent seventy-eight days in involuntary confinement before being released. …
As the twenty-first century unfolds, it appears more attractive than ever for politicians, prosecutors, and the media to denounce pregnant women who use drugs as monsters of maternal selfishness, who have “chosen” a dangerous “lifestyle” that risks the delivery of an infant who is stillborn, preterm or low birthweight, or suffering from fetal exposure to alcohol, cocaine, or methamphetamine. …
Discussions of the best way to respond to pregnant women’s drug use frequently fail to acknowledge the complex biological, economic, and social circumstances which contribute to that behavior and, in turn, threaten harm to children not yet born. These circumstances include domestic violence, homelessness, poverty, and poor diet, as well as the lack of affordable and accessible health care. Each of these factors enhances the odds that women will use drugs at the same time that it contributes independently to adverse birth outcomes. Medical and public health authorities view drug abuse and addiction as illnesses, best responded to by offering treatment. In contrast, most law enforcement authorities assert that illegal drug use is simply a crime, undesirable behavior that should be addressed by the classic criminal law armament of retribution and deterrence. In either case, an exclusive focus on pregnant women overlooks the significant role that fathers play in promoting, or impairing, the health of a developing fetus. Fathers can cause both direct and indirect harm to fetuses and children. Thus, men who abuse their female partners can not only directly injure the fetuses the women are carrying through their physical violence but also push the women into drug use as a form of escape. When fathers buy or use drugs, they often encourage their pregnant partners to indulge as well, sometimes under a threat of violence. When fathers smoke cigarettes, the second-hand smoke reaches the fetus via the mother, contributing to premature births, lower birthweight, and poor lung development.
[This book examines f]our decades of criminal prosecutions of pregnant women who use drugs. It documents a stark trend of ever more draconian prosecutions, as district attorneys have upped the ante from bringing child abuse or child endangerment charges to obtaining indictments for murder and attempted murder. It also addresses state legislative efforts to respond to drug use by pregnant women and the creation of new crimes that explicitly target their behavior. In 2014 Tennessee became the first state to make it a separate crime for a woman to use drugs while pregnant, on top of the sanctions provided by existing drug laws. In 2016, the legislature ended the law, concluding that it had not achieved its purpose.
Excerpted from Linda C. Fentiman, Blaming Mothers: American Law and the Risks to Children’s Health 109-14 (New York University Press, 2017).
March 27, 2017
"At a moment when health care is front and center in public awareness, a new book makes an important contribution to the discussion. BLAMING MOTHERS: American Law and the Risks to Children’s Health by Linda C. Fentiman, a professor of law at Pace University, gives us an understanding of the way in which a historical and cultural pattern of blaming mothers, has been incorporated into the law through the interpretation of basic legal concepts as applied to matters relating to children’s health or well-being."