Punishing Pregnant Drug-Using Women: Defying Law, Medicine, and Common Sense

ABSTRACT

The arrests, detentions, prosecutions, and other legal actions taken against drug-dependent pregnant women distract attention from significant social problems, such as our lack of universal health care, the dearth of policies to support pregnant and parenting women, the absence of social supports for children, and the overall failure of the drug war. The attempts to “protect the fetus” undertaken through the criminal justice system (as well as in family and drug courts) actually undermine maternal and fetal health and discourage efforts to identify and implement effective strategies for addressing the needs of pregnant drug users and their families. In this article, the authors seek to expose some of the flawed premises on which the arrests, detentions, and prosecutions are based. The authors highlight the inherent unfairness of a system that expects low-income and drug-dependent pregnant women to provide their fetuses with the health care and safety that these women themselves are not provided and have not been guaranteed.

KEYWORDS:

• Women
• addiction
• pregnancy
• civil rights

The research upon which this article was based was made possible in part with funding from the Reproductive Justice Fund of the Tides Foundation and the Ms. Foundation for Women. Some material for this article is drawn from the first author's book, Our Bodies, Our Crimes: The Policing of Women's Reproduction in America (New York: New York University Press, 2009), and the second author's previous writings including Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, 62 Albany L. Rev. 999-1055 (1999).

Notes

i. McFall v. Shimp, 10 Pa. D. & C.3d 90, 91 (1978) PA Court of Common Pleas, Civil Division (1978) (“For our law to compel the Defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual and would impose a rule which would know no limits and one could not imagine where the line would be drawn.”)

ii. Wisconsin ex. rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729 (Wis. 1997); Whitner v. South Carolina, Pickens County, 382 S.C. 1, 492 S.E.2d 777 (1997), State v. McKnight, No. 00-GS-26-432 (S.C. Ct. App. 2002), 352 S.C. 635, 576 S.E.2d 168 (S.C. Jan 27, 2003).

iii. In re Fetus Brown, 689 N.E.2d 397, 400 (Ill. App. Ct. 1997) (overturning a court-ordered, forced blood transfusion of a pregnant woman).

iv. See In re A.C., 573 A.2d 1235, 1253 (D.C. 1990) (en banc) (vacating court-ordered cesarean surgery in which the newborn did not survive and that was listed as a contributing factor to the mother's death on her death certificate).

v. Pregnant women also smoke cigarettes and drink alcohol at much lower rates than other women. Less than 1 in 5 pregnant women report smoking cigarettes in the past month (compared to around almost 1 in 3 who were not pregnant). Approximately 1 in 8 pregnant women report drinking alcohol, and less than 4% report binge drinking. By contrast, over half of non-pregnant women report currently drinking alcohol and nearly 1 in 4 report binge drinking.

vi. S.C. Code Ann. §20-7-50 (Law. Co-op. 1985) (“Any person having the legal custody of any child or helpless person, who shall, without lawful excuse, refuse or neglect to provide…the proper care and attention for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court.”).

vii. Affidavit in Support of Arrest Warrant D-038033 (Feb. 5, 1992), State v. Whitner, No. 92-GS-39-670 (S.C. Ct. Gen. Sess. Pickens County 1992).

viii. Record at 9, 14-15, Whitner v. State, No. 93-CP-39-347 (S.C. Ct. C.P. Pickens County Nov. 1, 1993).

ix. Affidavit-4pt of Louise Haynes at 5, Ferguson v. State, No. 92-GS-10-7304 (S.C. Ct. Gen. Sess. Charleston County Apr. 27, 1993) (supporting affidavit for motion to dismiss criminal child abuse charges brought against Crystal Ferguson).

x. Record at 2, State v. Whitner, No. 92-GS-39-670 (S.C. Ct. Gen. Sess. Pickens County Apr. 20, 1992).

xi. In South Carolina, an activist state Supreme Court with a bare majority twice re-wrote state law to make the word “child” in the state child abuse and homicide statutes include viable fetuses. The court devised a new construction of the word “child” to include viable fetuses, and purported to rely on decisions in the completely different context of civil wrongful death and common law feticide. Whitner v. South Carolina reinterpreted these decisions in a new manner, declaring that they “rested on the concept of the viable fetus as a person vested with legal rights.” The court concluded, “South Carolina has long recognized that viable fetuses are personsholding certain legal rights and privileges.” Thus the decision was not based on a state interest in fetal protection, but on the flat assertion that “viable fetuses are persons.” Whitner v. South Carolina, 492 S.E. 2d 777 (S.C. 1997), cert. denied, 523 U.S. 1145(1998).

xii. United States v. Smith, 359 F. Supp. 2d 771, 780 n.6 (E.D. Wis. 2005).

xiii. Substance dependence is highest among American Indians and Alaskan Natives and lowest among Asians. Native Hawaiians or other Pacific Islander, Whites, and Hispanics all report slightly higher rates of substance dependence than blacks.

xiv. Methamphetamine, also known as speed, crystal, or crank, is a synthetic stimulant that can be dissolved in liquid, ingested orally, snorted, or injected. Some people have used the drug recreationally ever since the 1960s. A researcher at The Sentencing Project reports that methamphetamine is among the least commonly used drugs; the rate of methamphetamine use has remained stable since 1999 and the rate of use by high school students has actually declined between 1999 and 2005. The rate of use is higher in areas such as Los Angeles, San Diego, San Jose, Omaha, and Portland, Oregon.

xv. Jack Shafer has published several articles in Slate documenting the shortcomings of the press corps’ drug coverage, for example “Why Does Drug Reporting Suck?” (August 10, 2005, http://www.slate.com/id/2124298); “Pfft Goes the Methedemic” (July 1, 2006, http://www.slate.com/id/2146303); “Methamphetamine Propaganda” (March 3, 2006, http://www.slate.com/id/2137388). In “How Not To Report About Meth (March 21, 2006, http://www.slate.com/id/2138398),” he offers the following advice: Start your article with an anecdote, preferably one about a user who testifies about how methamphetamine destroyed his life. Toss out some statistics to indicate that meth use is growing, even if the squishy numbers don't prove anything. Avoid statistics that cut against your case. Use and reuse the words “problem” and “epidemic” without defining them. Quote law enforcement officers extensively, whether they know what they’re talking about or not. Avoid drug history except to make inflammatory comparisons between meth and other drugs. Gather grave comments from public-health authorities but never talk to critics of the drug war who might add an unwanted layer of complexity to your story.

xvi. McKnight v. South Carolina, 2008 WL 2019141 (S.C. May 12, 2008)

xvii United States v. Vaughan, No. F-2172-88B (D.C. Sup. Ct. Aug. 23, 1988).

xviii. Whitner v. South Carolina 492 S.E.2d 777 (S.C. 1997). Many charges and convictions of child abuse and neglect, drug distribution, and manslaughter that are leveled against pregnant women have been dropped on the grounds that the legislation was never written with the intent that it be applied to the context of pregnancy. For example, the court in Ward v. State held that it is impossible for a fetus to “possess” the drugs since a fetus would not be capable of handling, manipulating or using drugs. Ward v. State 184 S.W.3d 874, 876 (Tex. App. 2006). See also Reinesto v. Arizona, 894 P.2d 733 (Ariz. Ct. App. 1995); and other cases cited in State v. Martinez. Brief for Sutin, Thayer & Browne, P.C. et al. as Amici Curiae Supporting Respondent, State v. Martinez, 137 P.3d 1195 (N.M. Ct. App. 2006) (No. 29,775) (National Advocates for Pregnant Women was a signatory to the brief).

xix. Johnson v. State, 602 So. 2d 1288, 1297 (Fla. 1992)

xx. See Ferguson v. City of Charleston, 532 U.S. 67, 84 n.23 (2001) (noting, in the course of rejecting a Fourth Amendment exception for prosecutorial drug-testing of pregnant women, amicus submissions “claiming a near consensus in the medical community that programs of the sort at issue, by discouraging women who use drugs from seeking prenatal care, harm, rather than advance, the cause of prenatal health”).

xxi. Ferguson v. City of Charleston, 532 U.S. 67, 83 n.23 (2001).

xxii. Some people experience remission or recover from substance dependence without formal treatment (a phenomenon referred to in the literature as “maturing out,” “spontaneous remission” or “spontaneous recovery”).

xxiii. See also David Carr's Memoir, The Night of the Gun, describing fatherhood as the primary motivation for one man's recovery. David Carr, The Night of the Gun: A Reporter Investigates the Darkest Story of His Life, His Own (Simon & Schuster 2008).

xiv. Methadone treatment programs can accommodate fewer than 15% of those whom methadone treatment might help.

xxv. Kilmon v. State of Maryland, 905A.2d 306 (Md. App. 2006).

xvi. Whitner v. South Carolina, 492 S.E.2d 783.

xvii. Tracy Yolanda Ward, a 30-year-old African American woman, gave birth on November 3, 2003, to a baby boy. On October 31, 2003, Ms. Ward experienced pregnancy complications and called an ambulance. According to press reports, Ms. Ward told the ambulance personnel that she smoked cocaine within the previous hour. Following a written directive from the Potter County district attorney, hospital staff notified the Amarillo Police Department. Ms. Ward was charged with delivery of a controlled substance to a minor, a second-degree felony. Ms. Ward filed a motion to dismiss on statutory and constitutional grounds. The motion was denied. Ms. Ward pled guilty to the offense in August 2004, reserving the right to appeal the applicability of the law to her. She was sentenced to 5 years probation. Ms. Ward immediately filed an appeal challenging the legality of her conviction. Ruling on narrow statutory interpretation and evidentiary grounds, the court of appeals held that the delivery of a controlled substance statute requires “an actual” transfer of drugs and that neither possession of drugs nor an actual transfer could be established as having occurred in the context of pregnancy and birth. Ward v. State, 188 S.W.3d 874 (Tex. App. 2006).