The prosecution of pregnant women for drug use represents the unhappy convergence of the war on drugs and the war on reproductive rights.
Like other failed policies of the war on drugs, the prosecution of pregnant women ignores science, evidence, and health in favor of stigmatization and punishment. And it comes at a huge cost, paid primarily by women of color, poor women, and the children of these women who will be cut off from prenatal care and perhaps removed from their families in the state’s zeal to punish their mothers.
Unfortunately, just this week, the Alabama Supreme Court ruled that women can be charged under the state’s chemical endangerment law if they become pregnant and use a controlled substance. The Drug Policy Alliance joined with National Advocates for Pregnant Women and the Southern Poverty Law Center to file amicus briefs in a number of cases of pregnant women wrongly prosecuted in Alabama on behalf of 49 medical, public health, and health advocacy groups and experts opposing the judicial expansion of the chemical endangerment law to pregnant women and mothers.
While some states, like Alabama, prosecute pregnant women under the criminal laws or child neglect and endangerment laws of the state, Tennessee is, unfortunately, on the verge of enacting the first law in the country that would authorize the arrest, prosecution and incarceration of drug-using pregnant women rather than providing them with what they most need—health care. Gov. Bill Haslam has until Monday to veto the bill. A petition is being circulated to urge the governor to veto the bill.
In most cases, women are not being prosecuted for using drugs while pregnant but for being poor and of color while pregnant. The reality is that many women use alcohol, tobacco, or other drugs while pregnant. But only a few are prosecuted and only for using certain drugs—not those drugs shown to pose greater possible risk to fetal health, such as alcohol, but those we have decided to criminalize largely because of the populations of people who use them.
States that prosecute pregnant women undermine the very goals they purport to protect: Three things are evident from this failed approach:
Criminalizing pregnant women is a horrible public policy. Drug dependency is a medical condition - not a crime. Pregnant women who struggle with alcoholism and other drug dependencies do not do so because they want to harm their fetuses or their children. Like other chronic medical conditions, drug dependency can be controlled and overcome through medical treatment. Deterring pregnant and parenting women from seeking prenatal care and drug and alcohol treatment will not help these women to stop using drugs.
Maternal and fetal health is better served by making medical treatment for drug dependency and prenatal care available and welcoming to pregnant women.
Converting the physician’s exam room into an interrogation chamber and turning health care professionals into agents of law enforcement, destroys trust and deters the most vulnerable women from prenatal care.
Tamar Todd is a senior staff attorney for the Drug Policy Alliance.