Criminalized Fertility

This morning I read an article on child endangerment laws being used to charge people who used drugs during pregnancy, including sometimes under the supervision and direction of their doctors. It’s a very good piece and I recommend you read the full thing here. There were a few specific aspects of it I wanted to get into.

There are two kinds of patients swept up in these laws – people with serious addictions they were not able to fully combat prior to giving birth, or people with no history of addiction who used medicine as self-treatment or under doctor’s orders. Jail is not likely to help either patient, and the second kind does not need intervention.

There is a dimension of moral panic surrounding issues of substance use in pregnancy. Historically, concern over the harmful effects of alcohol and crack cocaine in pregnancy have at times backfired. Women with healthy pregnancies took fear-mongering to heart and believed that a single night of moderate drinking could cause Fetal Alcohol Syndrome (FAS). In reality there are numerous risk factors for FAS, including genetics, poverty, and binge drinking (defined by the CDC as four or more drinks in about two hours). The language, and in many places the law, does not reflect the reality that substance use and fetal harm are not perfectly correlated.

“Zero tolerance” policy flies in the face of medical standards. Opiate pain medication, methadone and medical marijuana may be the safest medical treatment for the patient and their fetus. Most of these arrests are for positive marijuana urinalysis yet there is no evidence that marijuana use during pregnancy causes birth defects or fetal harm. Even in cases where the drug used does cause fetal harm, a criminal charge is rarely the best way to proceed.

Child endangerment laws discourage pregnant people with substance abuse problems from seeking treatment for their addiction or pregnancy. Addiction is a disease with physical and psychological components. Effective treatment usually consists of medically supervised abstinence or tapering, along with developing new coping skills, getting any psychiatric medications necessary and entering into talk therapy. Jail is not a needed component and the threat of jail is not an effective addiction treatment.

Furthermore, these laws criminalize biology. The most law-abiding drug-abstaining responsible woman in the world is not guaranteed a healthy baby. Numerous risk factors influence neonatal health including genetics, accidental exposure to environmental toxins, coming into contact with a contagious person while immune suppressed by pregnancy, level of personal support, and socio-economic status all play their part, as does chance. 

Treating the bodies of pregnant people as environments for fetuses first reduces the people who own those bodies to nothing more than fetus-carers. Criminalizing pregnancy and pregnancy outcomes is a threat to the rights of all people capable of conceiving, but most especially poor and disabled women, and women of color.

Because these laws, of course, are not applied evenly. Wealthy women seeing doctors under private insurance may be warned early in pregnancy about the presence of marijuana in urinalysis, and advised to abstain shortly before birth. Only some counties and hospitals do drug testing of all Labor & Delivery patients. Sentencing and probation terms are largely at the discretion of individual judges, some of whom have very strong views about who is and is not fit to be a parent.

While healthy moms and babies is a worthy goal, ends cannot justify any and all means. Child endangerment laws applied to pregnancy criminalize biology, hold women and other patients responsible for outcomes beyond their control, and make fertility itself a risk factor for entering the criminal justice system. They interfere with effective treatment for addiction and pregnancy by introducing the threat of jail into the doctor-patient relationship and by penalizing methadone use. And they don’t work. There is no evidence that sending women to jail following poor pregnancy outcomes deters them or others from having poor pregnancy outcomes later.

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