Science Tells Us How To Have A Healthy Pregnancy; Should The Law Punish Women Who Don’t?

Everyone agrees that a pregnant woman shouldn’t smoke crack or snort meth, right? And the consensus that they shouldn’t smoke cigarettes or throw back a six-back every night is fairly ironclad, as well. Beyond obviously harmful behaviors like alcohol and drug use, however, things get more complicated. And with good reason: Mothers’ own needs and health must be carefully balanced with the needs and health of potential children they’re carrying. After all, pregnant women aren’t simply baby incubating machines. But try telling that to the state of Alabama.

Of course no one wants pregnant women to be using drugs. And the advances in our knowledge about neonatal development and what affects it are a great thing. I’m glad we’re learning more and more about how what happens in the womb can have incredibly long-lasting effects. But the question now is: What do we do with that knowledge? Do we use it to try and help pregnant women make the best decisions they can? Or do we use it to punish pregnant women who don’t?

The New York Times Magazine ran a story a few weeks ago about Alabama’s “criminalization of bad mothers.” Since 2006, 60 women have been prosecuted for the “chemical endangerment” of their unborn children. The chemical endangerment statute—which prohibits a “responsible person” from “exposing a child to an environment” in which he or she might “ingest, inhale or have contact with a controlled substance”—was originally created to protect (already-born) kids from meth lab explosions. But the Alabama courts have upheld an expanded definition which also applies to “unborn children.” And that means women who take controlled substances while pregnant are finding themselves facing felony charges.

Why is this scary? Because it essentially circumvents the legislative process in defining personhood. While other states have been debating personhood amendments—designed to designate any fertilized egg as a person under the law—Alabama has just up and started prosecuting women based on this assumption.

According to the Times, criminal convictions of women whose newborns test positive for drugs are rare in other states; in most places, maternal drug use is considered a matter for child protective services, not law enforcement. Setting aside the personhood issue for a moment, there’s another reason the latter strategy stinks: It deters pregnant drug addicts from seeking help for fear they’ll be prosecuted. It may even deter them seeking any sort of prenatal care, if they believe doctors are gathering evidence for law enforcement.

A ragtag coalition—including National Advocates for Pregnant Women, the A.C.L.U., and the American Medical Association—has come together to fight Alabama applying its chemical-endangerment law to pregnant women, which they say violates constitutional guarantees of liberty, privacy, due process and freedom from cruel and unusual punishment. It also violates pregnant women’s rights to equal protection under the law, says Emma Ketteringham, legal advocacy director at NAPW. In effect, pregnant women have become “a special class of people that should be treated differently from every other citizen.”

“We’re heading toward this Margaret Atwood-like society,” Ketteringham says. “The idea that the state needs to threaten and punish women so that they do the right thing during pregnancy is appalling. Everyone talks about the personhood of the fetus, but what’s really at stake is the personhood of women. It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she’s pregnant becomes subject to state regulation … It’s only a matter of time until it comes to refusing a bed-rest order because you need to work and take care of your other children and then you have a miscarriage. What if you stay at a job where you’re exposed to toxic chemicals, as at a dry cleaner? What if you keep taking your S.S.R.I.’s during pregnancy? If a woman is told that sex during her pregnancy could be a risk to the fetus, and the woman has sex anyway and miscarries, are you going to prosecute the woman — and the man too?”

The sad truth is that we can’t protect every developing fetus from its mother. Nor is it feasible for every mother to avoid every thing that could cause a baby harm. The list of things that can cause birth defects, developmental problems or miscarriage—i.e., the list of things the Perfect Pregnant Woman should avoid—grows longer each year: Tuna, lunchmeat, antidepressants, painkillers, gaining too much weight while pregnant, gaining too little weight while pregnant, obesity, cat litter, caffeine and lead-laden lipsticks … That’s just a few. Obviously, some of these pose more serious threats than others (there’s a difference between the occasional over-indulgence in coffee and the occasional over-indulgence in tequila while pregnant). But all have the potential to endanger an unborn child.

So where do we draw the line? Do we start prosecuting moms who take antidepressants? What about moms on painkillers? A recent study found the number of babies born addicted to prescription painkillers has nearly tripled in the past decade. Does it make a difference how necessary said antidepressants or painkillers were to the mother’s functioning? And who, exactly, determine what’s “necessary?”

I’m sure you see what I’m getting at: It starts with treating pregnant meth-heads like criminals and next thing you know we’re throwing every underweight, obese or depressed mother-to-be in jail. Obviously, that’s a tad hyperbolic. But for those of you would would say the line is clear—it stops at illegal drug use—keep in mind that drug addiction is an illness. As Dr. Deborah Frank, a pediatrician and director of Boston Medical Center’s Grow Clinic for Children, told the Times:

“To simplify a complex medical and psychosocial issue into a criminal issue is really just like using a hammer to play the piano. The whole definition of addiction is compulsive behavior in spite of adverse consequences — like the person who keeps eating doughnuts even though their doctor tells them they’re morbidly obese and going to die of a heart attack.”

Share This Post:
    • Briana Rognlin

      I think laws like this are so controversial because it’s hard to say that no one should intervene when a pregnant woman is doing meth (or coke, or really any drug). But the personhood laws ARE really scary, and honestly, I wouldn’t put it past people to think that women should be prosecuted for other legal behaviors (like being obese) while pregnant. It’s scary that pregnant women are basically thought of as people with lesser rights, but I think that people are way more open about judging their actions because it’s always justified by the argument that they could harm a baby.

    • T.

      3 things:

      1. After this news, I am far, far less preoccupied about a future in which the US is not anymore the leading nation of the World.
      Honestly, the more I know about the US, the more China or India seem like good candidate.

      2. Somebody stops this idiots in Alabama. 80% of gravidance ends before being recognizable. A lot of things CAN harm a fetus. But it is not to say they WILL. It depends on a miriad of things, like your DNA, your luck, etc. Save for some thing (like, a lot of alchool), cause and effect are hards. Correlation and causation, hello! *eyeroll*

      3. Surer and surer about getting my tube tied. I refused to be considered an incubating machine.

    • Lorette Lavine

      This is such a complicated issue but punishing pregnant moms for drug addiction is so severe and eventually leads to the total breakdown of the family. Would it not be wiser to treat the addiction while monitoring the care of the baby within the family unit if possible?
      As a social worker and maternal child nurse I think keeping families intact is very important. Lets stop blaming victims and start treating them like human being and doing what has proven to be best for mother and baby. There are always exceptions but those can be dealt with as they occur.

    • Eileen

      I agree with Briana. On the one hand, it’s the woman’s body, and if she wants to give it brewed coffee instead of caffe americano, that should be up to her (etc.) But in the long run, unhealthy pregnancy can result in birth-defective children, which is devastating both for the child, who had no control over what was being put into his or her own body, and for society as a whole, which will bear the cost of maintaining these children as they grow into adults, outlive their parents, and perhaps become parents themselves.

      I don’t know if it does circumvent “personhood” definitions, though, because those amendments are being used to declare someone a “person” at conception, whereas these laws are aimed at women who are intending to carry their pregnancies to term. In other words, one law is saying, “This is a person,” and the other, “This will be a person.” A slight difference, but a real one, I think.

    • Truth

      “drug addiction is an illness” Er, no. Drug use is a choice. These women should be permanently sterilized, so they can go back to the trailer park and the meth bong without endangering or harming anyone else but themselves, and without churning out a dozen IQ-55 crackbabies who will never hold a job, never pay back one cent of the multi-million-dollar investment that the taxpayers are currently held at gunpoint and forced to make in them, who will be a burden to the taxpayers until the day they die.

      Play stupid games, win stupid prizes. Stupid hurts. It’s supposed to.