OpEd By: Maggie Moriarty, Esq.
Several state legislatures are considering laws that permit criminal charges for substance use during pregnancy. Some 20 states have published opinions regarding women charged with a crime against a fetus or child as a result of substance use during pregnancy. Charges have included child endangerment, child abuse, drug delivery, attempted aggravated child abuse, chemical endangerment of a child, child neglect, child mistreatment, homicide, manslaughter, and reckless injury to a child. The substances related to the charges have included cocaine, heroin, methamphetamine, marijuana, and prescription pills. The case law has had varying results, including conviction as well as the dismissal of charges.
Let me first say that I think it is important that our legal and judicial systems protect the health, safety, and well-being of all humans, especially those that cannot fight, speak, or advocate for themselves. However, I do not think that women should be criminally charged for substance use during pregnancy. Rather, they should be treated and supported through their addiction through social services, mental health services, and dependency services.
Pregnant mothers do not use drugs to harm their unborn children. Rather, women turn to illegal drugs because of previous, prolonged drug use, untreated mental health conditions, such as depression, bipolar disorder, or trauma, or due to a prior illness or injury. Women do not always have access to affordable healthcare to obtain the treatment necessary for their underlying conditions, so they turn to self-medicating activities.
If a woman is using drugs when she conceives a child and is unaware of the conception until several months into the pregnancy, it could be dangerous to the fetus for the mother to quit using drugs on her own. The fetus may have already developed a dependency on the drug or substance and removing the substance from the fetus could result in withdrawal in utero and serious medical complications.
As non-drug users, we can easily say that we would never use a harmful substance while carrying an unborn child. However, if it was that simple for an addict to stop using her drug of choice, she would – even before becoming pregnant. Many things happen in the life of an addict that ‘should’ make it ‘easy’ for the addict to quit – a family that needs support, kids that need daily rearing, work that needs tending to, etc. Pregnancy alone is not necessarily enough to make a woman stop using drugs – no matter how much she cares about her unborn baby. When addicts stop using drugs, they experience their form of withdrawal and are forced to confront their issues head-on.
Rather than punishing women for using drugs while pregnant, what we need to do is to treat the underlying illnesses or problems. If a woman or baby tests positive for drugs at birth, the mother should immediately be made to enter a treatment program for substance dependency as well as any co-existing mental health issues. Not only would this course of action allow the mother the opportunity to get herself clean and sober, but it will also allow her to be available for her child.
Additionally, Child Protective Services can and should become involved with the family. An investigation should be conducted, and the safety and welfare of the child must be evaluated. Even if the State does not decide that the child needs to be removed from his/her biological parent, the State can offer the parent(s) additional services, including parenting classes and anger management sessions.
If we criminalize in utero drug use, then a woman that carries and delivers a baby is faced with jail time and a permanent criminal record. This does nothing to help the situation – for the immediate family or society. We are not fixing the problem. Rather, we are giving a brief punishment for poor choices and actions, without providing a solution.