Arresting Pregnant Women is Bad for Babies: Kentucky Case Progresses and Advocates Speak Out

Tomorrow, December 10, 2009 the Kentucky Supreme Court will hear oral argument in a case involving the prosecution of a pregnant, drug-using woman. It is an important opportunity to understand the broader issues at stake in cases that seem narrowly focused on the very small percentage of pregnant women who use illegal drugs. Oral argument is scheduled for 10 AM and you will be able to watch a live stream of the arguments by clicking this link.

In this case, the state arrested a new mother who, according to the Commonwealth of Kentucky, “ingested cocaine” while her daughter “was in utero and thereafter gave birth.” The daughter was healthy but, according to the Commonwealth, both the mother and newborn tested positive for cocaine. The new mother wasn’t charged with a drug crime – rather she was charged with the crime of “wanton endangerment.” Kentucky alleges that she engaged “in conduct which created a substantial danger of death or serious physical injury to” another person – her “unborn” child.

Notice that this law is directed to “conduct” that “creates a substantial danger of death or serious physical injury.” Many people in positions of power think that a pregnant woman who refuses cesarean surgery, have births outside of hospital settings, or insists on a vaginal birth after previous cesarean surgery is creating a “substantial danger of death or serious physical injury” to an unborn child.

The Commonwealth wants the Kentucky Supreme Court to interpret this law, and, in fact, every criminal law in the state, to include pregnant women in relationship to the fetuses they carry. Indeed, a close reading of the lower court’s opinion and the Commonwealth’s arguments makes clear that they hope, through this court case, to pass what would, in effect, be a “personhood measure.” As a result, even abortions necessary to protect a woman’s life or health could be charged as homicide.

Because of the broad implications of this case and the medical misinformation it relies on, sixty public health and advocacy organizations as well as numerous experts signed on to amicus (friend of the court) briefs explaining why the court should reject the Commonwealth’s invitation to radically re-write state law. Not a single organization filed an amicus brief supporting this kind of dangerous judicial activism. Kentucky treatment and recovery advocates Michael Barry and Pam Scott published an op-ed in the Courier-Journal explaining why Arresting pregnant women is bad for babies. Here is what they have to say:

On Dec. 10, 2009, the Kentucky Supreme court will consider a case involving a woman who gave birth and got arrested. In this case the Commonwealth claims that because a cocaine-using pregnant woman went to term, she should be punished for the crime of “wanton endangerment” for threatening the health of her “unborn” child. Two other women were recently arrested on similar grounds. Here are five surprising reasons why arresting pregnant drug-using women is a bad idea:

Threatening pregnant women with arrest is bad for babies. Babies have the best birth outcomes when their mothers are not afraid to come in for health care, not afraid to talk honestly to their health care providers, and when they can find the right kind of help for their problems. This explains why threatening pregnant women with arrest and prosecution is bad for babies. While using drugs, smoking cigarettes, drinking alcohol, and many other things can create risks, the good news is women who get health care during pregnancy, whether or not they can overcome an addiction, can have healthy babies. Women who are afraid that getting health care will lead to arrest often stop coming in for health care, or if they go, keep their drug problems secret. This is one reason why every medical group in the country to address the issue, including the March of Dimes and the American Academy of Pediatrics, oppose prosecution of pregnant women.

Threatening arrests and prosecutions create an incentive for women to have abortions. Given how hard it is for most people to overcome an addiction problem quickly (even strong and successful people like Rush Limbaugh) laws that threaten to punish women who carry their pregnancies to term in spite of a drug problem puts pressure on them to get unwanted abortions. In North Dakota, a woman was arrested on charges similar to those in Kentucky. She was twelve weeks pregnant at the time and managed to obtain an abortion. The result? The prosecutor dropped the criminal charges citing the fact that she had “terminated her pregnancy.” Indeed, if the Kentucky Supreme Court uses the current case to permit prosecution of women who “endanger” their unborn children, we might as well post signs saying: “If you are pregnant and can’t achieve abstinence immediately, have an abortion now, before you get arrested.”

Education, health care, and support work. For years Kentucky has led the country in applying proven methods for helping drug using women. Since Kentucky adopted laws supporting education and treatment over arrest, it has seen a dramatic increase in the number of women receiving prenatal care. In 1990, Kentucky was ranked 26th out of 50 states for prenatal care. In 2000, Kentucky improved its rank to 11th. Infant mortality rates fell 25 percent during that decade and in 2001, Kentucky reported the lowest infant mortality rate since statistics were first recorded. In contrast, South Carolina, the only state that has upheld the prosecution of women who go to term in spite of a drug problem, ranks near the bottom of the list on infant mortality.

Women who use drugs while pregnant are not doing so because they don’t care about their babies. The truth is lots of people use drugs — legal and illegal. Some become addicted and just like people who struggle with obesity and hypertension, most would like to change their behaviors, but find that they can’t do so immediately or without the right kind of help. Kentucky does have some specialized programs for women — but not yet nearly enough. Threatening arrest doesn’t help them or their babies. And the good news is that we have much less to fear than we thought if recovery is not immediate.

What the medical research says about cocaine use and pregnancy is very different from what most people have heard on the news. Scientific experts as well as leading government agencies now confirm that the use of cocaine is not uniquely or inevitably harmful. The National Institute for Drug Abuse has reported that while babies born to mothers who used cocaine while pregnant “were at one time written off by many as a lost generation… It was later found that this was a gross exaggeration.” And, as the U.S. Sentencing Commission concluded, “[t]he negative effects of prenatal cocaine exposure are significantly less severe than previously believed” and those negative effects “do not differ from the effects of prenatal exposure to other drugs, both legal and illegal.” While health experts do not say that there are no health risks associated with cocaine use during pregnancy, the good news is that they overwhelmingly agree that the risks are comparable to cigarettes and less than the possible harm from excessive alcohol use. Exaggerated claims of harm from illegal drugs should not provide the cover for drastically changing Kentucky law, to permit treating pregnant women who do any of these things as criminals.

MIKE BARRY, CEO, People Advocating Recovery
PAM SCOTT, Director, The Healing Place for Women, Louisville 40203


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  • julie-watkins

    Thanks for the report. This is so messed up in so many ways. When people really care about helping (fetus, children, or adults) they look at outcomes instead of finding people they want to punish. Arrggh.

  • crowepps

    The Supreme Court ruled in Ferguson v. Charleston that hospital workers cannot constitutionally test maternity patients for illegal drug use without their consent for the purpose of alerting the police to a crime. The opinion of most courts is that punitive laws directed towards substance abusing pregnant women cause them to avoid prental care and medical personnel, leading to poorer outcomes. Some of the details of that case:

    While the hospital refused to create a drug treatment program designed to meet the needs of pregnant addicts, or to put a single trained drug counselor on its obstetrics staff, it did create a program for drug-testing certain patients, their in- hospital arrest, and removal to jail (where their was neither drug treatment nor prenatal care); the ongoing provision of medical information to the police and prosecutor’s office; and tracking for purposes of ensuring their arrest. Some women were taken to jail while still bleeding from having given birth. They were handcuffed and shackled while hospital staff watched with approval. All but one of the women arrested were African-American. The program itself had been designed by and entrusted to a white nurse who admitted that she believed that the “mixing of the races was against God’s will.” 23 She noted in the medical records of the one white woman arrested that she lived “with her boyfriend who is a Negro.”