State responses to substance abuse among pregnant women.

State responses to substance abuse among pregnant women. With the U.S. Supreme Court considering a high-profile caseinvolving the prosecution of pregnant substance abusers, policymakersand advocates once again are confronted with the decade-old question ofhow best to deal with pregnant women who use drugs. State laws now varyconsiderably in their approach to the problem, reflecting a deepdivision in public opinion. For many lawmakers, the issue comes down tothe difficult task of balancing a woman's right to bodily integritywith society's interest in ensuring healthy pregnancies, and thequestion of whether punitive approaches will foster--or hinder--healthyoutcomes for women and children. On October 4, the U.S. Supreme Court heard oral arguments inFerguson v. City of Charleston Ferguson v. City of Charleston, 532 U.S. 67 (2001), found a policy of the Medical University of South Carolina regarding involuntary drug testing of pregnant women to violate the Fourth Amendment. , a case brought by 10 women who weresecretly tested for cocaine use while seeking routine prenatal care prenatal care,n the health care provided the mother and fetus before childbirth. at aSouth Carolina South Carolina,state of the SE United States. It is bordered by North Carolina (N), the Atlantic Ocean (SE), and Georgia (SW).Facts and FiguresArea, 31,055 sq mi (80,432 sq km). Pop. (2000) 4,012,012, a 15. public hospital. Women who tested positive were reportedto local prosecutors and then arrested or threatened with arrest forcriminal child abuse. The Court is considering whether the practice oftesting pregnant women for drug use without either a warrant or consentand reporting them to law enforcement authorities violates their FourthAmendment right to be free from unreasonable searches. For many Americans, Ferguson is about much more than the technicalapplication of Fourth Amendment protections; instead, it raises thequestion of how society can best deal with the agonizing problem ofprenatal substance abuse--a problem that poses serious risks to both apregnant woman and her fetus. This question has plagued state lawmakerssince the late 1980s, and many remain at odds over how to approach theproblem. Some states have attempted to criminalize crim��i��nal��ize?tr.v. crim��i��nal��ized, crim��i��nal��iz��ing, crim��i��nal��iz��es1. To impose a criminal penalty on or for; outlaw.2. To treat as a criminal. prenatal drug use ortreat it as grounds for terminating parental rights, while others haveplaced a priority on making drug treatment more readily available topregnant women. But the issue--perhaps more than any other--vividlydemonstrates the difficulty policymakers face in attempting to balancethe autonomy and bodily integrity of pregnant women with society'sinterest in ensuring the birth of healthy children. For advocates ofwomen's reproductive rights, it raises the question of whether thestate can ever be justified in regulating a pregnant woman'sbehavior in the interest of protecting her fetus and whether suchpolicies potentially undermine the legality of abortion. State Activity CRIMINAL LAW While no state has enacted a law specifically criminalizing druguse during pregnancy, prosecutors have relied on a host of criminal lawsalready on the books to attack prenatal substance abuse. Women acrossthe nation have been arrested and charged with a wide range of crimes,including possession of a controlled substance, delivering drugs to aminor (through the umbilical cord umbilical cord(ŭmbĭl`ĭkəl), cordlike structure about 22 in. (56 cm) long in the pregnant human female, extending from the abdominal wall of the fetus to the placenta. ), corruption of a minor, and childabuse and neglect. Others have been charged with assault with a deadlyweapon Assault with a Deadly Weapon is the term used to describe the act of threatening to harm one or more people by using a weapon (usually a firearm). Here, assault must be differentiated from battery as they are often confused. Assault is threatening to use force. and manslaughter. Women who have appealed their convictions to their state supremecourt have prevailed in all but one instance. Typically, courts haveoverturned these convictions on the grounds that a fetus could not beconsidered a child or person under criminal child abuse statutes, orthat the legislature did not intend for an existing criminal statute toapply to a pregnant woman and her fetus. Other courts have found suchconvictions to be unconstitutional violations of women's rights The effort to secure equal rights for women and to remove gender discrimination from laws, institutions, and behavioral patterns.The women's rights movement began in the nineteenth century with the demand by some women reformers for the right to vote, known as suffrage, and todue process (because the state applied the law in a way that could notbe foreseen by the pregnant woman) and privacy. Only in South Carolinahas the state supreme court, in the 1997 case Whitner v. South Carolina,upheld the conviction of a woman charged with criminal child abuse forusing cocaine during pregnancy. In that case, the court held that aviable fetus is a "person" under the state's criminalchild endangerment statute, and that "maternal acts endangering orlikely to endanger the life, comfort, or health of a viable fetus"could constitute child abuse. CHILD WELFARE LAWS Meanwhile, several states have expanded their child welfare laws toaddress prenatal drug exposure (treating the issue as a matter of civilrather than criminal law). These laws vary considerably in their scopeand approach. Laws in 12 states (see Table 1) specify either that achild born exposed to drugs is presumed to be abused or neglected orthat positive results from a toxicology test performed on a newborn orsigns of prenatal drug exposure in newborns constitute evidence of childabuse or neglect. In these states, such evidence provides grounds forremoving the infant from the mother's custody and qualifies as afactor in determining whether to terminate parental rights. Under theSouth Carolina law, for example, a newborn is presumed to be neglectedand "cannot be protected from further harm without being removedfrom the custody of the mother" if there is a positive drug test oneither the mother or the child at birth. Additionally, the Ohio Supreme Court, in its October decision In reBaby Boy Blackshear, found that a newborn testing positive for drugexposure is per se an abused child under the state's civil childabuse law, even though the law makes no mention of prenatal drugexposure. The law defines an "abused child" as one who suffers"physical or mental injury that harms or threatens to harm thechild's health or welfare." Unlike the lower court, thesupreme court said that it need not address whether a fetus is a childunder the state's child abuse law, since a "postbirth"drug test indicated that drug exposure, and therefore abuse, hadoccurred. Accordingly, the state was justified, the court said, in itsdecision to terminate parental rights. State supreme courts inConnecticut and New York New York, state, United StatesNew York,Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of , however, have refused to treat pregnant womenwho used drugs as presumptively neglectful ne��glect��ful?adj.Characterized by neglect; heedless: neglectful of their responsibilities.See Synonyms at negligent.ne��glect , while the New Jersey SupremeCourt held that a newborn's addiction and symptoms of withdrawal,combined with a mother's failure to provide care, could beconsidered as a factor in terminating parental rights. Other states require health care professionals to report or testfor prenatal drug exposure--information that the state may use asevidence in child welfare proceedings. Health care professionals inseven states are required to report to the state if a newborn testspositive for drug exposure or if a pregnant woman shows evidence of druguse. In Iowa, Minnesota and Virginia, health care professionals arerequired to test some or all pregnant women or newborns for prenataldrug exposure. Kentucky law says that provided a woman is given notice,a physician may screen her for drug use and then determine whether tomake a report to the state. In Iowa and Kentucky, however, test resultsmay not be used as prosecutorial evidence. CIVIL COMMITMENT Constitutional requirements for civil commitment require clear andconvincing evidence that an individual is mentally ill and dangerous toherself or others. Three states have enacted laws specificallyauthorizing the civil commitment (or detention in a noncriminal setting)of women who use drugs during pregnancy; these statutes are based on thenotion that the fetus is an endangered person. Minnesota and SouthDakota authorize the emergency admission of pregnant women for mandatorydrug treatment, including inpatient treatment, for as long as theduration of a pregnancy. The Wisconsin children's code, as amendedin 1998, goes so far as to grant the state's juvenile court juvenile courtSpecial court handling problems of delinquent, neglected, or abused children. Two types of cases are processed by a juvenile court: civil matters, often concerning care of an abandoned or impoverished child, and criminal matters, arising from antisocial "exclusive jurisdiction" over an unborn child when a pregnantwoman "habitually lacks self-control" with regard to alcoholor controlled substances. Because the statute defines an "unbornchild" as a "human being from the time of fertilization to thetime of birth," the state may intervene and detain a womanthroughout her pregnancy if she poses a "substantial risk to thephysical health" of her fetus. DRUG TREATMENT A number of states have opted for nonpunitive approaches designedto improve both short- and long-term outcomes for the mother and herbaby through drug treatment and other support services support servicesPsychology Non-health care-related ancillary services–eg, transportation, financial aid, support groups, homemaker services, respite services, and other services . For example, 25states have responded to the traditional dearth of drug treatment slotsavailable to pregnant women by creating and funding treatment programsfor this population or by giving pregnant women priority access totreatment. Statutes in three states facilitate the delivery of social servicesto pregnant substance abusers. Colorado law encourages health careproviders to refer women at risk of poor birth outcomes due to substanceabuse for a needs assessment, and Kansas health care providers may, uponconsent, refer a woman at risk for prenatal substance abuse to the localhealth department for service coordination service coordinationCase management, see there . In California, "anyindication of maternal substance abuse shall lead to an assessment ofthe needs of the mother and child." The statute specifies, however,that "a positive toxicology screen at the time of the delivery ofan infant is not in and of itself a sufficient basis for reporting childabuse and neglect." Grappling with the Issues The wide range of approaches to prenatal drug use reflects deepdivision among policymakers about how best to address the problem. Thosewho support incarcerating women or forcing them into treatment contendthat such measures are necessary to ensure infant health. They arguethat most substance-abusing women do not voluntarily seek services,remain in treatment or stay away from drugs. Similarly, those whoadvocate the termination of parental rights contend that drug use duringpregnancy implies that a woman will be unable to care for her child onceit is born. Critics, however, counter that such punitive measures run contraryto the stated goal of protecting infant health because they deterpregnant women from seeking important health and social services. Womenwho fear that they will be taken into custody, lose their children orface criminal sanctions if their drug use is detected, the argumentgoes, will avoid seeking critical prenatal care and drug treatmentservices they need for a healthy pregnancy. For this reason, leadingmedical and public health groups--such as the American Academy ofPediatrics, the American Medical Association, the American Public HealthAssociation and the March of Dimes--all oppose punitive responses toprenatal drug use. The critics note that, at least historically, pregnant substanceabusers have faced tremendous difficulty obtaining treatment. Manyprograms have refused to accept pregnant women or have been unable toprovide important services they need, such as prenatal care, parentingskills instruction, child care and transportation. Indeed, critics pointto statistics from the South Carolina Association of Alcoholism and DrugAbuse Counselors, which indicate that in the year following the Whitnerdecision, drug treatment programs in the state experienced as much as an80% decline in admissions of pregnant women. The impact of Whitner, theysay, can also be seen in South Carolina's infant mortality rate infant mortality raten.The ratio of the number of deaths in the first year of life to the number of live births occurring in the same population during the same period of time. ,which increased in 1997 for the first time since at least 1990. Opponents of punitive policies also point to evidence indicatingthat racial and socioeconomic biases affect their application. Data fromthe National Institute on Drug Abuse (NIDA NIDA National Institute on Drug AbuseNIDA National Institute of Dramatic Arts (Australia)NIDA Northern Ireland Development Agency (UK)NIDA Northern Ireland Dairy Association ) reveal that while blackwomen have higher rates of illegal substance use during pregnancy thanwhite women, a greater number of white than black women use illegaldrugs while pregnant. However, South Carolina's experience between1989 and 1994--when the program to test women and their newborns forillicit substances was suspended because of allegations of racialdiscrimination--tells a different story. Of the 42 women who werearrested, 41 were black, and all tested positive for cocaine use.(Additionally, nine of the 10 Ferguson plaintiffs are black.) The SouthCarolina program also did not test women in private obstetric practices,but included only indigent indigent1) n. a person so poor and needy that he/she cannot provide the necessities of life (food, clothing, decent shelter) for himself/herself. 2) n. one without sufficient income to afford a lawyer for defense in a criminal case. women seeking prenatal care. According to critics, such biases explain why prosecutors focusalmost exclusively on crack cocaine, which is used largely in low-incomeblack communities, even though far more women use alcohol or tobaccowhile pregnant. Notably, NIDA has found higher rates of alcohol andcigarette use during pregnancy among white women than among black women,and the Centers for Disease Control and Prevention Centers for Disease Control and Prevention(CDC), agency of the U.S. Public Health Service since 1973, with headquarters in Atlanta; it was established in 1946 as the Communicable Disease Center. reports a sixfoldincrease in the incidence of fetal alcohol syndrome fetal alcohol syndrome(FAS), pattern of physical, developmental, and psychological abnormalities seen in babies born to mothers who consumed alcohol during pregnancy. between 1979 and1993. And while the harmful effects of prenatal alcohol and tobacco useare well documented, the effects of cocaine use during pregnancy mayhave been overstated in the past. For example, the Robert Wood JohnsonFoundation Robert Wood Johnson Foundation,charitable organization devoted exclusively to health care issues. It was established in 1936 by Robert Wood Johnson (1893–1968), board chairman of the Johnson & Johnson medical products company. has concluded that although children born exposed to cocainemay be at higher risk than others for developmental delays andbehavioral problems, the effects of the exposure are likely to be"mild and subtle, not severe." Reproductive Rights Advocates of reproductive rights are also concerned about thelaw's potential--at least in South Carolina--to interfere with apregnant woman's autonomy. They note that the Whitner opinion wentbeyond the question of prenatal substance abuse when it found thatpregnant women could be held criminally liable for any behaviorspotentially harmful to a fetus--such as smoking or drinking--under thestate's child endangerment statute. And according to theWomen's Law Project in Philadelphia, since the Whitner decision,prosecutors in South Carolina have relied on the law to arrest pregnantwomen for behaviors other than prenatal drug use. Prochoice advocates are also alarmed by what they see as anunprecedented expansion of fetal rights The rights of any unborn human fetus, which is generally a developing human from roughly eight weeks after conception to birth.Like other categories such as Civil Rights and Human Rights, fetal rights embraces a complex variety of topics and issues involving a number of inherent in some prenatalsubstance abuse policies, and its implications for abortion rights. Forexample, by defining the fetus as a person under South Carolina law, theWhitner decision can be viewed as a challenge to Roe v. Wade Roe v. Wade,case decided in 1973 by the U.S. Supreme Court. Along with Doe v. Bolton, this decision legalized abortion in the first trimester of pregnancy. . TheWisconsin statute goes even further by creating a new category of"unborn child" abuse and conferring rights on a fetusthroughout pregnancy--even on a zygote zygote:see reproduction. or a fertilized fer��til��ize?v. fer��til��ized, fer��til��iz��ing, fer��til��iz��esv.tr.1. To cause the fertilization of (an ovum, for example).2. egg. The law alsostipulates that "the best interests of the ... unborn child shallalways be a paramount consideration." In so doing, the law can beviewed as potentially undermining a woman's right to choose anabortion. Clearly, much is at stake for the reproductive rights community inits ongoing fight to protect the bodily integrity of a pregnant womanwho uses drugs. Yet many reproductive rights advocates are quick topoint out that the community has an equally strong interest--and even anobligation--to work toward ensuring healthy pregnancy outcomes for thesewomen. Says Amy Allina, director of public policy for the NationalWomen's Health Women's HealthDefinitionWomen's health is the effect of gender on disease and health that encompasses a broad range of biological and psychosocial issues. Network, "We need to be concerned both withprotecting the autonomy of women and with providing pregnant drug userswith the full range of services that they need. This means collaboratingwith service providers, policymakers and others at the state and locallevel to ensure that pregnant women have access to safe and appropriatedrug treatment, prenatal care, and other health and socialservices." Allina continues, "A comprehensive approach willhelp women both overcome their substance abuse problems and achievehealthy outcomes for themselves and their children." Reprinted from an article by Cynthia Dailard and Elizabeth Nash inthe December 2000 issue of The Guttmacher Report on Public Policy. Theconclusions and opinions expressed in this article, however, are thoseof the author and The Alan Guttmacher Institute.