Bad Mommy: How Prosecuting Pregnant Addicts Misses the Mark

Threat of prosecution may deter pregnant women from seeking addiction treatment

Posted Jun 17, 2014

pregnant woman in handcuffs

Despite the objections of reproductive and civil rights advocates, Tennessee recently passed a bill allowing the arrest and incarceration of women who use drugs while pregnant. It’s the first law of its kind in the nation, although other states have been imposing their own types of penalties for drug use among pregnant women for years. Alabama, for example allows prosecution under its chemical endangerment law.

What can we expect from laws that criminalize drug use among pregnant women? Will they reduce the epidemic of drug-addicted babies, or simply make the problem worse?

What We All Agree On

There is no debating that the number of infants born in drug withdrawal is a serious problem. Every year in the U.S., 10.7 percent of women smoke cigarettes while pregnant, 221,000 use illicit drugs and 747,000 pregnant women drink alcohol. The number of infant drug withdrawals has tripled over the past decade, largely due to prescription painkillers, according to a study in the Journal of the American Medical Association. This translates into one baby born every hour with symptoms of opiate withdrawal.

Although research hasn’t conclusively shown that babies exposed to opiates in utero will suffer long-term consequences, newborns with neonatal abstinence syndrome are more likely to have seizures, feeding and breathing difficulties, and low birth weight, among other issues. These newborns must be gradually weaned off drugs, sometimes over a period of days or weeks.

Is this epidemic tragic? No question. Should it be punishable as a crime? I don’t think so. No one wants to sit idly by as some of the most vulnerable members of our society are needlessly exposed to harm, but putting pregnant addicts in jail once again shows a lack of understanding of the nature of addiction.

The Failure of Criminalization

The goal of these prosecutions, proponents argue, is to protect newborns from what they consider child abuse. But does prosecuting addicted mothers actually safeguard infants? The threat of prosecution likely deters pregnant women from seeking substance abuse treatment and prenatal care, which could prevent much of the damage threatened by drug exposure. Those who are willing to take the risk and seek treatment may be disheartened to find that many drug rehab programs won’t accept pregnant women as patients.

Prosecuting pregnant addicts could also lead to a rise in abortions if women fear that carrying to term means going to jail or losing their baby. Writing for The New York Times, Ada Calhoun noted that Alabama law separates pregnant women as a special class of citizen with different rights and sets a precedent for fetal rights that could impact the availability of legal abortion. Conversely, giving addicts a chance at motherhood could improve their motivation to seek treatment and keep families together.

Moral and philosophical arguments aside, punishing pregnant addicts will do nothing to address the underlying problem. In the vast majority of cases, women know that drug abuse is harmful to themselves and their babies. A woman struggling with addiction is not going to quit using because she gets pregnant and fears prosecution. If jail time was a significant deterrent, it would’ve worked for the many drug offenses addicts continue to commit.

There are many behaviors that affect the health of a woman’s pregnancy, but we don’t criminalize them. Should we jail pregnant women who are obese and diabetic because we need to ensure they eat right? In the nine months that women carry their babies, they shouldn’t smoke, drink alcohol, take certain medications or engage in a long list of other behaviors that put their fetus at risk. Where do we draw the line? Poor pregnancy outcomes occur as the result of numerous issues, including poverty, homelessness, childhood trauma and malnutrition, which likely have an even more significant impact than drug use.

Accountability Through Treatment

Judged as selfish and irresponsible, pregnant addicts do indeed put their unborn children at risk. But, in most cases, these are not uncaring mothers who find out they’re pregnant and carelessly start using drugs. They are women with long histories of trauma, family dysfunction and mental illness who don’t know how to live any other way. A system that treats them like criminals only adds to the trauma.

Of course, addiction is not an escape hatch. Pregnant addicts should be held accountable for their decisions. But despite our nation’s kneejerk reaction to impose punishment, prosecution isn’t the only – or the most effective – way to hold women responsible or lead them into recovery.

I can appreciate that prosecutors are desperate for solutions. Many of us feel the same sense of urgency to stem the tide of addicted mothers and babies and the same frustration at not having the resources to make the difference we want to make. But what’s missing from these efforts is an evidence-based understanding of addiction. Viewing addiction as a crime instead of a public health issue is an approach we’ve seen fail throughout the War on Drugs, yet it keeps getting repeated. How long will we work against each other, only to watch our resources pour down the punishment drain instead of going toward effective long-term treatment?

It’s not a question of if we get involved but how. Pregnant addicts need compassion, early intervention and access to appropriate services, but positive change can only happen in a landscape that understands addiction as a disease and provides effective long-term treatment, not more shame and punishment. Addiction is a chronic illness, and until more health care providers, legislators and policymakers understand that, we will continue to miss the mark.

David Sack, M.D., is board certified in psychiatry, addiction psychiatry and addiction medicine. Dr. Sack is CEO of Elements Behavioral Health, a network of addiction treatment centers that includes a women's mood disorder program at Lucida Treatment Centers in Florida, a women’s mental health treatment program at Malibu Vista in California, and women’s treatment programs for substance abuse, eating disorders, and mood or personality disorders at The Ranch outside Nashville.