CHALLENGING REPORT ON PREGNANCY AND DRUG ABUSE

Imprisoning pregnant drug abusers is ineffective and unethical and could be
challenged on constitutional grounds, say the authors of a new report
entitled Ethical and Legal Analyses of Coercive Policies Aimed at Substance
Abuse by Pregnant Women. The report, written as part of the Robert Wood
Johnson Foundation's Substance Abuse Policy Research Program, documents what
is currently known about the effect on fetuses of substance abuse by
pregnant women and examines the ethical and legal issues associated with
criminalizing these women for illicit drug abuse.

"Since 1985, 240 women in 35 states have been criminally prosecuted for
using illegal drugs or alcohol during pregnancy," said Mary Faith Marshall,
PhD, director of the Program in Bioethics at the Medical University of South
Carolina. She spoke at a press conference in Washington, DC, last month to
announce the publication of the report, of which she is an author.

Prosecution has occurred despite the fact that there is "no legislation in
any state expressly criminalizing the use of an illegal drug or legal
substance by a pregnant woman," added Lawrence J. Nelson, PhD, JD, of the
Markkula Center for Applied Ethics at Santa Clara University in California.
Nelson, coauthor of the report and a practicing attorney as well as a
bioethicist, said that the use of involuntary civil commitment of pregnant
women for drug abuse, a legal means of intervention, may be increasing.
(Such women are then, presumably, to be detoxified and treated, but whether
treatment facilities exist and are used is a moot point.)

Incarceration Rejected

By rejecting the criminalization of perinatal substance abuse as policy, the
report adds further support to the contention by a growing body of experts
that incarceration for substance abuse is unworkable and ultimately
self-defeating (JAMA.1997;278:378 and 1998;279:1149-1150).

As Marshall's figures (cited in the report and below) indicate, the number
of women arrested and criminally charged for substance abuse while pregnant
is not large. Nevertheless, she said it is a national problem and noted that
the combined rates of substance abuse during pregnancy, including abuse of
alcohol and use of tobacco, both of which are legal, are troublesome.

The National Institute on Drug Abuse (NIDA) estimated (in the 1992 National
Pregnancy and Health Survey: Drug Use Among Women Delivering Live Births)
that about 5.5% of US women (about 221,000) have used an illicit drug while
pregnant. Marijuana was used by 2.9% (119,000), cocaine by 1.1% (45,000),
heroin by 0.1% (3600) and psychotherapeutic drugs without any physician
prescription by 1.5% (61,000). In addition, 18.8% (757,000) of women used
alcohol sometime during their pregnancy, and 20.4% (820,000) smoked
cigarettes. Marshall noted that while illegal drugs get the attention, "the
drugs that do the most harm and [into combating which] we should put the
most resources are the legal drugs, such as alcohol and tobacco."

Although abusers may use more than one drug, Marshall couldn't give a
precise figure. However, she said, "Most cocaine users are also multiple
drug users and, of course, a widespread combination is alcohol and tobacco."
The NIDA survey says that "women who used an illicit drug during pregnancy
were more likely to also use cigarettes and alcohol than women who did not
use an illicit drug."

One Imprisonment

Only one woman has been imprisoned for substance abuse while pregnant.
Cornelia Whitmer of Charleston, SC, is currently serving an eight-year
sentence for using crack cocaine. She had not been on probation for drug
offenses prior to her conviction, but admitted in court to having used the
drug for which her newborn child--and a subsequently obtained urine
specimen--tested positive. Commenting on the severity of the sentence,
Marshall said, "We [that is, state authorities] are moralistic about drug
abuse. And we want to punish these women."

The case was appealed to the South Carolina Supreme Court, which upheld the
lower court's decision. However, trial courts in most states have refused to
apply existing criminal statutes to women who abuse drugs, Nelson said. In
instances where prison sentences were imposed, they were reversed by
appellate courts. One state, Minnesota, expressly requires what is
euphemistically termed involuntary civil commitment of pregnant women who
have used illicit drugs.

In the South Carolina case, the state Supreme Court held that viable fetuses
are persons and so are subject to protection under child abuse statutes if
their mothers take drugs while pregnant. Nelson maintained at the press
conference that this position is wrong because the US Supreme Court has
ruled that the unborn are not constitutional persons entitled to legal
protection. The decision "is nothing less than legislation by judicial
fiat," he said. If the state wishes to criminalize drug use among all
persons, not just pregnant women, it is free to do so, he said, but noted
that statutes that refer to persons, children, or human beings cannot apply
to prenatal humans.

Nelson also maintained that the Whitner case is open to challenge on
constitutional grounds, saying that "the US Constitution bars enactment of a
statute criminalizing prenatal drug use per se as violative of women's
constitutional rights to reproductive freedom and to be free of sex
discrimination." However, when the Whitner case was appealed to the US
Supreme Court, the court declined to hear it and let the South Carolina
decision stand.

"Rush to Judgment"

Since the 1980s, society has been concerned that prenatal exposure to drugs,
cocaine in particular, causes serious physical and mental damage to unborn
children. There has been a "rush to judgment" that these children were
destined to become wards of society, said Barry M. Lester, PhD, director of
the Infant Development Center at Brown University School of Medicine, also
speaking at the Washington press conference. However, he said, claims about
the "devastating" effects of drugs, including cocaine, have not been
substantiated.

Lester cited a study of more than 11,000 infants who had been exposed in
utero to cocaine (Ann N Y Acad Sci. 1998;846:296-305). No increase in
physical abnormalities at birth was seen in this group. But only five
studies have followed cocaine-exposed infants into school age. Overall, the
findings are inconclusive, he said: "This is a field that is in its
infancy."

At the press conference Marshall, summarizing her findings, said that
criminalization neither favorably affects infant health nor deters substance
abuse. Indeed, she added, "It may have a detrimental effect. It has been
shown that substance-abusing women may forgo early prenatal care or drug
abuse treatment for fear of losing their children or being arrested" (Brown
SS, ed. Prenatal Care: Reaching Mothers, Reaching Infants. Washington, DC:
Institute of Medicine; 1988). She described this situation as "tragic"
because "substance abuse treatment during pregnancy has been shown to be
effective in reducing the risk of drug exposure before birth and in
improving parenting after birth."

Marshall also called unethical the requirement that clinicians, social
workers, or anyone else report drug abuse to such authorities as, for
example, South Carolina's Department of Social Services. "This is
inappropriate to the caregivers role," she said. Furthermore, the
criminalizing approach is tainted with discrimination based on race and
socioeconomic status. "Only certain drugs--crack cocaine, heroin,
marijuana--are targeted for screening," she said. "Other drugs--powdered
cocaine, methamphetamines, or non-physician-prescribed
psychotherapeutics--are largely ignored."

The result is that it is mostly minorities who get identified by the
authorities. From 1989 to 1993, she said, 41 pregnant women arrested for
abusing drugs in South Carolina; some were repeat offenders. Of these,
Marshall said, 40 were black, and of the 240 women in the 35 states she
reviewed, 70% to 80% were members of minority groups, primarily blacks and
Hispanics. Yet, she added, current studies show that substance abuse during
pregnancy is not a problem only of poor black and Hispanic women, but also
of white women and women in other racial and ethnic groups.

- --by Charles Marwick

(JAMA. 1998;280:1039-1040)

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Checked-by: Rolf Ernst