Science Tells Us How To Have A Healthy Pregnancy; Should The Law Punish Women Who Don’t?

Posted on May 7, 2012

Bliss Tree, May 7, 2012 by

Everyone agrees that a pregnant woman shouldn’t smoke crack or snort meth, right? And the consensus that they shouldn’t smoke cigarettes or throw back a six-back every night is fairly ironclad, as well. Beyond obviously harmful behaviors like alcohol and drug use, however, things get more complicated. And with good reason: Mothers’ own needs and health must be carefully balanced with the needs and health of potential children they’re carrying. After all, pregnant women aren’t simply baby incubating machines. But try telling that to the state of Alabama.

Of course no one wants pregnant women to be using drugs. And the advances in our knowledge about neonatal development and what affects it are a great thing. I’m glad we’re learning more and more about how what happens in the womb can have incredibly long-lasting effects. But the question now is: What do we do with that knowledge? Do we use it to try and help pregnant women make the best decisions they can? Or do we use it to punish pregnant women who don’t?

The New York Times Magazine ran a story a few weeks ago about Alabama’s “criminalization of bad mothers.” Since 2006, 60 women have been prosecuted for the “chemical endangerment” of their unborn children. The chemical endangerment statute—which prohibits a “responsible person” from “exposing a child to an environment” in which he or she might “ingest, inhale or have contact with a controlled substance”—was originally created to protect (already-born) kids from meth lab explosions. But the Alabama courts have upheld an expanded definition which also applies to “unborn children.” And that means women who take controlled substances while pregnant are finding themselves facing felony charges.

Why is this scary? Because it essentially circumvents the legislative process in defining personhood. While other states have been debating personhood amendments—designed to designate any fertilized egg as a person under the law—Alabama has just up and started prosecuting women based on this assumption.

According to the Times, criminal convictions of women whose newborns test positive for drugs are rare in other states; in most places, maternal drug use is considered a matter for child protective services, not law enforcement. Setting aside the personhood issue for a moment, there’s another reason the latter strategy stinks: It deters pregnant drug addicts from seeking help for fear they’ll be prosecuted. It may even deter them seeking any sort of prenatal care, if they believe doctors are gathering evidence for law enforcement.

A ragtag coalition—including National Advocates for Pregnant Women, the A.C.L.U., and the American Medical Association—has come together to fight Alabama applying its chemical-endangerment law to pregnant women, which they say violates constitutional guarantees of liberty, privacy, due process and freedom from cruel and unusual punishment. It also violates pregnant women’s rights to equal protection under the law, says Emma Ketteringham, legal advocacy director at NAPW. In effect, pregnant women have become “a special class of people that should be treated differently from every other citizen.”

“We’re heading toward this Margaret Atwood-like society,” Ketteringham says. “The idea that the state needs to threaten and punish women so that they do the right thing during pregnancy is appalling. Everyone talks about the personhood of the fetus, but what’s really at stake is the personhood of women. It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she’s pregnant becomes subject to state regulation … It’s only a matter of time until it comes to refusing a bed-rest order because you need to work and take care of your other children and then you have a miscarriage. What if you stay at a job where you’re exposed to toxic chemicals, as at a dry cleaner? What if you keep taking your S.S.R.I.’s during pregnancy? If a woman is told that sex during her pregnancy could be a risk to the fetus, and the woman has sex anyway and miscarries, are you going to prosecute the woman — and the man too?”

The sad truth is that we can’t protect every developing fetus from its mother. Nor is it feasible for every mother to avoid every thing that could cause a baby harm. The list of things that can cause birth defects, developmental problems or miscarriage—i.e., the list of things the Perfect Pregnant Woman should avoid—grows longer each year: Tuna, lunchmeat, antidepressants, painkillers, gaining too much weight while pregnant, gaining too little weight while pregnant, obesity, cat litter, caffeine and lead-laden lipsticks … That’s just a few. Obviously, some of these pose more serious threats than others (there’s a difference between the occasional over-indulgence in coffee and the occasional over-indulgence in tequila while pregnant). But all have the potential to endanger an unborn child.

So where do we draw the line? Do we start prosecuting moms who take antidepressants? What about moms on painkillers? A recent study found the number of babies born addicted to prescription painkillers has nearly tripled in the past decade. Does it make a difference how necessary said antidepressants or painkillers were to the mother’s functioning? And who, exactly, determine what’s “necessary?”

I’m sure you see what I’m getting at: It starts with treating pregnant meth-heads like criminals and next thing you know we’re throwing every underweight, obese or depressed mother-to-be in jail. Obviously, that’s a tad hyperbolic. But for those of you would would say the line is clear—it stops at illegal drug use—keep in mind that drug addiction is an illness. As Dr. Deborah Frank, a pediatrician and director of Boston Medical Center’s Grow Clinic for Children, told the Times:

“To simplify a complex medical and psychosocial issue into a criminal issue is really just like using a hammer to play the piano. The whole definition of addiction is compulsive behavior in spite of adverse consequences — like the person who keeps eating doughnuts even though their doctor tells them they’re morbidly obese and going to die of a heart attack.”