A student who wishes to remain anonymous and did not give her permission to publish her comments replied to me.
She congratulated me on a well executed and thoughtful post. She appreciated that I mentioned that many pregnant women are unaware of their pregnancy for a while, because it does not seem fair to her that a mother should be punished for endangering a baby she doesn’t even know she has. She agreed that guilt for any harm caused to the baby would cover the punishment in the end. She then asked me a few specific questions, which I addressed in my response.
I replied on May 8, 2008 10:10 PM:
Hi. Thank you for your response and the complement. I certainly hope that maintaining a normal lifestyle until a pregnancy is discovered never becomes a crime. The following response is not directed at [the anonymous student] specifically.
The post contains some of my thoughts directed to anyone who feels that legal punishment toward a drug-using mother is the right thing to do.
I think that many people in the class imagine that drug abuse is a bit like a faucet. While stopping cold turkey is hard, you can just dial back the amount you use over a few days or maybe a week or two, and you’re cured of the addiction. If only that were true!
I’m not saying it’s impossible for women, upon discovering they are pregnant, to decide to quit using drugs and stick with it through the pregnancy (and hopefully beyond). It’s just that the odds usually are not in her favor. First, there is the highly addictive drug itself. They create physical, mental, and emotional hooks into the person. Get one or even two under control (thinking about the baby coming and then flushing the drugs down the drain), and another of the hooks reels the addict back in (a stressful day at work could be unbearable without a fix, and before she knows it, she’s using the drug again).
There is also usually an environmental issue that led the woman into the pattern. Perhaps her boyfriend or husband is a user, too. He tells her she needs to quit, but he continues to use the drug in front of her. Aside from the obvious double-standard, seeing the drug use is like holding a flame in front of a moth. Eventually, she will get burned. If not a significant other, it might be friends that she is around. Perhaps (and this often is an unfair and false stereotype) she comes from a poor urban neighborhood where drug use is rampant. Peer pressure doesn’t suddenly disappear just because you are pregnant. Many pregnant women who used drugs during their pregnancy have babies that appear to be fine. Maybe the odds will favor her, too, just like her friends and neighbors. “This is reality after all, not some scary TV documentary or drama. They make that stuff up just to scare us.” And her friends tell her how right she is. Who is she going to believe? Her peers or some boring old scientists.
On top of the mental and physical distress, a woman who successfully starts to withdraw from a drug addiction, will go through withdrawal symptoms, and, depending on the drug, the symptoms can be quite severe. Sometimes the effects can manifest in physical trauma to the person, sometimes mental episodes, certainly there will be emotional highs and lows. It takes a very strong person to struggle through all of that to beat the drug. Moreover, all it takes is one tiny slip up, and she could end up right back in the addiction again.
I don’t think most addicts are ever “cured”… they remain sober, or not. It doesn’t matter if twelve years pass, being in the wrong situation at a time when the willpower is low, and the addictive pattern can come back in full force to haunt the person all over again.
Punish a woman for continuing to use drugs during pregnancy? She’s already punishing herself.
What exactly is the crime? Child-abuse, or more correctly “fetal” abuse? Perhaps delivery of drugs to a minor with the drug delivery occurring through the umbilical cord after the baby is born but before the umbilical cord is cut? (Johnson v. State) Perhaps the woman should be charged with assault with a deadly weapon, namely the drugs. If the fetus dies in a miscarriage, she could perhaps be charged with feticide, but if the child is actually born and then dies, it would clearly be homicide or even possibly murder. Then there’s always contributing to the delinquency of a minor. These all sound rather far fetched to me, but they have all be used to prosecute women in court over the years. (Marshall)
And what exactly should be done to punish her? Throw her in jail where there are no drug treatment programs to help ease her off the addiction and no prenatal care for the baby? Or do you wait and haul her off to jail right after the baby is born—handcuffed, shackled, and still bleeding from the birth? It happened in South Carolina. (Ferguson v Charleston) (Jos)
Fortunately, the prosecution of pregnant women for drug abuse has been found to be “beyond the intent of the law” and in some cases “beyond federal constitutional limits on state power”. That is according to courts in twenty-four states. (Hanigsberg)
I don’t think that there is anyone who wants to argue that it is morally or ethically right for a woman to use drugs knowing she is pregnant. It is unfortunate that in attempting to protect a tiny spark of a life, we forget about the other person in this situation, often just as much a victim as she is the perpetrator.
Unless we, as a society, enable a woman in trouble to get the kind of help she needs—rehabilitation in a drug treatment program that understands women’s addictions, education and empowerment to rise above whatever dragged her into the low spot in her life where she started using drugs, and a commitment to continue to help her even after the birth of her baby–I do not see how punishing the mother helps. It may make those giving out the punishment feel better, but aside from a sense of justice served, how has the situation really improved for the mother or the baby?
Returning to [the anonymous student’s] specific questions, no, I do not believe in creating new punishments for mothers who drank or did drugs up until the end of their pregnancy. Drinking alcohol is not illegal in this country (if you are of legal age), and there are already many laws on the books concerning drug abuse. If the baby is born with trace amounts of drugs and alcohol in its system, the child should be given a complete examination, and it might have to go through detox. I do not see how any punishment of a baby’s mother is good “for the babies sake.” Instead, I see a society that has failed to help one of its own. Separating a baby from its mother is a very serious matter. Child Protective Services should probably be consulted, and they would probably be the most qualified to determine if the mother is physically, mentally, and emotionally fit to continue caring for the child. I think that is adequate, even though it may not be satisfying.
I’m sure we all agree that there is not easy answer to these questions. I certainly respect your thoughts and opinions, and I hope you do the same in return. That is, after all, one of the benefits of living in a democracy that allows free speech.
Read More »Drug use during pregnancy: Why punishing mothers who use drugs does not work