Update 9/17/13 - The Attorney General’s office has responded to the report of potential mandatory drug testing of pregnant women with the following statement:
The attorney general’s comments should not be interpreted to imply that he supports mandatory opioid testing of any kind for pregnant women – he does not. The task force is currently working on viable solutions to address the spike in NAS cases in Indiana and plans to put forth a series of recommendations in the next few months for the Legislature to consider.
When Zoeller addressed possible ways to combat this problem, he highlighted that physicians, who are responsible for the health of mother and child, should provide appropriate medical care for all pregnant women, including those with opioid dependency and/or addiction.”
Lots of women already pee on a stick to confirm a pregnancy. Now the Indiana Attorney General wants women to pee once more — this time as a mandatory drug test.
Citing the rising costs of caring for allegedly drug addicted babies on delivery, Indiana A.G. Greg Zoeller is proposing a mandatory drug test for all pregnant women and girls. According to the A.G., testing and early treatment could save at least $30 million in hospital costs in caring for newborns with Neonatal Abstinence Syndrome (NAS). “You can reduce the length of stay for the newly born baby from six weeks to two weeks, the better health of the baby as well as the costs,” A.G. Zoeller told Indiana Public Media in an interview.
“Treatment” is a vague word. For a number of states that have proposed bills to deal with drug abuse while pregnant, those who are found to be abusing drugs have seen charges under “chemical endangerment” laws that have put them behind bars. Others have faced murder charges when their babies were born prematurely. Mississippi even went as far as to try for a new law to drug test pregnant women arrested in related drug crimes, with the intent to charge her with child abuse if she tested positive.
National Advocates for Pregnant Women has spent years tracking the growing number of states charging pregnant women for a variety of crimes that stem in essence from being pregnant and seen as endangering a fetus, with much stiffer penalties than those that a non-pregnant drug user would receive.
Targeting of pregnant women for the crime of not being a good enough pregnant person is bad in itself, but what A.G. Zoeller is proposing goes even further. By declaring that all pregnant patients should be tested for drugs, he has given up even the shred of pretense for probable cause that the other examples use to justify the testing. In this case, just being pregnant is enough of a reason to force a person to undergo a screening.
Would a pregnant woman in Indiana who tests positive be likely to get assistance in getting off drugs, or simply find herself in a jail cell instead? Indiana doesn’t have the best track record when it comes to prosecuting pregnant women. Bei Bei Shuai spent over a year in jail without bail, charged with murder over the death of her premature baby, who died a week after Shuai was treated for ingesting rat poison in a suicide attempt. Just this August, Shuai was finally allowed to plea down to criminal recklessness, with time already served.
Women’s rights and mental health advocates worried the prosecution of Shuai would cause other pregnant people to refuse to seek help when they were suicidal, putting both them and their unborn child at risk. If a mandatory drug test becomes law, fear of prosecution could do the same to drive them away from prenatal care, harming mother and child far more than the alleged effects of NAS would.
When a number of states proposed mandatory drug tests in order to get state funding via programs like welfare or unemployment, the American Civil Liberties Union stepped in to litigate, calling it illegal search and a violation of the 4th amendment. It’s difficult to see how A.G. Zoeller’s idea to test every pregnant woman for drugs could be seen as any more constitutional. It certainly wouldn’t do anything to benefit the Indiana’s mothers-to-be, and could only cause more harm to them and their families.
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