Arresting Pregnant Women is Bad for Babies: Kentucky Case Progresses and Advocates Speak Out

EDITOR’S NOTE:  Once again, the folks at RH Reality Check share with us a matter of some urgency.  Written by Attorney Lynn M. Paltrow, Founder and Executive Director of National Advocates for Pregnant Women, it raises a real moral dilemma.  What do you think about this?  

Thursday December 10th the Kentucky Supreme Court will hear argument in a case involving the prosecution of a pregnant, drug-using woman. It is an important opportunity to understand the broader issues at stake in cases that seem narrowly focused on the very small percentage of pregnant women who use illegal drugs. Oral argument is scheduled for 10 AM and you will be able to watch a live stream of the arguments by clicking this link.

In this case, the state arrested a new mother who, according to the Commonwealth of Kentucky, “ingested cocaine” while her daughter “was in utero and thereafter gave birth.” The daughter was healthy but, according to the Commonwealth, both the mother and newborn tested positive for cocaine. The new mother wasn’t charged with a drug crime – rather she was charged with the crime of “wanton endangerment.” Kentucky alleges that she engaged “in conduct which created a substantial danger of death or serious physical injury to” another person – her “unborn” child.

Notice that this law is directed to “conduct” that “creates a substantial danger of death or serious physical injury.” Many people in positions of power think that a pregnant woman who refuses cesarean surgery, have births outside of hospital settings, or insists on a vaginal birth after previous cesarean surgery is creating a “substantial danger of death or serious physical injury” to an unborn child.

The Commonwealth wants the Kentucky Supreme Court to interpret this law, and, in fact, every criminal law in the state, to include pregnant women in relationship to the fetuses they carry. Indeed, a close reading of the lower court’s opinion and the Commonwealth’s arguments makes clear that they hope, through this court case, to pass what would, in effect, be a “personhood measure.” As a result, even abortions necessary to protect a woman’s life or health could be charged as homicide.

Because of the broad implications of this case and the medical misinformation it relies on, sixty public health and advocacy organizations as well as numerous experts signed on to amicus (friend of the court) briefs explaining why the court should reject the Commonwealth’s invitation to radically re-write state law. Not a single organization filed an amicus brief supporting this kind of dangerous judicial activism. Kentucky treatment and recovery advocates Michael Barry and Pam Scott published an op-ed in the Courier-Journal explaining why Arresting pregnant women is bad for babies. Here is what they have to say:

On Dec. 10, 2009, the Kentucky Supreme court will consider a case involving a woman who gave birth and got arrested. In this case the Commonwealth claims that because a cocaine-using pregnant woman went to term, she should be punished for the crime of “wanton endangerment” for threatening the health of her “unborn” child. Two other women were recently arrested on similar grounds. Here are five surprising reasons why arresting pregnant drug-using women is a bad idea:

Threatening pregnant women with arrest is bad for babies. Babies have the best birth outcomes when their mothers are not afraid to come in for health care, not afraid to talk honestly to their health care providers, and when they can find the right kind of help for their problems. This explains why threatening pregnant women with arrest and prosecution is bad for babies. While using drugs, smoking cigarettes, drinking alcohol, and many other things can create risks, the good news is women who get health care during pregnancy, whether or not they can overcome an addiction, can have healthy babies. Women who are afraid that getting health care will lead to arrest often stop coming in for health care, or if they go, keep their drug problems secret. This is one reason why every medical group in the country to address the issue, including the March of Dimes and the American Academy of Pediatrics, oppose prosecution of pregnant women.

Threatening arrests and prosecutions create an incentive for women to have abortions. Given how hard it is for most people to overcome an addiction problem quickly (even strong and successful people like Rush Limbaugh) laws that threaten to punish women who carry their pregnancies to term in spite of a drug problem puts pressure on them to get unwanted abortions. In North Dakota, a woman was arrested on charges similar to those in Kentucky. She was twelve weeks pregnant at the time and managed to obtain an abortion. The result? The prosecutor dropped the criminal charges citing the fact that she had “terminated her pregnancy.” Indeed, if the Kentucky Supreme Court uses the current case to permit prosecution of women who “endanger” their unborn children, we might as well post signs saying: “If you are pregnant and can’t achieve abstinence immediately, have an abortion now, before you get arrested.”

Education, health care, and support work. For years Kentucky has led the country in applying proven methods for helping drug using women. Since Kentucky adopted laws supporting education and treatment over arrest, it has seen a dramatic increase in the number of women receiving prenatal care. In 1990, Kentucky was ranked 26th out of 50 states for prenatal care. In 2000, Kentucky improved its rank to 11th. Infant mortality rates fell 25 percent during that decade and in 2001, Kentucky reported the lowest infant mortality rate since statistics were first recorded. In contrast, South Carolina, the only state that has upheld the prosecution of women who go to term in spite of a drug problem, ranks near the bottom of the list on infant mortality.

Women who use drugs while pregnant are not doing so because they don’t care about their babies. The truth is lots of people use drugs — legal and illegal. Some become addicted and just like people who struggle with obesity and hypertension, most would like to change their behaviors, but find that they can’t do so immediately or without the right kind of help. Kentucky does have some specialized programs for women — but not yet nearly enough. Threatening arrest doesn’t help them or their babies. And the good news is that we have much less to fear than we thought if recovery is not immediate.

What the medical research says about cocaine use and pregnancy is very different from what most people have heard on the news. Scientific experts as well as leading government agencies now confirm that the use of cocaine is not uniquely or inevitably harmful. The National Institute for Drug Abuse has reported that while babies born to mothers who used cocaine while pregnant “were at one time written off by many as a lost generation… It was later found that this was a gross exaggeration.” And, as the U.S. Sentencing Commission concluded, “[t]he negative effects of prenatal cocaine exposure are significantly less severe than previously believed” and those negative effects “do not differ from the effects of prenatal exposure to other drugs, both legal and illegal.” While health experts do not say that there are no health risks associated with cocaine use during pregnancy, the good news is that they overwhelmingly agree that the risks are comparable to cigarettes and less than the possible harm from excessive alcohol use. Exaggerated claims of harm from illegal drugs should not provide the cover for drastically changing Kentucky law, to permit treating pregnant women who do any of these things as criminals.

MIKE BARRY, CEO, People Advocating Recovery
PAM SCOTT, Director, The Healing Place for Women, Louisville 40203

crimfants via Flickr/creative commons
Lynn M. Paltrow via RH Reality Check


Maria G.
Maria G.7 years ago

For those that are Just concerned about a "Woman's Rights", in regards to these drug addict females, if they want their Rights to be a Crackhead or Drug Addict, then they need to make a Compromise and relinquish their Rights to be Fertile or to ever be able to Conceive. Let them enjoy destroying their own lives & never let them be responsible for another life since they could care less about their Own! Then they can have all their RIGHTS in the world to live SELFISHLY as they choose!

A Woman, when they become a mother (once they conceive) need to realize that they are no longer #1, their baby is cuz' that fetus, baby, human being is completely, 100% DEPENDENT on their Mothers to care for them from the start of their creation in the womb. ANYTHING a woman takes into their body will be shared with their baby when they are in the womb. Doctors may have different ideas of what's good or bad and with each doctor, you will get different Opinions I'm sure. Common Sense should tell a "mother" what is best for their baby, versus what is it they Selfishly Want.

As far as ARRESTING Pregnant Drug Addicts, there needs to be some form of Detox/Rehabilitation implemented for them. Alot of those people would probably Like to not be so dependent on drugs but they have no means or money to be cured from their addictions. Regardless if this costs lots of money, this in the long run, is Worth the cost. At the end of the day, everyone would Win.

Silvia M.
Silvia M8 years ago

this is hilarious!!

Sheila Scheibl
Sheila Scheibl8 years ago

OOPS! I should have said

START using coke AFTER they knew they were pregnant

Sorry everyone!

Sheila Scheibl
Sheila Scheibl8 years ago

You seriously can't take an addicted mother off of her drug of choice cold turkey! My doctor told me the same thing about cigarettes. It will shock your baby's system and could cause damage. Why would anyone want to do that to an unborn child? The mother had the addiction more than likely before she got pregnant, so these branches of government need to cool down and realize that they are right when it comes to a woman who decides to use coke *after she knew she was pregnant.

They also need to meditate, slow down their thinking process, and really ponder all sides before being so rash and quick to judge... LOL didn't expect a pun!

Rachel H.
Rachel H8 years ago

Sarah D. To answer your question, "how many convicts have access to health care" If a person is in jail or prision, as I was referring to, they have access to health care. Every prision and jail has some type of health care. Most have onsite nurses and other medical staff. I didn't say "convict". I was talking about (drug addicted pregnant women) being in jail where they could get "detoxed" have 3 nutritous meals a day, and YES have access to health care.

Mary C.
Mary C8 years ago

Nightcat, too many of these women have no clue who the father is, but if they know and can prove it, then sterilize them as well.

Obviously these selfish women who have child after child addicted to drugs DO NOT care about their children, or would go on birth control or never start drugs in the first place to GET addicted. They seek out the drugs to take, they can seek out birth control too.

Should women, like Antoinette Davis, who gave her 5 yr old daughter Shaniya Davis to some freak to rape and kill, not go to jail if they are pregnant either???And she IS pregnant right now. So we should just let her out of jail to have this child, (and raise it), do more drugs and sell this baby for rape and murder for a drug debt. YES!! Thats the answer! We are just supposed to let someone get away with violent crimes because they got themselves pregnant. Wow. Heaven help us all.

Alicia Nuszloch
Alicia N8 years ago

If one woman uses drugs well it's one thing but if the same one is pregnant there's another story. She shouldn't be pregnant in the first place, it is more than obvious that she doesn't care for her baby. Shame, shame shame....

Nightcat Mau
Nightcat Mau8 years ago

Oh for the sake of Goddess. These women need help to overcome an addiction. Women in general will throw themselves in danger to protect their offspring, so I don't see this law causing mass abortions.

I do see however, that harassing any pregnant woman can cause her to loose the child. Addicts need help, not ridiculous charges.

You'll notice nobody ever researches if the father is a drug addict. I'm guessing if he is, that would have an impact too. But do men get charged? Nope.

May these poor women be blessed and protected.

Sarah D.
Sarah D8 years ago

"I am also saddened by the idea that a woman would have an abortion to avoid going to jail for endangering the life of her fetus by taking drugs."

Would you be more saddened if she gave birth to the fetus after taking drugs during her whole pregnancy?

Sarah D.
Sarah D8 years ago

"I am fed up with this "women rights " agenda, the right of the child should be the only criteria, all the rest is selfishness, the ideology of irresponsibility and wanton cruelty."

What selfishness? It's selfish for a woman to get an abortion rather than give birth a baby that's been damaged by long-term drug use during pregnancy?

"A drug addict should not have babies."

Says who? Also, what type of drug addict would they have to be?

"She should be sterilised, if she refused to use contraception."

It's her right to refuse the contraception, you can't force someone to go on birth control and you can't forcibly sterilize someone unless you're in Poland and the person is a sex offender. Also, you should know that contraception isn't 100% effective.

"Which most probably she cannot even handle, as being most of the time in a haze and subjected to a disfunctional relationship."

Disfunctional relationship with whom?