By: S. Peppy Bennett, LL.M., MHS.CPS
He came into this world addicted to opiates — delivered in-utero by his mother, who had struggled with drugs and alcohol for many years. His father was incarcerated for dealing in stolen goods. Mom had received no pre-natal care and continued to use an array of prescription and illegal drugs throughout her pregnancy. Umbilical-cord tests revealed significant levels of oxycodone, methadone, Xanax and marijuana, so a mandatory child abuse report was called into the state hotline. “Baby Boy” went to his temporary home — the Neonatal Intensive Care Unit (NICU) — where for many weeks specially trained doctors, nurses and staff maintained constant oversight while this tiny, innocent person endured withdrawals and their accompanying symptoms.1
Substance abuse during pregnancy, should the criminal justice system regulate the conduct of pregnant women? What of a woman’s constitutional, civil and human rights? The mere threat of prosecution does not scare an addict into dropping their bad habit; rather it isolates these women and sends them deeper underground where they are less likely to receive prenatal care. Sending a woman to prison for illicit drug use during pregnancy doesn’t reunify mother and baby to a healthy environment it actually feeds into the negative cycle.
Criminally Charging Pregnant Women
Prosecuting pregnant women who suffer from drug addiction is nothing new it is the same story with a new headline. In fact the landmark case of Ferguson v. City of Charleston, 532 U.S. 67 (2001), is a case dealing with the issue of pregnancy and drug addiction. This case addresses the constitutionality of the right of privacy in obtaining urine samples of pregnant women and subsequently charging them with a crime. There are many who believe that minority and poor women who are substance abusers are more likely to be reported and incarcerated over other women and they would not be far off the mark. New legislation looks at this act as the chemical endangerment of a child. Simply stated the chemical endangerment of a minor child is a punishable offense. It refers to the act or instance of knowingly exposing a child to chemicals or controlled substances and thus causing harm. Across the United States the number of infant born withdrawals has tripled in numbers over the last ten years. Most recently the state of Alabama is using a broad interpretation of their chemical endangerment statute to criminally prosecute women who give birth to infants in drug withdrawal, including those women who knowingly and recklessly expose their fetus to a controlled or chemical substance.