You are on page 1of 9

Criminality Over Care: Tennessee Sets the New

Standard in US Approaches to Substance Abuse in


Pregnant Women
Debra Beight
Lund University
MPH Program

1.

Introduction

In the US, 31 states currently have some type of child-welfare protocols established to address
pregnant women who use illicit drugs (Guttmacher, 2015); the consequences range from removal
of the child into state custody, to civil commitment for drug treatment, or even incarceration,
depending on the severity of child endangerment. In 2014, Tennessee became the first state to
introduce criminal charges against women who used narcotics while pregnant, regardless if harm
has been incurred (Gonzales, 2014). This approach by Tennessee is a reaction to infants
experiencing neonatal abstinence syndrome (NAS), a condition marked by a myriad of physical
problems associated with opioid withdrawal (Hudak & Tan, 2015). NAS can result from prenatal
exposure to opiates from a variety of sources; prescription painkillers such as OxyContin,
Vicodin, Darvon, and codeine (Hudak & Tan, 2015, p. 2), heroin, and also maintenance drugs
methadone and suboxone which are used to mitigate the withdrawal process from persons
addicted to opioids (Brown, 2014). Infants experiencing NAS can present with seizures, tremors,
poor feeding, vomiting, diarrhea, and other neurological and gastrointestinal dysfunctions
(Hudak & Tan, 2015); Tennessee has taken this drastic approach due to an epidemic of infants
born with NAS in their state; an increase of 41% of infants born drug dependent was seen in
2013 (Tennessee Department of Health, 2013; Warren, et al., 2015).
The difficulty with this criminal approach is that it is often a public policy constructed out of
moral panic, fetal personhood propaganda, and selective interpretation of [actual] risk (Brown,
2014) rather than a sound empirical basis in science and medicine. The American Society of
Addiction Medicine (ASAM) and the American Medical Association (AMA) are committed to
interventions and treatment that will reduce harm caused by drug and alcohol addictions;
however, the ASAM released policy recommendations that highlight substance abuse as an
illness that should be treated medically to ensure chemically dependent women are able to seek
out both prenatal care services as well as appropriate drug treatment (ASAM, 2015). The AMA
has constructed several amicus briefs directly addressing legal actions against women facing
charges stemming from prenatal substance use, making the case for medical treatment over
incarceration (AMA, 2013). Criminalization does not create a strong deterrent effect, as the rate
of drug use in pregnant women has remained fairly consistent (Mohapatra, 2012, pg. 244) and
can in fact have the opposite intended affect; rather than preserving the health of the fetus,
putative approaches threaten to dissuade pregnant women from seeking healthcare and
ultimately undermine the health of the pregnant women and their fetuses (Mohapatra, 2012, pg.
2

254). This criminality approach further complicates an existing public health concern over
maternal and fetal health. This paper will compare the approaches to curbing prenatal substance
abuse between punitive public policy actions and treatment based public health
recommendations.

2.

Methods

This paper is a descriptive literature review that compares legal and health approaches to prenatal
substance abuse issues. For this paper I searched for articles through the online databases
PubMed, Web of Science, and LUBSearch as well as specific journals relating to drug and
alcohol addiction, reproduction, and gender and public policy. A total of twenty-two articles were
selected using the following key search terms: substance abuse OR drug addiction AND
pregnancy OR fetus OR fetal harm; pregnancy AND criminality; substance abuse AND
pregnancy AND child welfare; substance abuse AND maternal health AND public health; and
substance abuse AND paternal health. These were narrowed down to peer-reviewed articles that
focused on substance abuse, child welfare laws, public health policy, and criminal prosecution of
pregnant women. Additional online searches were conducted for specific policy actions by US
states, numerical data, organizational viewpoints, and contextual background information. This
material was found through a combination of Google searches and examinations through source
references for related information; specific websites included the AMA, Tennessee.gov, and the
Guttmacher Institute.
Inclusion was determined by publication being within the last five years, from a legal or medical
journal and related to substance abuse and prenatal protections. Additional background sources
were included for their contribution to historical and relational significance which include two
articles from 2009, one from 2003 and a legal brief from 2001 to demonstrate the entanglement
of legislation and public health concerns.

3.

Results

Public Policy
Legal means to protect fetal health have been a staple for the US judicial system especially since
the fearful 1980s and the, although inaccurate, epidemic of crack babies born to drug addicted
mothers (Fentiman, 2009). The judicial approach views deterrence and rehabilitation through
criminal punishment rather than addressing actual prevention methods. Ignoring social
determinates of addiction and obfuscating the concerns that substance abuse is an issue for health
care systems, allows politicians to appear "tough on crime" and bolsters the motif of traditional
3

family values; talking points vital for their positional security. "By vilifying women in need
rather than increasing access to drug treatmentprosecutions brought in the name of fetal
protection endanger both mothers and their children" (Fentiman, 2009, pg. 669). The American
Public Health Association (APHA) stresses that research and clinical experience demonstrate
that both, prenatal care and patient candor and not drug use are deterred with instances of
criminal monitoring of pregnant women (AMPH, 2001, p. 20).
Legal approaches are not always evidence based and are more often public reactions to isolated
events. Yet states continue to criminalize pregnant women who are chemically dependent and
expand fetal rights to the detriment of both women, children, familial systems and society as a
whole. Again, for elected officials, policy decisions are often based on their re-election
eligibility; being seen as someone who confronts drug addiction through determined actions is
more appealing for voters than slow moving, mentorship and educational programs that may
affect drug use years in the future....its easier to brag about how he or she throws drug-abusing
women in prison" (Mohapatra, 2012, pg. 272).
A review of the 31 state policies by the Guttmacher Institute (2015) illustrates current legal
trends and also highlights the gap of treatment option availability for pregnant substance abusers;
One state allows criminal assault charges; 18 states classify it as child abuse subject to child
welfare interventions; three states allow for civil commitment; 19 states have created drug
treatment programs specifically for pregnant women; 12 recommend giving priority access to
standard treatment programs (not geared for pregnant women) (Guttmacher, 2015). Already the
initiative of Tennessee is being mimicked as North Carolina and Oklahoma have now introduced
similar legislation to expand criminal laws over fetal protection (Koneru, 2015). One week after
the Tennessee law went into effect, a woman was arrested for using meth during her pregnancy,
placed in county jail and custody of her child was given over to the foster care system; this has
done nothing to help her overcome her addiction. The state just added one more person to the
criminal justice system"(Koneru, 2015, n.p.).
Public Health
From a public health perspective, there have been studies conducted that examine the effects of
losing custody of a child and/or incarceration stemming from substance abuse. One study of 795
women, pregnant or 6 months postpartum who self-report heavy drug use during pregnancy and
limited or no engagement with community social services, showed that in a group of 174 women
who had a subsequent pregnancy, 56% successfully completed drug treatment program. For the
4

remaining women who did not have a subsequent pregnancy, 78% were involved in long term
case management that kept them substance free (Grant et al., 2014). For case management, other
factors such as intimate partner violence, educational options, employment choices and extended
support systems were marked as contributors to the success or failure of treatment plans (Grant
et al., 2014)."Results of this study add to a growing body of evidence that mothers who use
substances struggle with complex social and personal issues"(Grant et al., 2014, pg. 17).
Another study on mothers who abused drugs but received help and did not lose custody nor were
incarcerated had more favorable outcomes in retaining custody and improving overall life
conditions for themselves and their children. Out of 458 mothers, 60% of the women who
received social services and treatment were caring for their index child and had secured further
stabilizations (remained clean, secured better housing, employment, support systems) for three
years beyond initial contact. " This study demonstrates that there is hope for mothers to
achieve recovery and remain with their children" (Grant et al., 2011, pg. 2184). Another study
from Washington D.C. looked only at the access to prenatal care without consideration for drug
treatment services or risk of criminal prosecution. Here a population of 2850 postpartum women
were noted as having received none or inadequate prenatal healthcare and 867 of those women
were classified as having abused substances during their pregnancies (El-Mohandes et al., 2003).
This illustrates the lack of accessible services for a vulnerable population in which fetal
protection laws appear to increase that inaccessibility.

4.

Discussion and conclusions

Often these legal polices simplify the notion of fetal endangerment to a single issue of drug use
while ignoring the influence of poverty, malnutrition, intimate partner violence, lack of
education, and lack of healthcare. This sits all responsibility, burden and ultimately blame on the
pregnant woman without regard for the social influences for her behavior or her options and
opportunities. Punitive measures work on two principles, a deterrent effect and retribution. The
deterrent effect believes that if threatened with the possibility of going to jail over their drug use,
women will refrain from continued use and stay clean for the duration of their pregnancy which
completely ignores the element of biological addiction and stresses willpower over physical
dependency. (Stone-Manista, 2009). The other principal is retribution where reasons or
influences are not important but focuses on how a woman has violated the social norm of good
motherhood and rather than practicing self-sacrificing behaviors, has self-indulgently continued

her drug use and is deserving of punishment (Stone-Manista, 2009). Neither train of thought
really addresses the improvement of health for either the pregnant woman or fetus.
A glaring omission in research is the absence of information regarding paternal influences in the
biological and social implications of substance abuse. Use of certain drugs can have a negative
impact on male fertility causing, impairments in semen analysis and functional sperm
parameters (Fronczak, Kim and Barqawi, 2012, p. 525). A 2012 study from Safarinejad et al.
notes a significant increase in the amount of fragmented DNA found in sperm samples from
opiate consumers (p. 18). In a 2013 study conducted by Warner and Frey, overall male health
was examined to optimize pregnancy outcomes which included considerations for mental health,
familial support structures, employment, and history of violence as well as physical influences
on reproductivity. These examples are limited though and presents a field that demands more
investigation.
Most notably absent from these policies and legislative measures is the presence of empirical
data that supports the states decisions to enforce punitive measures over definitive treatment
options and dedicated maternal and fetal healthcare for these women grappling with substance
abuse. The concern over fetal health in relation to pregnant women who use drugs is legitimate,
though the emphasis is on the improper behavior of the pregnant woman and this perception
paints public policy as using retribution for the best societal solution not for the women or the
fetus. Public health and public policy must work together to reduce the incidents of babies born
with NAS; to establish access to prenatal healthcare for the fetus and for the pregnant woman.
Using evidence based studies that show connections between treatment and improved maternal
and fetal health must be the basis for policy creation rather than continuing the punishment
model that seems to only benefit the prison-industrial-complex and the politicians who support it.

5.

References

American Medical Association (AMA), 2013. Pregnant womens rights. [online] AMA.
Available at: http://www.ama-assn.org/ama/pub/physician-resources/legal-topics/litigationcenter/case-summaries-topic/pregnant-womens-rights.page [Accessed 12 September 2015].
American Public Health Association (APHA), South Carolina Medical Association, American
College of Obstetricians and Gynecologists, American Nurses Association, et al., as Amici
Curiae Supporting Respondents, Crystal M. Ferguson, et al., v. The City of Charleston, South

Carolina, et al., 532 U.S. 67 (2001) 99-936. [pdf]. Available at:


https://supreme.justia.com/cases/federal/us/532/67/case.html [Accessed 25 September 2015].
American Society of Addiction Medicine (ASAM), 2015. Chemically dependent women and
pregnancy. [pdf] ASAM. Original publication date, 1989; yearly renewal. Available at:
http://www.asam.org/advocacy/find-a-policy-statement/view-policy-statement/public-policystatements/2011/12/16/chemically-dependent-women-and-pregnancy [Accessed 12 September
2015].
Brown, E. N., 2014. Pregnant women increasingly face criminal prosecution for positive drug
tests. Hello fetus, goodbye civil liberties. [online] Available at:
https://reason.com/archives/2014/05/16/prosecuting-pregnant-women-for-drug-use [Accessed 11
September 2015].
El-Monhandes, A., Herman, A. A., El-Khorazaty, M. N., Katta, P. S., White, D. and Grylack, L.,
2003. Prenatal care reduces the impact of illicit drug use on perinatal outcomes. Journal of
Perinatology, [pdf] 23, 354- 360. Available through:
http://www.nature.com.ludwig.lub.lu.se/jp/journal/v23/n5/full/7210933a.html [Accessed 25
September 2015].

Fentiman, L. C., 2009. Why American prosecutor pursue pregnant drug users (and other
countries dont). Columbia Journal of Gender and Law, [e-journal] 18 (2), 647- 669. Available
through: http://heinonline.org.ludwig.lub.lu.se/HOL/Page?
public=false&handle=hein.journals/coljgl18&page=647&collection=journals [Accessed 12
September 2015].
Fronczak, C. M., Kim, E. D. and Barqawi, A. B., 2012. The insults of illicit drug use on male
fertility. Journal of Andrology, [e-journal] 33 (4), 515- 528. Available through:
http://onlinelibrary.wiley.com.ludwig.lub.lu.se/doi/10.2164/jandrol.110.011874/abstract;jsessioni
d=B5C20D757D5BB176CF7A8D69713AEED8.f04t01 [Accessed 17 September 2015].
Gonzales, T., 2014. Tennessee will criminalize moms who use drugs while pregnant. The
Tennessean, [online] 30 April. Available at:

http://www.tennessean.com/story/news/politics/2014/04/29/tn-will-criminalize-moms-usingdrugs-pregnant/8473333/ [Accessed 11 September 2015].


Grant, T., Huggins, J., Graham, J. C., Ernst, C., Whitney, N. and Wilson, D., 2011. Maternal
substance abuse and disrupted parenting: Distinguishing mothers who keep their children from
those who do not. Children and Youth Services Review, [e-journal] 33, 2176- 2185. Available
through: http://www.sciencedirect.com.ludwig.lub.lu.se/science/article/pii/S0190740911002398
[Accessed 12 September 2015].
Grant, T., Graham, J. C., Ernst, C., Peavy, K. M. and Brown, N. N., 2014. Improving pregnancy
outcomes among high-risk mothers who abuse alcohol and drugs: Factors associated with
subsequent exposed births. Children and Youth Services Review, [e-journal] 46, 11- 18.
Available through:
http://www.sciencedirect.com.ludwig.lub.lu.se/science/article/pii/S0190740914002631
[Accessed 12 September 2015].
Guttmacher Institute, 2015. State policies in brief. Substance abuse during pregnancy. [pdf]
Washington D. C.: Guttmacher Institute. Available at:
http://www.guttmacher.org/statecenter/spibs/spib_SADP.pdf [Accessed 11 September 2015].
Hudak, M. L. and Tan, R. C., 2015. Neonatal Drug Withdrawal. [pdf] American Academy of
Pediatrics. Available at: http://pediatrics.aappublications.org/content/129/2/e540 [Accessed 17
September 2015].
Koneru, C. K., 2015. New bill would criminalize drug use by pregnant women. [online]
Available at: http://pulse.ncpolicywatch.org/2015/03/18/new-bill-will-criminalize-drug-use-bypregnant-women/ [Accessed 10 September 2015].
Mohapatra, S., 2012. Unshackling addiction: A public health approach to drug use during
pregnancy. Wisconsin Journal of Law, Gender & Society, [pdf] 26 (2), 241- 274. Available
through: http://eds.b.ebscohost.com.ludwig.lub.lu.se/eds/pdfviewer/pdfviewer?
vid=53&sid=99a0e99c-0152-4166-b427-dd1ad19a32f6%40sessionmgr110&hid=104 [Accessed
11 September 2015].
Safarinejad, M. R., Asgari, S. A., Farshi, A., Ghaedi, G., Kolahi, A. A., Iravani, S. and Khoshdel,
A. R., 2012. The effects of opiate consumption on serum reproductive hormone levels, sperm
8

parameters, seminal plasma antioxidant capacity and sperm DNA integrity. Reproductive
Toxicology, [e-journal] 35, 18- 23. Available through:
http://www.sciencedirect.com.ludwig.lub.lu.se/science/article/pii/S0890623812003474
[Accessed 17 September 2015].
Stone-Manista, K., (2009). Protecting pregnant women: A guide to successfully challenging
criminal child abuse prosecutions of pregnant drug addicts. The Journal of Criminal Law &
Criminology, [pdf] 99 (3), 823- 856. Available through:
http://eds.b.ebscohost.com.ludwig.lub.lu.se/eds/pdfviewer/pdfviewer?vid=56&sid=99a0e99c0152-4166-b427-dd1ad19a32f6%40sessionmgr110&hid=104 [Accessed 25 September 2015].
Tennessee Department of Health, 2013. More drug dependent newborns in state already than in
all of 2011. [online] Nashville: Tennessee Department of Health. Available at:
https://news.tn.gov/node/11477 [Accessed 12 September 2015].
Warner, J. N. and Frey, K. A., 2013. The well-man visit: Addressing a mans health to optimize
pregnancy outcomes. Journal of the American Board of Family Medicine, [e-journal] 26 (2),
196- 202. Available through: http://www.jabfm.org/content/26/2/196 [Accessed 17 September
2015].
Warren, M. D., Miller, A. M., Traylor, J., Bauer, A. and Patrick, S. W., 2015. Implementation of a
statewide surveillance system for neonatal abstinence syndrome Tennessee, 2013. Morbidity
and Mortality Weekly Report, [pdf] 64 (5), 117- 133. Atlanta: Centers for Disease Control
(CDC). Available at: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6405a4.htm [Accessed
12 September 2015].