A prosecutor in Montana made headlines last month when he announced his intent to seek jail time for women who use drugs or alcohol while pregnant.
Big Horn County Attorney Gerald “Jay” Harris and his office say they want to prevent a pregnant woman from using drugs or alcohol by seeking an order of protection on behalf of the fetus.
Harris wrote an email to Healthline explaining the policy, which seeks to address drug and alcohol use during pregnancy as a matter of child abuse.
“If there is evidence sufficient to prove an expecting mother is engaged in the use of alcohol or dangerous drugs such that it is provable that a substantial likelihood of major disability exists for the unborn child, the State will seek an order of protection (for the as-of-yet unborn human being) by a civil complaint,” Harris’ email stated.
If the pregnant woman is found to violate that order of protection, Harris wrote, his office can file an additional order that “includes the prospect of commitment to an inpatient treatment program or jail.”
Harris explained in the email to that prior to Jan. 11 “[A] youth in need of care petition would be filed in the district court and it would be up to the willingness of [the] drug-addicted parent to fight for their sobriety and, concurrently, the custody of their children back.”
His new policy is more “proactive,” Harris wrote, “ensur[ing] that maximum efforts are made to abate drug use while a mother is expecting, thereby eliminating the risk that a completely innocent person [be] subject to a disability (potentially a lifelong disability) due to [the] mom’s chemical dependency.”
KTVQ reported that Harris’ office asked citizens of Big Horn County to report any pregnant women abusing drugs or alcohol to the sheriff’s office.
‘A punitive approach… is ineffective’
This policy has drawn criticism from the American Society of Addiction Medicine, American Academy of Pediatrics, the March of Dimes, the National Organization on Fetal Alcohol Syndrome, and the American College of Obstetricians and Gynecologists.
In a joint statement released last month, the groups said they “oppose in the strongest possible terms” the policy, and raised concerns about its impact on the health of both women and their fetuses.
“While the risks associated with drug and alcohol use during pregnancy deserve greater attention and public investment, addiction is a chronic brain disease that needs medical treatment, not criminalization based on medical misinformation and stigma,” the statement said. “There is a strong consensus among medical and public health organizations that a punitive approach during pregnancy is ineffective and harmful to both mothers and children.”
Law enforcement simply should not be involved in healthcare decisions, experts say.
“There is no question among medical and public health experts that there really is no role for police and prosecutors in addressing healthcare in general and pregnancy in particular,” Lynn Paltrow, JD, executive director of National Advocates for Pregnant Women, told Healthline.
Harris’ policy will “backfire,” explained Kelli Garcia, director of Reproductive Justice Initiatives and senior counsel at the National Women’s Law Center.
The threat of incarceration — which can have the ripple effect of loss of employment and other consequences — will discourage women who need help with drug abuse or drinking “because any of that information could potentially be used against [her],” Garcia told Healthline.
“In reality, what these [policies] do is, it makes the pregnant women afraid to be honest with their providers, to tell them about any potential alcohol or drug use,” said Garcia. “That makes it harder, then, for the providers to treat them as they need to be treated and get them to [the] kind of healthcare that they need.”
Healthcare providers can help pregnant women address their substance-abuse disorder, which becomes trickier and more dangerous behind bars, she continued.
“We also know that going cold turkey when you’re using certain types of substances can be more damaging to a fetus than [tapering off dosage gradually],” explained Garcia.
Additionally, being in jail could keep a pregnant woman separated from prenatal care, which runs counter to the goal of the policy. Incarcerating pregnant women is “completely irresponsible,” said Paltrow.
Meth in Montana
Harris believes the new policy in Big Horn County is needed to combat methamphetamine in particular, which is “public enemy number one” there.
“Persons addicted to methamphetamine present a clear and present danger to the community, by engaging in major criminal behavior, including a callous disregard for human life,” he wrote in his email. “This is a major battleground, and we cannot accept the risk of allowing methamphetamine use by expecting mothers, and simply place hope that a drug addict will come to medical providers and abate their use while expecting. The problem demands greater than status quo efforts, which have not proven successful in our community.”
The statement from ACOG and other organizations pointed out that the general public isn’t equipped to know what medications, drugs, or amounts or types of alcohol are safe for pregnancy.
In fact, incarcerating women while pregnant creates additional stress on them and has the potential to interrupt prenatal care.
They said in their statement:
“Average citizens do not have the medical training and expertise to correctly identify if a pregnant woman is using substances that are harming her fetus. If such reporting results in a pregnant woman’s incarceration or containment, this could disrupt her prenatal care, and possibly ongoing addiction treatment, and put her health and the health of her fetus at risk.”
‘Alarmist’ policy toward mothers
Assuring healthier birth outcomes is more complicated than addressing drug and alcohol use during pregnancy, said Paltrow.
“An assumption embedded in [Harris’] statements, including his language about ‘innocent unborn children’ is the notion that if the state can control pregnant women, the state can guarantee healthy birth outcomes,” she continued. “That’s completely untrue.”
For example, 10 to 15 percent of clinically recognized pregnancies end in a miscarriage, according to the APA. Often the cause of the miscarriage is unknown, though miscarriages that occur after 14 weeks often occur from an underlying health issue in the mother.
“Pregnancy itself is a risk,” Paltrow elaborated. “It’s a risk to the life of the pregnant woman, and it’s a risk to the potential life she may or may not bring forth.”
Maternal deaths increased in the U.S. from 2000 to 2014 and are more common among low-income women, women in rural areas, and African-Americans.
According to research from NPR and ProPublica, women in America are three times more likely to die during pregnancy, or up to one year after birth or a termination, than Canadian women. They are six times more likely than women from Scandinavian countries to die.
Pregnant women everywhere could benefit from more support services, prior to and during pregnancy, said Paltrow, while a policy like Harris’ “directs our attention to the things that aren’t the real risk.”
“Prosecutors and judges and even doctors [are] bombarded with media reports that are alarmist and inaccurate and suggest falsely and without evidence that the greatest threat to America’s children are their own mothers,” she said.
“The far greater threats to children in Montana and elsewhere in this country have to do with systemic and structural problems like poverty, racism, environmental degradation, and all of the extreme stressors that are associated with those things,” Paltrow continued.
‘Fetal assault’ laws
Big Horn County’s policy toward pregnant women is seen as an erosion of women’s reproductive rights.
Harris’ office will seek an order of protection on the fetus — “for the as of yet unborn human being,” he wrote in his email.
For example, according to the National Conference of State Legislatures, 38 states identify a fetus as a person in the eyes of the law with regard to homicide. A fetal assault law can inflict additional manslaughter or homicide charges on an assailant who kills a pregnant woman or injures the fetus.
Detractors of these laws, such as the American Civil Liberties Union, say that the idea of fetal personhood is a slippery slope which can lead to the restriction of or criminalization of abortion.
However, Harris’ statement about his office’s new policy said it meant to protect “innocent, unborn children victimized” by their moms.
That echoes the language of fetal personhood laws — such as Alabama’s, which refers to “an unborn child in utero at any stage of development, regardless of viability.”