Assessing legal responses to prenatal drug use: can therapeutic responses produce more positive outcomes than punitive responses?

• Author: Coleman, Elizabeth E.

1. INTRODUCTION II. EFFECTS OF DRUG USE ON FETUSES A. Effects of Drug Use by Pregnant Women on Children B. Effects of Drug Use on the Mother C. Effects of Drug Use by Pregnant Women on Society D. Conclusion: Pregnant Women Who Use Drugs Affect All Members of Society III. LEGAL ACTIONS AGAINST PREGNANT WOMEN WHO USE DRUGS A. Court Cases B. Criminal Laws C. Other Avenues of Prosecution 1. Civil Child Welfare and Abuse Laws 2. Protective Incarceration 3. Mandatory Reporting Laws D. Conclusion: Existing Laws Do Not Provide the Best Results Possible IV. POTENTIAL NEGATIVE EFFECTS OF EXISTING LAWS A. Avoidance of Prenatal Care B. Constitutional Infringements C. Discrimination D. Prison Conditions E. Ineffectiveness of Current Legal Actions F. Conclusion V. A BETTER APPROACH A. Therapeutic Jurisprudence and Drug Use During Pregnancy B. Treatment Programs C. Prevalence of Treatment Programs D. Benefits of Therapy for the Child E. Benefits of Therapy for the Mother F. Benefits of Therapy for Society VI. CONCLUSION I. INTRODUCTION

   Expressing a growing concern for fetal wellbeing, the 2006 Idaho Senate passed legislation that permits criminal charges to be brought against women who abuse illegal drugs while pregnant. (1) This bill allows for the potential incarceration of violators for up to five years, as well as a possible $50,000 fine. (2) In some locations, women have the option of choosing to go to drug court instead of serving time in jail or prison. (3) These drug courts provide drug treatment, case management, drug testing, and supervision, while requiring women who abuse illegal drugs to regularly report to scheduled status hearings before a judge. (4)

   Legislators, such as Idaho Senator Kate Kelly, have criticized these laws for being punitive. (5) Such critics believe that addiction to methamphetamine is an illness and not a crime. (6) Some critics are also concerned about the law's effects on families. Senator Kelly also said, "©riminalization of substance abuse, [and] the separation of infants from their mother, is not in the best interest of Idaho families." (7) In other words, punitive measures are not necessarily the best policies; other options should be considered first. (8) Also, Senator Denton Darrington stated "[t]he goal of this legislation is to avoid the birth of meth babies." (9)

   Idaho is not the first state to take this kind of action. Since the 1980s, when a large spread of cocaine use first prompted the concern for prenatal drug abuse, (10) other states have also taken steps to protect their citizens' unborn children from drug exposure. (11) The increase in cocaine use provoked medical researchers to study the negative affects that drugs have on the fetus. (12) The enhanced concern for fetal wellbeing prompted an increase in legal actions taken against prenatal drug abusers by controlling prenatal behavior and punishing women for using drugs while pregnant. (13)

   While the current legal actions taken against prenatal substance abusers are intended to produce positive outcomes, such as healthier fetuses and mothers, negative results are possible. Avoidance of prenatal care, constitutional infringements, and discrimination are just a few of the possible negative effects. For example, while legislatures hope the new Idaho law will prevent prenatal drug abuse, experts fear that pregnant drug users will not seek prenatal care for fear of being prosecuted. (14)

   Part II of this article focuses on the negative effects that prenatal drug abuse has on the fetus, the mother and society. Part III examines cases and laws that involve prenatal substance abuse, as well as avenues that are used to prosecute violators. Part IV suggests potential unintended consequences of prenatal drug abuse laws. Part V presents potentially more positive approaches to addressing the prenatal drug abuse problem. Finally, Part VI concludes that punitive measures are not the answer to this social problem; instead other more therapeutic options should be available to help mothers and their babies.

2. EFFECTS OF DRUG USE ON FETUSES

   While the exact number of fetuses exposed to drugs is unknown, the United States Department of Health and Human Services estimates that 5.5% of all women use illegal drugs during pregnancy. (15) Further, the National Pregnancy and Health Survey estimates that illegal drugs affect 221,000 babies each year. (16) These staggering numbers obviously cause great concern for fetal wellbeing. This concern has existed for many years. In 1989, it was estimated that ten to twenty-five percent of babies were born to drug users. (17) The very next year, in 1990, an estimated 100,000 to 375,000 women used drugs while pregnant. (18) These statistics prompted both medical research and legislation.

   In the 1990s, the focus changed from cocaine to heroine. While there are a variety of illegal drugs used by prenatal substance abusers, a study conducted around that time found that approximately 10,000 infants were born every year having been exposed to heroin alone. (19) Of the babies exposed to heroine, sixty to ninety-five percent require medication to overcome withdrawal symptoms. (20)

   More recently, the concern has shifted to methamphetamine. Some doctors have reported that ten percent of their patients are addicted to the drug. (21) Similarly, a 2006 study of women in areas with a high prevalence of methamphetamine abuse found that eleven percent of the women used illicit drugs while pregnant. (22)

   Drug use has affected the number of children removed from their homes by child protective services. For instance, between March 1997 and August 1998, Sacramento California Child Welfare Services removed over 7000 children who were believed to be victims of prenatal drug abuse. (23) This problem has increased since that time. A 2005 study of thirteen states across the country indicated dramatic increases in out of home placements for children whose parents used methamphetamine in the previous three years. (24) This section focuses on the potential negative effects that prenatal substance abuse has on the child, the mother and society.

   1. Effects of Drug Use by Pregnant Women on Children

      The child of a prenatal drug abuser may experience a number of negative effects. Children of methamphetamine abusers may experience a lack of oxygen and essential nutrients prior to being born because the mother's blood vessels in the placenta will constrict due to methamphetamine use. (25) Drug exposed infants may suffer from Sudden Infant Death Syndrome (SIDS) and small head size, (26) as well as low birth weight and short body length. (27) Studies have also shown that fetuses that have been exposed to cocaine may experience reflex deficiencies and fussiness. (28) They may also experience tremors, agitation and be 'inconsolable.' (29) Researchers have discovered that cocaine exposed children are 4.89 times more likely to suffer from mental retardation than non-exposed children. (30) In addition, mothers who are infected with any of the serious viruses that sometimes come with drug use, such as HIV infection and sexually transmitted diseases, may pass these ailments to the fetus. (31) Death is the ultimate consequence to prenatal drug abuse. A study released in 1995 revealed that 14.9 out of every 1000 births to prenatal drug users resulted in infant mortality. (32) Non-abusers only experienced 10.7 deaths per 1000 births. (33) The effects of prenatal drug use can follow a child throughout his life. Later in life, children who were exposed to drugs while in the fetal stage may become stereotypical "problem child(ren)" due to a lack of positive surroundings while growing up. (34) The medical complications that can come with prenatal drug exposure may also lead to their inappropriate behavior, (35) which may make education more difficult for the children.

      In the toddler stage, drug exposed children have the tendency to be hyperactive, experience mood swings, and have short attention spans. (36) Children exposed to drugs may also suffer from attention and behavior disorders. (37) Each of these ailments can negatively affect a child's educational performance.

      Researchers at Case Western Reserve University compared the intelligence of preschool children who were prenatally exposed to cocaine with the intelligence of children who were not exposed. (38) They discovered that the exposed children typically scored significantly lower on intelligence tests and were not as likely to score above average on their overall IQ as the non-exposed children. (39) Also, using the Wechsler Preschool and Primary Scales of Intelligence-Revised, it was discovered that exposed children scored lower in "information, arithmetic, and object assembly." (40) While the long-term effects of prenatal drug exposure on teenagers have not been sufficiently researched, teens tend to experience learning disabilities, abuse and neglect, and behavioral problems. (41)

      Children born to parents who are drug addicts suffer greatly. These children tend to suffer from low self-esteem and behavioral problems, as well as anxiety and apprehension. (42) Also, children born to parents who abuse and neglect them are also more likely to commit criminal acts as both juveniles and adults. (43)

      As this research demonstrates, children exposed to drugs before birth suffer from a number of ailments and disadvantages throughout life. In addition to the effects that the child may experience, drug use can have a number of negative effects on the mother as well.

   2. Effects of Drug Use on the Mother

      Drug use also affects the mother in a variety of ways. Post-pregnancy, the mother may experience hardships as a result of her prenatal and post-natal drug abuse. Mothers of drug exposed babies typically have a harder time caring for their newborns because the babies tend to be more "irritable, tired, hard to feed, and poor sleepers." (44) Mothers of drug-exposed babies may also have a hard time...