A GUIDING HAND OR A SLAP ON THE WRIST: CAN DRUG COURTS BE THE SOLUTION TO MATERNAL OPIOID USE?

• Author: O'Connor, Cara

Table of Contents INTRODUCTION 104 I. THE OPIOID CRISIS 107 II. PREGNANT WOMEN AND THE CRIMINAL JUSTICE SYSTEM 112 III. HOW PREGNANT WOMEN AND MOTHERS ENTER THE CRIMINAL JUSTICE SYSTEM: CRIMINALIZATION OF DRUG USE AND DRUG-RELATED CRIMES 113 A. Current Needs Within the Criminal Justice System 119 IV. WHY INCARCERATION IS AN INAPPROPRIATE RESPONSE TO PREGNANT WOMEN ADDICTED TO OPIOIDS 120 V. DRUG COURTS 123 A. Background 123 B. Drug Courts and Pregnant Women Charged for Opioid Use 127 VI. SOLUTIONS IN ADDRESSING PREGNANT OPIOID USE 128 A. Reporting Pregnant Women for Opioid Use 129 B. Necessary Reforms to Address the Needs of Pregnant Women in Drug Courts 130 CONCLUSION 135 INTRODUCTION

Within hours of being born, they cry out, convulsing. Their cries continue, despite attempts to placate them through feeding or consoling. These are babies born addicted to opiates or opioids, (1) a result of their mothers' drug use while pregnant. As newborns experience withdrawal, their mothers may be in the hospital with them, talking to doctors about treatment. Their mothers may receive their own treatment in another room. Or, depending on the state where these mothers delivered their babies, they may be arrested.

Women have been prosecuted for their drug activities while pregnant for the past fifty years. (2) However, only three states-Alabama, Tennessee, and South Carolina-have explicitly permitted these prosecutions. (3) As the opioid epidemic grows, the increase in the number of women using opioids while pregnant raises the question of how best to address this subpopulation within the public health crisis. (4) Criminal justice reforms must be part of a comprehensive response. There is considerable debate about whether pregnant women, unlike nonpregnant drug users, should be prosecuted for their drug use. (5) High courts in many states have overturned pregnant drug use convictions, looking at legislative intent to determine that a fetus does not constitute a child or victim under various state statutes. (6) Because women continue to be prosecuted for such crimes across the United States, however, and because pregnant women addicted to opioids may face other drug-related charges, this Comment focuses on how all states might apply a more effective approach to this population that is consistent with the demands of the opioid epidemic. Due to the nature of opioid addiction, in which access to treatment can be the difference between life and death, the public health crisis calls for a new solution to addiction, including how best to address the health needs of pregnant women and their newborn children. While many of these reforms can also combat pregnant addiction to substances other than opioids, the expanding reach of the opioid crisis offers an opportunity to reevaluate how best to address the needs of pregnant women addicted to drugs more generally. (7)

This Comment argues that reforming the drug court system to align with the treatment needs of pregnant women addicted to opioids is a crucial component of comprehensive reform in states that prosecute women for opioid use while pregnant. Part I situates pregnant women within the opioid epidemic. Part II discusses the presence of pregnant women in the criminal justice system more generally. Part III discusses the criminalization of women using drugs while pregnant. Part IV argues that incarceration is an improper setting for pregnant women struggling with opioid addiction. Part V explains how drug court systems function and the role that they have played in prosecutions of women for pregnant drug use. Finally, Part VI offers solutions to better address pregnant opioid use within the criminal justice system, such as advocating for universal drug screening for pregnant women, but reporting to law enforcement only when women refuse treatment, as well as various reforms within the drug court system in order to better address the unique needs of pregnant women, including: expedited proceedings to begin treatment and avoid incarceration; access to medication-assisted treatment; allowing women to spend time with their newborns; an appropriate sanctions system that recognizes the medical reality of relapse; and funding considerations that prevent women from having to pay for treatment. Although these reforms must exist within a broader, comprehensive response to the public health crisis, this Comment ultimately argues that these drug court reforms are a crucial component to such a comprehensive solution.

1. THE OPIOID CRISIS

   The opioid epidemic, in part due to the connection between prescription and illicit drugs, has spanned many demographics. (8) Opioids include illicit drugs like heroin and the synthetic drug fentanyl, as well as prescription painkillers such as oxycodone and hydrocodone. (9) The relationship between painkillers and illicit opioids is heavily intertwined: as prescription pills began to flood the market, so did drugs like heroin, leading to a proliferation of both types of opioids. (10) Although opioid addicts are most likely to be "white, male and middle-aged," (11) the public health crisis crosses racial lines and is present in rural, suburban, and urban communities. (12) The epidemic also includes pregnant women. Approximately one in five women consume opioids, whether illicit or prescription, during their pregnancy. (13) Furthermore, more than twice as many pregnant women received treatment for opioid addiction in 2012 than in the year 2000. (14) Over 25% of women of reproductive age are prescribed painkillers each year, (15) and prescription drugs significantly contribute to the prevalence of opioid use among pregnant women. (16) At a clinic in Tennessee, for instance, an estimated two-thirds of patients became addicted after using a prescription drug. (17) As a result of this increased use of legally prescribed and illicit opioids, "the prevalence of opioid use disorder (OUD) during pregnancy [in the United States] more than doubled between 1998 and 2011." (18) Opioid addiction varies by region across the United States, and the South tends to have even greater challenges with pregnant opioid use. (19) The South also leads the way in criminal prosecutions for pregnant women who use opioids--or other drugs--while pregnant. (20)

   At the center of the debate regarding whether charges should be brought against pregnant drug users is the effect of such drug use on the fetus and the newborn. When a pregnant woman consistently uses an opioid, whether by prescription or illegally, there is a significant chance the baby will experience Neonatal Abstinence Syndrome (NAS) upon birth. (21) Since 2000, cases of NAS have multiplied nearly fivefold due to an increase in opioid use during pregnancy. (22) NAS is a withdrawal symptom that impacts newborns who were exposed to opioids in utero, and then are rapidly shut off from access to the drug at birth. (23) Effects often "include excessive high-pitched cry, reduced quality and length of sleep after a feeding, increased muscle tone, tremors, and convulsions... dysregulation ([including] sweating, frequent yawning and sneezing, increased respiration) and gastrointestinal signs ([such as] excessive sucking, poor feeding, regurgitation or vomiting, and loose or watery stools)." (24) Opioid exposure can also create consequences for the fetus' regulatory system that result in "high rates of in utero fetal death." (25)

   Despite these impacts, which can occur in utero or immediately upon birth, little research is available that demonstrates what impact, if any, pregnant opioid use or NAS has on long-term brain development. (26) Some studies suggest that elementary school children who were exposed to opioids in utero may exhibit "motor and cognitive impairments" and inattention or hyperactivity, including higher instances of Attention-Deficit/Hyperactivity Disorder. (27) However, the true impact of pregnant opioid use on children is difficult to determine because other confounding factors may be responsible for impairments manifesting in school-age children. (28) Furthermore, most of the research on the impact of opioids on brain development that is available was completed prior to the current "widespread use of highly potent synthetics, such as fentanyl." (29) Uncertainty about the impact of pregnant opioid use has generated significant debate about the appropriateness of prosecuting pregnant women for drug use. (30)

   While the long-term impact of NAS on children's health is uncertain, it is undisputed that the majority of newborns exposed to opioids in utero will experience withdrawal. (31) In addition to the physical ailments associated with withdrawal, treating a fetus experiencing withdrawal increases costs to the health system. (32) Children experiencing withdrawal often require more attention, and therefore tend to stay in the hospital longer than other newborns, with an average hospital stay of fifteen days compared to an average of three days for healthy newborns. (33) Estimates suggest that extended stays and the need for greater intensive care costs approximately five times more than caring for a baby that does not exhibit NAS symptoms. (34) NAS treatment cost approximately $1.5 billion more in national health care charges in the year 2012 alone. (35) In Tennessee, caring for an "average" newborn costs $8,369, while care for newborns with NAS costs $62,324. (36)

   Furthermore, every twenty-five minutes a baby is born dependent on drugs. (37) Similar to the higher rates of addiction among pregnant women, the South, where three states have explicitly permitted pregnant drug use prosecutions, also has higher incidences of NAS. (38) Tennessee has declared NAS an epidemic, with at least 800 babies born with NAS in 2013. (39) Of the babies born with NAS, 42% of the cases involve mothers who had only used "substances prescribed for legitimate treatment." (40) Likewise, a national study found that over 20% of women...