Prosecuting women for drug use during pregnancy: the criminal justice system should step out and the Affordable Care Act should step up.

Author:Kampschmidt, Erin D.

CONTENTS INTRODUCTION I. SUBSTANCE ABUSE AND PREGNANCY A. The Numbers B. Growing Use of Opiates by Pregnant Women C. Effects of Drug Abuse During Pregnancy on the Fetus II. CRIMINAL JUSTICE A. A Brief History of Fetal Protection Laws in the United States B. Criminal Law Theory C. Prosecution of Pregnant Drug Users Does Not Fit Within the Justifications for Criminal Punishment III. SUBSTANCE USE DISORDER TREATMENT IV. THE AFFORDABLE CARE ACT A. Potential Solution 1. Essential Health Benefits and Coverage Parity 2. Integration of Care B. Challenges and Recommendations CONCLUSION INTRODUCTION

For nearly three and a half decades, the actions of soon-to-be mothers have been under the watchful eye of state prosecutors. The first criminal charges brought against a woman for using drugs during pregnancy came in 1977 against Margaret Reyes. (1) Reyes was charged with two counts of felony child endangerment for her heroin use during pregnancy, but the charges were later dropped because the California Court of Appeals declared that the statute was never intended to extend to unborn children. (2) The Court of Appeals enjoined all further prosecution. (3)

Criminal prosecutions of women for drug use during pregnancy reappeared in the 1980s with the introduction of cocaine to the U.S. market. (4) The late 1980s saw an increase in drug charges and punishments, including those against pregnant women. (5) Although no state has enacted a law that specifically criminalizes conduct during pregnancy, (6) cases have been brought under theories of child endangerment, child abuse, delivery of drugs to a minor via the placenta or umbilical cord, and eventually under theories of homicide, manslaughter, and attempted murder. (7)

Currently, South Carolina and Alabama are the only states to uphold criminal prosecutions for the actions of women during pregnancy. (8) Most famously, South Carolina sentenced Regina McKnight to twenty years in prison for homicide by child abuse. (9) McKnight, a "homeless African-American woman with an IQ of seventy-two and an addiction to crack cocaine," (10) gave birth to a stillborn baby with an estimated fetal age of thirty-four to thirty-seven weeks. (11) Autopsy revealed that the baby died in utero two days prior to McKnight going into labor and had cocaine in its system. (12) McKnight was charged with murder based on the finding of cocaine in the baby's system as the cause of death. (13)

While these two southern states are the only states to continually uphold convictions of pregnant drug users, a large number of state prosecutors across the nation continue to bring cases despite the fact that the majority of cases are overturned on appeal. (14) Although laws in some states have been changed recently to protect pregnant women from prosecution, (15) the law in general has become outdated by current data on drug abuse and patient needs, as well as by recent developments in federal legislation aimed at health care.

The Patient Protection and Affordable Care Act (ACA) provides the best solution to the issue of substance abuse during pregnancy. (16) The ACA enables women to have coverage for substance abuse treatment within an integrated health system focused on the overall health of mother and baby. This solution will only be truly functional if the criminal justice system steps out of the way, thus allowing pregnant women to see the doctor without the fear of jail time. (17)

This Note presents the issue of substance abuse during pregnancy, the mistreatment of the issue as a criminal matter, the proper method of handling the issue, and a solution to the problem through current legislation. Part I of this Note contains statistical information on the number of women who admit to substance abuse while pregnant, the growth of prescription opiate abuse, and the harm caused to the fetus due to substance abuse in utero. Part II briefly describes the history of the fetal protection laws aimed at pregnant drug users followed by a description of the policy rationales and justifications for treating substance abuse during pregnancy as a criminal matter. Further, Part II explains why criminal justifications do not support the treatment of substance use during pregnancy as a crime. Part III examines the proper method of handling the problem of substance abuse during pregnancy--namely, rehabilitation through substance use disorder treatment with integrated prenatal care--and current challenges. Finally, based on the evidence presented, Part IV concludes that the proper remedy to achieve the goals of the fetal protection laws is to remove the issue from the criminal justice system and instead rely on the support of the community and treatment options made newly available thanks to the ACA's requisite essential health benefits coverage. Utilizing these benefits, women suffering from substance use disorders will be able to seek out treatment in conjunction with prenatal care thus providing the optimal opportunity for both mother and baby to be healthy.

Although the following topics are important to a full analysis of criminal laws aimed at pregnant drug users, this Note does not focus on the constitutional validity of those laws, nor does it focus on issues of racial or sexual discrimination, violation of reproductive rights, or prosecutorial prejudice, though these topics may take a supporting role in the argument. Instead, this Note makes a policy argument that can act as a compromise for the fight between a mother's and a fetus's rights and protections from harm while dismissing the false pretenses on which the current criminal laws against pregnant drug users stand.


    The following material provides background information necessary for a full understanding of the topic of substance abuse during pregnancy. The first subsection provides statistics on the number of women using illicit drugs during their pregnancy. The second subsection discusses the rise of the use of legal opiates during pregnancy. Finally, the third section explains the current knowledge of the effects drug use during pregnancy has on the fetus. An understanding of this material is crucial to a complete appreciation of the issue and the evidentiary support for fetal protection laws.

    1. The Numbers

      The fetal protection laws introduced in the 1980s were intended to deter women from using drugs during pregnancy by inducing fear of criminal prosecution. (18) However, statistics gathered from national surveys indicate that the number of pregnant women using drugs is currently on the rise. (19) The Substance Abuse and Mental Health Services Administration, a division of the Department of Health and Human Services, releases biannual reports of drug use in the United States. (20) Included in these reports is data on the use of illicit drugs by pregnant women. During the years of 1994-1995, nearly a decade since the introduction of the fetal protection laws, 2.3 percent of pregnant women were current drug users. (21) The National Survey on Drug Use and Health reveals that "[a]mong pregnant women aged 15 to 44, 5.9 percent were current illicit drug users" during the years 2011 and 2012. (22) When broken up according to age range, " [t]he rate of current illicit drug use ... was 18.3 percent among pregnant women aged 15 to 17, 9.0 percent among pregnant women aged 18 to 25, and 3.4 percent among pregnant women aged 26 to 44." (23) When further broken down by ethnic group, the data indicate that drug abuse during pregnancy is most prevalent among African American women. (24)

      These statistics reveal that the number of women who identify as pregnant drug users has significantly increased in the past fifteen years, despite the fact that these women could be criminally charged for their actions in several states at the time the reports were published.

    2. Growing Use of Opiates by Pregnant Women

      In addition to information on the percentage of American women who admit to using drugs during pregnancy, statistical information can be gathered based on the number of infants born annually suffering from symptoms of withdrawal from opiates. Because most women would not consider prescription painkillers or other prescription drugs derived from opium to be drugs necessary to report for the National Survey on Drug Use, (26) information on opiate withdrawal symptoms in infants reveals additional women using potentially harmful drugs while pregnant.

      Tennessee is the first state to require reporting of withdrawal from opiates, (27) a condition known as neonatal abstinence syndrome (NAS), although no federal government agency tracks NAS cases. (28) In 2013, the Tennessee Department of Health called NAS an "epidemic" and estimated at least 800 cases of NAS in Tennessee for the year. (29) In Wilmington, North Carolina at New Hanover Regional Medical Center, the number of newborns treated or monitored for drug withdrawal shot up 119 percent in three years, from thirty-one cases in 2009 to sixty-eight during 2012. (30)

      Nationally, the figures are also rising. In a retrospective study measuring the national health care expenditures associated with NAS, it was found that from 2000 to 2009 that the incidence of NAS among newborns increased from 1.20 to 3.39 per 1000 hospital births per year. (31) The incidence of antepartum maternal opiate use increased from 1.19 to 5.63 per 1000 hospital births per year. (32)

      The increase in incidence of NAS has occurred fairly dramatically and is the result of mothers taking legal painkillers and other drugs that are derivatives of opium. (33) "New data from Tennessee show that 42 percent of mothers of drug-dependent newborns used only substances prescribed for legitimate treatment. Another 30 percent used illegal drugs and about 20 percent used a mix of both." (34) While painkillers are legal, they are highly addictive and can be dangerous to quit without supervision by a medical professional. (35)

      The focus of...

To continue reading