Montana county to incarcerate pregnant women with substance use disorders

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Experts say incarcerating pregnant women harms their fetuses.

Mar 2, 2018
Montana County To Incarcerate Pregnant Women With Drug Addictions

(Photo by VANDERLEI ALMEIDA / Staff via Getty Images)

The Big Horn County, Montana prosecutor’s office recently announced a widely-condemned move to prosecute pregnant women who are afflicted with substance use disorders.

Big Horn County Attorney Gerald “Jay” Harris announced that he will be implementing an “immediate crackdown” on women who use drugs or alcohol during pregnancy. The punishment for doing so will now include possible police surveillance, civil restraining orders, or jail time, which Harris believes are appropriate measures for preventing fetal harm.

As Harris writes in the press release, “It is simply not satisfactory to our Community that the protection of innocent, unborn children victimized in this manner and subject to a potential lifetime of disability and hardship relies exclusively on social workers removing the child from the custody of the mother at birth. This approach is not timely and has not proven to be a sufficient deterrent to this dangerous, unacceptable behavior and will no longer be the State’s policy in Big Horn County.”

Experts within the medical, civil rights, and women’s advocacy communities have long condemned this sort of punitive approach to drug abuse disorders among pregnant women.

“Every major medical group tasked with addressing the problems associated with drug and alcohol use during pregnancy—including the American Medical Association, the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, the American Nurses Association, and the March of Dimes—opposes criminal or civil charges against pregnant women,” says Martha Stahl, President and CEO of Planned Parenthood of Montana, in an ACLU news release. “Such charges undermine maternal and fetal health.”

Indeed, medical experts have been making this argument against criminalizing pregnant women with substance use disorders for over a decade. 

“Arguably, the major barrier facing changes in policies for drug-using mothers is societal attitude,” concludes one paper from the Brown Medical School as far back as 2004. “…we have modern evidence that treatment is effective and that there is no reason to consider drug use as different than any other mental/medical problem…We have identified all other barriers, yet why has policy not changed? Is it because we are still angry and want to punish these mothers?”

Experts say that incarcerating pregnant women is also detrimental to fetal health, as an expectant mother’s health and wellbeing is intimately tied to that of the fetus. Incarcerated pregnant women face an inordinate amount of stress as well as substance withdrawals with little support. This punitive approach also stands to dissuade pregnant women with substance use disorders from seeking help, or general prenatal support, for fear of being incarcerated.

The Montana Department of Justice calls Harris’ crackdown “unique.”

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UNITED STATES – 2008/05/10: Infant born prematurely and addicted to drugs. (Photo by John Greim/LightRocket via Getty Images)

Montana currently has high rates of Neonatal Abstinence Syndrome (NAS)—where infants experience withdrawal symptoms due to fetal exposure to substances like opioids. Between 2000 and 2013, instances of newborns afflicted with NAS increased tenfold in the state. One reason for this may be the national increase of pregnant women who obtained prescriptions for opioid medications during a similar timeframe.

But experts believe that Harris’ approach to this issue—treating substance use disorders as a criminal justice issue to be resolved with incarceration, rather than a public health issue to be resolved with treatment—is misguided, and not grounded in science. There are other complications with Harris’ move as well.

In the state of Montana, a fetus is considered to be “an organism of the species Homo sapiens from eight weeks of development until complete expulsion or extraction from a woman’s body.” However, some women don’t even realize they’re pregnant until nine weeks or later after conception. Therefore, under Harris’ crackdown, some women could also technically be persecuted for drinking while in the early stages of pregnancy, even if they don’t yet know they’re pregnant.

Harris has also encouraged people to contact the Big Horn County Sheriff’s office if they know of a pregnant woman who is drinking or using drugs.

The press release for Harris’ crackdown says that these measures are meant to “incapacitate the drug or alcohol-addicted expecting mother,” although the move broadly applies to pregnant women who are caught using drugs or alcohol, even those who are not necessarily “addicted.”

Pregnant women in Big Horn County who are aware of their own drug or alcohol addictions are also now expected to report themselves to the Department of Public Health and Human Services to be enrolled in “voluntary daily substance use monitoring in order to avoid prosecution.”

Currently, 24 states and the District of Columbia consider drug and alcohol use during pregnancy to be child abuse. Three of these states punish pregnant women who are afflicted with substance use disorders with institutional detention.

Mar 2, 2018