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Rationale: Concern about exposure of fetuses to drugs, particularly cocaine, has led to the prosecution of pregnant women for their drug, use rather than the provision of treatment and health care services to women.102 This punitive reaction does more harm than good. First, this policy incorrectly assumes that women have access to drug treatment services and control of their reproductive choices. A 1998 survey by the Child Welfare League of America found that although child welfare agencies report that parental substance abuse and poverty are the two top problems faced by their clients, less than one-third of agencies link women to drug treatment services, and only one in five link pregnant women to services.103 The prevalence of domestic violence as well as economic and emotional dependence make it difficult or impossible for many women to negotiate the terms of their sexual lives.104 

Second, the long-term impact of in-utero drug exposure on a child's physical and mental development is not established. It is clear that the drug effects cannot be separated from the negative outcomes from other risk factors, such as lack of prenatal care and poor nutrition. Research paid for by the National Institute on Drug Abuse (NIDA) and the Albert Einstein Medical Center in Philadelphia states, “Although numerous animal experiments and some human data show potent effects of cocaine on the central nervous system, we were unable to detect any difference in Performance, Verbal or Full Scale IQ scores between cocaine-exposed and control children at age 4 years.105 ”Moreover, we do know that research shows that the provision of quality prenatal care to heavy cocaine users has been shown to significantly improve fetal health and development.106 Criminalizing substance abuse during pregnancy discourages substance-using women from seeking prenatal care, drug treatment, and other social services that would ensure the health of both the woman and her fetus.

Third, poor women and women of color are more likely to be reported for drug use (even though the estimated number of white women abusing drugs is substantially greater than the number in other race/ethnicity groups), because of their more frequent reliance on public health clinics and because of stereotypes held by some health care professionals.107 

Legislators should promote a public health approach to substance abuse among women, including pregnant women. Doctors and other health professionals should be seen as allies of women. They should not be forced to betray a patient's trust by informing prosecutors and police of patient drug use.

Recommendation: Address the problem of drug abuse by women as a women's health issue not a criminal matter.

A public health approach requires universal availability of drug treatment for all women. This requires funding for treatment programs designed for women - including pregnant women and women with children. It requires an expansion of Medicaid coverage of drug treatment, including residential treatment, and other publicly-funded drug abuse prevention and treatment programs for low income women.108 

A public health approach also requires an expansion of drug treatment for incarcerated women. Between 1985 and 1996, female drug arrests increased by 95 percent. More than two-thirds of women in federal prisons are incarcerated for drug offenses and today approximately 130,000 women are behind bars in the U.S.109 Mandatory minimum sentencing has increased the number of incarcerated women, most of whom leave children behind.

Proposals for mandatory universal testing for drugs and alcohol in pregnant and postpartum women and newborns should be rejected. Testing should be a medical decision between a doctor and patient, not something mandated by law enforcement authorities. Testing of women and newborns should require a woman's voluntary and informed consent. Laws should provide that no pregnant woman or a parent of a newborn who tests positive for drugs will be subjected to criminal investigation or detention, nor should they be threatened with having their child taken away from them, solely on the basis of a drug test. Rather, testing should be part of a public health process of prenatal and parental counseling and linkages to health care and drug treatment services for women.

102 Figdor, Emily and Lisa Kaeser. (1998, October). "Concerns Mount over Punitive Approaches to Substance Abuse Among Pregnant Women." The Guttmacher Report on Public Policy; Nelson, Lawrence and Mary Faith Marshall. (1998). Ethical and Legal Analyses of Three Coercive Policies Aimed at Substance Abuse by Pregnant Women. Funding provided by the Substance Abuse Policy Research Program of the Robert Wood Johnson Foundation.
103 February, 1998
104 Center for Women Policy Studies, 1996
105 Hallam Hurt, MD; Elsa Malmud, PhD; Laura Betancourt; Leonard E. Braitman, PhD; Nancy L. Brodsky, Phd; Joan Giannetta, "Children with In Utero Cocaine Exposure Do Not Differ from Control Subjects on Intelligence Testing," Archives of Pediatrics & Adolescent Medicine, Vol. 151: 1237-1241 (1997) American Medical Association.
106 Chazotte, et. al., 1995
107 Roberts. (1991); Nelson and Marshall. (1998).
108 S. 147, Medicaid Substance Abuse Treatment Act of 1997, introduced by Sen. Daschle (D-SD) with 4 co-sponsors (3 Dems., 1 Rep.) on January 21st, 1997, would have amended title XIX of the Social Security Act to provide for coverage of alcoholism and drug dependency residential treatment services for pregnant women and certain family members under the Medicaid treatment program, and for other purposes.
109 Drug Strategies. (1998). Keeping Score, 1998: Women and Drugs: Looking at the Federal Drug Control Budget. Washington, DC: Drug Strategies.

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