Theresa Lee Hernandez is being prosecuted for murder — for being a drug addict and giving birth to a stillborn baby.
The District Attorney is arguing that Hernandez’s neo-natal methamphetamine use amounts to murdering her child. Obviously no one thinks that neo-natal drug use is a good thing, but prosecuting addicts who use drugs throughout their pregnancies is a pretty poor idea. It’s questionable from a legal standpoint, and it’s even more problematic from a public health perspective — if drug users know that they may be tried for child abuse, they aren’t going to seek out basics like pre-natal care or substance abuse treatment. And many drug treatment centers don’t accept pregnant women or women with children, making it difficult for them to get help. From National Advocates for Pregnant Women:
Drug dependency is a medical condition – not a crime. Pregnant women do not experience alcoholism and other drug dependencies because they want to harm their fetuses or because they don’t care about their children.
Like other chronic medical conditions, drug dependency can be controlled and overcome through medical treatment. Medical knowledge about addiction and dependency treatment demonstrates that the majority of dependent people do not, and cannot, simply stop their drug use as a result of threats of arrest or other negative consequences. In fact, threat-based approaches do not protect children. They have been shown to deter pregnant and parenting women not from using drugs, but from seeking prenatal care and drug and alcohol treatment.
Health risks to women, fetuses, and children whether from poverty, inadequate nutrition, exposure to alcohol, drugs, or other factors can be mitigated through prenatal care, counseling, and continued medical supervision. For this to be effective, however, the patient must trust her health care provider to safeguard her confidences and stand by her while she attempts to improve her health (even when those efforts are not always successful). Converting the physician’s exam room into an interrogation chamber and turning health care professionals into agents of law enforcement destroys this trust.
Unfortunately many women in Oklahoma find it difficult to obtain the help they need to overcome their alcohol and drug dependency problems. In fact, according to the federal government’s drug treatment facility locator there are no residential treatment programs designed to meet the needs of pregnant and parenting women – or even women in general — within 100 miles of Oklahoma City, Oklahoma. Arresting people with drug related problems not only deters them from seeking help – it is likely to deter others from offering compassion and providing the resources necessary to develop and fund the kinds of treatment that we know can help pregnant women and their families.
I’ll also note that the women tried for child abuse, drug trafficking and murder after their neo-natal drug addiction are almost always women of color — in one study published in the New England Journal of Medicine, white women and black women were found to use drugs during pregnancy at the same rates, but black women were ten times more likely to be reported to authorities.
Prosecuting neo-natal drug use is problematic law and terrible public policy. Hopefully Oklahoma will recognize that it might be worth putting its resources toward a drug treatment facility rather than putting this woman in jail.
At least there’s New Mexico.
Thanks to Nancy for the link, and a big cheer for NAPW for all the amazing work they do.