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Help Pregnant Drug-Addicts, Don’t Jail Them

Jill

A while back I wrote about Theresa Hernandez, one of many women in this country who has been prosecuted for neo-natal drug use. After a four-year ordeal, throughout which Hernandez was unable to see her children and understandably fearful of receiving a life sentence, she accepted a deal to plead guilty to second-degree murder.

Theresa Hernandez was a drug addict. She was also pregnant. Because she occupied those same statuses simultaneously, she is now being called a murderer — and she’s going to jail for it. She’s going to jail despite the fact that “crack babies” are a myth. [Thanks to Nancy for that link].

But her story doesn’t end there: National Advocates for Pregnant Women are using her ordeal to raise awareness about these prosecutions. On Dec. 21st, they’re trying to pack the courtroom with activists and advocates. If you’re in or around Oklahoma City, try to stop by.

No one likes the idea of pregnant women using drugs. But prosecuting them is not only an affront to due process and equal protection rights, it’s also really, really bad public policy: If pregnant women know that their status as a drug addict will get them sent to jail, then they aren’t going to seek help. They aren’t going to seek the pre-natal care that has a far greater effect on fetal development than drug use. Prosecuting them has absolutely no benefit to anyone involved.

Here is more background on the myriad reasons these prosecutions are problematic and unjust.

33 thoughts on Help Pregnant Drug-Addicts, Don’t Jail Them

  1. Honestly, I think this is indicative, not just of how we treat women, but how as a society, we treat addicts and those with mental illnesses. Addiction is still viewed in many cases as a moral failing, rather than as a disease in need of treatment.

  2. I’m not sure I’d be so bold as to call “crack babies” a myth. After reading the powerpoint presentations, I would have to agree that yes, the children born from mothers addicted to Cocaine do not exhibit as severe developmental disorders as was first thought. However, that’s not to say that it has no long term affect. Infants display low arousal to stimulus, are at risk for drug use later in life, as well as have the risk of life long depression, and some learning disabilities–just to name a few symptoms. While I’m not sure that addicted mothers should be put away in prison never to see the light of day, I think it’s still a serious issue and not the fiction that “myth” makes it appear.

  4. I have to second Beth. One of my very close friends works specifically with “crack babies” and toddlers. Some have severe congenital and developmental problems, some fairly minor. I think it’s a long shot to say that it would be coincidence and that drugs have no affect on fetuses. I mean, doctors suggest that pregnant women take over-the-counter or more mild prescription drugs only if absolutely necessary for fear of what they could do to the fetus. So, you have to figure that meth or crack would certainly affect fetuses.

  5. Whether or not the children born to drug addicts present with any congenital malformities at all doesn’t in any way justify a punitive approach to addiction such as this. Pregnancy is a very stressful time, particularly for a woman already experiencing difficulty coping every day due to addiction and whatever issues caused vulnerability to addiction.

    This is hypocritical, ignorant and/or sexist at its core. The cost to jail this woman or any woman for any length of time is less, tell me, than possibly in-house treatment for her while she’s pregnant? Good god almighty I really can’t believe the stupidity of people in such important decision making positions.

    What really gets in my craw as well is that the most dangerous substance to prenatal development, alcohol, gets a free pass and not only poor or non-existent treatment programs, but an entire society that would rather shut its eyes and ears than see the dangers of alcohol abuse on fetuses — and step up and fund treatment, especially free or low cost treatment for indigent people.

    I want to slap someone.

  7. Legal approaches to addiction don’t work, assuming you define “work” as reducing the burden of addiction on society and improving the health of individuals. It’s not just that addiction is still seen as a moral failing – MPJ is right about that – but that we have refused to look at the evidence on what does work.

    We have a simple, effective treatment for heroin addiction. It’s cheap, it has a 60% response rate when used in conjunction with a behavioral modification program, and it carries minimal risk of side effects. It eliminates the risk of HIV and HepC and doubles the probability that people who have used heroin will be positively engaged with their families and employed. But I’m not allowed to prescribe it for its FDA-approved indication. I can prescribe any other FDA-approved drug for any reason I choose, whether or not the labeling supports it. But I can’t prescribed methadone to heroin addicts.

    And you know what? I can understand why it makes sense to provide treatment in a multidisciplinary setting with social services and vocational rehabilitation – but of course that’s not really what’s happening, and the funding for methadone clinics has been steadily reduced over the past 20 years. Right now in our community the wait for a slot at the MMT center is over a year. Pregnant women can jump the line, assuming they’re not turned in to the police for using in the first place.

    Baltimore piloted an ambitious program providing treatment-on-demand to anyone who asked for it, and they had impressive numbers for the first few years; I’ve been out of the academic addiction loop for a while. I was struck by the responses which seemed not only to endorse the moral-failing view but also seemed to be opposed to giving addicts what they asked for simply because addicts didn’t deserve to get what they asked for, even if what they were asking for was help. It’s as if they ceased being people when they picked up the pipe. Scary shit.

  8. A friend of mine is working as a volunteer doula. One of her clients was on doctor prescribed methadone to treat her heroin addiction. Based only on the positive test for methadone and heroin (from months ago), her child was taken from her immediately after birth and it took over a week for the doulas and advocates to get the child back.
    This is so awful. This poor woman.
    On top of all the sexism and racism and lack of understanding of addiction. I think prosecuting and demonizing women like Theresa Hernandez perpetuates the idea that poor women are responsible for the shameful infant mortalitiy rate in the US. I takes our awful healthcare system, environmental racism and lack of food security in poor communities, which are, after all, the real cause of infant mortality, off the hook

    Also, Crack babies are a myth people. Just because people have friends of friends of friends who had contact with kids who were identified as ‘crack babies’ and stigmatized because of it, doesn’t contradict scientific evidence that there is no such thing as a a recognizable condition, syndrome or disorder that should be termed “crack baby.”

  9. But of course we can’t help them! We need to punish those filthy whores and make sure we give them what for! Serves the bitches right by sleeping around and snorting crack, possibly at the same time! Of course, we won’t actually save lives, but we’ll be TOUGH ON DRUGS RARGH. [/sarcasm]

    It’s pretty damn depressing when you remind people that the justice system is not the vengence system and they get pissy at you or call you a ‘bleeding-heart’.

  10. The “crack baby” thing is part myth and part reality – there are detrimental effects of doing crack on the fetus, but there are also bigger factors – like malnutrition and co-abuse of other drugs – that make the problem way worse than it would be with crack alone. Serious alcohol abuse, for example, is way worse than crack abuse. So no one’s saying “do crack while pregnant!”, of course, but the problems are a bit more complex than those who coined the term “crack baby” would lead you to believe.

    But yeah, the way we treat drug users is beyond the pale. Is it too much to ask that the goverment use…*gasp*…science to solve these problems instead of a pseudo-Old Testament version of morality?

  11. Firstly, is there any proof that “crack babies” are a myth? The site you’ve linked to doesn’t have any in its article and I’ve met plenty of children of drug addicted parents who certainly seem to suggest that the myth is true. Not to mention that common sense says that something that can fully saturate a woman would also do so to the fetus and it’s hard to imagine that something like that wouldn’t affect developmental growth at all.

    Secondly, why does it matter? Honestly, even bringing this up as a point is, as far as I can see, detrimental. Does it make ANY difference at all even if it does kill the fetus? Or severely harm it? I’m all for taking care of your body while pregnant, but that should never EVER be enforced. The very idea screams: “For the next nine months, you are not a person. You are carrying a person. You are a vessel for a person. But you, you are not a person. You are not allowed to make the personal choices regarding your own body that everyone else gets to make.”

  12. No one denies that drug exposure is not good for fetuses. What is a myth is the supposed “epidemic” of crack-addicted babies, who commentators were sure would end up a permanent, intellectually inferior underclass. That has not been the case.

  14. I think its pretty clear that the punishment approach to pregnant drug addicts has a lot more to do with identifying, stigmatizing and penalizing social deviants than any real attempt at protecting children. Much like the pro-life movement, actually.

  16. Just a few quick observations.

    If we get away from treating women as vessels for a moment and look at this from a public policy perspective, surely given the likelihood of women addicted to drugs carrying the child to term, society has an interest in preventing those children born from having developmental problems etc. because it will be socially costly. Children with fetal alcohol syndrome for example have higher rates of antisocial disorders which can lead to criminality.
    Whether or not jail is an effective deterrent given the power of drug addiction is a very valid question. It may deter some at the margins, but it’s unlikely a crack-addicted mom will be in the state of mind to care about jail. The marginal decrease may be worth it, but that would require study.

    I found most curious Jill’s suggestion that punishing women for this violates “due process” and “equal protection” rights. I would like to hear that argument more. Surely just because only a woman, given the nature of the crime, can be prosecuted for a crime doesn’t violate equal protection? Only a man can be convicted for draft dodging since only men are conscripted, I don’t think that would raise equal protection.

  17. I’m sorry, that should say “congenital” not “developmental”

    and

    Some have severe congenital and developmental problems

    the specifics of pregnancy and genetics elude me, but doesn’t the very nature of “congenital defects” preclude the idea that drugs caused those defects? or can drugs alter a fetuses very genes when in utero? or am i misdefining what “congenital” means? i mean, pregnancy and fetuses and babies aren’t perfect. it’s possible that a baby would have been born with congenital problems even if its mother had stayed in perfect health during the pregnancy. right? i’m confused now.

  18. @ rachel (16) – “congenital” just means present at birth. Congenital conditions can be genetic or non-genetic in origin. They may also be identified prior to birth via methods such as ultrasound and amniocentesis.

    In addition, there are drugs that can cause genetic mutations in developing fetuses, or in already-born individuals. Such drugs are known as mutagens. The most common adverse effect from a mutagen is cancer. As far as I know, cocaine is not a mutagen.

  19. Infants display low arousal to stimulus, are at risk for drug use later in life, as well as have the risk of life long depression, and some learning disabilities–just to name a few symptoms.

    As other people have pointed out, are these because of drug use, or are they because of the malnutrition, lack of prenatal care, and other factors that tend to go along with drug use, especially the use of crack?

    Not to mention the factor that people tend to gloss over: it’s not uncommon for drug users to be self-medicating for existing problems, so the depression and learning disabilities could well be genetic, not created by the prenatal drug use. It’s not a coincidence that my nephew and his half-brother are both severely ADHD and probably bipolar — their father is a drug addict who’s undiagnosed but shows all of the signs of both of those disorders. But, hey, he’s just a drug addict, so god forbid he should be allowed to seek treatment for the psychiatric disorders he’s trying to self-treat with street drugs.

  21. Suggestions-

    Here’s one: Click the link which says “Here is more background on the myriad reasons these prosecutions are problematic and unjust.” That may answer some of your questions.

  22. As other people have pointed out, are these because of drug use, or are they because of the malnutrition, lack of prenatal care, and other factors that tend to go along with drug use, especially the use of crack?

    A long time ago, in a book called “Smoke and Mirrors” about the War on Drugs, I read evidence of just that. According to the book, drug addicts who managed to take care of themselves and get good pre-natal care didn’t tend to have these problems.

    They also said that drug addicts who are faced with prosecution while pregnant (a policy which has sometimes been enforced) would sometimes get abortions and tell the judge they had a miscarriage. Obviously I’m not against abortion being available to women but I don’t think all of those women wanted to have abortions before they were threatened with prosecution, so that I do have a problem with.

    (I can’t say that much about the book. I read it and found it convincing but I can’t say it was a scientific work or unbiased.)

  23. (I want to apologize for saying “drug addicts.” It’s not a good term and while I didn’t mean it dismissively I should not have used it.)

  24. Rosehiptea-

    I don’t mean this in the snide way it’s going to sound, but what’s wrong with “drug addicts”?

    I’m not always up-to-date on the language. What’s the more appropriate term?

    (Is feeling dumb.)

  25. I have to agree with Kate and Beth. I’m not going to go into my years working with both “regular” children, and “children that have been exposed to heavy drug use, in utero”. Instead, I’ll just point out that yes, I am almost done with MSW in Clinical Social Work; oh, and nevermind that because I have a “medical” condition that causes me to be a life-long insomniac- well, I guess if I ever want to have biological children- I can’t get pregnant. You know, because I will have to be on life-long medications to make me sleep.
    (Oh, yeah, forgot to mention- it was all of my doctors that have told me that I cannot get pregnant on any of these prescription medications for sleep)
    Yes, benzos are bad. I have a suspicion that crack and, in general, cocaine, are worse.

    Oh, does this give us license to ignore the very real Fetal Alcohol Syndrome (which can only be diagnosed once a child has entered elementary school). Yeah, I’ve worked with those, as well. Facial abnormalities, anyone?

    I am definitely ready to take into account the social factors at play, in these situations- but, I’m not ready to bite into this one- and say a little crack here and there, is harmless.

  26. oh, I am going to acknowledge that a MAJOR problem with addicts, is poor nutrition (which will affect a developing fetus). I am not arguing against that; or any of the other social factors at play when one is an addict (I think it’s fine to say this, as I have worked with this population in a therapy setting), and can come up with no more politically correct word for it, although “addict” does sound harsh.

    At any rate, I’m just not ready to buy it, yet.

  27. Mnemosyne- that could very well be one of those things. I do wonder about that myself, as the highest predictor of a mental health issue is a first-degree relative with a mental health issue (sibling or bio-parent). And, the adults I was working with last year- all dual-diagnosis. So, not tossing that idea out of the water, at all.

    In fact, that’s how I became focused on dual-diagnosis: years working with children that were chemically dependent, and surprise, conduct disorder or oppositional defiant disorder. I wondered which came first. A lot of substance abuse issues arise from people self-medicating. Not uncommon, at all. Then, there is the argument from the mental health community: are some people, such as those with bipolar disorder, at some predisposition for developing addictions?

  28. okay, I probably should clarify: No, I do not believe that women should be jailed for having an addiction and carrying a pregnancy to term.

    Oh, and that I am aware that the immediate effects of in-utero exposure to crack, were way trumped up. It’s what we see years later (like children in their pre-teen and teenage years, that might be related to crack exposure, et cetera.

    So, didn’t mean to fly off of the handle- obviously my work/studies/ own doctors’ directives, make me a more than a little biased.

  29. Yes, benzos are bad. I have a suspicion that crack and, in general, cocaine, are worse.

    Not necessarily. Depressants like alcohol and benzos may be worse for fetal development than stimulants like crack. I’m sure I don’t need to tell you that different kinds of drugs have different actions on the body, right? 😉

    Not to mention that, again, alcoholics are extremely likely to be malnourished, and malnutrition in and of itself can lead to birth defects (which is why everything for women is now fortified with folic acid and other B vitamins). So that is probably affecting outcomes along with the heavy alcohol use.

  30. Holly, I don’t think anybody is saying “a little crack is okay.” They’re just saying that
    1) Throwing women with addictions into jail isn’t going to help her, the baby, or anyone else
    2) Lack of medical care and malnutrition contribute to the problems facing the children of women with addictions, so maybe instead of jailing them we should focus on making sure they at least get good nutrition and medical care, so that the child can turn out as healthy as is possible under the circumstances.

    This is just another instance of right wingers pretending to care about babies, but really only caring about making sure their moral values are enforced. If they really cared about the babies, they’d be helping the woman through her pregnancy rather than jailing her.

  31. Alix — to be honest I don’t know if there is a more appropriate term and it looks like other people are pretty OK with “drug addict” since it’s in the original post so maybe I was overreacting. But looking at it I felt like I wasn’t acknowledging that these are people (and in this case women and mothers) and not just a problem, and it ended up bugging me when I looked at my own comment.

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