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By Richard Karel
Punitive state policies aimed at pregnant women who use drugs are counterproductive, disproportionately focused on poor minorities, and conflict with the physician's obligation to protect patient confidentiality and health, according to a recent report funded by the Robert Wood Johnson Foundation.
Draconian state policies, which include imprisonment, involuntary civil commitment, and the removal of children from the home could be justified if potential harm to the child clearly exceeded the harm of the pregnant woman's loss of liberty, and if the state was willing and able to provide adequate prenatal or postpartum care to mother and child, the authors contend.
It is impossible, however, to clearly determine that a pregnant woman's drug use is harming the fetus, the authors point out, particularly because the laws in question demand punishment for any illicit drug use as verified by a urine screen. Because neither prisons nor psychiatric facilities are well equipped to provide prenatal care, placing pregnant drug users in such facilities is likely to worsen rather than improve the prospects for a healthy pregnancy, the authors observe. Further, removing a newborn from the mother simply on grounds that drug use, per se, constitutes neglect is unfounded and may hamper the development of important mother-infant bonds, the authors conclude.
Some laws permitting coercive interventions are not merely ill advised, but also patently unconstitutional in their characterization of the prenatal human as a "child" for legal purposes, the authors assert.
The report, "Ethical and Legal Analyses of Three Coercive Policies Aimed at Substance Abuse by Pregnant Women," released this summer, was written by bioethicists Lawrence J. Nelson, Ph.D., J.D., and Mary Faith Marshall, Ph.D. Nelson is faculty scholar at the Markkula Center for Applied Ethics at Santa Clara University in California. Marshall is an assistant professor of medicine and graduate studies and director of the Program in Bioethics at the Medical University of South Carolina in Charleston.
"The dumbest thing about [the policies described] is simply that the more restrictive you get with the woman, the less likely you are to have the baby receive the care that he needs," said Sheldon Miller, M.D., chair of the APA Council on Addiction Psychiatry.
In South Carolina, which has the nation's most punitive law on pregnant drug users, drug treatment centers have reported a sharp decline in the number of pregnant women seeking treatment since that law went into effect earlier this year, according to Lynn Paltrow, J.D., legal counsel to the Women's Law Project in Philadelphia. Although the South Carolina law could be applied to women who test positive for alcohol or tobacco, prosecutors there have limited application to women who test positive for illicit drugs, including cocaine and marijuana, said Paltrow. The law, as applied, permits the criminal prosecution and imprisonment of any pregnant woman whose urine tests positive for illicit drugs and requires physicians and other health care providers to give police the names of any pregnant patients whose urine tests positive for illicit drugs.
"The initial numbers show an 80 percent decline in the admissions of pregnant women seeking drug treatment based on records from a number of South Carolina programs," Paltrow told Psychiatric News. "A decline in both women seeking drug treatment and prenatal care is precisely what every leading medical group who has looked at this policy predicted."
Further, said Paltrow, treatment statistics do not reflect that some women may delay seeking treatment for a long time as a result of the policy, and receiving prenatal care later in the pregnancy decreases the chance of a healthy outcome for mother and child.
The coercive approach compromises confidentiality, said Miller. "There is no question that if [policy] is restrictive of the doctor, you are going to impinge on confidentiality," he noted. "But this whole approach is wrong because [it] is almost guaranteed to preclude the desired outcome. If the goal is a healthier mom and a healthier baby, the best way to guarantee that doesn't happen is to threaten the mom with jail."
Prenatal care improves outcomes even if a woman continues to abuse drugs, observed Miller. Legal threats against pregnant women with drug problems cause them to avoid prenatal care for fear of detection, which means that the risk to mother and fetus from drug use is compounded by an absence of prenatal care, said Miller.
Although no law in any state expressly criminalizes use of an illicit or legal substance during pregnancy, prosecutors have used laws against child abuse and delivery of a controlled substance to a minor to arrest and charge pregnant drug users, claiming that a fetus is a child for legal purposes. Only South Carolina has expressly upheld the use of existing laws to criminalize women who use illicit drugs during pregnancy, and only Minnesota requires the involuntary civil commitment of pregnant women who have used particular illegal substances, the report notes.
Since 1985 more than 240 pregnant or postpartum women in 35 states have been arrested and charged for using potentially harmful substances during pregnancy. The vast majority of these women used illegal drugs, mainly crack cocaine, and were black. With the exception of the South Carolina Supreme Court decision in Whitner v. South Carolina, all appellate courts have rejected the use of existing laws to prosecute women who use illicit drugs while pregnant. In May the U.S. Supreme Court declined to review the Whitner decision.
The Whitner case has become a rallying point for both opponents and proponents of punitive, coercive interventions for pregnant substance abusers. Under South Carolina law, Cornelia Whitner was sentenced to eight years' imprisonment for child neglect for using crack cocaine while pregnant. Since the U.S. Supreme Court refused to review the law in May, the law has been applied to two more women whose newborns tested positive for illicit drugs.
Use of criminal sanctions for women who use drugs during pregnancy has been rejected by most public health organizations as "counter to the best interests of unborn children and pregnant women and inappropriate to the caregiver's role," the report notes. Those organizations include the AMA, American Public Health Association, American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American Nurses Association, and the American Society of Addiction Medicine.
The ASAM policy, for example, states that "criminal prosecution of chemically dependent women will have the overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increasing, rather than preventing, harm to children and society as a whole."
Michael Miller, M.D., is chair-elect of the ASAM's Public Policy Committee and chair of the Wisconsin Psychiatric Association's Addiction Psychiatry Committee.
"Mandatory reporting approaches are problematic because they place the physician in an awkward position regarding the doctor-patient relationship and because they tend to [drive away] people who don't want to be subjected to reporting," Miller commented. "The range of possibilities includes patients misrepresenting their history to patients avoiding health care altogether."
Good health care demands trust between the doctor and the patient, Miller noted. If patients don't trust the health care system, good outcomes are almost impossible, he added.
Although involuntary civil commitment may be successful in some cases, the laws in question rely on positive drug screens, not a finding of addiction, to target pregnant women, Miller observed. Physicians are trained to treat disease, and addiction treatment is indicated when the disease of addiction is present, he commented. "The problem with this sort of statute as well as some drug-free-workplace approaches is that the independent variable is substance use, not necessarily addiction. It can be highly inappropriate to suggest civil commitment [or other coercive interventions] when the health care issue is a positive urine screen."
A diagnosis of substance abuse provides no medical rationale for involuntary commitment, said Miller. "Very few physicians and almost certainly no managed care plans would find medical necessity for involuntary commitment for a diagnosis of substance abuse and not substance addiction," he noted. If the law targeted the cocaine-addicted woman who became pregnant, it would have some rationale, said Miller, but instead it is "built around a pregnant woman who has a positive urine."
Even a situation where the patient's honesty with her physician results in a referral to social welfare with termination of parental rights "creates huge barriers to that patient's seeking help from a physician," he concluded.