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Pregnant Women Need Health Care, Not Jail Time

Alexa Kolbi-Molinas,
Deputy Director, ACLU Reproductive Freedom Project
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June 13, 2011

June 2011 marks the 40th anniversary of President Richard Nixon’s declaration of a “war on drugs” — a war that has cost roughly a trillion dollars, has produced little to no effect on the supply of or demand for drugs in the United States, and has contributed to making America the world’s largest incarcerator. Throughout the month, check back daily for posts about the drug war, its victims and what needs to be done to restore fairness and create effective policy.

Deciding to continue a pregnancy, even if you are struggling with addiction, should never be a crime. But in the 40 years since our country declared its “war on drugs,” the ACLU has been involved in countless cases across the country where women with drug dependencies have been prosecuted solely for becoming and remaining pregnant.

You have to hand it to the prosecutors, though, because their cases have been nothing if not creative. Take, for example, the state of Alabama. In just the past five years, Alabama has prosecuted at least 40 women (that we know of) for the crime of being a meth lab. These women have all been convicted under a 2006 law that makes it a crime to allow children into houses where meth labs are operated. But none of these women were operating a meth lab. And none of these crimes involved anyone other than the woman herself. With the state of Alabama alleging that their bodies were the equivalent of a meth lab, these women have been sent to jail for no other crime than that they couldn’t beat their addictions while they were pregnant. They were not charged with any other — actual — drug-related crime.

No one is suggesting that drugs are good for embryos or fetuses. For that matter, neither is smoking (or even just living with a smoker), eating unpasteurized milk products, or failing to get regular prenatal care. But do we really want to make a pregnant woman’s behavior and choices, any health condition she suffers, or the fact that she lacks health insurance a crime because it could hurt the fetus? If we do, then virtually everything a pregnant woman does or does not do could land her in jail, because virtually everything a pregnant woman does or does not do — from what she eats, to where she works, to what condition her health was in before she became pregnant — has an effect on her fetus. Allowing the government to exercise such unlimited control over women’s bodies, and every aspect of their lives, would essentially reduce pregnant women to second-class citizens, denying them the basic constitutional rights enjoyed by the rest of us.

What is more, these prosecutions have nothing to do with keeping babies safe — and prosecutors know it. Leading medical organizations have publicly opposed these prosecutions for decades because they only serve to undermine fetal and maternal health. It’s not just a matter of public record, it’s common sense: by forcing doctors to turn in their own patients, these prosecutions only drive women away from the health care and treatment they need. But apparently some states care less about getting women the medical care they need, and more about showing the world that they are “tough” on drugs.

Once again, our country’s obsession with the “war on drugs,” and with using the criminal justice system to treat what is fundamentally a public health issue, has blinded lawmakers and law enforcement to what really matters. If, as a society, we truly care about healthy moms and healthy babies, we must ensure pregnant women have access to prenatal care, support, and treatment to overcome their addiction. And we should put an end to policies that undermine basic constitutional principles in order to lock up the pregnant women and mothers who need health care most.