A recent press release from a county attorney's office in Montana declared that there would be:
‘An immediate crackdown policy of civilly prosecuting any expecting mothers found to be using dangerous drugs or alcohol.’
The press release went on to say that:
‘In the event there are provable violations of any such protective court orders, the State will further prosecute on a contempt basis and seek incarceration in order to incapacitate the drug or alcohol-addicted expecting mother.’
This is a worrying example of attempts to treat a sensitive health issue as a legal matter. There is something of a history of this in the US: several states have policies that create treatment facilities for pregnant women with alcohol problems, but which also use the threat of criminal prosecution (Thomas et al, 2006). Indeed, Lollar (2016) reports that a woman in Tennessee was arrested two days after giving birth and charged with assaulting her newborn child because she had taken narcotics while she was pregnant.
The press release continues:
‘(We) are asking the public to report any known instances of pregnant females using drugs or alcohol … Expecting mothers acknowledging their own drug or alcohol addiction problems should immediately self-report to … enrol in daily substance abuse monitoring in order to avoid prosecution.’
This is an extension of a zero-tolerance policy for methamphetamine in Big Horn County, implemented by the county attorney, Gerald ‘Jay’ Harris, in 2015 (Goare, 2018). The justification for the two policies rests on an interpretation of the legal concept known as ‘natural law’, which, according to the press release, ‘provides that all human beings are afforded inherent legal rights by virtue of their humanity’ (Harris, 2018). In this interpretation, the right of the fetus not to be born affected by teratogens can be enacted by legally controlling what women consumes when they are pregnant.
Some have claimed that the ‘obstetric police’ in the US are determined to overrule women's choices in favour of ‘fetal rights’ (Meredith, 2016), while others have likened the Montana case to Margaret Atwood's The Handmaid's Tale (Smith, 2018), a novel set in a dystopian future in which women's rights are severely reduced and restricted.
Is there any justification for the Big Horn County approach?
Montana has one of the highest rates of pregnant women using alcohol in the north-western part of the US (Goare, 2018). The population of Big Horn County is 60% Native American (Smith, 2018), with the county attorney asserting that he raised the issue of alcohol after the Crow Tribe's legislative branch brought it to his attention in 2015. Estimates of alcohol consumption during pregnancy among the heterogeneous Native American/Alaska Native populations of the US vary significantly (Montag et al, 2015), with studies reporting rates from 14% for ‘reservation-residing pregnant women’, to 36% for urban women, and 53.4% at one Northern Plains antenatal clinic. These figures are contrasted with an overall rate of 7.4% nationally. In addition, Wilson (2018) notes that the Department of Public Health and Human Services in Montana recorded a trebling of the rate of newborn babies displaying symptoms of drug withdrawal between 2008 and 2015.
Clearly, there are significant problems, and no one is suggesting that no effort should be made to prevent or minimise teratogenic harm, although it is questionable whether any use of alcohol at all should be treated as if it were an addiction. In the UK, pregnant women are advised not to consume alcohol or take non-prescribed medication; but, is compulsory daily monitoring of pregnant women, with the option of incarceration ‘to incapacitate’ them, the answer? National Advocates for Pregnant Women (NAPW) is one body advocating that this is a health issue, rather than a legal one, and has issued a statement urging:
‘Every medical and public health provider in Big Horn County to immediately oppose this dangerous, unethical, and counterproductive policy.’
Reaching for legal sanctions on pregnant women does not only occur in the US. Examples from elsewhere demonstrate the tendency to use legal powers to determine the actions or choices of pregnant women. These include a woman being forcibly taken from her home in Brazil in order to have a caesarean section (Symon, 2014a); restrictions of homebirth options in the Czech Republic (Symon, 2012); the effective criminalisation of home birth in Hungary (Symon, 2010); and the ongoing tragedy of the Hungarian state's prosecution of Ágnes Geréb (Grace, 2018) [see below for the petition supporting Dr Geréb], all of which can be characterised as yet more evidence of patriarchal systems trying to control women.
In 2014, an English local authority, acting on behalf of a 7-year old girl, sought to claim damages from the Criminal Injuries Compensation Authority (Symon, 2014b). To succeed, it would have had to show that the mother's consumption of alcohol during pregnancy was a criminal act, which, in turn, would have left the door open to the mother being prosecuted. The claim was unsuccessful, and the view that this issue should be viewed through a legal prism has not gained much traction in the UK.
The question remains: is the threat of criminal sanction an effective mechanism to reduce or deal with harm? In Montana, county attorney Harris appears to believe that his policy will encourage women to take advantage of treatment services. This raises two further questions: is there capacity to cope with the additional workload if this policy is enforced? Furthermore, assuming there is such capacity, would the policy actually work?
An answer to both questions is given by Caitlinn Borgmann, executive director of the Montana Human Rights Network. She says that, despite a new, eight-bed treatment centre being opened specifically for pregnant women struggling with addiction, this is nowhere near enough:
‘You might go to the top of the list, but there's still ten women in front of you. There's not a lot of space … [And] If a woman is concerned that she will be prosecuted when it is discovered that she is both pregnant and struggling with chemical dependencies … she's not going to get treatment.’
This view is endorsed by the NAPW (2018), who report that:
‘There is zero scientific evidence supporting policies of coercion and punishment directed to pregnant women. Such policies in fact discourage women from seeking health care and could coerce women in to having unwanted abortions.’
Conclusion
Wanting to prevent harm to the developing fetus is not a controversial goal. The question is how best to deal with the issue of pregnant women drinking alcohol (which is legal), or taking illicit drugs (which is not). There are obviously contextual differences that would preclude the Montana being transplanted wholesale to the UK. Nevertheless, in the UK some pregnant women continue to drink alcohol, and/or take drugs. The approach adopted in the NHS is to seek the woman's co-operation, advise her about the likely effects these substances will have on her and on her unborn baby, and involve other appropriate health or social agencies in an attempt to minimise or remove the risk of harm. Threatening incarceration, particularly ‘to incapacitate’ the mother, is a route most health practitioners in the UK would probably wish to avoid.