59

I would like to enter into the record three research documents I
have with me today, with regard to the value of treatment for this
population. Thank you for the opportunity to testify, and I will be

yy to answer any questions.
e prepared statement of Ms. Foley follows:]


123

rely on public assistance for their health care. Alcohol, on the other
hand, is primarily used by women who are employed, have 16
years or more of education, and have private health care insurance.

The criminalization of perinatal substance abuse creates unten-
able legal and ethical obligations for health care providers and
other statutory mandatory reporters. It undermines faith and trust
in the health care system and respect for the judicial system.

And I would ask you to consider the encounter between a health
care clinician and a pregnant woman who comes in for prenatal
care and asks whether, under the criminalization paradigm, a phy-
sician should “Miranda-ize” his patient before he takes a patient
history. And also ask you to consider the notion of failing therapy—
that such a notion is a frightening thing, and that noncompliance
with medical treatment should merit prosecution.

And Id also like to state for the record that all of the profes-
sional associations—and I want to point that inclusive among those
were the South Carolina Medical Association and the South Caro-
lina Nurses’ Association—filed amicus briefs in both the Wittner
and the Ferguson case, the medical university case, for the plain-
tiffs; that neither the State Medical nor the State Nursing Associa-
tion are proponents of criminalization of perinatal substance abuse.

The criminalization approach has been tainted with discrimina-
tory application along racial and socioeconomic lines; poor black
women are arrested most often; arbitrary selection along racial and
socioeconomic lines; only certain drugs, such as crack cocaine, are
targeted; and political opportunism.

The vast majority of prosecutions in South Carolina and other
States have been against black women. Of the 41 women arrested
under the Medical University of South Carolina’s interagency pol-
icy, 40 were black and the sole white woman had a black boyfriend,
as was noted in her medical record. Of 109 women charged with
criminal child abuse for perinatal substance abuse by the Green-
ville, SC solicitor, 101 were crack cocaine addicts and 86 of them
were black. Since 1985, more than 240 women in 35 States have
been criminally prosecuted for using illegal drugs or alcohol during
pregnancy, and between 70 and 80 percent of these women are mi-
norities.

The criminal sanctions are opposed against women who use ille-
gal drugs much more frequently than those who use legal drugs,
even though we know that legal drugs cause more net problems
and are used more frequently. Black women, according to the
Pinellas County study that was referred to earlier, are 10 times
more likely to be repeated for positive drug screens while pregnant
than white women. These effects of racial discrimination are invid-
ious.

We live today in the health care system with a legacy of the
Tuskeegee experiments, which is occasional conspiracy theories
about the HIV virus, effects organ donations by black persons, and
decisions regarding end of life care by black persons, due to mis-
trust of the medical establishment. It has been well demonstrated
in the medical literature that substance abusing pregnant women
mistrust the system as result of negative encounters with social
services and criminal justice agencies.


25

on prevention of child abuse and on domestic abuse issues. We
don’t excuse the behavior of people who abuse their children. We
don’t excuse the behavior of people who abuse their spouses, even
when that abuse is related to alcohol or drug addiction. Rather
than excusing it, we require them to get treatment.

So, I'd like to just comment on some of the major objections that
we heard as we were discussing this bill in the legislature. The
most came from—one of them was from people who said, look, your
bill is scaring our clients. And then they gave us some specific ex-
amples: It'll keep pregnant women away from treatment because
they will lose their children. Nowhere—nowhere—does this bill say
that this can cause you to lose your children. From a practical
standpoint, people who don’t get their addiction taken care of are
more likely at some point in time to lose their children.

The bill does allow courts to order treatment. To order treat-
ment-resistant women to enter into AODA treatment, but not be-
hind locked doors. It doesn’t authorize incarceration. It was claimed
that it will scare women away from treatment professionals. We're
talking about women who are refusing to accept or to seek treat-
ment right now. I’m not sure how you can scare someone away
from treatment that they’re refusing to look for in the first place.
Some people have said that the answer is to increase government
spending on treatment, but, again, that isn’t going to be responsive
to the problem of the women who are not willing to seek treatment.

As we look at women who are unable on their own to seek the
help that they need, there needs to be some governmental interven-
tion on behalf of the unborn child. The passage of this bill in the
State of Wisconsin offered a unique and perhaps unprecedented op-
portunity for people who are pro-life and pro-choice to find common
ground and unite on an issue to improve the health of the kids of
our State. Thank you.

[The prepared statement of Senator Huelsman follows:]


154

Mr. SouDER. Thank you. The hearing stands in recess.

[Recess.]

Mr. Souper. The hearing is back in session.

Dr. Feinberg, I wanted to followup on a comment that I made at
the end of the first panel. I would presume, based on your testi-
mony that you also don’t favor reporting for—for example, a child
sexual abuse, or other things, when the children are a little older—
because it might discourage people from entering into programs?

Dr. FEINBERG. No, there’s been no evidence that that has oc-
curred.

Mr. SouDER. There’s no scientific evidence that you have that
this occurred either.

Dr. FEINBERG. That I know of. I’m not a researcher.

Mr. SouDER. But why would you have an inconsistent position
that it would discourage people in this case, but not in the other?

Dr. FEINBERG. Because there is evidence that that is what is oc-
curring.

Mr. SouDER. What evidence?

Dr. FEINBERG. I’m sorry?

Mr. SOUDER. What evidence? You said you talked to the people
at the Meta House, and how many people are there?

Dr. FEINBERG. At any given time, we have the potential to have
68 beds filled. Now some of those are with children, though I cer-
tainly wasn’t talking to the children. And I've talked about this bill
and presented it to them. And I might add, I think I presented it
very fairly because they did have some mis-notions about it that I
tried to clear up for them. I think I was very fair in the way that
I presented it, and I've done this over a period of time. This has
been cooking and brewing in our State for a rather long time. So
Tve had an opportunity to talk to many, many people.

Mr. SouDER. But you're aware that Ms. Keller, which has a lot
more experience in South Carolina, directly contradicted your testi-
mony that there was——

Dr. FEINBERG. I would like to see her research.

Mr. Souper. I mean, you didn’t cite any research either. You just
told your case, as in she told her cases.

Dr. FEINBERG. Well, first of all, there’s two things going on here.
One is, I can only tell you anecdotally what my experience has
been at Meta House, and that’s my personal experience. However,
there is research and I think that Br. Marshall quoted some re-
search. I have read some research that indicates that indeed there
is a flight from care, and that that does produce worse birth out-
comes.

Mr. SouDER. In fact, in October 1997, you testified that, “as a
matter of fact, many women we treat in our program are there be-
cause they’ve been given the choice between Meta House or losing
their children.”

Dr. FEINBERG. That’s correct. I’m not talking about—if you’re
talking about coercion, that’s not something that I am necessarily
opposed to. Almost every woman who comes into Meta House is
being coerced in one way or another. It’s the nature of the addic-
tion and the consequences of behavior. One of the reasons that
many people come into Meta House is because they’re being given
that choice, but they are being given a choice.


149

HOOD LAW FIRM, LLC

Page Four
August 5, 1998
Joseph C. Good, Esquire

In the late 1980's, Dr. Ira Chasnoff conservatively estimated that the cost to
care for cocaine-exposed infants could exceed three billion dollars annually in the
next decade. Caring for these infants costs the State of South Carolina an estimated
three hundred sixty million dollars ($360,000,000.00). The delivery of the baby,
however, is merely the beginning. The excess medical costs associated with affected
drug-exposed infants can exceed fifty thousand dollars ($50,000.00) per infant in the
first year of life alone. South Carolina Department of Health and Environmental
Control Issue Paper, Substance Abuse in Pregnancy, at 2 (January 1993). The
lifetime economic cost associated with the severe effects of drug exposure can exceed
one million dollars ($1,000,000.00) per infant. Id.

Cocaine and crack-cocaine use are targeted because of the enormous dangers
posed by the drug to the fetus, not due to any racial discrimination. It should be
remembered that, in order to prove child abuse resulting from maternal behavior, a
prosecutor would ultimately have to show that the behavior did in fact harm the
child. Cocaine and crack-cocaine have been targeted because this link is not
difficult to prove.

In conclusion, it is important to note that of the ten causes of action brought
by the ten(10) patients who sued the Medical University, its Board of Directors, the
City of Charleston, the Charleston County Solicitor’s Office and several individuals
over the Policy, eight of them were summarily dismissed by the District Court
judge, and a jury found in favor of the Medical University on the remaining two.
Specifically, the jury found that racial animus did not motivate the Medical
University in implementing the Policy, and the District Court Judge found that the
Policy did not have a discriminatory impact and was, therefore, not in violation of
Title VI of the Civil Rights Act.

Further, the South Carolina Supreme Court has found that charging women
with child abuse for the perinatal use of illegal substances is constitutionai and
appropriate under South Carolina law. The United States Supreme Court denied
certiorari in that case. The majority of state courts that have chosen not to follow
this course did so on the grounds of statutory interpretation, not constitutionality,
and many state legislatures are considering changing the law to expressly
criminalize this behavior.

In short, Ms. Marshall's statement mirrors the case presented by ten
plaintiffs seeking money damage for taking cocaine while pregnant. The federal
judge and jury who considered the constitutional claims presented unanimously
rejected them and ruled in favor of the Defendants.


COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

J. DENNIS HASTERT, Illinois
CONSTANCE A. MORELLA, Maryland
CHRISTOPHER SHAYS, Connecticut
CHRISTOPHER COX, California
ILEANA ROS-LEHTINEN, Florida

HENRY A. WAXMAN, California
TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia
MAJOR R. OWENS, New York
EDOLPHUS TOWNS, New York
PAUL E. KANJORSKI, Pennsylvania

JOHN M. McHUGH, New York

GARY A. CONDIT, California
STEPHEN HORN, California

CAROLYN B. MALONEY, New York
JOHN L. MICA, Florida THOMAS M. BARRETT, Wisconsin
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
DAVID M. MCINTOSH, Indiana DC
MARK E. SOUDER, Indiana CHAKA FATTAH, Pennsylvania
JOE SCARBOROUGH, Florida ELIJAH E. CUMMINGS, Maryland
JOHN B. SHADEGG, Arizona DENNIS J. KUCINICH, Ohio
STEVEN C. LaTOURETTE, Ohio ROD R. BLAGOJEVICH, Illinois
MARSHALL “MARK” SANFORD, South DANNY K. DAVIS, Mlinois

Carolina JOHN F. TIERNEY, Massachusetts
JOHN E. SUNUNU, New Hampshire JIM TURNER, Texas
PETE SESSIONS, Texas THOMAS H. ALLEN, Maine
MICHAEL PAPPAS, New Jersey HAROLD E. FORD, Jr, Tennessee
VINCE SNOWBARGER, Kansas —
BOB BARR, Georgia BERNARD SANDERS, Vermont
DAN MILLER, Florida (Independent)
RON LEWIS, Kentucky

Kevin BINGER, Staff Director
Dante R. MOLL, Deputy Staff Director
Davip A. Kass, Deputy Counsel and Parliamentarian
JUDITH McCoy, Chief Clerk
PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON NATIONAL SECURITY, INTERNATIONAL AFFAIRS, AND CRIMINAL
JUSTICE

J. DENNIS HASTERT, Chairman

‘THOMAS M. BARRETT, Wisconsin
TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia
GARY A. CONDIT, California

ROD R. BLAGOJEVICH, Illinois

JIM TURNER, Texas

ELIJAH E. CUMMINGS, Maryland
JOHN F. TIERNEY, Massachusetts

MARK E. SOUDER, Indiana
CHRISTOPHER SHAYS, Connecticut
ILEANA ROS-LEHTINEN, Florida
JOHN M. McHUGH, New York
JOHN L. MICA, Florida

JOHN B. SHADEGG, Arizona
STEVEN C. LaTOURETTE, Ohio
BOB BARR, Georgia

Ex OFFicio

DAN BURTON, Indiana HENRY A. WAXMAN, California
RoBert B. CHARLES, Staff Director and Chief Counsel
MARGARET HEMENWAY, Professional Staff Member
‘Amy Davenport, Clerk
MICHAEL YEAGER, Minority Counsel

aD


119

House and similar programs demonstrates that the couperation of the woman is ¢ key component
to her successful recovery. Policies that are punitive in narure, such as Wisconsin's and South
Carolina's, do not effectively address substance abuse and actually increase the likelihood of
pegative birth ourcomes for children of addicted mothers.

‘As} sated, research indicates that the number one barrier to treatment for women is fear of
tosing their children. I bave discussed the Wisconsin law with the women at Meta House and
they view it as an attempt to punish them. They indicaned that because of this law they would be
reluctant to seek prenatal care and treatment for their alcohol and drug problems. One woman
stated, "A lot of babies are gonna be born at home.” The other women nodded their heads in
agreement. Wisconsin's aftempt fo capture the few preguant wornen Who refuse treatment is
searing away those pregaant women who want and need prenatal care and alcohol and drug
‘ceatment.

‘South Carolina

The South Carolina Supreme Court's decision in Whitner v. South Carolina, 492 S.E.24 777
(S.C. 1997), cert denied 118 S. Ct, 1857 (May 26, 1998) imposed an impossible dilemma on
physicians and treatment providers and, like the Wisconsin law, created an obstacle rather than
an incentive for women to seek treatment and prenatal care.

‘The court in Whitmer deciared that a viable fetus is a “child” within the meaning of the state's
criminal child abuse and neglect code, Ses id, st 780. In doing s0, the court imposed upon
physicians end health care providers a duty to divulge. to state authorities, for possible
prosecution, the identities and medical information of pregnant women who engage in conduct or
activities that may “adversely affect” the health and welfure of the fetus. Sec S.C. Code § 20-7-
510, Included in such activity is the use of illegal substances. Sec S.C. Code § 20-7.736.
Physicians and providers who fail to disclose sueb information now face criminal sanctions
including fines and possible imprisonment. See S.C. Code § 20-7-560. The Whitner decision
creates an impossible dilemma for physicians and providers: cither tisk jail by upholding the
confidentiality that is an essential part of medical carc and is critical for effective treatment, or
disclose patients’ identities in compliance with the state requirements, a result which not only
violates « patient's confidentiality. but also endangers het health and the health of her fetus.

Asa result of the Whiter decision, many pregaant women now fear seeking the substance abuse
treatment and prenatal care which is so vitally important to their health, A woman who fears that
confiding in her treatment counselor or physician could lead to arrest and imprisonment will
avoid providing important information to the very people who can help her most. The Whitner
decision compromises the ethical practice of medicine, causes irreparable harm to patients, and
severely impairs the provision of vital health and social services.

‘Another reault of the Whlmer decision is that women do not know what behavior will subject
them to criminal charges. The stanutory interpreiation endorsed by the Whimer court is vague. It

3


22 Bulletin on Narcotics, vol. XLVI, No. I, 1994

Table 1. Medical complications of intravenous drug users

Type and description
INFECTIONS CARDIOVASCULAR GASTROINTESTINAL
Bacterial endocarditis Arrhythmia Constipation
Pneumonia Mycotic aneurysm Diacrhoea
Celtulitis Thrombophlebitis
Cutaneous abscesses MISCELLANEOUS
Osteomyelitis PULMONARY Anaemia
Septic arthritis Pulmonary oedema Overdose
Sexually transmitted Paoeumothorax Allergic reaction
diseases Pneumomediastiaum Pyrogenic reaction
Tuberculosis Trauma
Tetanus NEUROMUSCULAR Needle embolus
HIV infection Stroke Amenorrhoca
HTLV-1/HTLV-IE Brain abscess Hormonal! abnormalities
infection Epidural or subdural Thrombocytopaenia
titis A, B, C and D abscess Needle embolus
viruses Anoxic encephalopathy
Peripheral neuropathy
IMMUNOLOGICAL Horner's syndrome
Generalized Mitosis
lymphadenopathy
Elevated serum HEPATIC
immunoglobulins Acute and chronic
False-positive serologic
tests
Lymphocytosis
Increased lymphocyte RENAL
subset cell numbers Giomerulonephritis
Reduced responsiveness of Renal failure

lymphocytes to mitogens
Reduced natural killer cell
activity

Source: Adapted from J. Lowinson, J. Ruiz and R. Millman, eds., Substance Abuse: A
Comprehensive Texbook (Baltimore, Maryland, Williams and Wilkins, 1992), pp. 657-674.

In addition to the vast numbers of medical complications that preg-
nant substance-using women are predisposed to, a number of obstetrical
complications are seen. Table 3 outlines the most common disorders.
Because of the lack of prenatal care, many women are more apt to devel-
op pre-eclampsia or eclampsia. Addicted women should also be closely
observed for postpartum haemorrhage.


152

CHILDREN'S HOSPITAL
Department of Pediatrics

DIMSION OF NEONATOLOGY

John €. Baatz, Ph.D.
Margaret L Donahue, MO.

(oe lenins Eicher, MD. MEDICAL UNIVERSITY OF SOUTH CAROUNA
Bruce W. Holla, PhD. 171 Ashley Avenue
Thomas C. Hulsey, MSP, $0. Charleston, South Carolina 29425-3313

Lakshmi Katikanen, M.D.
Andrea L Keenan, PD
Abner H. Levit, MD.
Bryan Ohning, M.D, Ph.O.
Celeste Patrick, MD’

Dilip Purohit, MO.

Patrick S.Spatford, M.O.

W. Michael Southgate, M.D.
Carol L, Wagner, M.D.

May 17, 1994
RE. Analysis of a hospital cocaine testing policy: its association with prenatal utilization
pattems. (Tribble et al.)

‘To whom it may concer:

We would like to attach this document to the above mentioned abstract as a delineation of our
attempts to follow-up the information presented in the abstract.

‘The investigation presented in the above abstract was aimed at determining whether a hospital
drug testing policy had an association with prenatal care patterns at the Medical University of SC
“The information presented was a preliminary report of work in progress. It was presented both to
share our work as well as to elicit discussion which might aid our investigation Findings
presented in the abstract must be interpreted with caution, as they are preliminary data, not
conclusions

Following presentation, we have continued to investigate this issue, However, attempts to further
define causative associations between the drug testing policy and pattems of prenatal care have
been difficult. Indeed, we have recently reached the conclusion that the question cannot be
answered from the data we have available. This conclusion is based on several attempts at re-
structuring the question to avoid the need to address information which was not collected, re-
defining sub-populations to reduce confounding variables (many of which cannot be addressed
with available information), etc, Our conclusion is that there are significant obstacles which
prevent us from reaching a satisfactory answer to our original question, and that statistical and
epidemiological procedures cannot overcome those obstacles. Alterations in prenatal care
uiilization were observed. However, several explanations for observed effects exist including
many that are clearly unrelated to the drug testing policy (ie, Medicaid program changes designed
to facilitate entry of low income women into private OB practices, etc) Our attempts at

HuL-Se-aeeeoaares

“Ae equal eopetunty employer”



719

Perinatal morbidity and mortality in substance using families 33

measures of social engagement. This dyadic interaction was explained by
less maternal affection and attachment as well as by infant behaviour
impeding social involvement. Many of the interactive abnormalities nor-
malized by four months of age, but the need for parenting training is
obvious.

Studies reporting effects of cocaine on behaviour are variable, and
perhaps reflect a dose-response effect as speculated by Hutchings [57].
There appears to be no observable effect at low doses on neonatal
behaviour [58]. Higher doses may be associated with symptoms of hyper-
arousal (i.e. tremulousness, irritability) during the early neonatal
period [59-62]. It has been suggested that these symptoms are more likely
the result of persistent, pharmacologically active levels of cocaine in the
newborn central nervous system, and do not represent a cocaine
withdrawal syndrome. Studies using the Brazelton Neurobehavioral Scale
in cocaine-exposed infants are very inconsistent [59, 62-65]. It can be
concluded that even though behavioural effects of prenatal cocaine
exposure are biologically plausible by direct or indirect mechanisms,
currently available research is limited by methodological weaknesses, and
no independent effects are credibly established [62].

From the foregoing, it may be seen that the physical and behavioural
response of the drug-exposed infant can have a destabilizing effect on the
family. Stresses encountered in dealing with a difficult, irritable, non-
Tesponsive, poor- feeding, non-sleeping baby cannot only have an effect
upon parent-child attachment, but also an adverse effect on the parents’
relationship. Figure UI shows how the sense of security of the infant can
be disrupted with the potential for an adverse behavioural outcome if
maternal lifestyle is influenced by addiction. With the above postnatal
maternal-infant dyadic interactions, appropriate assessments and inter-
ventions must be provided for both mother and child.

Interventions to improve stability and perinatal outcomes

Appropriate interventions for the substance-abusing family have
been researched and utilized by many throughout the world [66-69]. The
essentials are the combination of traditional substance abuse counselling
with primary health care, mental health services and prevention, assess-
ment and treatment of HIV disease. Table 4 lists the schema of services
that have been recommended [67]. Medications for addictive diseases
have been used, and more are expected to become readily available as a
result of ongoing research. Methadone for opiate dependence has been
highly researched and its efficacy substantiated. However, for opiate-
addicted patients in general and for pregnant women in particular, there
are many prejudices concerning the use of this safe and efficacious medi-
cation. Most of those attitudes stem from a lack of knowledge concerning


15

had repeatedly flunked her drug tests while in treatment and was
unable to hold down a job.

However, this story has a happy ending. This woman did indeed
kick her drug habit and obtain a legitimate job -- but only after
she faced the prospect of serving time. Indeed, she’s the best
example I know of why we need to threaten the hardest cases with
jail if they don’t give up drug use following delivery. In several
instances, that threat has worked -- and only that threat.

Finally, for the first time in my experience as a public
prosecutor, I believe we’re making progress in solving this
problem. We've learned how to mix compassion with tough love -~
providing pregnant addicts with positive encouragement to do what's
right, while reminding them that we intend to enforce the law if
they continue to do what’s wrong. Thank you for the opportunity to

share this good news with you today.


128

anonymously tested for drug use. found that Black women were ten times more likely to be
reported for positive drug screens while pregnant than white women.”

5, The effects of racial discrimination on Blacks and other minority groups are invidious
and long lasting, and undermine public health. This is evidenced by the ongoing legacy of the
Tuskegee experiments, which has occasioned conspiracy theories about the HIV virus, which
effects organ donation (lower among Blacks) and decisions regarding end-of-life care (Blacks
request more aggressive therapy at the end of life) due to mistrust of the medical establishment.
Several studies have shown that substance-abusing pregnant women mistrust “the system” as a
result of negative encounters with social service and criminal justice agencies.”

Because criminalization of perinatal substance abuse is counter to the best interests of
unborn children and pregnant women. and is inappropriate to the caregiver's role. professional

hild welt ati imous in their f ti
‘statements against the criminalization of perinatal substance abuse. These organizations
include:
* The American Medical Association®
‘* The American Nurses Association”
* The American Academy of Pediatrics"
* The American College of Obstetricians and Gynecologists"
* The American Public Health Association’
* The American Society of Addiction Medicine"*
* The National Association of Public Child Welfare Administrators" , whose Guiding Principles
for Working with Substance-Abusing Families and Drug-Exposed children state that:

“In responding to complaints in which parental substance abuse is a factor it is essential
that CPS agencies recognize that substance abuse or the addiction of the parent to alcohol
and drugs in itself does not constitute abuse or neglect of the child... The response of the
Administration and Congress to the nation’s drug crisis equally divides spending between

enforcement and treatment. Nevertheless. discussion of this problem has focused overwhelmingly
‘on enforcement. in spite of the fact that addiction is not a crime. This creates the assumption



134

findings estimate that 5.5 percent of women use an illegal drug sometime during their pregnancies.
‘The most frequently used illegal drug is marijuana (2.9 percent of pregnant women).
Psychotherapettic drugs without physician orders comprise the second largest category of illegal
drug use (1.5 percent). while cocaine is used by 1.1 percent of pregnant women. Use of drugs
such as hashish. methamphetamine. heroin. methadone. inhalants and hallucinogens is much less
frequent.

Much higher percentages of pregnant women use legal drugs during pregnancy than illegal
drugs. Cigarettes are the most frequently used substances, (20.4 percent), with alcohol following
closely behind (18.8 percent). Usage pattems of these drugs tend to be distributed along
socioeconomic fines. with a higher incidence of alcohot use in the highest income group. and a
higher incidence of cigarette use in the lower income group. Alcohol is the only commonly abused
substance certain to cause congenital anomalies in some infants”, and Fetal Alcohol Syndrome is
the leading cause of mental retardation in the United States.” Sociodemographic variables also
account for significant differences in usage rates between legal and illegal drugs. Marijuana.
cocaine and cigarettes are used more trequently by women who are unmarried, unemployed. have
less than sixteen years of education. and rely on public assistance for health care. Alcohol. on the

other hand. is

primarily used by women who are employed. have sixteen years or more of
‘education. and have private health insurance.’ Methamphetamine is used primarily by white
‘women (as opposed to black women. or men in general). and some hospitals -- especially those in

the west and midwest -- are seeing larger percentayes of newborns testing positive for

methamphetamine than for crack cocaine.” Cocaine use divides along racial lines. with powdered

cocaine preferred by white women. and crack cocaine preferred by Black women. This reflects the


14

28 Bulletin on Narcotics, vol. XLVI, No. 1, 1994

use cocaine throughout pregnancy and, in addition to cocaine, they have
clustering of other reproductive risk factors, some of which include
cigarette smoking, alcohol consumption, tendency to belong to low socio-
economic classes, shorter education, poor prenatal and medical care, use
of other drugs of abuse, young age, single parenthood and sexually trans-
mitted diseases. Analysis of all available studies conducted with this
population suggests that cocaine is not a major human teratogen, and that
most children are likely to be normal both morphologically and neuro-
developmentally. However, it has been hypothesized that there is a
subgroup of foetuses susceptible to the adverse effects of cocaine because
of the following: variability in maternal pharmacokinetics of cocaine;
variability in placental transfer of cocaine; variability in placental-
vascular response to cocaine; and foetal pharmacodynamic variability.

Infant morbidity

Because of the extremely high risk environment from which the
pregnant drug-dependent woman comes, her infant is predisposed to a
host of neonatal problems. In heroin- dependent women, a significant part
of the medical complications seen in their neonates is due to low birth
weight and prematurity. Therefore, such conditions as asphyxia neo-
natorum, intracranial haemorrhage, hyaline membrane disease, intrauter-
ine growth retardation, hypoglycaemia, hypocalcaemia, septicaemia and
hyperbilirubinaemia may be commonly seen in opiate-exposed, low-
birth-weight babies. Because infants born to women who receive
methadone maintenance are more apt to have higher birth weights and a
decreased incidence of premature birth, medical complications generally
reflect:

(a) The amount of prenatal care that the mother has received;

(b) Whether she has suffered any particular obstetrical or medical
complications, including toxaemia of pregnancy, hypertension or infec-
tion;

(c) Most importantly, multiple drug use that may produce an
unstable intrauterine milieu complicated by withdrawal and overdose.

The last- mentioned situation is extremely hazardous, since it predisposes
the neonate to meconium staining and subsequent aspiration pneumonia,
which may cause significant morbidity and increased mortality [24].
Although many reports expound on the detrimental effects of cocaine
on infant morbidity, many have not been substantiated by repeated
studies. Assessments of the organic impact of cocaine on human preg-
nancy have not always considered confounding drug-use-associated


32

TESTIMONY OF
WILLIAM J. DOMINA, SENIOR ASSISTANT CORPORATION COUNSEL FOR
‘WAUKESHA COUNTY, WISCONSIN.

Before the House Government Reform and Oversight Committee’s
Subcommittee on National Security, International Affairs and Criminal Justice

July 23, 1998

It is my pleasure and honor to present testimony to the committee. I would first thank
Chairman Hastert and all committee members for this opportunity.

Wisconsin's “Cocaine Mom” law took effect on July 1, 1998. It represents an attempt to
proactively and remedially intervene in an extreme set of cases where a mother has chosen

to carry a child to term and also chooses to uses illegal drugs or alcohol in an babitual
manner.

Although Wisconsin’s law attempts to deal with the problem of severe alcohol and drug
abuse by pregnant women, its genesis lay in one case involving a woman named Angela
M.W.. At the time that Waukesha County became involved with this issue, Angela M.W.
was twenty-four years old, Angela, the mother of two older children who were placed with
her mother, was a crack cocaine addict. The Waukesha County Department of Health and
Human Services received a referral from Angela’s obstetrician, Dr. Matthew Meyer of
Waukesha. Dr. Meyer, reporting under Wisconsin's mandatory child abuse reporting law,
indicated that Angela continued to abuse cocaine despite his best efforts and the offering of
a traditional menu of services for drug addicted pregnant women. At the time of the
report, Angela was at thirty-six weeks gestation and Dr. Meyer reported that he believed
that Angela was committing child abuse on her unborn child. Dr. Meyer presented urine
screens to verify Angela's usage of crack.

Under a former version of Wisconsia juvenile taw, Waukesha County preceded to petition
the Waukesha County juvenile court, the Honorable Kathryn Foster, presiding. The
petition, filed in the same as all child abuse petitions, asked the court to detain the 36-week
old viable fetus. The premise for the petition was the position that the viable fetus was a
“child” within the meaning of the Wisconsin Childrens’ Code, The juvenile court agreed
and issued an order detaining the unborn child in a hospital. Subsequently, Angela chose
to seek inpatient treatment in a drug treatment facility. The juvenile court continued the
detention of the fetus in the drug treatment facility.


103

Protection mandate treatment for chemically dependent par-
cents without first being sure that drug treatment services are
available, nor do they ensure that these services ean accom-
modate parents with child-care needs.”
Since of the treatment experience

the United Stan deserve the uneven quali of errees tha
have been proffered under that rubric, some have questioned
the constitutionality of compelling persons to partake in
treatment of imived avalablity and questionable qual

Role Contusion

the controversy over the status of the fetus and
‘that of the pregnant woman.

‘Since the grounds for civil commitment are generally “dan-
«ger to self or others,” in order to justify commitment on the
‘basis of pregnancy, it would be necessary either to determine
danger to self or to describe the fetus as other (raising the
insue of fetal status once again). Such concern about danger to
self or others has not led to the imposition of drug treatment

patient, as is traditional in medicine, or is it to a third party
(eg, employer, law enforcement, or child protective system)?
‘This question is central since a therapeutic alliance between
provider and pint considered eaten or therapeutic

wn pnother ise is whether to maintain the confidentiality

comply with a prenatal care regimen to be determined by her
probation officer if she becomes pregnant within the 14-year
probationary a

period.’

‘This role confusion applies to other clinicians as well, in-
cluding obstetricians and midwives. This past decade has
witnessed a host of initiatives to decrease infant mortality by
attracting low-income, high-risk pregnant women into prena-
tal care. If they perceive providers of prenatal care as agents
of the state, such women may avoid prenatal eare."“" The
ambiguous position ofthe clinician refleets the central tension
of whether the goal of mandatory treatment is improved
status of the individual patient, protection of society, or
punishment,

RELEVANCE OF THESE MODELS TO PREGNANCY

Mandatory trestment in the criminal justice context is
intended to provide an alternative to trials and/or inearcera-
tion for those who have transgressed criminal laws. In 1962,
the supreme court decided that the status of addiction per se
id not render one liable to eriminal prosecution." Others,
have argued that adding the status of addiction tothe status of
pregnancy to construct a new eriminal offense would violate
the Eighth Amendment of the Constitution, as wellas the due
process protection of the Idth Amendment. Justification
for constructing such a criminal offense would require defin-
ing maternal addiction as conduct toward an “other,” thus

1558 JAMA September 18, 991—Vol 266, No.1!

OPPOSITION TO MANDATORY TREATMENT

especially;
‘ment will probably be clinically ineffective and may sabotage

Deen performed on:
the American College of Obstetricians and Gynecologist and
the American ‘Association have rejected this route

autonomy, and bol integrity, and because of «concern
about adverse consequences for the physician-patient
relationship“

‘Cities posit that the potential impact of policies claiming to
protect fetal welfare will be to significantly limit women’s
opportunities in many arenas, even limiting their statusas fall
citizens. According to Mariner et al,"' mandating pregnant
‘women to treatment in the name of fetal interests elevates the
asserted fetal claim above the established rights of the
woman,

‘Moreover, these erities assert that these policies have been
applied in a discriminatory fashion. A 1986 study of court-
ordered cesarean sections revealed that 81% of the women
were fa minority thie group 24% did nat peak Enetsh a>

prirnary language, and 100% were clinie patients." Ap-
proximally ‘two thirds of prosecuted pregnant drug users
surveyed in 1990 were from a minority group and all were
poor.” In Florida, positive urine toxicology tests from preg-
fant black women were reported to health authorities at

cities (New York Times. January 11, 1991:B4).

nts of mandatory treatment often justify their po-
sition by citing the evidence that many addicted people seek
treatment because of an external precipitating event related

‘Mandatory O1ug Treatment in Pregnaney—Chavkin


39

ple in the first place. And we heard people come and testify to the
fact that if we left the reporting requirement in there, people would
not continue with their, for example, their AODA treatment be-
cause if they're going to be truthful to the person who’s providing
counseling, that person would be required to report them.

So we removed all reporting requirements. There are no report-
ing requirements. But there is nothing to say that a person can’t
report.

Mr. BARRETT. Maybe I’m stating the wrong question then. Is
there a trigger mechanism that a hospital professional—if an emer-

ency room nurse or physician sees a woman that he or she be-
ieves has used cocaine, is that physician or nurse required to re-
port that?

Ms. HUELSMAN. No, they are not required to report.

Mr. BARRETT. OK. And what’s the standard upon which they
should act? Is there legal guidance given to them?

Ms. HUELSMAN. No.

Mr. BARRETT. Mr. Domina, is that it?

Mr. Domina. Domina. Kind of like the pizza.

Mr. Barrett. OK.

Mr. DomINa. The legal standard is really when they believe in
a subjective way that there is abuse or neglect that’s occurring,
they can report. But they’re not required to report. If they do pro-
vide that in a good faith way, they’re given civil immunity under
the statute, but they are not required to come forth and, as a man-
dated matter, provide that report. That was taken out of the legis-
lation during the amendment process.

Mr. BarreETT. And how about under the South Carolina law?

Ms. CHRISTOPHILLIS. Yes. Ours is a bit different because what we
were working on is our existing child abuse and neglect statutes
which had been around for about 20 years in South Carolina. What
happened in South Carolina is we had our supreme court decision,
the Whitner case, expanded the definition of a child to the period
of viability only. And, therefore, you couple that case law with the
existing statutes of child abuse and neglect and that leads to our
protocol.

We do have a mandatory reporting statute. But I went to the
medical association in South Carolina and their Maternal, Infant
and Children’s Group and they wrote, which is part of our protocol,
the Maternal Drug Screening Protocol and the Newborn Drug
Screening Protocol, which triggers the test of when to actually
order a drug screen. They are based on objective criteria with the
best interests and loyalty to their patients. All of this language is
in the protocol and it was written by doctors.

Mr. BARRETT. And who does it apply to? In other words, the
same question is: Does it apply to health care professionals?

Ms. CHRISTOPHILLIS. Yes.

Mr. BARRETT. Does it apply to employers?

Ms. CHRISTOPHILLIS. Yes. Well, it—no, not necessarily. We have
a specific statute that deals with mandatory persons to report. And
it’s mainly health care, day care workers, people—professionals
that are around children, work with children, law enforcement,
nurses, et cetera. Other people, like employers, that would be—


164

296 Mass. Ave. NE. Suite 505+ Washington, OC 20002 « (202) 544-S47B + FAX: S44-5712

MEMORANDUM

— TO: Michael Yeager, Minority Counsel, House Government Reform and
ia Oversight Committee, Subcommittee on National Security,
ead International Affairs and Criminal Justice

i
it

FR: Jenny Collier McColl, Director of National Policy

18H
it

RE: Request to enter material into hearing record

itt
iif

Date: ‘August 5, 1998

Hf

Please enter the attached article into the record for the subcommittee hearing on
it and parenting women who use alcohol and drugs. The hearing took place on
July 23, 1998.

FE
ay

I
i

Ifyou have any questions or concems please feel free to give me a call at (202) 544-
5478, Thank you for your help. 1 look forward to speaking with you soon.

ut
' iif

att

H

153 Waverly Place + New York, NY 10014 « (212) 243-1313 « FAX: (212) 675-0286



64

addicted mothers and their babies. As Congress determines the direction of federal emphasis on
drug control policy, I urge you to recognize the value of treatment for pregnant and postpartum
women and their children as a worthy and cost-effective investment of federal, state and local

resources.

‘Thank you for the opportunity to testify today. I would be happy to answer any questions.


148

HOOD LAW FIRM, LLC

Page Three
August 5, 1998
Joseph C. Good, Esquire

Ms. Marshall also contends that medical organizations are unanimously
opposed to criminalization of perinatal substance abuse. The opinions issued by
medical organizations actually state that criminalization of any illicit substance,
whether used by pregnant women or not, does not work as well as treatment in
reducing substance abuse. They fail to address programs, like the one in
Charleston, that use the threat of prosecution to push women into treatment. It
has long been recognized by substance abuse professionals that some form of
coercion, whether it be from family, employers, or the police, is necessary to push
most substance abusers into treatment. An outright ban on all criminalization
would take the police and perhaps any government entity out of this equation.

Ms. Marshall further alleges that criminalization of perinatal substance
abuse has no demonstrated effect on improving child health and may have a
detrimental effect. The experience of the Charleston program contradicts this
statement. Without the threat of criminal prosecution not a single substance
abusing mother voluntarily sought treatment over a six month period. After the
introduction of threatened prosecution, many women did seek treatment.

Ms. Marshall also alleges that the drugs that are used with the most
frequency during pregnancy, and that have been definitively shown to cause the
most harm, are alcohol and tobacco. However, a 1987 multivariate analysis study
isolated cocaine as the sole factor causing dire problems with pregnancy,
independent of other criteria such as nutritional status, anemia, socioeconomic
status, or alcohol use. Moreover, unlike alcohol, tobacco or other drugs of abuse,
cocaine’s very direct and sudden effects are uniquely harmful to the pregnancy. A
single dose of cocaine can kill the mother, the fetus or both.

Nationwide, as many as 375,000 infants are born to drug abusing mothers
each year. CDF Reports, D: buse's Most Innocent Victims: Babies, at 5 (May
1989). In South Carolina, an estimated fifteen thousand (15,000) babies are born
each year who have been exposed to illegal drugs in utero. The social and economic
costs of this epidemic are staggering. Babies exposed to crack-cocaine are 3.6 times
more likely to have a birth weight under the tenth percentile, significant depression
of interactive behavior, and poor organizational responses to environmental stimuli.
R. Cherukuri, H. Minkoff, J. Feldman, A. Parekh, L. Glass, A Cohort Study of
Alkaloidal Cocaine ("Crack") in Pregnancy, 72 Obstet. Gynecol. (No. 2) at 149-150
(August 1988). In many hospitals a majority of neo-natal intensive care unit patients
are children of cocaine-abusing mothers. M. Dombrowski, R. Sokol, Cocaine and
Abruption, Contemporary OB/GYN, at 13 (April 1990).



35

Wisconsin’s discussion of the thorny issues surrounding such interventions represents and
thawing of the freeze in the discussion created by the vitriolic debate engaged in by the pro-
life and pro-choice movement. Essentially, there has been little or no debate in this country
over the past 25 years exploring the concept of choice and what consequences may occur
for conduct which may impair the health and life of a newborn child. This vacuum is
surprising given the great cost that impaired children have on our social services,
educational and criminal justice systems.

Although the goals of the Wisconsin law are laudable and may even assist women to
maintain custody of their children and not have their parental rights terminated, the law is
not a panacea to the problem of drug or alcohol use during pregnancy. It is, however, one
tool that a prosecutor may use to protect a child when an extreme set of facts supporting
intervention is presented.


67

Perinatal morbidity and mortality in substance using families 2

It is well known that medical complications compromise many drug-
involved pregnancies. The most frequently encountered complications of
injecting drug users are listed in table 1. The human immunodeficiency
virus (HIV) has been linked increasingly with drug use. The practices of
sharing contaminated needles to inject heroin or cocaine, engaging in
prostitution to buy drugs, or conducting the direct sex-for-drugs
transaction associated with "crack" smoking have all contributed to this
serious international health crisis. Currently, the spread of HIV disease
is linked less to homosexual than to heterosexual transmission. Although
the exact risk of an infected mother’s passing the disease to her offspring
is not precisely known, it is estimated that approximately 25 to 30 per
cent of infants exposed in this fashion will actually contract the acquired
immunodeficiency syndrome (AIDS). AIDS prevention counselling forms
an essential part of services that must be offered to pregnant substance-
abusing women or women involved in close relationships with addicted
men. In addition, recent studies have shown that the use of zidovudine
in pregnant HIV-positive women can reduce perinatal transmission from
25 per cent to 8 per cent.

The drug-dependent pregnant woman may also develop anaemia as
a result of iron and folic acid deficiency. Nutritional deficiencies
associated with drug addiction are due largely to the lack of proper food
intake because of inhibition of the central mechanism that controls appe-
tite and hunger. Furthermore, toxic responses to narcotics may contribute
to malnutrition by interfering with the absorption or utilization of
ingested nutrients. Absorption abnormalities are common among drug
addicts because of the high incidence of lesions of the intestine, liver and
pancreas; malnutrition is often related to the presence of liver disease.
Sometimes, in the chronic drug addict, peripheral neuritis due to thiamine
depletion is seen, although a deficiency of vitamin B6, pantothenic acid
or nicotinic acid may produce identical signs. Hypoglycaemia, vitamin B6
deficiency, thiamine depletion or magnesium deficiency may cause
seizures in both alcoholics and drug addicts. Hepatitis, a frequent com-
plication of abuse of injectable drugs, is nutritionally depleting because
it causes a loss of protein, vitamins, minerals and trace elements. Inten-
sive dietary therapy is desirable in drug and alcohol addiction, and
parenteral therapy may be necessary to correct fluid, mineral and vitamin
deficits in acutely ill patients (2).

Cocaine is known to cause many medical complications in adult
users. These complications may include acute myocardial infarction,
cardiac arrhythmias, rupture of the ascending aorta, cerebrovascular
accidents, hyperpyrexia, seizures and infections, as well as a range of
psychiatric disorders such as dysphoric agitation [3]. Table 2 elaborates
upon the medical complications.


totheir drug use, eg, abandonment by aspouse, eviction, loss
of child custody, arrest, or loss of job. In interviews of 150
<drug-using mothers in New York City, almost two thirds said
that they sought treatment after out." Advo-
cates for ‘treatment have therefore argued that,
addicts often seek treatment when the consequences of drug.
‘use become too unpleasant “to be worth it,” and, thus, that
external coercion often underlies initiation of treatment,

[compul-
sory treatment was described in the US Public Health Service
experience’ and again by

Pregnaney has been described as a “window of opportuni-
ty" for treating addiction. Three quarters ofthe interviewed
‘women reported concer for their child as a major motive for
initiating treatment, and 80% reported concern as the motive
for decreasing or stopping drug use during pregnancy. This
that

izing
counterproductive and deter women from use of such ser-
vices, as 42% said that guilt and shame over their drug use

others, or to obtain a privilege? An obvious goal would be to
safeguard the fetus from exposure totoxie drugs. While thisis
clearly signicant aim, with medical, pubis health, and

‘mandatory treatment does not appear like-
ptoadheve For example, the duration of treatment in
both the civil commitment. and criminal justice experiences
has often ben for periods far shorter than the 40 wok of
‘term pregnancy. Barry’ has questioned the efficacy of trying
to protect fetal well-being by sending those who donot comply
with treatment to prison, where drugs are readily available
but prenatal careis not.”

‘Many women are not aware that they are pregnant until
late in the first, or even until the second, trimester. This is
‘more likely to be true for those who are subjected to hunger,
infections, stress, and drugs, since these can lead to irregular
menstrual eycles. Thus, to effectively’ fetuses from
exposure to illicit drugs, treatment would have to be imposed
om all addicted fertile women. This would present enormous
practical problems since the current system eannot even meet
the needs of those seeking treatment. Moreover, it would
‘raise issues of gender discrimination similar to those posed by
corporate policies excluding fertile women from the “toxic
workplace,” as exemplified by the Johnson Controls Ine ease
recently decided on by the Supreme Court.”

Restricting concern about consequences of parental drug
use on offspring solely to fetal exposure during pregnancy
ignores other routes and timing of exposure that may ad-
versely affect future children. Preconceptional exposure of
either parent to drugs might result in genetic or functional
changes in sperm or ovum. Paternal exposure to drugs might
be transmitted vie the semen through intercourse with a

JAMA, September 18, 1991 -Vol 266, No, 11

104

pregnant woman." There i, therefore, limited biologie plau-
treatment to

for fetal welfare to in utero exposure to ilicit drugs. Two iit,
drugs, cigarettes and alcohol, are among the more potent
known fetotoxieagents.

Might the purpose of mandatory treatment of pregnant
woman be to improve her level of parental functi

negates the role ofthe father. It not only assumes parental
responsiblity to be solely maternal, it also ignores the poten-
tial male contribution to female drug use. Many women report
initiation into drug use by male sex partners, as well as
sabotage oftheir efforts to abstain from drugs by their drug-
using partners." If the goal of mandatory treatment during
pregnancy is to improve parental functioning, then its
achievement. requires including fathers and extending treat-
‘ment beyond birth.

Of course, if mandatory treatment of @ pregnant woman is
for her own sake, there is no need to restrict it to pregnancy.
‘The inconsistencies described herein underscore lack of elar-
ity as to the fundamental purpose of compulsory treatment for
‘pregnant women.

POLICY RECOMMENDATIONS AND COMMENTS
‘Both National Institute on Drug Abuse and World Health
Or, * have certain conclusi
after reviewing the international experience with mandatory
‘treatment, including the following:

1. Compulsory Treatment

addicted people voluntarily seeking treatment. This dilemma
is even more pronounced for pregnant women since their
categorical exclusion renders access to treatment even more
problematic for them than for addicted persons in general and
because the limited treatment available is rarely appropriate
totheir needs.

2, Many Modalities of Treatment, Including ‘After
Care,’ Should Be Available Because of the Chronic Retaps-
ling Nature of Addietion.— Coordination between the health,
social service, and drug treatment networks is essential ifthe
Pregnant woman's tobe wel served.

3. Once Treatment Is Available for Which There Is Evi
dence of Effectiveness, Then Widespread Outreach Ef-
tora Need to Be Made t Laduce People to Enter Trea!
ment Voluntarily.—Outreach to pregnant women would
have to overcome the fear of prosecution or loss of child
‘custody and the feelings of guilt and shame that currently
deter many pregnant addicts from seeking prenatal care or

drug treatment.

4, One Can Compel Attendance But Not Meaningful
Participation. — Psychological treatment requires the active
participation ofthe patient in onder for it tobe effective.

5. If Compulsory Treatment Is to Take Place, There
Should Be a Guarantee of Substantive and Procedural
Rights, the Involuntary Period Should Be Limited and
Subject to Review, and Evaluative Measures of the Effica-

Mandatory Drug Teatmentin Pragnancy-Chavin 1859


‘Table I. Frequency distribution of sociodemographic and
pregnancy variables (V = 142).
Variable Mean SD. Range
Age 27 6513-88.
Parity 150 OT o-8
‘Edueation (years) use 2-16
Birthweight (grams) 31220703 585-5160
Length Gestation

(weeks) 387 29 97a
Kessner Index 29 056 1k
Drug Use Score 022 056 00-2

null hypothesis that less likely (~1) and more
likely (+1) answers to each of the three ques-
tions would be evenly distributed.

Results

Sample

Table I reports the frequency distributions of
the major sociodemographic and pregnancy
variables. The average age of the subjects was
23.7 years, 81% were single, 85.2% were Black

60%

No Difference

More Likely

167

201

and they had an average 11th grade education.
‘Thirty percent received inadequate amounts of
prenatal care and 14.8% admitted use of illicit
drugs during pregnancy. All of the women were
Medicaid eligible. Of the 21 women in the sample
who used drugs during pregnancy: 13 were
motivated by the pregnancy to stop before the
last trimester and four others sought drug treat-
ment without success; 47.6% received inade-
quate prenatal care compared with 27.5% of
non-users.

Punitive laws

Frequency distributions and intercorrelations
were examined for the questions about changes
in behavior in response to a punitive state law.
Figure 1 describes the responses to the three
questions relating to a change in behavior. For
all three, most subjects felt that pregnant
substance-using women would be less likely to
seek prenatal care, drug testing and drug treat-
ment or it would make no difference (P < 0.01).
‘The higher the education of the respondent, the
less likely she was to believe that drug using
pregnant women would seek care in response to

Leas Likely

HB cot Pranetal MMB test tor (I) Seek Drug

Treatment

Drug Uae

Fig. 1. Bebavioral responses to a punitive state law (V =

142).


126

Expectant Mothers and Substance Abuse
Subcommittee on National Security, Intemational Affairs, and Criminal Justice
Mary Faith Marshall, Ph.D.

Arguments Against Criminalization of Perinatal Substance Abuse

1. Criminatization of perinatal substance abuse has no demonstrated effect on improving
child health or deterrence of substance abuse by pregnant women. On the contrary, it may
have a detrimental effect, as it has been shown that substance abusing pregnant women may.
forgo early prenatal care or substance abuse treatment for fear of losing their children or of being
arrested.' The net effect is less prenatal care. and Jess substance abuse treatment. Other untoward
effects may include increased rates of abortions, and increased perinatal HIV transmission
(transmission from pregnant woman to fetus). Distancing pregnant women from prenatal care and
substance abuse treatment is doubly tragic in that pregnancies involving substance abuse are, by
definition, high risk (thus requiring good prenatal care), and because substance abuse treatment
during pregnancy has been shown to be effective in reducing the risk of drug exposure before
birth and in improving the woman's parenting skills after birth.’

2. The drugs that are used the most frequently during pregnancy, and that have been
definitively shown to cause the most harm, are alcohol (used by 18.8% of pregnant women)
and tobacco (used 20.4% of pregnant women). Fetal Alcohol Syndrome is the leading cause of
‘mental retardation in the United States. Marijuana, cocaine and cigarettes are used more
frequently by women who are unmarried. unemployed, have less than sixteen years of education,
and rely on public assistance for health care. Alcohol is primarily used by women who are

employed, have sixteen years or more of education, and have private health insurance.*


45

being treated with at least a minimal intervention, just with a
plan, with DAODA—our treatment people are DAODAs—and DSS
(Department of Social Services), and then maybe even going to
family court. And that just is borne out by our recent statistics,
which I made part of the record.

Mr. BARRETT. But how widespread is the problem of women who
refuse treatment?

Ms. CHRISTOPHILLIS. Who refuse treat—it’s widespread. It de-
pends on when you say—at what point they refuse. They weren’t
voluntary coming in without some kind of intervention, OK? And
intervention—our first step in intervention is through our family
court, through our Department of Social Services, which is similar
to Wisconsin.

So it wasn’t—so it’s that intervention. It’s a referral to DSS and
then a referral to treatment, without going to court. And 82 out of
107 from the 6 months of 1998 did exactly that: go to treatment
once they were referred to DSS.

Mr. BARRETT. And were the other 25 prosecuted?

Ms. CHRISTOPHILLIS. No. Only—well, 33 went to family court,
which is another arm of intervention, but not a criminal prosecu-
tion.

Mr. BARRETT. How many criminal prosecutions?

Ms. CHRISTOPHILLIS. Six.

Mr. BARRETT. In the 10 year——

Ms. CHRISTOPHILLIS [continuing]. All met our protocol in that it
was a second or third crack baby. There was a criminal history and
a lack of—a very lack of—non-compliance. We know addicts are
going to slip up. We know that. But these were women who, you

ow, year after year after year of working with, continued to not
comply with the plan.

ir. BARRETT. At what point in your process is a woman afforded
counsel?

Ms. CHRISTOPHILLIS. Counsel? She is offered that in the very be-
ginning. Of course, if she ends up going to family court, she’s
appointed——

Mr. BarRETT. OK, so she’s entitled to counsel—

Ms. CHRISTOPHILLIS. Yes, she’s entitled. And that’s in the pro-
tocol as well. One of the most important things, I think, about our
protocol is that it is a team approach from the very beginning by
a response team or a review team. And these are people made w
they’re treatment people; they’re DHAC; they’re medical people. It’s
not just, you know, the prosecutor; it’s making those decisions.

ir. BARRETT. OK. in Wisconsin, I think you said, Senator
Huelsman, that the woman is given counsel at the initial entrance
into the system. Is that correct? When is she entitled to counsel,
under Wisconsin law?

Mr. Domina. When a petition is filed. Mr. Barrett, Wisconsin
does have experience with a mandatory reporting law under a child
abuse statute, similar to South Carolina, that would have been the
direction if we had had a successful Supreme Court experience. The
same arguments that you’re inquiring about concerning response of
people that won’t go to seek physicians were made when that law
was passed in our State. And our experience has been that that
has not been an intervening factor, to a large degree, with respect


87

Perinatal morbidity and mortality in substance using families 41

39.

40.

41,

42.

43.

44,

45.

46.

47,

48.

49.

L. P. Finnegan and S. M. Ehrlich, "Maternal drug abuse during preg-
nancy evaluation and pharmacotherapy for neonatal abstinence’,
Modern Methods in Pharmacology. Testing and Evaluation of Drugs
of Abuse, No. 6 (1990), p. 255.

M. M. Desmond and G. S. Wilson, "Neonatal abstinence syndrome:
recognition and diagnosis", Addictive Diseases, No. 2 (1975), p. 113.

G. S. Wilson, M. M. Desmond and W. M. Verniaud, "Early devel-
opment of infants of heroin addicted mothers", American Journal of
Diseases in Children, No. 126 (1973), p. 457.

L. P. Finnegan, D. S. Reeser and J. F. Connaughton, "The effects of
maternal drug dependence on neonatal mortality", Drug and Alcohol
Dependence, No. 2 (1977), p. 131.

C. J. Chavez and others, "Sudden infant death syndrome among
infants of drug dependent mothers", Journal of Pediatrics, No. 95
(1979), p. 407.

L. P. Finnegan, "In utero opiate dependence and sudden infant death
syndrome”, Clinics in Perinatology, No. 6 (1979), p. 163.

R. Harper, G. S. Concepcion and S. Blenman, "Observations on the
sudden death of infants born to addicted mothers", in Proceedings of
the Fifth National Conference on Methadone Treatment (New York,
National Association for the Prevention of Addiction to Narcotics,
1973), p. 1122.

T.S. Rosen and H. I. Johnson, "Drug-addicted mothers, their infants,
and SIDS", Annals of the New York Academy of Sciences, No. 533
(1988), p. 89.

S.L.D. Ward, D. Bautista, L. Chan and others, "Sudden infant death
syndrome in infants of substance-abusing mothers", Journal of
Pediatrics, No. 117 (1990), p. 876.

B. K. Rajegowda, S. R. Kandall and H. Falciglia, “Sudden unex-
pected death in infants of narcotic dependent mothers", Early Human
Development, No. 2/3 (1978), p. 219.

S. R. Kandall and others, "Maternal substance use and sudden infant
death syndrome (SIDS) in offspring", Pediatric Research, No. 29
(1991), p. 92A.


Unfortunately, since meth is as addictive as crack cocaine and the
stimulation or “high” is sustained much longer, there may be a greater
opportunity for in utero damage to the fetus of a meth-abusing mother. This
is creating additional problems and challenges for law enforcement and
human service providers in the Midwest.

Drug babies are clearly the most innocent and vulnerable of those
affected by illegal drug use, and are often the most physically and mentally
damaged due to the existence of an illegal drug market in a community. For
many of these babies, the only hope is extensive medical and psychological
treatment, physical therapy, and special education.

All of these potential remedies are expensive. These babies, through
their legal guardians and through court appointed guardians ad litem, should
be able to recover damages from those in the community who have entered
and participated in the marketing of the types of illegal drugs that have
caused their injuries.

To address this problem I recently introduced HR 4204, the Drug
Dealer Liability Act, which is modeled after similar legislation enacted in
eleven states, including the Chairman’s home state of Illinois. This
legislation is intended to provide a civil remedy for damages to persons in a
community injured as a result of illegal drug use. These persons include
parents, employers, insurers, health care and drug treatment providers, as
well as drug babies. HR 4204 would enable them to recover damages from
those persons in the community who have joined the illegal drug market. A
further purpose of the Drug Dealer Liability Act is to shift, to the extent
possible, the cost of the damage caused by the existence of the illegal drug,
market in a community to those who illegally profit from that market.

It is my hope that the prospect of substantial monetary loss made
possible by the Drug Dealer Liability Act would also act as a deterrent to
entering the narcotics market. In addition, the bill would establish an
incentive for users to identify and seek payment for their own drug treatment
from those dealers who have sold drugs to the user in the past. While this
legislation is not meant to be a “silver bullet”, it is another tool to combat
and deter drug abuse and trafficking.

Today, in 39 states, it is not clear under established law that families
who lose a child to drugs or a drug baby needing treatment and special


EXPECTANT MOTHERS AND SUBSTANCE
ABUSE: INTERVENTION AND TREATMENT
CHALLENGES FOR STATE GOVERNMENT

THURSDAY, JULY 23, 1998

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON NATIONAL SECURITY,
INTERNATIONAL AFFAIRS, AND CRIMINAL JUSTICE,
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT,
Washington, DC.

The subcommittee met, pursuant to notice, at 1:52 p.m., in room
2154, Rayburn House Office Building, Hon. Mark Souder (chair-
man of the subcommittee) presiding.

Present: Representatives Souder and Barrett.

Staff present: Robert B. Charles, staff director and chief counsel;
Margaret Hemenway, professional staff member; Amy Davenport,
clerk; and Michael Yeager, minority counsel.

Mr. SouDER. This hearing before the Subcommittee on National
Security, International Affairs, and Criminal Justice will come to
order.

Thank you all for coming and we're going to see how much we
can get in before the next vote because I know we’re running be-
hind and I apologize for that.

Drug abuse and drug-related crime affects our Nation, our com-
munities, and our children. Prenatal drug abuse is a health prob-
lem of national dimensions and one that cuts across geographic,
socio-economic, and cultural lines. Research indicates that as many
as 11 percent of deliveries are affected by substance abuse. I agree
with President Clinton’s director of the National Institute Against
Drug Abuse that maternal drug use during pregnancy is a form of
child abuse.

The link between substance abuse and child abuse is growing
and we cannot look the other way. As history too often teaches us,
all it takes for ill to prevail is for good people to do nothing. Early
intervention and treatment must be a goal since a baby born to a
drug-addicted mother is a situation ripe for future child abuse and
the costs to society of that abuse are high, morally and economi-
cally.

In Illinois a decade ago, a mother was charged with involuntary
manslaughter after a 2-day-old baby died of severe oxygen depriva-
tion attributed to cocaine. This case, in which the charges were
dro yped, served as an impetus for Illinois’ Infant Neglect and Con-

rolled Substances Act of 1989. This act made it a felony to, “inflict

ied)


150

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August 5, 1998
Joseph C. Good, Esquire
If we can be of further assistance to you, please do not hesitate to contact us.

Kind personal regards,

Yours truly,

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cc: The Honorable Charles Molony Condon
James B. Edwards, President, MUSC


42

I mean—and I bring again Dr. Beasley—and I know that will—
that’s part of your record. I mean, she runs an online health clinic.
She’s a doctor and she called me up herself, on her own, just to let
me know how well this was going. And, in fact, it’s just the oppo-
site. I mean, when, once the word is out there on the street that
this is amnesty, this is treatment oriented, this is a reprieve, they
are coming in. They want to get help. These women do want to get
help. But they are addicts. And you’ve got to understand the na-
ture of an addict before you know, really, anything about this.

And that is just—it’s worked because they see that people care
about them. They want them to change. They want them to change
their behavior. In fact, I just wrote a grant to the Department of
Justice to pilot six counties in South Carolina for drug courts in
family court, which is a therapeutic court of intervention, and we
feel like if we can intervene in our family court—again, our Court
of Equity, which is a non-criminal court—with DSS on abuse and
neglect and provide a therapeutic court setting there—we hope
we'll get that grant—that that’s even more beneficial to the fami-
lies of South Carolina.

Mr. ConpDoN. One thing, too, if I could maybe—I know it’s con-
fusing. You keep hearing about Charleston, SC. The reason you do
is—I guess it’s a happenstance. My wife happens to be a doctor, but
I get a call from health care officials at MUSC in 19—I guess—89
after having heard about a crack cocaine epidemic at a prosecutors’
meeting in Seattle and I thought it would never happen in Charles-
ton. And so they called me and asked for a solution to a problem.

Their neonatal unit was full. They had no more spaces for babies
because they found that this horrible drug called crack cocaine was
damaging all these babies and they’d been trying a pure education
model and treatment model for about 6 months or 8 months and
no one went. They had one person go to treatment for free.

So I was called and we developed protocols to address that spe-
cific problem. Now, being attorney general with the court decisions
very clear as to where we are, in a way it’s good in terms of ad-
dressing the broader issues, Charleston’s ancient history. It’s gone.
You're going to hear some testimony, but it’s gone. We're talking
about a statewide protocol for every illegal drug that damages ba-
bies in South Carolina with this protocol developed through a task
force formed by our legislature with input from health care profes-
sionals.

A lot of work has gone into this. We have a full-time director; co-
operation all 46 counties, virtually; so that the situation—I’m very
anxious to have some time go by to really invite people to look at
this, because I think we’re going to have a stunning success model

ere,

Mr. SoupeER. In Wisconsin, what is the reporting technique? How
do you find who is placed in this program? I mean, is it the same
as what they described in South Carolina? And, if it is, as far as
who’s identified to come in, have you seen any sign—even though
you're at the early stages—that people then might not go into those
Pp s for fear somebody might turn them in?

is. HUELSMAN. I have been told by someone that’s going to be
testifying on the next panel that she has seen some of that. Again,
I think one of the problems is that the law is so new in the State


161

case of tobacco, I believe that may be another place where the to-
bacco companies have withheld evidence and therefore, why we
shouldn’t grant them legal liability exclusions.

Mr. Barrett.

Mr. BaRRETT. Thank you, Mr. Chairman. Ms. Brown, maybe you
can help me on this, or Ms. Keller, maybe you can help me on it,
or maybe Dr. Marshall can help me.

In terms of the South Carolina experience, what have you seen
in terms of a trend or women delivering babies in hospitals show-
ing cocaine in the mother’s system, has it been an increase, the
same, a decrease since this program began?

Ms. BRowN. We've not really seen an increase in the use; we ac-
tually saw a decline in the use. In talking with some of the sub-
stance abuse experts at the Medical University of South Carolina,
when we saw some of the numbers initially dropping down, that
was one of the questions. They said that the recreational user can
stop for short periods of time.

I think what everyone needs to realize is that when a person
uses cocaine and we test for this cocaine, they have to have used
it within 24 to 48 hours for this test to show that they are positive.
So we are probably missing people, and we will always miss people
until there are better methods of testing.

Mr. BaRRETT. And the use in society in South Carolina in the
same period, the last 10 years, of crack cocaine, has it remained
constant, gone down or increased?

Ms. KELLER. In my experience, it has increased.

Mr. BaRRETT. The reason I ask that question, or those two ques-
tions together, is I think there are two possible answers or two pos-
sible explanations to that.

If you have, say, a 15 percent increase in crack cocaine use in
the general population over a 10-year period—and I am just taking
that number out of the air—but the percentage of women deliv-
ering babies and showing cocaine in their system remains constant,
that means one of two things.

To me, it means, one, women are suddenly deciding not to use
cocaine during pregnancy; or they are not delivering their babies
in the hospital. And I don’t know which it is, but I know in Wis-
consin, in Milwaukee, at least, we have seen a sharp increase in
the number of women who are giving birth who do have cocaine in
their system.

And I don’t know what the answer is. I don’t know if that means
that your experience has been very successful or else it means that
women are turning away.

Ms. Brown. You need to realize in that first year when we had
109 women test positive, a number of those women have subse-
quently come back and had babies that tested positive again. From
1988 to 1999, it was purely voluntary to go into treatment. Now,
there are a lot of steps in place to get them in treatment, so I
would have to say even though it is going up, that we are helping
women get off of drugs so their subsequent pregnancies, their chil-
dren, hopefully, will be born drug free.

Mr. BarRETT. Dr. Marshall, using those two different possibili-
ties, again, if there is a 15 percent increase in the general popu-
lation using crack cocaine, but the graph is flat for mothers deliv-


3

Perinatal morbidity and morality in substance using families 27

deleterious effect of this vasoconstriction, however, is a concomitant
foetal deprivation of essential gas and autrient exchange resulting in
foetal hypoxia [7]. In addition to an acute hypoxic insult, cocaine use of
long duration may produce a chronic decrease in transplacental nutrient
and oxygen flow, leading to intrauterine growth retardation. Although
the relationship of cocaine use to congenital malformations is still contro-
versial, a decrease in foetal blood supply during critical periods of
morphogenesis and growth may result in organ malformations [8-13].
Studies in sheep have also shown that maternal cocaine adminis-
tration results in a dose-dependent catecholamine - mediated increase in
maternal blood pressure and a decrease in uterine blood flow, with a sig-
nificant reduction in uterine blood flow for at least 15 minutes [14, 15}.
The, course of labour may also be affected by maternal cocaine use.
Intravenous administration of a local aesthetic such as cocaine may cause
a direct increase in uterine muscle tone. "Crack" also appears to directly
increase uterine contractility and may thus precipitate the onset of
premature labour. Higher rates of early pregnancy losses and third-
trimester placental abruptions appear to be major complications of mater-
nal cocaine use. Several investigators have reported increased stillbirth
rates among cocaine-using women [11,16,17,18]. Itis currently postulated
that increased levels of catecholamines, increased blood pressure and
increased body temperature all may play aetiologic roles in early foetal
loss and later abruptio placentae. Wang and Schnoll {19] have suggested
that cocaine-induced down-regulation of placental beta-adrenergic
receptor sites may be linked with release of endogenous opiate peptides.
With regard to the teratogenic potential of cocaine in humans, there
are conflicting results in the literature. Animal studies have helped to
provide some answers regarding the effects of cocaine by controlling
many of the confounding variables found in the human literature. The
animal studies, like the human literature, has produced evidence of
growth retardation, placental abruption, cerebral infarctions, increased
prenatal and postnatal mortality, limb/digit reductions and eye anomalies.
But like the human literature, the teratogenic risk seems low in animal
models, and seems to require high doses and individual susceptibility [20].
The potential teratogenic effects of cocaine have been extensively
reviewed, and a meta-analysis has been published by Lutiger and others
[21]. Koren proposes a hypothesis regarding maternal-foetal toxicology
of cocaine (22]. It is based on his analysis of published data and
experimental laboratory evidence. Cocaine is used by pregnant women in
two distinct modes. The social cocaine users consume cocaine as part of
a mixed socio-economic class, maintain reasonable medical care, and tend
to discontinue cocaine use once pregnancy is detected. There is no
evidence that this mode of exposure increases the reproductive risk of
such pregnancies in terms of either perinatal complications,
dysmorphology or neurobehavioural development [23]. Addicted women


82

36 Bulletin on Narcotics, vol. XLVI, No. 1, 1994

the pharmacology and the appropriate prescribing instructions for
methadone. Specifics concerning treatment of opiate dependent pregnant
women have been described elsewhere [5, 69].

Research has shown that a significant number of women who have
enrolled in comprehensive treatment services during pregnancy can be
rehabilitated, and that maternal and infant morbidity can be reduced.
When maternal medical and obstetrical complications are treated, a similar
outcome has been seen in drug-dependent mothers as in drug-free
mothers of the same socio-economic and ethnic class. Moreover, the inci-
dence of low-birth- weight infants can be reduced from nearly 50 per cent
to less than 20 per cent, which is a significant reduction in terms of neo-
natal morbidity, mortality and medical costs.

Addiction must be recognized as a chronic, relapsing disease.
Because each addicted woman is different from all others, treatment plans
should be individualized. Comprehensive services must include high-risk
prenatal care, and clinics must be staffed by obstetricians specifically
trained in the field of addiction and high-risk pregnancy. Additional
treatment modalities should include individual, group and family therapy.

For maximum recovery rates, dedicated clinicians who realize the
need to coordinate such services for addicted women are needed. Since
the medical needs of these women are so overwhelming, a perinatologist,
in conjunction with a neonatologist and psychiatrist, should lead the team
of professionals necessary to encompass, in addition to the physiological
and psychological effects of substance abuse, the tremendous sociological
issues that exist. Women will not recover if their co-morbidity issues are
not identified and treated.

The families of drug-addicted women have higher levels of conflict
and physical violence and lower levels of cohesion. Treatment must
therefore respond to each of the medical and social variables that compli-
cate addiction issues and recovery. The women have problems associated
with support issues, food, access to housing and day care, all of which are
clearly overwhelming to the recovering female addict. Relapse is im-
minent when daily survival is at risk.

AIDS prevention, counselling and testing, as well as educational ser-
vices in the form of prenatal and parenting classes, must be available.
Services should be aimed at eliminating drug use, developing personal
resources, improving family and interpersonal relationships, reducing and
eliminating socially destructive behaviour and facilitating maximum
obtainable adaptation for new parents within their environment.

In spite of the definition of specific intervention strategies for the
substance-abusing woman and her family, as well as those used for
similarly troubled individuals, the required services have not been
available, understood or adequately supported. Negative attitudes exist
about maternal drug abuse. Many professionals who could provide
appropriate services refuse to do so, and others lack adequate trai



EXPECTANT MOTHERS AND SUBSTANCE ABUSE:
INTERVENTION AND TREATMENT CHALLENGES
FOR STATE GOVERNMENT

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY,
INTERNATIONAL AFFAIRS, AND CRIMINAL JUSTICE

OF THE

COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS
SECOND SESSION

JULY 23, 1998

Serial No. 105-210

Printed for the use of the Committee on Government Reform and Oversight

ae

U.S. GOVERNMENT PRINTING OFFICE,
57-685 WASHINGTON : 1999

For sale by the U.S. Government Printing Office
‘Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-059528-2
Dp



108

Lymn M. Paltrow | 42

‘new and independent crime: becoming pregnant while
ieee wi ay sty ate aie

{can tell you that drug addicts are human beings who have
thesame hopes ae dreams that you do, Drude
‘mothers love ther children just ike any other mother. !
{ove my children. ‘But it is just not easy to stop using,
Tthas taken a long time and a lot of treatment for me to
"acts pot inmy covery. Recovering from any ind

‘with relapse. It
‘Support syste"?

pregnancy, they violate constitutional privacy guaran-
tees that protect the right to decide “whether to bear or
begata child.”

‘Prosecutors argue that the purpose of these arrests is
to get women to stop using drugs, not toend their preg
nancies. But as Representative George Miller concluded

‘after Congressional research and hearings on the sub-

ject,“Iwlomen who seek help for drug addiction during
vreouantycanoh gti” For example, in a survey of
drag abuse treatment in New York City, Dr.
Wendy Chavkin found that 54 percent of the city’s drug
programs will not accept any pregnant women; 67 per-
cent denied treatment to pregnant addicts on Medicaid;

For a woman accused of prenatal
child abuse, the onlly option
may be an abortion.

cise

‘A.woman unable to get help for her addiction or who
isin the middle of the “long-term ” of overcom-
ing an adiction problem may be held criminally able
simply for becoming pregnant and continuing ittoterm.
Ir eof Flrde 9 Jobrcon® Jenifer Johnson was
convicted of delivery of an illegal substance toa minor.
‘The prosecutor argued that cocaine was delivered tothe
infant through the umbilical cord during the moments
ater birth but before the cord was cut. In his dosing
‘argument, however, the prosecutor made clear that
Johnson's real crime was not delivery of drugs but the
delivery of her child: “When she delivered that baby,
‘she broke the law in the State.” The court agreed with
this formulation of the “crime,” noting that Jennifer
Johnson “made a choice to become pregnant and to
allow those pregnancies to come to term

Fora woman accused of prenatal child abuse, theonly

87 percent denied treatment to t women on
Medicaid specifically addicted to crack? Dr Chavkin
further reported that “less than half of those programs
‘that did accept pregnant women made arrangements or
prenatal care and only two provided child care, despite
research by the National Institute for Drug Abuse dem-
onstrating that lack of child care effectively precludes
the participation of women in drug treatment.’

‘The lack of appropriate drug treatment programs for
‘women isa nationwide] . Ann OReilly, Director
of Family and Children's Services for the San Francisco
Department of Social Services stated, “If these mothers
‘were walking away from treatment, I might feel differ-
ently, but they are not walking away from treatment—
they're walking away from waiting lists"

Moreaver, ending an addiction without help is virtu-
ally impossible. According to MarthaNencioli,aclinical
nurse who counsels pregnant women seeking drug treat-
ment, “very few women can stop on their own." AS
cone formerly addicted woman testified in recent con-
gressional hearings:

tcheduled by ajudge who had threatened to put erin
jail because he believed she was using drugs while
pregnant ® But many poor women cannot afford an
abortion, whether it is coerced by threats of impri-
sonment of conscientiously and freely chosen as an
‘ethical act” Yet all of the recent prosecutions of preg
nant women have been brought against poor women,
‘several of them battered, more than halfof them women
of color.

‘Treating pregnancy as a conflict between maternal
and fetal rights leads inevitably down a slippery slope.
‘Prosecutions of pregnant women cannot rationally be
limited to illegal conduct because many legal behaviors
cause damage to developing babies. Women who are
diabetic or obese, women with cancer or epilepsy who
‘need drugs that could harm the fetus, and women who
are too poor to eat adequately or to get prenatal care
could all be characterized as fetal abusers. Pregnant
women engage in all sorts of behaviors that could ex
[pose their fetuses to harm, including, flying to Europe"*
and cleaning their cat's litter box® As the Supreme
‘Court of Mlinois observed:

Criminal Justice Ethics


181

prenatal care by women who screened drug positive.'” Nevertheless. the vast majority of
prosecutions in South Carolina and other states have been against Black women. Of the 41
women arrested under the Medical University of South Carolina's Interagency Policy. 40 were
black. and the sole white woman had a black boyfriend (as was noted in her medical record). Of
109 women charged with criminal child abuse tor perinatal substance abuse by the Greenville,
S.C. solicitor, 10] were crack cocaine addicts. and 86 of them were Black.'”

‘These data clearly show racial and socioeconomic bias in South Carolina and throughout
the United States in the application of criminal sanctions for perinatal substance abuse. These data
mirror national statistics on the overall disproportionate impact of the criminal justice system on
the poor and on racial minorities. There are currently more than one million inmates incarcerated
in prisons in the United States. Since 1980 the number of inmates in the U.S. has doubled, and the
number of female inmates has tripled (the rate of growth for female inmates has exceeded that for
males each year since 1981'*). Most of these arrests have been for non-violent. drug-related
offenses." Most of those arrested. convicted and imprisoned jailed are poor minorities.

A recent Department of Justice survey investigating the characteristics of women inmates
reveals that:

Women in United States jails are usually in their late twenties. close to half of them

have never married. and about half have completed high school. Most are

unemployed, use illegal drugs. are black or are Spanish-speaking. have children

under eighteen, and have previously been convicted at least once.””

Separation from their children is a common occurrence among women inmates.
Approximately two-thirds of female (adult and adolescent) inmates have children under

eighteen.”' These females are most often single parents whose children were living with them prior


159

based on an old model that may work for someone else, but it did
not work for them.

When applied appropriately, you get very good outcomes and you
get vey good completion rates.

Mr. BarreTT. OK. Mr. Chairman.

Mr. SouDER. I wanted to follow up first with Ms, Brown. In your
experience, what are the financial costs of caring for children who
are born drug impaired? Have you worked with these kids? Have
you seen some of the impact?

Ms. Brown. Yes, we've had various expenses related to these in-
fants. We did a random sample of our bills back in early 1991,
1992, and the average hospital bill was averaging $24,000. This
came about the time the South Carolina State study came out,
where it was showing that approximately 15,000 babies were born
in the State of South Carolina, or 1 out of 4 tested positive at birth
for alcohol or illegal drugs. If you multiply that figure out, it’s as-
tronomical. Of course, the State does not fully understand or does
not know the exact number. Some of the figures that we’ve seen
is through the general accounting agency and they say about $1
million per child.

But in 1992, we had one infant who was transferred to our neo-
natal intensive care unit. After 1 year, the child’s initial hospital
bill was over $600,000. It had a subsequent surgery, that child’s
bill ended up very quickly in about a year of $731,000. While this
baby was in intensive care, this mother also delivered another
baby, also testing positive for cocaine, and that infant remained in
the hospital for 4 months, with a hospital bill of $167,000.

So they range. Our normal newborn babies’ bills should run
around $500 for the delivery, and we have some of our term babies’
bills who have been as much as $90,000.

Mr. SouDER. You work with the South Carolina program. You
heard the earlier statistics that certainly implied that there was a
strong racial bias. Do you believe there is a racial bias in South
Carolina, and could you explain a little bit, from your perspective,
what you think has happened. Or do you believe, in fact, blacks
have been targeted?

Ms. BROWN. I do not think that blacks were targeted. I, along
with Charles Condon and Chief Greenberg, were one of the ones
sued for $3 million in this civil lawsuit personally and in my pro-
fessional capacity at the Medical University; and the jury found
that there was no basis. And also, Judge Houck in his ruling said
the policy did not have a discriminatory impact and was therefore
not in violation of title VI of the Civil Rights Act.

The State Prevalence Study, when it was done in 1991, indicated
that cocaine was more prevalent in the African-American. What
contributes to that, I cannot say. I would like to clarify one thing
for the record, though. When Dr. Marshall quoted the Tribble arti-
cle, I happen to be one of the people co-authoring that. And unless
she has seen an article that I did not agree to be out, it did not
show that our program was causing women not to seek prenatal
care. That was one of our concerns. We looked at the South Caro-
lina DHEC statistics, not at our statistics, to see if there were out-
of-hospital births, babies born in trash cans, babies born, you know,




109

Pregnancy asa Crime | 43

If a legally cognizable duty on the part of mothers were rec-
then a. ly defined standard of conduct
‘would have to be met. It must be asked, by what judicially
defined standard would a mother have her every act or

‘back. Although this was a family court action for ne-
‘lect, not a criminal proceeding, it illustrates that line-
drawing at egal drug we will not protect pregnant
women and their children from unjustified and counter-
productive state intrusion.

In fact, these prosecutions are not limited to pregnant
women who ener in legal behavior. In Laramie,

Ws a woman, Was
wrlotod Srchld abuse when sheadtaited to the polce
that she had been drinking Pfannestiel had

Becauseno woman can provide the perfect womb, crimi-
ral prosecutions come dangerously close to turning
[Pregnancy itself into a crime.

But aren't some behaviors, like illegal drug use, 30
Clearly harmful that they can be singled out? Replacing
assumptions with facts makes itlear that neither drugs

report.

for the baby to be born to a drug-abusing, anemic or
diabetic mother who visits the doctor throughout her
Pregnancy than tobe bom toa normal woman whodoes
Rot’

In In re J. Jeffrey.® & probate court judge removed a
child from its mother for neglect several months after its
Dirth based on her alleged use of “illegal drugs.” The
petition alleged that during the last few weeks of her
‘Pregnancy, the woman had taken four non-prescription

Line-drawing at illegal drug use will
not protect pregnant women from
unjustified state intrusion.

valium to relieve the pain from injuries she had sus-
tained in an automobile accident; the infant was born
intoxicated butnotaddicted. The womanhad nohistory
of drug addiction, and the later drug screens to which
she agreed were negative. In addition, she had no
history of neglect or even of ‘contact with pro-
tective services for her two other children. Neverthe-
less, it took over a year for the woman to get her baby

alcohol.
‘at a police station in order to file a claim

It is clear that legislatures never intended
to create a duty of care owed by
pregnant women to the fetus.

against her husband for battering her; she was con-
cemed that his continued abuse would endanger her
pregnancy And in 1985, Pamela Rae Stewart was
charged with “falling to follow her doctor's advice” to
say off her feet, © refrain from sexual intercourse,

tion because drugs had litte if anything to do with the
baby’s injuriesTM These threaten to open
the door to wholesale invasions of women’s rights to
bodily integrity, sel/-determination, and privacy.
“These prosecutions also violate basic principles of due
process of law. Prosecutors justify cases premised on a
‘woman's drug use during pregnancy with the claim that
any person who uses illegal drugs commitsa crime. Yet,
in none of these cases has the state been required to
prove that the woman has actually committed the un-
derlying crime of drug possession. Moreover, itis abun-
dantly clear thatthe legislatures never intended the stat-
tutes on which these prosecutions have been based to
‘create a duty of care owed by pregnant women to the
fetus, enforceable through the criminal law. Women
have been arrested under criminal child support stat-
tutes and for child abuse, child neglect, manslaughter,
and delivery of legal substances to minors. Allof these

Winter/Spring 1990


30

Mr. SoupER. Thank you very much.

Mr. Domina.

Mr. Domina. Thank you very much. I’m Bill Domina, senior as-
sistant corporation counsel for Waukesha County. I’m going to
speak away from my written text.

I think that my words are only as good as you know me. So you
need to know that, in addition to being a lawyer, I’m also an elect-
ed official for my local school board and when I ran the local edi-
torial indicated that, he’s a lawyer and a liberal, but vote for him
anyway. In my area of the State, that’s not a compliment. You also
need to know that I’m active in the American Cancer Society, sit
on the Midwest board of directors, and have been very active in the
tobacco litigation in our State. In short, I’m a child advocate, not
just from a law enforcement perspective, but from an educational
perspective and from a health care perspective.

This is not an issue of us versus them. One of the discomforts
I have in the presentations that you'll hear today is that it has that
feel that it’s either law enforcement versus the medical community
or pro-life versus pro-choice or whatever simplistic division that
people want to apply. I think there’s a great deal of common
ground. We can agree that treatment works the best and that court
is a lousy place to mandate sobriety.

But many times, we have situations that arise where the best
course and the best options are simply not available. In the case
of drug addiction, my experience is that you will have cases where,
because of the limitations of the individual or because of the nature
of the addiction itself, it causes people not to realize or to acknowl-
edge that they have a problem, that the traditional menu of serv-
ices that are offered will not be taken up or availed of.

We have to answer the question, then—and we did in my State—
what do you do when you have a pregnant woman who's using co-
caine who’s 36 weeks of gestation and who's going to have the
baby, who does not want to avail herself of those options that are
out there that are very good and that would help her? When we
have children that are born in our society, we don’t hold them up
for public policy purposes, for abuse. What I mean by that is if, for
example, you have a child who’s being beaten and somebody
thinks, Geez, you know, parents are more likely to get help with
their anger control problems if we don’t require that the State in-
tervene in that abuse. We don’t wait. We intervene. We hold the
child up. We protect the child and we serve the best interests of
that child.

My case is very fact specific and it resulted in a great deal of de-
bate in our State and I think an important debate in our legisla-
ture. I give Senator Huelsman the credit for having the guts to
bring this issue and raise—and anger many with the discussion.

The thing that this law provides, therefore, is a tool for prosecu-
tors that are seeking to protect children and to intervene before in-
jury. The law very simply provides that a court may issue orders
upon a showing that an expectant mother habitually lacks self con-
trol. And what that phraseology is intended to provide is a high bar
of admission. In other words, it isn’t just lousy decisionmaking that
gets you into court.


89

Perinatal morbidity and morality in substance using families 43

61.

62.

63.

65.

66.

67.

68.

69.

S. N. MacGregor and others, "Cocaine use during pregnancy:
Adverse perinatal outcome", American Journal of Obstetrics and
Gynecology, No. 157 (1987), p. 686.

D. R. Neuspiel and S. C. Hamel, "Cocaine and infant behavior",
Development and Behavioral Pediatrics, No. 12 (1991), p. 55.

IN. Eisen and others, "Perinatal cocaine effects on neonatal stress
behavior and performance on the Brazelton Scale", Pediatrics, No. 38
(1991), p. 477.

C. D. Coles and others, "Effects of cocaine and alcohol use in
pregnancy on neonatal growth and neurobehavioral status", Neuro-
toxicology and Teratology, No. 14 (1992), p. 23.

K. Graham and others, "Pregnancy outcome and infant development
following gestational cocaine use by social cocaine users in Toronto,
Canada", Clinical and Investigative Medicine, No. 15 (1992), p. 384.

L. F, Finnegan and R. J. Wapner, "Narcotic addiction in pregnancy",
in Drug Use in Pregnancy, J. R. Neibyl, ed. (Philadelphia, Lea &
Fegiger, 1987).

L. P. Finnegan, T. Hagan and K, Kaltenbach, "Opioid dependence:
scientific foundations of clinical practice, pregnancy and substance
abuse; perspective and directions", Bulletin of the New York Academy
of Medicine, No. 67 (1991), p. 223.

M. J. Kreek, "Methadone in treatment: psychological and phar-
macological issues", in Handbook on Drug Abuse, R. I. Dupont,
A. Goldstein and J. O’Donnell, eds. (Rockville, Maryland, United
States National Institute on Drug Abuse, 1979).

L. P. Finnegan, "Treatment issues for opioid dependent women
during the perinatal period", Journal of Psychoactive Drugs, No. 23
(1991), p. 191.


38

Bulletin on Narcatics, vol. XLVI, No. 1, 1994

ca

10.

11.

12.

13.

14.

15.

16.

E. J. Singh and F. P. Zuspan, "Content of amniotic fluid prosta-
glandins in normal, diabetic and drug-abuse human pregnancy",
American Journal of Obstetrics and Gynecology, No. 118 (1974),
p. 385.

J. R. Woods, M. A. Plessinger and X. E. Clark, "Effect of cocaine on
uterine blood flow and fetal oxygenation", Journal of the American
Medical Association, No. 257 (1987), p. 957.

H. E. Hoyme, K. L. Jones, S. D. Dixon and others, "Prenatal cocaine
exposure and fetal vascular disruption", Pediatrics, No. 85 (1990),
p. 743.

M. P. Mahalik, R. F. Gautein and D. E. Mann, "Teratogenic potential
of cocaine hydrochloride in CF-1 mice", Journal of Pharmaceutical
Sciences, No. 69 (1980), p. 703.

S.E. Lipshultz, J. J. Frassica and E. J. Orav, "Cardiovascular abuor-
malities in infants prenatally exposed to cocaine", Journal of
Pediatrics, No. 118 (1991), p. 44.

N. Bingol and others, "Teratogenicity of cocaine in humans”, Journal
of Pediatrics, No. 110 (1987), p. 93.

I. J. Chasnoff, G. M. Chisum and W. E. Kaplan, "Maternal cocaine
use and genitourinary malformations", Teratology, No. 37 (1988),
p. 201.

A. G. Fantel and B. J. MacPhail, "The teratogenicity of cocaine’,
Teratology, No. 26 (1982), p. 17.

L. V. Baxi and R. Petrie, "Pharmacologic effects on labor: effect of
drugs on dystocia, labor and uterine activity", Clinical Obstetrics and
Gynecology, vol. 30, No. 1 (1987), p. 19.

T. T. Moore, ‘Hemodynamic effects of intravenous cocaine on the
pregnant ewe and fetus", American Journal of Obstetrics and
Gynecology, No. 155 (1986), p. 883.

D. Acker, "Abruptio placentae associated with cocaine use”,
American Journal of Obstetrics and Gynecology, No. 146 (1983),
p. 220.


12

Finally, if I could leave the testimony at this. The approach that
this witness, who came to the MUSC years after this program was
developed, is to legalize drugs during pregnancy. And I ask you, on
behalf of the children of South Carolina, not to do that. Thank you,
Mr. Chairman.

(The prepared statement of Mr. Condon follows:]


at each level, which may, eventually, result in use of the stick; a court
hearing which will mandate treatment. At that point, continued failure to

complete a program constitutes contempt of court and may result in jail time.

One of the things I hear most often from the general public is, “Pregnant

women don’t need to go to jail. They need help”

I agree, 100%. But I must ask these questions in return; Then where are all
these women who are supposedly begging for help? And Why are voluntary
women's programs closing down or struggling to remain open, when in
Greenville, where the legal protocol has been in existence since 1989, our

women’s programs are filled to capacity, with long waiting lists?

T love my job, and I love the women that I work with.. I would like nothing
better than to see them come voluntarily through our doors seeking help as
soon as they find out they are pregnant. But that is not the way addiction

works.

Another thing that I frequently hear from the public is, “Women will avoid
prenatal care, will give birth outside of hospitals, and we will be finding

babies in dumpsters”.

Again, I must ask the question, Where are they? Since the advent of the

legal protocol in Greenville, a metropolitan area of about 360,000, and the


71

Similarly, the Women’s Intensive Outpatient program (co-located with the Women’s Community
Residence in West Columbia, SC) is an intensive day program which additionally provides child
care, It treats an average of 95 women per year and gives priority admission to pregnant women.
In 1995 - 96, 13% of admissions were pregnant women. Whitner was decided by the South
Carolina Supreme Court on July 15, 1996 in a decision which was highly publicized in the
Columbia area. The following year, from 1996-1997, only 6% of admissions were for pregnant
women, a 54% decline in admissions.

In addition to slipping enrollment, South Carolina's reading of the statute is preventing
NAADAC's professional counselor membership in the state from providing the most effective
treatment. Effective alcohol and drug treatment requires the trust of patients who frequently
reveal secrets of the most private nature to alcohol and drug counselors. It is impossible to build
such trust when the law requires counselors to report pregnant patients who currently engage in
the use of alcohol and/or illicit drugs for possible prosecution by the state. Such a situation
burdens the provider-patient relationship during treatment. Treatment professionals are
constrained from asking questions about a pregnant patient’s current drug use for fear of learning
information which would require a report to the state. Likewise, patients are constrained from
forthright and honest participation in treatment they seek for fear of legal retribution. The South
Carolina law ensures these negative consequences by using the ordinary confidences of patients
in treatment as fodder for the state's prosecution.

Predictably, we are already witnessing these unfortunate consequences. NAADAC has leamed
from South Carolina providers that intake nurses in Columbia, SC area hospitals have simply
begun to stop questioning pregnant patients about their use of alcohol and other illegal drugs.
Such providers are acting defensively to avoid having to report such patients to the state. In
addition, some alcohol and drug treatment providers have stated that pregnant women have
learned to avoid answering alcohol and drug treatment questions truthfully in light of the
publicity surrounding the Whitner case.

NAADAC is pleased that the committee has tackled this difficult topic. However, we feel
compelled to point out the real-world difficulties in an approach which was highlighted at the
hearing. NAADAC members are working in the front lines of the battle throughout America to
help end the diseases of addiction and alcoholism. ‘They are committed to helping pregnant
women fight the disease of addiction and become responsible parents. However, we ask the
committee to ensure that they are not hampered by well-meaning regulations which place the
relationship of the patient and therapist at risk.


96

Wendy K. Mariner, Leonard H. Glantz, George }. Annas | 36

guished in fact! indeed, culpability of drug-using,
[pregnant women seems predicated on the motives at
tributed to them rather than on their intention, as con-
strued in the traditional sense just described. If intent
‘were all that were at issue, then any act that produced
harm toa fetus could be declared a criminaloffense. The
source of the harm should not matter. And if intent
includes reckless behavior, then any thoughtless behav-
{or that causes harm to the fetus would entail the requi-
site mens rea! A it woman who intentionally
‘walked on an icy sidewalk might be said to have acted
‘criminally if a fall causes injury or death to the fetus.
Indeed, if the goal is to prevent any risk of fetal harm,
then the crimeis committed once the woman sets foaton
the ice, even if no injury results. Similarly, a pregnant
‘woman who has sex with her husband could be guilty of
‘endangering her fetus. In fact, when such an event
results in injury, it is considered a tragedy and not a
crime. This suggests that itis not the behavior alone that
determines liability. Rather, itis society’ perception of
the behavior as desirable or undesirable that controls.
From the fetus’s :, walking on ice and taking.
drugs may have the same unwanted consequences. The

only explanation for making the latter a crimeis that we
think drug use is bad.

‘The focus on pregnant women who use illegal drugs
isbest explained by societal disapproval of mothers who
need or want to get high, an attitude that “betrays a
profound suspicion of pregnant women." It is as
‘though we believe that women are taking a drug for the
purpose of harming the fetus. Yetitis doubtful that any
‘woman has taken any drug for the express purpose of
harming her fetus. However the initial use of a drug
might be characterized, its continued use by addicts is
rarely, if ever, truly voluntary. Drug addiction tends to
‘obliterate rational, atttonomous decision making about
dnig use. Drugs become a necessity for dependent
users, even when they would much prefer to escape
their addiction. In virtually all instances, a user specifi-
cally does not want to harm her fetus. Yet she cannot
resist the drive to use the drug. Thus, itis not plausible
to attribute to drug-using women a motive of causing
harm tothe fetus. The only intent the women form is to
take the drug, But this is the traditional definition of
intent merely to do the act, which is not sufficient to
define this crime.

Criminalizing Drug Use Is Counterproductive

Evenif one could plausibly argue that pregnant women
have a duty to have healthy children, and that they
intend by drug use to injure a child, and even if the
‘causal link betweendruguseandharm tothe fetuscould
be proved beyond a reasonable doubt, use of the crimi-
nal law toprotect fetuses from their drug-using mothers
should still be opposed because it will be counterpro-
ductive.

‘Oneof the goalsof prosecuting women whousedrugs
seems tobe tocreatean incentive for pregnant womento
stop using drugs, as by entering a drug treatment pro-
gram. But treatment is rarely available to pregnant
‘women.’ Dr. Chavkin’s survey showed that about 54
percent of New York City’s drug treatment programs
excluded pregnant women Moreover, 67 percent
refused to admit pregnant women whose source of
payment was Medicaid. Eighty-seven percentexcluded
pregnant Medicaid patients who used crack In Massa-
‘chusetts, there are only thirty state-funded residential
beds for pregnant women indrug treatment programs.
‘Ten of these are in a new program that opened only last
year; fifteen are in the women’s correctional facility.

In part, the scarcity of treatment for pregnant women.
reflects a ‘of ignoring drug treatment for women.©
Even now, litte is known about how to eliminate drug
dependence among women. The absence of child care
hhas made it impossible for many women to enter or
remain in treatment. Also, few programs deal with the
problems of domestic violence or husbands or partners
‘who introduce women to drugs, so that women return
tocarcumstances that foster drug use.

In addition, there continues to be considerable uncer-
‘tainty about how to treat drug-dependent women. Medical
‘opinion has bath recommended and cautioned against
methadone detoxification during pregnancy over the
years." There is litte successful experience in treating
‘dependency on cocaineand crack, the drugs that appear
tobe increasingly used by women. A handful of residen-
tial programs that provide comprehensive medical serv
ices and job training, and help women learn how tocare
for their children have had some success” But theseare
labor intensive and expensive.

‘The general absence of drug treatment programs for
pregnant women meansthat thereislittle likelihood that

Criminal Justice Ethics


170

fm NAADAC
National Association of Alcoholism
and Drug Abuse

1911 North Fon Myer Drive, Suite 900. Ailington, VA 22209 (703) 741-7686 1-800-548-0497 FAX: (703) 741-1698

STATEMENT FOR THE RECORD

on behalf of
THE NATIONAL ASSOCIATION OF
ALCOHOLISM AND DRUG ABUSE COUNSELORS

on
Expectant Mothers and Substance Abuse:
Intervention and Treatment Challenges For State Governments

House National Security, Intemational Affairs and Criminal Justice Subcommittee
of the Government Reform and Oversight Committee

Hearing Held on July 23, 1998

On behalf of the National Association of Alcoholism and Drug Abuse Counselors (NAADAC),
please accept the following comments regarding state policies for pregnant women who require
alcoho! and drug treatment, NAADAC, with more than 17,000 members, is the largest national
organization representing the interests of alcoholism and drug abuse treatment and prevention
professionals across the United States.

Alcoholism and drug addiction are chronic diseases that are treatable by professionals who are
licensed or certified as treatment counselors, Alcohol and drug addiction treatment effectively
reduces the incidence of alcoholism and addiction, having positive effects on even the most
difficult populations, such as the homeless and the unemployed. Treatment reduces
homelessness by 42.5% and increases employment by 18.7%. (Center for Substance Abuse
‘Treatment, National Treatment Improvement Evaluation Study, September 1996).

NAADAC is concemed that South Carolina's laws requiring clinical counselors to report their
patients’ alcohol or drug use, or other activity which may adversely affect the health of the fetus,
to authorities for possible prosecution is having negative consequences. ‘This law deters pregnant
women who require alcohol and/or drug treatment from seeking such treatment for fear of
prosecution and it damages the ability to provide effective treatment. NAADAC filed an amicus
brief with the Supreme Court in the highly controversial case of Comelia Whimer vs. The State
of South Carolina for just these reasons.

At least two programs in the Columbia, SC area, have experienced drops in admission for
pregnant women as a result of the state law. The Women’s Community Residence is a 24 bed
halfway house for women substance abusers. The facility opened in 1992 and accepts
applications for an average of 237 women per year, admitting approximately 133 women, with
priority admission for pregnant women. The history of the facility's admissions shows a constant
increase until 1996 in the proportion of pregnant women since the facility opened (ftom 3% to
10%). For the July 1, 1996 - June 30, 1997 record keeping period, admissions of pregnant
‘women dropped from 10% of the total to 2%, an 80% decline.


x)

Perinatal morbidity and mortality in substance using families 29

variables such as poverty, hopelessness, inadequate prenatal and postnatal
care, deficient nutrition, varying types of cocaine use, multiple drug use,
sexually transmitted diseases and the possible presence of toxic adulterants
that are mixed with or used to process cocaine.

Consistent findings include the impact of maternal morbidity upon
the neonate (i.e. infections), impaired growth, smaller head circumference
and prematurity. Inconsistent findings include the occurrence of con-
genital abnormalities and abnormal neurobehaviour. Transient findings
include electroencephalographic abnormalities [25] and tortuous iris
vasculature in the eye grounds [26]. Additional reports concerning infant
morbidity related to cocaine are elaborated elsewhere [27-33].

Narcotic abstinence contributes considerably to neonatal morbidity.
However, not all infants born to drug-dependent mothers show with-
drawal symptomatology. Several investigators have reported that between
60 and 90 per cent of infants show symptoms [34-36]. Because the bio-
chemical and physiologic processes governing withdrawal are still poorly
understood, and because of polydrug abuse, erratic drug-taking, and
vague and inaccurate maternal histories, it is not surprising to find
varying descriptions and experiences in reports from different centres.

Neonatal narcotic abstinence syndrome is described as a generalized
disorder characterized by signs and symptoms of hyperirritability of the
central nervous system, gastrointestinal dysfunction, respiratory distress
and vague autonomic symptoms that include yawning, sneezing, mottling
and fever [37-39]. These infants initially develop mild high-frequency,
low-amplitude tremors that progress in severity. A high-pitched cry,
increased muscle tone, irritability, increased deep tendon reflexes and an
exaggerated Moro reflex are all characteristic of this syndrome. The
rooting reflex is increased and sucking of fists or thumbs is common, yet
when feedings are administered the infants have extreme difficulty and
tegurgitate frequently. The feeding difficulty occurs because of an
uncoordinated and ineffectual sucking reflex. The infants may develop
loose stools and therefore are susceptible to dehydration and electrolyte
imbalance. Time of onset of symptoms is variable. Once the infant is
delivered, serum and tissue levels of the drugs used by the mother begin
to fall. The newborn infant continues to metabolize and excrete the drug,
and withdrawal or abstinence signs occur when critically low tissue levels
have been reached.

Because of the variation in time of onset and in degree of severity,
a spectrum of abstinence patterns may be observed. Withdrawal may be
mild and transient, delayed in onset or characterized by a stepwise
increase in severity. It may be intermittently present, or have a biphasic
course that includes acute neonatal withdrawal followed by improvement
and then an exacerbation of acute withdrawal [40].

More severe withdrawal seems to occur in infants whose mothers
have taken large amounts of drugs for a long time. Usually, the closer to


36

Mr. BARRETT. Very briefly, if I may, Mr. Chairman. As you can
tell from the bells, there’s another vote. For those of you from Wis-
consin, this shows we’re working for you day and night. [Laughter.]

But I apologize and I’m going to run off and vote. And Mr.
Souder, I think, is going to continue. And then I'll try to get back
as soon as I can. Mr. Chairman.

Mr. SouDER. I'll go ahead with my round of questioning. First,
let me ask of Senator Huelsman or Mr. Domina, the treatment pro-
gram—who pays for the treatment?

Mr. Domina. Under the bill, it would be directed by the court.
Typically, the county of jurisdiction would be responsible for the
treatment provided under a court order, as it would under any nor-
mal order in a situation where a child is born. So, if the family is
ordered to seek psychiatric services or drug and alcohol services,
typically that is the responsibility of the county.

ir. SOUDER. In the legislature, did you appropriate additional
funds or how many cases, at this point, have you had Statewide?
Do you have any idea?
is. HUELSMAN. There haven’t been any cases since the bill was
passed. The bill just became effective recently and there haven't
en any cases. There was no funding appropriated in the bill. One
of the reasons is that—I might compare it to some other things
that we have passed and if you included funding the bill would
probably not pass. So you pass the bill and address the funding in
the next session of the legislature. No funding was actually appro-
priated in this bill.

Mr. SOUDER. We've never done that here. [Laughter.]

In fact, we just give it to the States and then——

Mr. Condon, in South Carolina, my understanding of both—it’s

$.——

Ms. CHRISTOPHILLIS. Christophillis.

Mr. SoupeER. Christophillis, is that right?

Ms. CHRISTOPHILLIS. Yes. Thank you.

Mr. Souper. In both your testimony, my understanding was
their was treatment required as the first resort as well?

Ms. CHRISTOPHILLIS. Yes. That’s correct.

Mr. SoupER. And who pays for it in South Carolina?

Ms. CHRISTOPHILLIS. It’s really a combination of different funding
sources. Some of it comes from our State. We have in South Caro-
lina our State treatment organization that funds different projects
as well as each county is set up with their own local board and
AODA treatment, so they receive funding. Also, we receive funding
in some ways from the Federal Government and Medicaid payment
and different other grants.

As well as an important factor that I think is the private factor.
A lot of our local initiatives are a partnership between private and
public sectors. Because the private industry has a definite stake in
getting women and children off of welfare and off of addiction so
they can become productive citizens and the State won’t be a par-
ent.

So, it’s very much a combination. But we’ve been very successful.
We've been involved in this area since 1989 in South Carolina.
And, as of the most recent statistics from January to June of this
year, 108 reports were made to our Department of Social Services


48

term labor and once again tested positive for cocaine. All patients
with positive urine drug screens were counseled about the harmful
effects of cocaine abuse to themselves and their unborn child or
their infant. None of these patients accepted appointments for sub-
stance abuse evaluation and treatment. In each case, a referral was
made to the Department of Social Services Child Protective Divi-
sion after delivery.

Faced with the apparent increase in cocaine abuse and the un-
successful results of education alone, in October 1989, the Medical
University adopted a protocol of management. Chief Greenberg of
the Charleston Police Department and then Solicitor Charles
Condon of the Ninth Judicial Circuit cooperated in this effort.

Several patients testing positive for cocaine pre-protocol returned
with subsequent pregnancies in 1989 and in 1990, once again test-
ing positive for cocaine. One of these patients had delivered a very
premature infant in 1988 and had abruptio placentae, resulting in
a fetal death in 1990. After implementing our protocol, some
women completed drug abuse treatment with positive results. Un-
fortunately, some people were arrested, but our ultimate goal was
fetal protection.

Critics of the program point out that the threat of legal problems
may drive obstetric patients from health care. When the protocol
first started, we evaluated the delivery rates at the Medical Uni-
versity Hospital as well as out of hospital births for the tri-county
area. The delivery rates remained relatively constant. According to
data provided by the South Carolina Office of Vital Records and
Public Health Statistics, there was no increase in out of hospital

‘irths.

Thank you so much.

Mr. SouDER. Thank you for your testimony.

Ms. Keller.

Ms. KELLER. I have worked for the Greenville County Commis-
sion on Alcohol and Drug Abuse since 1982. I currently manage a
residential treatment program for pregnant women and their chil-
dren, but I began specializing in services for this population in
1988.

In the 5-plus years that I operated the out-patient program, a
total of three women showed up for help on a voluntary basis. One
dropped out after the first session and two of them dropped out.
after the third. The program was filled with women for whom suc-
cessful completion of treatment was a stipulation of some form of
legal involvement: probation, parole, pre-trial intervention; Family
Court involvement; or imminent threat of removal of children from
the home by the Department of Social Services.

Addicts simply did not show up voluntarily for treatment. That
didn’t have anything to do with the morals, values, or beliefs of the
women, their levels of education or income. It had nothing to do
with whether or not they loved their babies. It is simply the nature
of addiction.

People who say, If she loved me, she would quit drinking do not
understand the nature of addiction. People who say, If she would
put God in her life or if she cared about her baby, she would quit
using do not understand the nature of addiction. At the core of
every addiction is an internal voice that tells the addict whatever


117

intredustion

Good morning Chairman Hastert, members of the Subcommittee and Congressman Barrett, my
Congressman. ‘Thank you for inviting me to testify today. My name is Dr. Francine Feinberg,
and | am the Executive Director of Meta House in Milwaukee, Wisconsin, Meta House isa
‘community-based, residential alcohol and drug treatment program for pregnant and postpartum
women and women with their children.

Prenatal alcohol and drug use is « serious public health problem. We are all in agreement that
something should be done to treat it, Meta House and many other trextment centers for pregnant
‘women apd women with children throughout the nation recognized this problem many years ago
and now have an enormous amount of experience addressing it. And I am here to tell you that
we are succeeding. The current approaches in Wisconsin and South Carolina, while perhaps well
imended, will have a devastating impact on the bitth outcomes of expectant women with alcohol
and drug problems, Based on both the rescarch and my 15 years of experience, the primary
reason pregnant women with alcoho! and drug problems do pot sesk prenatal care ot treatment
for their addiction is fear of being turned into the authorities and ultimatcly losing their children,
“The approaches of Wisconsin and South Carolina confirm their fears. Meta House already has
seen a dramatic drop in the number of preguant women seeking treatment. Recently two
pregnant women left treatment because we could not convince thom that we would not turn them
over to authorities. In en attempt to help a few women and their children, these punitive
approaches will adversely impact many others who will now hide in fear.

Itis possible to get expectant mothers into treatment and have positive birth outcomes.
Alcohol and Drug Treatinsnt for Preenant Women and Women with Children Works
Al Meta House we strive to achieve two goals: 1) to help mothers deliver healthy, drug-free
‘babies and 2) to provide these children with a mother who can give the physical and emotional
support necessary to help them mature into bealthy adults. Meta House consistently achieves
both these goals. Let me share some of our successes:

* During a four-year period, 0 babies have born born while their mothers have been in
‘treatment at Meta House - all were born drug-free.

* Within a two-year period, 205 children who had been in foster care were returned to their
mothers either during treatment or soon thereafter.

+ Anevaluation of Meta House by an objective, outside organization concluded that over
85.5% of women no longer used cocaine two years after treatment.

. After treatment, 81.6% of Meta House's clients were either gainfully employed or
‘engaged in Wisconsin's welfire-to-work program,

1


At the core of every addiction is an internal voice that tells the addict
whatever it has to say in order to cover up the painful truth and perpetuate

the addiction.

“I don’t need any help. I can quit any time I want”
“Vl quit tomorrow”
“She’s the one with the problem; she uses twice as much as I do”

“J may drink a case of beer at night, but I’ve never missed a day of work”

This is the voice of denial. To us, it may sound like excuses. But to the
addict, it is a survival mechanism which may be all she has to hang onto to
make it through the day.

Love does not break through denial. Maternal instinct does not break
through denial. Religious beliefs, imminent loss of home or job, or financial
ruin do not break through denial.

16 years of experience in this field tell me that there is only one voice which

speaks louder than the voice of denial — the law.

The fact is, addicts need a carrot and a stick to help them get to treatment. In
our system in South Carolina, the carrot is the amnesty-based, treatment-
oriented approach designed to give pregnant women several chances to

access treatment services. Failure to do so results in increased legal pressure


138

undergirded the Interagency Policy. and the effects of the subsequent federal lawsuit:

“There's no controversy here. Only California types and ACLU types are
bothered by this. and no one cares about those types here. They have no power
here.”

Reuben Greenberg. Chief of Police. Charleston. S.C.”

~There’s not enough political will to move after pregnant women who use
alcoho! or cigarettes. There is. though. a political basis for this interagency
program. Leaders can take a position against crack. Our legal system reflects our
cultural mores. That's our system, That's the real world. The left-wing ACLU
doesn't represent the American people. The left-wing ACLU doesn’t represent the
people of South Carolina. Tell Lynn Paltrow of the Center for Reproductive Law
and Policy thanks for suing me, Running in South Carolina for attorney general.
the best thing you can have happen to you is to be sued by the ACLU.”

Charles Condon. former Solicitor for Charleston County, current South Carolina
Attorney General.”

Perinatal substance abuse has national political currency as well. Thus, this excerpt from.

an article entitled, “Clinton's Cocaine Babies: Why Won't the Clinton Administration Let Us Save

Our Children?” published by Attorney General Condon in Policy Review:

Tragically. the cocaine-baby program, which was clearly saving lives. was
effectively shut down by the Clinton administration. Under the president's
direction. a swarm of federal officials came to Charleston making unfounded
allegations of discrimination and accusing the hospital of violating the “privacy
rights” of the addicted mothers..Now. once again, the babies cry out in agony.
‘And once again. hospital staff with no legal recourse must watch pregnant women
knowingly cause neurological damage to their unborn children. MUSC nurse
Shirley Brown expressed the frustration eloquently: “You just have to sit around
with your hands tied and watch them destroy a baby.” If this is what President
Clinton has in mind when he calls for a return to community and individual
responsibility. then this administration faces a profound moral crisis.“

Such rhetoric seems inconsistent with any genuine concem for the well being of prenatal

humans or of pregnant women with substance abuse problems. As professor John Juergens of the

13


49

it has to say in order to cover up the painful truth and perpetuate
the addiction: I don’t need any help; I can quit any time I want.
Tll quit tomorrow. She’s the one with the problem; she uses twice
as much as I do. I may drink a case of beer at night, but I’ve never
missed a day of work.

This is the voice of denial. To us, it may sound like excuses, but
to the addict, it is a survival mechanism which may be all she has
to hang on to make it through the day. Love does not break
through denial. Maternal instinct does not break through denial.
Religious beliefs, imminent loss of home or job, or financial ruin do
not break through denial. Sixteen years of experience in this field
tells me that there is only one voice that speaks louder than the
voice of denial—the law.

The fact is, addicts need a carrot and a stick to help them get
to treatment. In our system in South Carolina, the carrot is the
amnesty-based treatment oriented approach, designed to give preg-
nant women several chances to access treatment services. Failure
to do so results in increased legal pressure at each level, which
may, eventually, result in the use of the stick, a court hearing
which will mandate treatment. At that point, continued failure to
complete a program constitutes contempt of court and may result
in jail time.

ne of the things I hear most often from the general public is,
pregnant women don’t need to go to jail; they need help. I agree
100 percent, but I must ask these questions in return. Where are
all these women who are supposedly begging for help, and why are
voluntary women’s programs closing down and struggling to re-
main open, when in Greenville, where the legal protocol has been
in existence since 1989, our women’s programs are filled to capacity
with long waiting lists?

I love my job, and I love the women that I work with. 1 would
like nothing better than to see them come voluntarily through our
doors, seeking help as soon as they find out they’re pregnant. But,
that’s not the way addiction works.

Another thing that I frequently hear from the public is, women
will avoid prenatal care, and give birth outside of hospitals, and we
will be finding babies in dumpsters. Again, I must ask the ques-
tion, where are they? Since the advent of the legal protocol in
Greenville, a metropolitan area of about 360,000 and the second
largest city in the State, I have not heard of a single baby in a
dumpster. Three of the four primary sources of referrals to my pro-
gram are the prenatal clinic and the neonatal nursery at the hos-
pital, and the county health department, evidence that women are
continuing to access these health care services, as always.

In preparing for this trip, Ms. Christophillis asked me to bring
statistics. I did that, and you will find them attached to your cop-
ies. Statistics are not my area of expertise. I don’t know what to
do when I’m faced with 25 percent of this, or 68,000 of those. But
when I’m faced with an addict across the desk from me, I know ex-
actly what to do. And this is the approach I have chosen to use in
my words to you, from my heart as a mother and from my experi-
ence in the field.

As proud as I am of both of those things, I really wish it could
have been Amanda and her baby Amber, or Jackie and her babies


78

32 Bulletin on Narcotics, vol. XLVI, No. 1, 1994

Previous maternal and paternal physical and sexual abuse as children,
the lack of being parented themselves, the continued use of psychoactive
agents, the concomitant occurrence of physical and medical illness with
irritability and lack of responsiveness by the baby, all create the potential
for abuse by drug-using mothers of the drug-exposed infant. Since child
abuse is a preventable phenomenon, professionals in the field of substance
abuse and paediatrics must be aware of its potential occurrence and
provide appropriate assessments of the family and psychological support
systems to protect the infant at risk.

Behaviour of drug-exposed infants in the neonatal period

Neurobehavioural adaptation in neonates born to narcotic-dependent
mothers has been studied by several investigators [51-54]. The Brazelton
Neonatal Assessment Scale has been used extensively for evaluating
newborn behaviour. This instrument assesses habituation to stimuli such
as the light and bell, responsivity to animate and inanimate stimuli (face,
voice, bell, rattle), state (sleep, alertness, crying) and the requirements of
state change (irritability, consolability), and neurologic and motor
development. Soule and others [53] found that methadone - exposed babies
were restless, tended to be in a neurologically irritable condition, cried
more often and were state-labile. The infants were also more tremulous
and hypertonic, and manifested less motor maturity than did the control
group. In addition, although quite available and responsive auditorially,
the methadone-exposed subjects responded poorly to visual stimuli.
These babies seemed to be uncomfortable when opening their eyes and
attempting to focus (pupil size was within normal limits).

Strauss and others [54] also studied the behaviour of narcotic-exposed
newborns and non-drug-exposed controls in the first two days of life
using the Brazelton Scale. In addition to the classic signs of narcotic
abstinence, the narcotic-exposed infants were less able to be maintained
in an alert state and to orient to auditory and visual stimuli, signs that
were most pronounced at 48 hours of age. Drug-exposed infants were as
capable of self-quieting and responding to soothing intervention as
normal neonates, although they were substantially more irritable. These
findings have substantial implications for caregivers’ perceptions of
infants, and thus may have long-term impact on the development of
infant-caregiver interaction patterns. These implications have been
further developed by Kaltenbach, Graziani and Finnegan [55], who found
that infants born to methadone- maintained women showed deficiencies
in their attention and social responsiveness during the first few days of
life; these abnormalities persisted during the infants’ course of abstinence
and treatment. Fitzgerald and others [56] found that the interaction of
drug-dependent mothers and their infants showed abnormalities on



42

Bulletin on Nascotics, vol. XLVI, No. 1, 1994

50.

Si.

52.

53.

54,

55.

56.

57.

58.

59.

60.

S. R. Kandall and J. Gaines, "Maternal substance use and subsequent
sudden infant death syndrome (SIDS) in offspring", Neurotoxicology
and Teratology, No. 13 (1991), p. 235.

R. E. Kron and others, "Neonatal narcotic abstinence: effects of
pharmacotherapeutic agents and maternal drug usage on nutritive
sucking behavior of neonates", Journal of Pediatrics, No. 88 (1976),
p. 637.

A. Lodge, M. M. Marcus and C. M. Ramer, “Neonatal addiction: a
two-year study, Part Il, Behavioral and electrophysiological
characteristics of the addicted neonate", Addictive Diseases, No. 2
(1975), p. 235.

A. B. Soule III and others, “Clinical uses of the Brazelton Neonatal
Scale, Pediatrics, No. 54 (1974), p. 583.

M.E. Strauss and others, "Behavioral concomitants of prenatal addic-
tion to narcotics", Journal of Pediatrics, No. 89 (1976), p. 842.

K. Kaltenbach, L. J. Graziani and L. P. Finnegan, "Methadone
exposure in utero: effects upon developmental status at 1 and 2 years
of age", Pediatric Research, No. 13 (1979), p. 332.

E. Fitzgerald, K. Kaltenbach and L. P. Finnegan, "Patterns of inter-
action among drug-dependent women and their infants", Pediatric
Research, No. 24 (1990), p. 44.

D. E, Hutchings, "The puzzle of cocaine’s effects following maternal
use during pregnancy: are there reconcilable differences?",
Neurotoxicology and Teratology, No. 15 (1993), p. 281.

G. A. Richardson and N. L. Day, "Maternal and neonatal effects of
moderate cocaine use during pregnancy", Neurotoxicology and
Teratology, No. 13 (1991), p. 455.

I. J. Chasnoff and others, “Cocaine use in pregnancy", New England
Journal of Medicine, No. 313 (1985), p. 666.

I. J. Chasnoff and others, "Perinatal cerebral infarction and maternal
cocaine use", Journal of Pediatrics, No. 108 (1986), p. 456.


43

of Wisconsin that people don’t know what’s included in it. But I
spoke to a group of women at a residential treatment facility in
Waukesha. After I was finished talking to them, they had no prob-
lem with it, but they had misconceptions before I came in as to
what was included in the law. So I think it’s going to take us some
time to get some accurate information out to women.

Mr. SOUDER. Are the courts the primary way that people come
into this program? And, if so, how do they come into the court sys-
tem? What are the primary ways?

Mr. Domina. They come in as any other child abuse report would
come in. Family; friends; law enforcement; physicians, even, al-
though they’re not required to report, can provide reports. And that
information then would be used to assess whether or not you can
prove that the individual is habitually lacking self control—that’s
the standard under our law—in a court. And, if you can, then the
court can issue certain orders regulating conduct and placing a par-
ent in a least-restrictive setting from a home up to a hospital.

Mr. SoupER. If I understood what Senator Huelsman’s point was,
that, in fact, some of the groups who don’t like the law may in fact
be scaring people away from prenatal services when, in fact, if
those people in those services knew that they weren’t going to jail,
they were going into treatment, they might, rather, be thankful
about the program. Is that, in effect, what you just said? Because
you said, “based on misinformation, people thought—” and there
might be some declining of people going in, but once they learned
what it is, at least the people you talked to didn’t have the same
resistance.

Ms. HUELSMAN. That is correct. And some of the misinformation
is, again, because of some changes that were made in the law and
so people who had information about the initial draft that was then
changed, but didn’t get the information about the changes, may be
left with a concern in their mind.

Mr. SoupER. And, for the record, both of you are talking about
programs that have treatment, not just programs that incarcerate,
which is a distinction that you made in the testimony, but it’s an
important distinction.

is. HUELSMAN. That'’s correct.

Mr. SoupDER. Do you have any additional questions?

Mr. BarRRETT. I’m going to read a portion of written testimony
that Ms. Feinberg has submitted. And I'd like your reaction. And
it goes along the same thing that we've talked about, but I’ve got
a question after I read it. This is on page 3 of what appears to be
her submitted statement.

“They,” meaning the women at Meta House, “indicated that, be-
cause of this law, they would be reluctant to seek prenatal care and
treatment for their alcohol and drug problems. One woman stated,
‘A lot of babies are going to be born at home.’ The other women
nodded their head in agreement. Wisconsin’s attempt to capture
the few pregnant women who refuse treatment is scaring away
those pregnant women who want and need prenatal care and alco-
hol and drug treatment.”

My belief is that everybody who is involved in this debate is act-
ing in good intentions and that there’s nobody with any hidden mo-
tives at all on this. And then I think everybody who is making an


129

that the many causes of substance abuse can be remedied through law enforcement. This scenario
is evident in states that have passed or are considering legislation requiring the selective testing of
pregnant women for illicit drug use. with results used for punitive action. This places physicians
and Child Protective Services workers in the role of law enforcement officials... If a jurisdiction
elects to mandate drug testing of pregnant women and newborns. such testing must be universal
(ie. testing would be conducted on all pregnant women at all medical facilities and not targeted at
specific populations.) Test results should be used only to identify families in need of
treatment and make referrals. Positive test results should not be used for punitive action.”

Rather than focusing on punishment and ineffective deterrence strategies. policy
approaches to perinatal substance abuse should

1. Focus on the well being of children and pregnant women and the integrity of the family;
2. Assure that the harm to be prevented to the child-to-be clearly exceeds the harm of the
pregnant woman’s loss of liberty as well as harms to her other dependents;

3. Assure that the intervention is expected to be successful in terms of tangible benefits to
the health of the child mother. Symbolic success, such as sending a message is not
sufficient;

4. Involve the least restrictive means available;

5, Substantially benefit society and not lead to substantial social harm.

Background of the Problem

The State of South Carolina has been more active than any other state in criminalizing
substance abuse by pregnant women. in Charleston. the Medical University of South Carolina
developed an extensive collaboration with local police and the prosecutor's office. Under the
Medical University policy. information regarding pregnant women who tested positive for illegal
drugs in the hospital's obstetrics clinic was tured over to the police and the prosecutor. The
policy did not apply to private patients or to patients at any other health care facility in the
Charleston area. For women who tested positive. freedom from arrest and prosecution was
conditioned on compliance with mandatory prenatal and substance abuse treatment. Forty-one

women were arrested under the policy. (all but one of whom were Black). Ten of the women


118

Pregnancy asa Crime | 47

Glo, ug. 23,1989 4122, Bonavogia The Orde of Pam

Rae Stewart, Ms, Aug. 1987, at 92, 95. Levendosky, Turning
‘Women into 2 iri Dishes, Sunday Star Tribune, jan
ary 21, 1990, at

19 Wald, Radiation Exposure is Termed a Big Risk for Airplance
(Crews, N.Y-Times, Feb. 14, 1990, at 1A. Because of concern
about ie efecto ration from the sn and the ts. on
atin crews and passenger, Dr. ineran & esearch,
vised‘ vere a Woman in the ciel period of pregnancy
Torreardaton I woul tend tavold fights te Bae

20 Pregnant women who come into contact with fas or ae

2, Mising Links, supra note 12, a (opening statement of
Senator

2, Affidavit, Cathy Haver, People, Stewart, No, MS08197
‘(Municipal Court, County of San Diego, Feb. 26, 1987)

38 Supra note 8, at 20.

39 Affidavit of Iraj. Chasnoff, M.D, submitted in support of
Defendant's Motion to Dismiss Indictment, People v. Hardy,
No. 67-2931-F7 (Mich. Dist. Ct. Dec. 5, 1989).

8 fry Doctors Ct Drug Tete Afr Police Interview Moms,

brood
erenoue damage cergpagiayoinrelngs

abortion, prematurity, or dea SUTDMACHER, PREGNANCY,
‘Berra ano Fanny PLANNING 188-89 (LH. Kaiser rev. and up-
dated ed. 1984).

21 Stallman v. Youngguist, 531 NEE 2d 355, 360 (I. 1988).

‘22 Taxpayers Pay for Lackof Prenatal Treatment, St, Petersburg,
Times Now 3 Bate

23 No. 99851 (Mich. Ct. App. filed Apr. 9, 1987).

24 State , Pfannenstil, No. 1-90-8CR (Laramie
Going cop Corplaa a Jon 5,130; Levenky, buprs
25 M. Konon Date Access to Fetus Case Put on Hold, San Diego

‘Tribune, Oct, 24, 1986, at B1, B12.

26 Schacter, Help Is Hard to Find for Addict Mothers, L. A.
‘Times, December 12, 1986, § 2, at 2.

27 Standard 31.100.
28 Standard 3.3.8.

29 acqulynBoyle ACLU toDefen Moon Cargo Deliver
ing Crack-Addict Baby, Det. ree Press, Oct. 28, 1989.

30 See,eg., Akron v. Akron Centar for Reproductive Health
Serve 6215, 416,427, B03 (1989)

31 Roe v, Wade, 410 US. 113, 162 (1973)
32 Stallman v. Youngquist, 531 N.E.24 355, 360 (Il 1988.
wd

34 Malcolm, Explosive Drug Use Creating New Underworld in
Prisons, N.Y. Times, Dec. 30,1989, at 1

35 According to Ellen Barry, Director of San
Services for Prisoners with Children,

Sate Bay. Quay of Pentel Cae for cred Wome
Giegets © Yam Sows Nons0e 5 1 29,

B Times, May 13,1

Al ACO.G.Committee on Ethics, Committee Opinion: Patient
GRE Naira Fel Confer, Nose 8, Octaber 1987

at

a ence from Elaine Locks, Associate Director,
Ruy Mioa and yee Palows Decenber 190, ss

4 Johnsen, From Driving to Drugs: Governmental Regulation
of Pregnant Women's Lives After Webster, 138 U. Pa.L.Rév.179,
7203-04 (1989).

1 Holy, Side, Ras fee Do
i, Sept 19,189, at 28; Black
‘Orlando Sentinel,

abuse Testing, Miami Her-
ine Mothers Likely to Be

Turned In,The ‘Sentinel, Nov.21, 1989.
45 The ACLU Women's Rights Project, however, has recently
filed a lawsuit on behalf of women turned away from

abuse treatment progams in New York. Elune 'W. v. Nort

General, No. .Y. Sup. Ct. filed Nov. 23, 1988).

46, Malaspir, supra note 11 Lal, Treating Drag Addiction
‘ith he Woman in Min, The Washington Post March 1850
atl

47 Id. emphasis added).
ca

49 Left, supra note 4.

50 Missing Links, supra note 12, at 5 (textmony of Ira ChasnolD.

51 “National estimates show that one out of every five women.
(of childbearing age has no maternity care coverage, either
through government programs or private bealth insurance”
W, Lazar & K Wes, Baro Basic, town ri Heat
"5 Next Gexzrarion 23-24 (Southern California
Chuidtfeath Network 96,

52 Experts Find New Hope on Treating Crack Addicts, N.Y.
‘Times, Aug. 24,1969, at 1. The infant mortality rate in the
United States i the worst among the eighteen industralizes
rations. The National Commission to Prevent infant Mortality

led forunivesal acess" to eatly maternity and peiatc

‘care ot all mothers and infants. Associated Press, U.S. Panel
Urges Universal Aces to Prenatal Care, Boston Globe, August
16

WinteriSpring 1990


122

Mr. SoupER. Thank you very much for your testimony.

Dr. Marshall.

Ms. MARSHALL. Thank you very much, Mr. Chairman and Mr.
Barrett, for the opportunity to testify today. I feel like I’ve already
been introduced to you earlier today, but I would like to tell you
just a little bit about myself. Before I became a bio-ethicist, I was
a critical care nurse for 12 years, and I began my practice in crit-
ical care in the newborn intensive care unit. And r 12 years in
adult and pediatric critical care, I went to graduate school in bio-
ethics and religious studies, and since then have been a practicing
bio-ethicist.

Tm also a princi al investigator under the Robert Wood Johnson
Substance Abuse Policy Research Foundation, and am engaged in
a project analyzing the legal and ethical issues involved in coercive
approaches to perinatal substance abuse, and that includes crim-
inalization, involuntary civil commitment, and removal of child cus-
tody.

So that my remarks to you today will be based, I hope, on well
founded research and not on anecdote, horror stories, or outdated
clinical studies.

As you know, the problem of perinatal substance abuse is a com-
plex problem. It doesn’t lend itself to easy solutions. I think one of
the most important questions that we should examine here today
are what are the goals of public health policy and any sort of law
enforcement intervention, whether they are to foster healthy preg-
nancies with healthy outcomes, or whether they are to engage in
deterrent and punishment, which certainly are legitimate law en-
forcement goals but may not be legitimate public health goals with-
in the context of perinatal substance abuse.

We know that criminalization of perinatal substance abuse has
no demonstrated effect on improving child health or on deterrence
of substance abuse by pregnant women. On the contrary, as you’ve
heard it may have a detrimental effect as it has been shown that
substance abusing pregnant women forego early prenatal care and
substance abuse treatment for fear of losing their children or for
being arrested. The net effect is less prenatal care, and less sub-
stance abuse treatment. And other untoward effects might include
increased rates of abortions, increased perinatal HIV transmission.

Distancing pregnant women from prenatal care and substance
abuse treatment is doubly tragic, in that pregnancies that involve
substance abuse are by definition high risk pregnancies, thus re-

uiring good prenatal care, and because substance abuse treatment

luring Pregnancy has been shown to be effective in reducing the
risk of drug exposure before birth and in improving a woman’s par-
enting skills after birth.

The drugs that are the most frequently used during pregnancy
and that have been definitely shown time and again to cause the
most harm to pregnancy outcomes are alcohol, which is used by
18.8 percent of pregnant women, and tobacco, which is used by 20.4
percent of pregnant women.

As you've heard today, fetal alcohol syndrome is the leading
cause of mental retardation in the United States. Marijuana, co-
caine, and cigarettes are used more frequently by women who are
unmarried, unemployed, have less than 16 years of education, and


127

3. Criminalization of perinatal substance abuse creates untenable legal and ethical
obligations for health care providers and other statutory mandatory reporters, undermines
‘faith and trust in the health care system, and respect for the judicial system.

4. The criminalization approach has been tainted with discriminatory application along

and socioeconomic lines (poor Black women are arrested most often), arbitrary

ra
selection along racial and socioeconomic lines (only certain drugs, such as crack cocaine,
are targeted), and political opportunism. The vast majority of prosecutions in South Carolina
and other states have been against Black women. Of the 41 women arrested under the Medical
University of South Carolina's Interagency Policy, 40 were Black, and the sole white woman
had a black boyfriend (as was noted in her medical record). Of 109 women charged with
criminal child abuse for perinatal substance abuse by the Greenville, South Carolina
solicitor, 101 were crack cocaine addicts, and 86 of them were Black.’ Since 1985, more than
240 women in 35 states have been criminally prosecuted for using illegal drugs or alcohol during
pregnancy. Between 70% and 80% of these women are minorities.’ Criminal sanctions are
imposed against women who use illegal drugs much more frequently than those who use legal
drugs. Certain illegal drugs. such as crack cocaine. heroin. and marijuana, are often specifically
targeted for screening programs while illegal drugs such as powdered cocaine, crank
(methamphetamine) or non-physician-ordered psychotherapeutics are largely ignored. Pregnant
women who use targeted drugs, such as crack cocaine. are much more likely to be reported and
arrested than pregnant women who use non-targeted drugs. such as powdered cocaine, narcotic
analgesics. and psychotherapeutic agents. A landmark study in Pinellas County, Florida, in which

women presenting for obstetrical care at public health clinics and private physician's offices were


151

NAME 0B RACE COMPLAINT CHARGE DATE OF
NUMBER ARREST

THERESA JOSEPH MIXED?


155

Mr. SoupER. So if somebody was beating their child or giving
their child drugs, if the child was 5 years old, you wouldn’t favor
them being coerced into treatment either? In other words, are you
making a distinction only for pregnant moms and not for any other
drug abusing mother, because you don’t have a philosophically con-
sistent position?

Dr. FEINBERG. Yes, I am making that distinction, because there’s
no evidence that reporting child abuse has this detrimental affect.
There is evidence that reporting a pregnant woman while she—re-
porting a woman who’s using drugs while she’s pregnant—does en-
hance the flight from care.

Mr. Souper. Is that your position as well, Dr. Marshall, that you
believe there’s a double standard between those—for example, Dr.
Feinberg correctly pointed out that most people who have abuse
problems have a history of either having had, she mentioned, child
abuse in their families, of spousal abuse, or drug abuse in their
families. And therefore, we have to be careful how we handle these
different people. That’s also true among child abusers. It’s true in
all forms of this. And if we have that as a standard in our society,
that we can have an intervention process. Because the person has
been abused previously, why are you cutting it just at this point?

Ms. MARSHALL. Well, I guess I think you’re making a dis-anal-
ogy, or I see it as a dis-analogy. I think that when we're talking
about pregnant women who are substance abusers, we're talkin;
about substance abusers. And the nature of the intervention shoul
be treatment. And the two interventions that we've talked about
today are prenatal care and substance abuse therapy. I don’t think
that that is directly analogous with the intervention that society
condones for beating a child. The intervention there would not be
substance abuse treatment.

Mr. SOUDER. When a pregnant mother ingests alcohol—when I
was staff director of the Children and Family Committee on the
Republican side in the House, we held three hearings on fetal alco-
hol syndrome. When the mother drinks alcohol, it actually has a
greater intense affect on the child in the womb because of the pro-
portion of body weight. Similar with methamphetamine and similar
with cocaine. The impact is greater on the child before it’s born
than it actually would be at 1 year old, if the parent started giving
drugs to them.

Now, why are you making this distinction suddenly that a par-
ent—a prenatal care rather than the immediate postnatal care in
the first year—what if they gave drugs to ingest into those kids at
the same rate that it was being ingested before birth. You would
have a distinction that you could prosecute one in the first year,
but you couldn’t the year before they were born?

Ms. MARSHALL. Yes, I think that that’s really not a fair analogy
at all. I think you're characterizing this as two different things.
The context in which I look at perinatal substance abuse is this.
The women are substance abusers who happen to become pregnant.
They are not pregnant women who suddenly decided to abuse a
substance. They’re substance abusers first.

Mr SoupER. So they’re substance abusers with a l-year old
child.


CONTENTS

Hearing held on July 23, 1998 .
Statement of:

Brown, Shirley, RN, MN, outcome manager, Medical University of South
Carolina; Paula Keller, director, Serenity Place; Betty Foley, associate
irector, Haymarket Center: Francine Feinberg, PSY D. Meta Louse,
Our Home Foundation; and Mary Faith Marshall, Ph.D., program in
bioethics, Medical University of South Carolina ..

Latham, Hon. Tom, a Representative in Congress from the State of
Towa; Charles Condon, attorney general, State of South Carolina; Cath-
erine Christophillis, Director of Drug Prosecution, State of South Caro-
lina; Joanne Huelsman, State senator, State of Wisconsin; and William
Domina, Office of Corporation counsel, Waukesha County . ve

Letters, statements, ete., submitted for the record by:

Christophillis, Catherine, Director of Drug Prosecution, State of South
Carolina:

Information concerning statistics .
Prepared statement of .....

Condon, Charles, attorney general, State of South Carolina, prepared
statement of ..

Domina, William, Office of Corporation counsel, Waukesha County, pre-
pared statement of

Feinberg, Francine, PSY.D., Meta House, Our Home Foundation, ‘pre:

ared statement of

Ly , Preps
Latham, Hon. Tom, a Representative in Congress from the
Iowa, prepared statement of ..
Marshall, Mary Faith, Ph.D., program. in. bi
of South Carolina, prepared statement of...

(ql)

47

18
21

13
32
116

26
51

126


145

44. Charles Molony Condor ‘linton’s Cocaine Babies: Why Won't the Administration Let Us
Save Our Children?” Policy Review (Spring, 1995): 12.

45. John P. Juergens. Letter to the Editor. Policy Review, May 18, 1995.

46. “Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal
Penalties for Potentially Harmful Behavior by Pregnant Women,” Board of Trustees Report,
JAMA 264 (1990): 2663-2670.

47. “Opposition to Criminal Prosecution of Women for Use of Drugs While Pregnant and
Support for Treatment Services for Alcohol and Drug Dependent Women of Childbearing Age,”
American Nurses Association Position Statement, April 5, 1991, Washington, D.C.

48. “Guidelines for Perinatal Care.” The American Academy of Pediatrics, the American College
of Obstetricians and Gynecologists, (1992) rug-Exposed Infants,” Committee on Substance
Abuse. American Academy of Pediatrics. Pediatrics 86 (1990): 639-642.

49. “Guidelines for Perinatal Care.” The American Academy of Pediatrics. the American College
of Obstetricians and Gynecologists. (1992): “Cocaine Abuse: Implications for Pregnancy.”
Committee Opinion 81. Washington. D.C.. ACOG. 1990.

50. “Illicit Drug Use by Pregnant Women.” Policy Statement 9020, American Journal of Public
Health 81 (1991): 253.

51. ~ Public Policy Statement on Chemically Dependent Women and Pregnancy.” The American
Society of Addiction Medicine, adopted September. 25, 1989, Washington, D.C.

52. “Guiding Principles for Working with Substance-Abusing Families and Drug-Exposed
Children: The Child Welfare Response.” National Association of Public Child Welfare
Administeators. approved January 1991 by the Executive Committee at the National Council of
State Human Services Administrators.


106

18, Maur Cine expr wi cn commitment In: Lathe,

‘Treatment of Drog Abuse: Research and Clvieal
‘Prete Raise Ma, Nato Instat on Dro Abuse 380356. US
Dept of Heath and Haran Services pubiation (ADM) 8 1578, Research

42. Lavrence Robivaon © California, 30 US 66, BL ed 24758, 2 L417
coming pregnant ie crime. Criminal Justioe thice

45. Brown BS. Civil commitment: aninterationl perspective. J Drug Tanase
ses 308-78

46, Rosenthal MP. The of involuntary vt o

‘patente J Drug Tone sea.

(American Collegeof Obtetrians and Patient
‘materna fetal conic. Wom Health Ieruen Fal 19901216.

‘G6 American Modes! Ansoiation Board of interven

ineaecedehialtenunen J Chu Abuse

‘Newman RG. long:tero addiction treatment in
rion, Drag Fora, 1O7ES1ST618T

$0. Newman BG. Te Uresinieot of drug addiction. Yale Rev Law
‘Social Action.

wins 258.

431, Chavkin W. Drug eiction and pregnancy policy eromtroeda, Am J Public

Health, 190 0-05-48,

$2 Basin: CM, Tampa Rien nd Drag Ate Pie Nee

Sn Seen Hoe Nol atte oy rag Aan 1, US De
and More:

‘eal. and Policy rues Weahington, DC: National Academy
ubenstetn LS. Treatment ofthe mentally: legal advocacy entra the
generation. mJ Prychintry 1086 6:164-128.
{$. Newnan RG. Specs problems methadone
program. Contemp Drug Prob. 1972 1-18-190
order:

Bs
38. Johnson» Site of Florida, Dis Appeal (Sth Dis) Fin 9-195.
38, Chavkin W.Jenufe Johmaon sentence. J Clin Educ 18011-160-14,
48. Charkin W, St Cir D. Beyond prenatal are: x comprebena

JAMA, September 18, 1991 ~Vo266,No.11

Rosa
‘SL Mariner WE, Glantz LH, Armes GJ. 9, druge nd the pers of
prosection, Criminal Juatice Bthica 199030-41,
2 Kalder ¥, obsetrieal icterven-
ou, 9 Bool Med TALE

‘State by Slate Summary of Criminal Prosections
‘octet Pr sx nd Appr Pubis Heian Ph
Groups Oppoua o These Prosscubone New York, NY: American Cir Liber-
ea Ueio Freedom Project 1990,

‘ert granted US (1990.
‘57, Match M. Mother, father, od the reproductive
‘nk of workin dbl ‘Tt: Chaokin W, od. Woman Health Hazards

Epos Infante: A Generation at
, taingon, DC: Government Pring Ofer 190. Pubeton
Heel ole cn fr rans an arena

Nail ise we ere i4 00. US Dept

Sadnge, BON

“Health, dation, and Welfare pobistion (ADR)

ide J Beringer Gy Kaplan CD, ea Toe prepece and ination of

raiment or dr addiction, J Drug Tarun 1968 T8.506-625.

(2. Porter L, An A, Curran W. The Law and the Treatment of Drug ond
Dependent Prsona: A Comparative Study of Brating Lepiltion,
Sn War eat rp
"oot MPP. Treatment lures: the role of serial victimization in women’

ave tebavo hn Ohopyehity oso

Mandatory Drug Teatmentin PregnancyChavkin 1561

Printeg and Published inthe United States of America


20 Bulletin on Narcotics, vol. XLVI, No, 1, 1994

disease of addiction. It affects all sectors of the world population and it
is widely recognized that millions of individuals use illicit drugs regularly.
Many millions more are addicted to nicotine, alcohol or both. Large
numbers of people die every day as a result of nicotine’s role in heart dis-
ease, lung disease and cancer. The effects of alcoholism have wreaked
incalculable damage across generations throughout societies. The epide-
mic of drug abuse has overwhelmed men, women and children and caused
incalculable damage to an honoured structure in human civilization - the
family. Moreover, during the past decade, increasing numbers of preg-
nant drug-dependent women have been presenting themselves to medical
facilities, some to receive ongoing prenatal care, but others only to deliver
their babies without the benefit of any medical services prenatally.

The present chapter reviews the current literature, as well as the
experiences of the author, with regard to the sociomedical characteristics
of pregnant, drug-dependent women. In addition, the effects of sub-
stances of abuse on pregnancy, the foetus and the newborn with respect
to morbidity and mortality are presented. Recommendations for manage-
ment of both the pregnant drug-dependent woman and her child, on the
basis of clinical research, are also outlined.

Because of the high incidence of polysubstance use, it is essential to
remember the inherent difficulties involved in ascribing any individual
perinatal effect to one specific substance. However, because of space
limitations, the present chapter can only deal with opiates (primarily
heroin and methadone) and the stimulant cocaine. It must be realized that
use of the latter agents is frequently augmented by excessive use of the
licit drugs alcohol and nicotine, both of which have been found to have
a profound effect on pregnant women and their offspring.

As a result of pre-existing conditions and ongoing active drug use,
the narcotic-dependent woman frequently suffers from chronic anxiety
and depression. Social problems such as poverty, hopelessness, involve-
ment in an abusive relationship and alcoholism may overwhelm coping
mechanisms. She usually lacks confidence and hope for the future, and
has extreme difficulty with interpersonal, especially heterosexual,
relationships. Over 80 per cent of addicted women were raised in house-
holds marked by parental chemical abuse, 67 per cent of those women had
been sexually assaulted, 60 per cent had been physically assaulted, and
almost 100 per cent of the women wished that they were someone else as
they were growing up [1]. In addition to those problems, the treatment
and possible resolution of the superimposed addiction is complicated and
requires understanding and patience. Addiction is a chronic, progressive,
relapsing disease, and a smooth and rapid recovery cannot be expected.
It should not be surprising, therefore, that the lifestyle of the pregnant
addict has a profound influence upon her psychological, social and
physiological well-being and that of her child and the family relation-
ships.


52

I have worked for the Greenville County Commission on Alcohol and Drug
Abuse since 1982. I currently manage a residential treatment program for
pregnant women and their children, but I began specializing in services for
this population on an out-patient basis in 1988. In the 5+ years that 1
operated the out-patient program, a total of 3 women showed up for help on
a voluntary basis. One dropped out after the first session, and 2 of them
dropped out after the 3 session. The program was filled with women for
whom successful completion of treatment was a stipulation of some form of
legal involvement: probation; parole; pre-trial intervention; Family Court
involvement; or imminent threat of removal of children from the home by

the Department of Social Services.
Addicts simply did not show up voluntarily for treatment.

That did not have anything to do with the morals, values, or beliefs of the
women, their levels of education or income. It had nothing to do with

whether or not they loved their babies. It is simply the nature of addiction.

People who say, “If she loved me she would quit drinking” do not
understand the nature of addiction. People who say, “If she would put God
in her life”, or “If she cared about her baby she would quit using” don’t

understand the nature of addiction.


American
Academy of
Pediatrics

Department of Government
Usison

‘Amercan Academy ol Padiatnes
‘Tne Heme: useing
{601 Thiteertm Street, NW

Executive Commitee

President
ddoseph 8. Zanga, MD
‘Vice President
oat Alpes, MD

Past President
oben € Hannemana, MO

Executive Director
Joe M. Sanders, Jr, MO

Board of Directora

Gilbert L, Fula, MD
Koena, New Hampshire
Louis Z. Cooper, MO

New York, New York
‘Susan Aronson, MO
‘Narperh, Pennsylvania

E, Stephen Edwards, MD
Fateh, Nomh Carolina
Stantocd Singer, MD
Soutntels, Michigan.
‘Ordean L Toxstenson, MD
Madison. Wsconsin
Carden Jonnsion, #0
Barmeighars Alabama
Bonala € Coon, MO
Greeley Caiorao

vey Cease 0

San Francisco, Catteraia

1738

July 22, 1998

The Honorable J. Dennis Hastert

Chairman, Subcommittee on National Security, International Affairs and
Criminal Justice

Committee on Government Reform and Oversight

United States House of Representatives

B373 Rayburn House Office Building

Washington DC 20515

Dear Chairman Hastert:

‘The American Academy of Pediatrics (AAP) is pleased that the Subcommittee
on National Security, Intemational Affairs and Criminal Justice is holding
hearing to discuss the issue of substance abuse and pregnant women. This is an
issue of great importance to the AAP and its 53,000 primary care pediatricians,
pediatric medical subspecialists, and pediatric surgical specialists dedicated to
the health, safety, and well being of infants, children, adolescents, and young
adults. The AAP requests the opportunity to offer this letter as a written
statement for inclusion in the hearing record.

Prenatal alcohol and drug exposure are preventable causes of such complications
as premature birth, low birth weight, impaired fetal growth, as well as birth
defects and neonatal seizures, mental retardation, neurodevelopmental deficits
and developmental and learning problems. Studies have documented that an
increasing number of women of childbearing age are using licit and illicit
substances. Although statistical data are insufficient, there are indications that
approximately 1 in 10 infants may have been exposed to illicit drugs in utereo.

These statistics are of grave concer to pediatricians. Once a child is born,
pediatricians act as primary medical caregivers to those who were exposed to
<drugs and alcohol during pregnancy. These children face long-term
manifestations of their exposure.

However, the Academy is concemed with some approaches states are taking to
address this issue. In general, a coordinated multidisciplinary approach, such as
involvement of Child Protective Services, in the development of a plan without
criminal sanctions has the best chance of helping children and families. The
‘Academy believes that substance-abusing pregnant women must be assured of
nonpunitive access to healthcare. Punitive measures may have the affect of
deterring women from seeking prenatal care, thereby reducing their ability 10
access substance abuse treatment

The Amencan Academy of Pecatnics comenttes lathe attanmien of aetmal physica!

‘mental and social Mean lor nants. chicren adolescents. ara wna aul


101

Law and Medicine su

Helene M. Cole, MO, Section Eaitor

Mandatory Treatment for Drug Use

During Pregnancy

Wendy Chavkin, MD, MPH_

(THE CRACK epidemic is unique among American drug
‘waves because of the high level of involvement of young
‘women. In response to this, there have been attempts to
impose criminal sanctions on pregnant women who use drugs
or aleohol. To date, there have been 50 efforts to prosecute
‘women for using drugs or alcohol while pregnant, with two
convictions, and atleast seven states have legislation pending

that would alter child laws to encompass drug use
during pregnancy under the rubric of fetal abuse.** Fueled by
contested political controversies; such as the legal sta-

ee dit

apy, indication of a decline in rearrest rates after treatment,
‘oF proof of iong-term abstinence from drug or alcohol use?

Failure to define clearly both the outeome parameters and
Lhe comparion groupe, compounded by problem of measure
‘ment and follow-up, limit the usefulness of many of the evalu-
‘ations to be deseribed. Nevertheless, these are the only data,
‘available from which to attempt inferences about efficacy and
thus to empirically make a basis for policy.

MANDATORY TREATMENT

hhas generally polarized between therapy or sanction.

‘Soe also pp 1521 and 1567.

Some have proposed mandatory treatment for pregnant
‘women as a compromise. This article examines other experi-
fences with mandatory treatment to assess whether such

stance abuse during pregnancy, and whether mandatory
treatment during pregnancy is consistent with American val-
‘ues and should be recommended as social policy. This diseus-
sion will focus on the pregnant addiet who has not committed a
criminal ect and has not come to the attention of eriminal
Justice or psychiatric or other authorities for reasons other
than the combined conditions of pregnaney and addiction,
‘The US experience with mandatory treatment of chemical
dependency comprises three general groupings or models: (1)
‘mandatory treatment in the law enforcement context; 2) civil
commitment; and (3) treatment mandated as a precondition
for obtaining a privilege. Clearly, attempts to determine the
efficacy of any of these approaches must refer to some alterna
tive approach. Does mandatory treatment work better than
voluntary treatment, no treatment, inearceration, detention,
‘orloss of privilege? Which outcome parameters will be used to
‘measure success: duration in treatment, participation in ther-
EER Seri Deen raise, Sa Mal Crt Horo

Schoo Puc eal Now Yor
"“Srecpncra a nese tt aur we acer sn
pon resume Chere

vesponsoy
reavests ‘Oopencency iste, Bate! Mecca! Carte
seat hvense 6h Sven hee Yo 0 aE (Or Cre)

1556 JAMA September 18, 1991—VoI266,No 12

Low:

Mandatory treatment in this context refers to providing
treatment as an alternative to trial or incarceration for those
“arrested or convicted of crimes and found to be drug users.
Failure to remain in treatment renders one liable to criminal

prosecution and penalty.
‘The United States has had several significant experiences
with ‘treatment: the US Public Health Service

mandatory

hospitals in Fort Worth, Tex, and Lexington, Ky, instituted
compulsory treatment programs in the 1990s for addicts con-
victed of federal crimes, These programs were followed in the
carly 1960s by the California Civil Addict Program; in 1966 by
the Federal Narcotic Addict Rehabilitation Act and by New
‘York's Narcotic Addiction Control Commission; and in 1972
by the Federal Treatment Alternatives to Street Crime."

Erforte to evaluate these programs have been plagued by
shorteomings in defining program content, target population,
‘and outcome; by difficulties regarding follow-up; by varia-
tions in program quality; and by other basic structural and
methodological problems. Studies of these programs have
‘compared addicts mandated to treatment with those who
voluntarily participated, rather than with those incarcerated
without treatment, and the studies have generally looked
solely at male subjects.

Evaluation of the US Public Health Service experience
reported inconsistent results as to whether addicts legally
compelled to treatment reduced drug use more than volun-
tary participants.* While Anglin® concluded that the Califor-
nia Civil Addict Program was effective in reducing drug use
and criminal activity, Barry’ claimed that the program site

Mandatory Drug Teatmentin Pregnancy —Chaviin

‘Reoined tom MRS The Jaro te krain Made! so0ta0

Cconyign 1990 American ee


26

Joanne B. Huelsman ——

WISCONSIN STATE SENATOR

‘TESTIMONY OF WISCONSIN STATE SENATOR JOANNE B. HUELSMAN

Before the House Government Reform and Oversight Committee's
Subcommittee on National Security, International Affairs and Criminal Justice
Subject: Wisconsin's “Cocaine Mom” law
July 23, 1998

t would like to thank Chairman Hastert and all committee members for this
opportunity to tell you about 1997 Wisconsin Act 292, which has been commonly
referred to as Wisconsin's “cocaine mom” law. The faw took effect July 1, 1998.

| authored and Introduced Act 292 to address a specific problem: how does
society provide treatment for women who are pregnant, who have every Intention
of bringing their ncy to term, and who repeatedly refuse to seek treatment
for severe and chronic alcohol or drug abuse, or who even refuse such treatment
when itis offered to them?

That Is the problem we sought to address. We believe Act 292 offers some
valuable, if admittedly partial, solutions. We do not pretend that it is a panacea.

Untreated and chronic abuse of alcohol and during pregnancy Is a
devastating public health problem. The effects of this problem are felt most
profoundly by the thousands of disabled children born every year to alcchol- and
drug-addicted women.

Severe alcohol and drug abuse by pregnant women — during any part of the
pregnancy ~ can cripple a child for life.

Fetal Alcohol Syndrome alone Is the leading known cause of mental
retardation in America. Fetal Alcohol Syndrome surpasses both Down's syndrome
tnd spina bifida in frequency... According to the Centers for Disease Control, the
Percentage of bables born In America with Fetal Alcohol Syndrome hes increased
six-fold since 1979.

Unlike other disorders, however, the damage caused by alcohol and other
drugs is 100% preventable.

STATE CAPITOL PO. Box 7862, Madiaon Wi 52707-7882 - 608-266-2605, 8
WAUKESHA: 235 W. Broadway, Suto 270, Watkesha WI 58186-4832 «414-521-5010 of 414-523-5165
Irtamet Adioss: Mtpfbadger sata wusfagancieswiiiseratesentt/sentTM hin! + E-nait Sen Huelsmand@egis sate wis
“otoe Legislative Hote: 1-800-362-WISC (9472)



22

It’s important to note that, while the welfare of the fetus is
placed first (perhaps because the unborn child is the family member
least able to take care of itself), the mother’s health is also of
immediate concern. So is the well-being of other family members.

Under current policy, the Department of Social Services is
the lead agency in the case even when an investication reveals that
the law has been broke:

If the mother refuses to cooperate, does a law enforcement
agency move in? No. The current policy reads: "Should the mother
refuse to voluntarily cooperate with the treatment plans,
Department of Social services shall petition the family court for
authority to intervene."

In such a case, the likely intervention would be involuntary
commitment of the mother to a drug treatment program. As the
protocol states: “The intervention of Department of Social Services
should include a requirement that the mother and other household
members complete a treatment program certified by the Department of
Alcohol and Other Drug Abuse Services, if appropriate.”

Up until this point, nothing has been said about the
prosecution of a mother by law enforcement agencies. After the
child is born, DSS continues to monitor the case.

Only at this stage does the protocol talk about the legal
aspects. First, the policy requires medical professionals to
report abuse to the County Department of Social Services. (By the
way, this is the same policy in force for cases of abuse among

children who are already born.)


‘ey of Such Mandatory Programs Should Be Conducted.
‘Legal justification for eompulzory treatment because of preg-
nancy would have to resolve questions of sex discrimination,
and outcome parameters for evaluation of efficacy need to be
specified in terms of reduced drug use, reproductive outcome,
‘or parental function.

CONCLUSIONS

‘Thereis a lack of rigorous research data to substantiate the
effectiveness of compulsory treatment in general. Since nei-
ther outcomes nor comparison groups have been clearly speci-
fed, we lack 2 firm database from which to judge efficacy.

ly with male subjects. Data from the National Institute on
Drug Abuse document that treatment programs often fail to
address the specific needs of female addicts, suggesting thatit
is incorrect to extrapolate to women from the experience of
men in treatment. Pregnancy adds another dimension of spq-
cific need, presumably further limiting the relevance of stud-
‘es with male subjects.

Data have {indicated that concern for children
often motivates addicted women to seek drug treatment and
that Iaek of services for children precludes women’s ongoing
icipation." There are also descriptive profiles of female

datory treatment, and we lack evidence to compare the effica-
cy ol there diferent sproaches. Sines imposing mandatory
treatment involves depriving the person of liberty,

dings.
LCeolnfeld CG, Thom FH, eda. Compulsory ‘Drag Abus: Re-
search ond 9, Rockville, Md: National Jtate ox Drag
‘Abuse; 1998296268. US Dept of Feat and Human
pips Serie
(Anglin MD. The efcacy of ci comment in treating nareatic addition.
ac Leukefeld OG, Tima FM, eda, Compulsory Treatment of Drog Abus:
Rassarch nd ‘Reckvile, Md: Netiooal netitate on
‘ame 8683, US Dep Heath and Homan Servot

Serien

Tonlderaticon on the elisa
nce = sc Se

‘require demonstration of euperior
less intrusive measures.

‘The general failure to define outeome parameters by which
to assess mandatory treatment is even more obvious in the
case of pregnancy because ofthe conceptual fuzziness charac-
terizing the whole venture. Mandatory treatment specifically
aimed at pregnant women does not correspond with any ofthe
Jegal models invoked to justify its other applications.

Efficacy is only one measure to be considered when formu-
lating policy; protection of constitutional rights and further-
‘ance of public health and other social goals are critical yard-
sticks as well. Experience suggests that establishing policy to
compel pregnant women into treatment may exacerbate cur-
rent social inequities affecting women in general and poot
minority women in particular. The tack of coherent theoreti-
cal or data-driven reasons to support mandatory treatment
for pregnant women underscores why some suspect that its
pplication may be diseriminatory.

‘There are alternative strategies for decreasing fetal and
‘maternal exposure to toxie drugs and for bolstering families.
‘These include enhancing drug treatment services to better
meet the needs of pregnant and parenting women and ensur-
ing that such services are readily available and appear wel-
‘coming and useful to potential clients. Indeed, in the eurrent
context of the scarcity and poor quality of drug treatment
programs for womenmothers, a debate over mandatory
‘treatment is symbolic at best and is meaningless in practical

1580 JAMA, September 18 1991—VoI266.No 17

‘ine Togo US Dept
ves peo ADM BO18Teeareh Menge

Some policy implications of the New York State vil eomitment
regen aot
0. Foster Conk

"he
Drug Abuse: Research ond Clinical

1, Simpaon D, Wayne D, Pend IU. Legal status ad lng term outomes for
addiew in the DARP Ialow-ip aad 6 Ta FM, ee
Co ‘ieeiment of Drag Abuse: Research and Clinical Practice. Rock:
bse 1S8887 98. US Deptt Health and
Monograph Series.
Te Leuketl
‘Rockvile, Ma. National Inte on Drug Abuse: 198816077 US.
Devt Heath and Human Service publication (ADM) 61978. Research

15. Mowe R, Reed B, Covell C, Women in drug abuse trestment

Lee Action Center: 198
(7 Presidents Commisnon on Law Enforcement and the Administration of
Susie Task Poce Ror: Nattoed nd Brag Abuse. Washingtan, DC
“Government Priting Ofc; 1967.

‘Mandatory Drug Teatmentin Pregnancy ~Chavin


162

ering babies and showing cocaine in their system, again, I only see
two explanations. Either, one, the women don’t come to the hos-
pital; or two, the cocaine use has in fact dropped among pregnant
women.

What has your study shown, or what do you believe are the rea-
sons?

Ms. MARSHALL. Well, the hard data that we do have from the
prevalence study and from data at the Medical University of South
Carolina have shown that substance abuse, as we know, it mirrors
the national data, that it crosses all racial and socioeconomic bar-
riers. But we do know that there are influences that ethnicity, race
does factor into the sorts of substances that are used.

So I think part of the picture is you find what you look for, and
as was stated earlier, if you had. a situation where there was
screening of every pregnant woman, whether it were anonymous
screening or not, then we would have some knowledge of true inci-
dence of substance abuse.

But when you use certain criteria that are partly objective and
partly subjective to say, well, I am going to test you and not you,
then I guess I would maintain it is hard to make any empirical
claims about incidence and use. And we don’t have those sorts of
data in South Carolina. They don’t have them from the original
interagency policy and really don’t have them now. So it would be
hard, think, within the context of pregnant women, to make any
claims.

Mr. BARRETT. So there have been no studies done in South Caro-
lina measuring the——

Ms. MARSHALL. Well, the data that we have are women who have
been tested for various reasons. And that is because a clinician has
chosen to test a woman for a reason that he or she has been deter-
mined, late prenatal care, no prenatal care, abruption, prior history
of substance abuse.

Mr. BARRETT. There is no testing at birth as to whether there is
cocaine in the system.

Ms. MaRSHALL. There is no automatic testing.

Mr. BARRETT. Thank you. I have no further questions, Mr. Chair-
man.

Mr. SOuDER. I want to just make a few closing comments. One
is that this is probably somewhere near our 30th or 35th hearing
on the drug issue for this subcommittee since the Republicans have
taken over Congress, so it is in the last 4 years. And we have heard
a lot of data.

I represent Ft. Wayne, IN, which is generally considered for the
last number of years, has had the greatest crack problem vis-a-vis
its size—it came down initially from Detroit, Ml—and so I have
been focused when I was a staffer, as well as a member, particu-
larly on the crack problem. By saying I am concerned about all
drugs, as we watch methamphetamines come, as we watch alcohol
and tobacco, the uniqueness to crack that we all know who are in
the field is that it particularly hits young people, and particularly
it has hit the urban centers.

The reason crack was focused on in Congress was actually
through Congressman Rangel, who said we have a big problem
that’s burst out in the urban centers. And in Ft. Wayne, that has


165

Drug and Aleohot Dependence, $1 (1993) 199-208
‘Elsevier Scientific Publishers Ireland Ltd.

Punishing pregnant drug users: enhancing the flight from care

Marilyn L. Poland*, Mitchell P. Dombrowski‘, Joel W. Ager? and Robert J. Sokol*

“Department of Obstetriza/Gynacology and ‘Department of Prychology, Wayne State University, 4707 St. Antoine, Detroit, MI
48201 (USA)

(Accepted May 29, 1992)

One forty-two low i sreum to determine their attitudes regarding the potential
tec of «pve ion the never of mtn ang regan women The convene mpl ns primar black
(85.2%) and single (81) and 14.8% admitted use of ice drugs during pregnancy. A goodness-of-fit chi-square analysis reveal
‘ed that subjects believed a punitive law would be a sigz‘Scant deterrent to substance-using gravida seeking prenatal care.
testing or drug treatment (P < 0.01), Comments indicated that substanceusing pregnant women would ‘go underground’ to

avoid detection and treatment for fear of incarceration and loss of

Key words: pregnancy; substance use; incarceration

Introduction

Drug abuse in the United States has increased
alarmingly over the last decade. Micit drug use
is associated with adverse pregnancy outcomes
including an increased incidence of perinatal
mortality, prematurity, intrauterine growth
retardation, abruptio placentae and other com-
plications, (Dombrowski et al., 1991) It is clear
that effective intervention is necessary to
reduce the morbidity and mortality due to drug
use. However, there is no consensus whether to
treat drug addiction as a criminal or medical
matter (Moore, 1990).

‘Many believe that punitive legislation is the
best response to the growing problem of drug
abuse during pregnancy because it is seen as
keeping mothers away from drugs. As a result,
stveral states have recently enacted laws which
consider positive drug toxicologies trom

Correspondence to: Marilyn L. Poland, Departcent of
Obstetrics and Gynecology, Wayne State Universitr, 4707
St. Antoine, Detroit, MI 48201, USA.

their children,

neonates or their mothers as prima fat
evidence of child neglect or abuse (Cha
1990). An alternative view is that punitive laws?
would worsen pregnancy outcomes due to
chemically-dependent women avoiding prenatal,
care and drag treatment in an effort to prevent
detection. Unfortunately, major policy decisions
are being made in a virtual absence of pertinent
data,

‘The purpose of this study was to investigate
the attitudes of women from an at-risk popula-
tion regarding whether or not pregnant drug-
abusing women should be prosecuted and the
potential effects of a punitive law involving in-
carceration on the likelihood of these women ob-
taining prenatal care and participating in drag
testing and treatment programs.

Patients and Methods

Sample

A convenience sample of 142 low-income
women who received varying amounts of
prenatal care and who delivered at Hutsel

0376-8716/98/506.00 © 1993 Elsevier Scientific Pslishers Ireland Ltd.
Ireland

Printed and Published in


169

incarceration might affect access to care.
Women who use illicit drugs are significantly
less likely to seek prenatal care even without
punitive laws (ACOG, 1990). They do so due to
their involvement in a drug lifestyle and to avoid
being labeled as drug users by professionals who
are often seen as judgmental (Finnegan, 1991).
Our survey confirms that women who use drugs
receive less prenatal care. However, for some in
our survey, pregnancy is an incentive to reduce
or stop drug use. It is these women who may
avoid medical care if punitive laws are in effect.
It is of interest to note the number of women
‘who used drugs who felt women should go to jail
W = 4). Three managed to stop on their own
and wanted to punish women who could not. One
was a chronic user who wanted jail as a form of
mandated domiciliary care. It is unknown what
effect policies would have that mandate drug
treatment in the form of domiciliary care. This
and not jail, may provide the external control
needed to help those who cannot reduce drug
use any other way. Future studies should ex-
amine attitudes and behaviors of women before

and after a variety of laws are implemented to
better understand their impact on drug use and
prenatal care.

References

ACOG (May 1990) Many Disagree with Punitive Approach
‘To Stemming Drug Abuse During Pregnancy, ACOG
co Neraein ay 1990 Vo. 34, No.5.
javkin W. (1990) Drug addiction and pregnancy: policy
crossroads. Am, J. Publ. Health 80, 483-487.
Dombrowald M.P., Wolfe HM., Walch R.A. and Evans M.I.
(2991). Cocaine abuse is essociated with abruptio placen-
fae and decreased birth weight, but not ahora labor.
Odstat. Gynecol. 77, 189-161.

Poland ML, Ager J.W, and Olson J.M, (1987) Barriers to
receiving’ adequate prenatal care, Am. J. Obstet
Gynecol, 157, 297 - $08.

Poland M.L., Ager J.W., Olson JM. and Sokel R.J. (1990).
Quality of prenatal care, selected soil, behavioral and

medical factors on birthweight. Obstet, Gynecol. 75,


34

restrictive environment such as the home of a friend or relative, a hospital, a
Community Based Residential Facility, a drug treatment facility or a mental
health facility; and,

4, For the appointment of advocate counsel for the mother; and,

5, For the option a jury trial.

Despite the best efforts of opponents to mischaracterize the effects of the Wisconsin law,
this law does not put pregnant women in jail or allow the state to intervene in all poor
choices made by pregnant women. The law does not authorize the institution of the
pregnancy police who will circulate through Wisconsin rousting women who may make
poor nutritional or hygiene choices during pregnancy.

Most importantly, the law promotes the position of those who will be born in our society
and gives them the right to be born healthy and drug free.

Critics of the Wisconsin model argue that women will believe that they will be incarcerated
and held in prison despite the fact that the express language of the law states to the
contrary. Such critics also decry the Wisconsin model as some sinister attempt to infringe
on the rights of women and fo encroach on the rights of women recognized in the seminal
case of Roe v, Wade, 410 U.S. 113 (1973) as confirmed in the case of Planned Parenthood v.
Casey, 505 U.S. 833 (1992). The reality is that such critics are themselves the creators of
the very perceptions that some women may have. By continually mischaracterizing the
direction and effect of the Wisconsin law, these extremists spread the very fear that they
then criticize the law as providing. This is a clear attempt to set up a straw man issue and
knock it down despite the express language contained in the Wisconsin model. This
attempt is contemptuous.

Moreover, the critics need to look no further than the cases of Roe and Casey to
understand that the Wisconsin model is well grounded in established precedent. Both the
Roe court and the Casey court discussed the compelling state interest in insuring that the
to-be-born-life was protected. In short, neither Roe nor Casey stood for the proposition
that if'a mother chooses to carry the child to term that she had unfettered discretion
regarding the product delivered into our society. Pregnancy does not provide an “open
season” of those children who will become members of our society. In many respects, the
Wisconsin model use the precedents of Roe and Casey to provide the legal foundation for
the law, and, thereby, solidifies such precedents in legal history.

Many of the critics of the Wisconsin model promote themselves as the protector of
individual freedoms. What is missed here, however, is that frequently the law must
balance the rights of individuals to insure that all are provided such freedoms. In Angela’
case and in too many cases in Wisconsin and across the nation, the right of the individual to
be born healthy and free from the effects of drugs and alcohol is ignored. The Wisconsin
model seeks to establish the balance between individuals, both born and unborn.


115

Pregnancy provides a window of opportunity for women with al-
cohol and drug problems. Every day at Meta House we get phone
calls from women who are pleading for help: They literally say they
are afraid they are going to hurt their babies with their drug use,
and they want treatment. But now when they call, they ask if we’re
going to turn them in. This is not a simple issue.

Pregnant and parenting women who use drugs often have very
complex histories. Over 95 percent of the women in treatment at
Meta House of a history of being brutally abused—sexually and by
other types of violence. Over 65 percent of the women also have a
mental health diagnosis in addition to their alcoholism and drug
dependence. And poverty often exacerbates the stress and illness
that many of these women and their families face.

The treatment offered at Meta House helps to reduce and allevi-
ate many of these problems. The women stay at Meta House from
9 to 18 months, and participate in an expanded after care program.
During the residential stays, women to learn to identify what feel-
ings are behind their addiction and then how to cope with these
feelings. They learn about health care, nutrition, parenting, and all
the other basic living skills. They also can resume their education
and find employment in housing. In addition to that, Meta House
also provides all the services that are necessary for the children to
help them recover from the effects of substance abuse, and also to
prevent these children from using drugs in the future.

The data certainly demonstrates that appropriate treatment does
work for the child and the family, as well as for the mother. I
would encourage this subcommittee to support treatment. This can
be done by supporting the increases allocated by the House Appro-
priations Committee to public alcohol and drug treatment and pre-
vention funding. In Milwaukee County, funding has already been
stopped on many occasions. We are already capped at 44 people for
only 3 months of treatment.

Health and substance abuse professionals agree that providing
alcohol and drug treatment to pregnant and women with children
is the most effective way to reduce the negative impact of sub-
stance abuse on children, their mothers, and their family. However,
policies that are punitive in nature, such as Wisconsin’s and South
Carolina’s are not only ineffective in addressing substance abuse,
they actually may increase the likelihood of negative birth out-
comes for children of addicted mothers.

Exemplary public policy focuses it’s impact on the good that it
does for the majority of the people affected. Meta House and other
programs of it’s kind have demonstrated their confidence to
produce long term changes in women’s ability to raise their chil-
dren and to live drug free, law abiding lives.

For these reasons, we need legislation that will help women feel
safe so they will access their prenatal care and enter treatment.
We must increase the appropriate treatment opportunities for preg-
nant women and women with children. It is imperative and the
most sensible public policy to support.

Thank you for providing me with the opportunity to testify, and
I too would be happy to answer questions.

[The prepared statement of Dr. Feinberg follows:]


136

long lasting. This is evidenced by the ongoing legacy of the Tuskegee experiments. which has
occasioned conspiracy theories about the HIV virus. which effects organ donation (lower among
Blacks) and devisions regarding end-of-life care (Blacks request more aggressive therapy at the
end of life) due to mistrust of the medical establishment.

The discriminatory application towards racial minorities of criminal sanctions against
perinatal substance abuse fosters deep and abiding mistrust of important social institutions.
Policies such as the Interagency Policy in Charleston South Carolina, in which 40 of 41 women
arrested for perinatal substance abuse were Black. or in Greenville, S.C. in which 86 of 109
women charged with child abuse as a result of perinatal substance use were Black. or biased
screening and reporting programs such as the one in Pinellas County. Florida undermine the
foundation of the law and trust in the health care system. Several studies have shown that
substance-abusing pregnant women mistrust “the system” as a result of negative encounters with
social service and criminal justice agencies."” This fear and distrust transfers to the clinical
encounter, where women may experience violations of privacy and confidentiality. and where they
may encounter physicians and nurses who are racially biased or judgmental and who readily report
perinatal substance abuse to state authorities. This distrust has a chilling effect: substance abusing
pregnant women may forgo early prenatal care or substance abuse treatment for fear of losing
their children or of being arrested.”* The Southern Regional Project on Infant Mortality showed
that the most frequently reported perceived or experienced barriers to substance abuse treatment
for pregnant women included
1. Fear that their children will be taken away:

2, Shame about being an alcoholic or drug addict
3, Depression which caused inaction: and


58

the onset that just helping an addicted pregnant mother to achieve
abstinence and a healthy baby was not enough. In 1991,
Haymarket established postpartum programs to allow mothers to
continue in treatment following birth. These programs, which allow
babies in residence with their mothers, integrate parenting with re-
covery. They assist mothers to gain tools for self-sufficiency and to
reenter society as productive citizens and healthy parents.

Other program and supportive services have been integrated into
our continuum of care in order to holistically meet the clients’
needs, They include child care, transportation, 24-hour prenatal
care and medical monitoring, domestic abuse services, nutrition as-
sessment, recreational therapy, parental stress programs, and link-
ages to other medical, dental, and psychiatric needs.

Our outpatient programs, specializing in aftercare, provide cli-
ents with an opportunity to complete the transition from chemical
dependency treatment to a productive lifestyle.

The continuum provides clients with a comprehensive and inte-
grated range of treatment programs, which are gender-specific and
culturally sensitive. Clients are encouraged to address their issues,
including all negative and criminogenic behavior, as they progress
along this continuum of care, and are afforded the opportunity to
infuse faith and spirituality in their recovery. By working through
these levels of care and transition, our clients gain identity, em-
powerment, confidence, and self esteem.

Mr. Chairman, studies have shown that great cost savings can
be associated with investing dollars into treatment programs, espe-
cially those for pregnant, postpartum, and parenting women. Our
treatment outcomes continue to show positive findings. However,
as the number of women we treat and our positive birth outcomes
continue to grow, so does our demand for treatment.

In addition to the savings connected to treating the mother, there
are significant savings to be realized by delivering drug free in-
fants. The expense of intensive hospital care for each drug affected
newborn in need of medical services ranges from $20,000 to
$40,000 per month. The average total cost of care from birth to age
18 for each drug exposed child is minimally $750,000, according to
the GAO.

The Haymarket programs, at a cost of about one-tenth of hospital
care, are less than $3,000 per month per client, and significantly
more cost effective.

Mr. Chairman, and members of this subcommittee, we believe
that the drug abuse treatment community is doing an exceptional
job to serve these clients. The biomedical factors of the disease of
addiction have been documented extensively in NYTA research.
The disease of addiction does not discriminate on the basis of race,
creed, ethnic origin, age, sex, or socioeconomic background. It is im-
perative that we work to assist those who are most vulnerable to
the dangers of addiction, mainly addicted mothers and their babies.

As Congress determines the direction of Federal emphasis on
drug control policy, I urge you to recognize the value of treatment
for pregnant and postpartum women and their children, as a wor-
thy and cost effective investment of Federal, State, and local re-
sources.


112

Lynn M. Paltrow | 46

‘who is a substance abuser.” Real solutions would
include making available reproductive health services,
induding

<drug treatment and education. And, finally, prosecu-
torsand lawmakers must stop pretending that the-rimi-
ral prosecution of pregnant women isa quick fix for the
problems of drug addiction when we have known for
‘years that drug abuse, like most other causes of infant
mortality, solutions

long-term
whichis presently beingused toarrestwomenand place involving significant commitments to rehabili-
their children in foster care, must be made available for tation, treatment, and education

NOTES
‘Theauthor would liketo thank Hilary Fox and LouiseMelling Infants and Children: Hearing before Senate Comm. on Govern-
for their excellent editorial assistance. val TOlst Cong. st Seas, 1 (1989) (estimony of

1 Maller v. Oregon, 208 US. 412, 421 (1907).

Elaine hereinafter cited as Missing Links).

13 State of Florida v. Johnson, No. E89-890-CFA, (Fa. Cir.Ct
Jal 16 appeal oct No.01765(Fa Dat. Cx App.

Mi

15 Letter from Sam W. Esq, toLynnPaltrow Gan.22,

1990) (on file with the ACLU Reproductive Freedom Project)
Asi pojdont saan Aion
{industrial pbs could 16 Cot
fp ain to lead p eal take” Pear iad ‘in this country. ‘Smits men aed De
Je wren anf ANNALS OF INTERN. MeD. 2,3
€1906,Morever, theres no federal funding for sboron and
3 Anupdated list of casescan be obtained from the American do not provide tether. Cod ub
Civil Liberties Union's Reproductive Freedom Project, 132 W. offal Sterilization and Abortion Services,
4Grd Street, New York, New York 10036, 228, 233 (1988).

4 sth Tip of oberg in Protecting Infants, US.A. Too, A
25, 1989. * %

5, Ellen Gost Hilary Fox, ACLU RerauctiFra Pro
ec nia Report Por and Pregnant? De Cota South Crna

6 Eisenstadt v. Baird, 405 US. 438, 453 1972)
J.B Ht: Contin he Perinatal S
sok the Sit Cokie

bate
‘Cong, let Sese.2(April27, Fe creat
st
‘George Miley, Chara Sele

cf
Garin on CNicren Youth ec Paes)

‘8 Chavkin, Help, Don't Jail, Addicted Mothers, N.Y. Ti
suyie ara =e

9d.

40 Lars, Birt Bad a: jling Mathers for Drug Us Tt
Namion, May 1,

11 Malaspina, Clean Living, Guose Macazve, Nov. 5,1989,at

12 Missing Links: Coordinating Federal Drug Policy for Women,

17 Some women who choose to have an abortion do so
us /eannot respons) -
tances whe sung om 2h aicion or other ea
problem, Azone woman explained

1 February, 1982, Thad an abortion...

‘ould not manage my ow fe. The prospect of « baby was over-

‘whelming..- chose to have an abortion «
Teontinued efforts toward recovery, and with the help of support
(Of AA. Thave not had a drink since Apri 13, 1982

Excerpt from Bi forthe Amc Curie Women Whotiave Had

‘Abortions and Friends of Amici Curie in Support of Appellees
a1L-216by SarahE. Barns, NOW Legal Defenseand Education
Fund, Webster. Reproductive Health Services, 1095.Ct,3040
(1989) (No, 88-665).

18 Coakley, Suspect Is Said to Be Battered, Frightened, Boston

‘Criminal Justice Ethics


16

30 Bulletin on Narcotics, vol. XLVI, No. 1, 1994

delivery a mother takes a narcotic, the greater the delay in the onset of
withdrawal and the more severe the symptoms in her baby. As noted, the
maturity of the infant’s own metabolic and excretory mechanisms plays
an important role after delivery. Because of the variable severity of the
withdrawal, the duration of symptoms may be anywhere from six days to
eight weeks. Although the infants are discharged from the hospital after
drug therapy is stopped, their symptoms or irritability may persist for
more than three to four months [41].

The final impact of prenatal drug exposure has many ramifications
when the pharmacologic agents are complemented by the severity of the
various above-mentioned maternal complications and the environment
into which the infant is born. Without comprehensive services to mother,
infant and family, some or many of the problems illustrated in figure IL
may occur.

Infant mortality

Among the major causes of infant mortality in drug-exposed infants
are low birth weight, prematurity, birth defects, sudden infant death syn-
drome (SIDS), or cot-death, and child abuse. Given the increase in
obstetrical and medical complications, the lack of prenatal care, and the
increase in low- birth-weight infants, it is not surprising to find that the
mortality rate in infants born to drug-dependent women is markedly
increased. With the advent of newer techniques for the care of sick new-
born infants, however, mortality rates in the 1980s decreased markedly.
It has been shown that mortality can be reduced if prenatal care and
comprehensive substance abuse services are provided for pregnant
substance-abusing women [42].

SIDS is defined as the sudden and unexpected death of an infant
between one week and one year of age, whose death remains unexplained
after a complete autopsy examination, full history and death site investi-
gation. Compared with an incidence of approximately 1.5 per 1,000 live
births in the general population, a number of studies have found increased
rates of SIDS in opiate-exposed infants [43-48]. It is critical to remember
that other high-risk factors for SIDS such as low socio-economic status,
low birth weight, young maternal age, black ethnic background and
maternal smoking are all overrepresented in the drug-using group. The
most extensive study has been done by Kandall and others [49], who
studied SIDS rates in 1.21 million births in New York City from 1979 to
1989, Maternal opiate use increased the risk of SIDS about sixfold; after
control for high-risk variables, the risk of SIDS was still three to four
times that of the general population. An extensive review of maternal
drug use and subsequent SIDS has been published recently by Kandall and
Gaines [50].


28

We approached this issue as a child protection issue. | have spent a great
deal of my legislative career working on issues related to both child abuse and
domestic abuse.

‘The issue we are talking about here is child abuse. That is the reality. That
is the end result. All the hand-wringing and excuse-making in the world will not
change that reality.

We do not excuse the behavior of people who abuse their children or who
abuse their spouses, even when that abuse is intimately and causally related — as it
often is ~ to alcohol or drug addiction. Rather than excusing or justifying their
behavior, we usually require them to get treatment.

Prior to passage of Act 292, the only way Wisconsin law could deal with
Pregnant women who engaged in chronic and severe alcohol or drug abuse was
as criminals in the criminal justice system. We felt that approach was inadequate.

In contrast, Wisconsin Act 292 allows a humane and remedial - as opposed
to punitive — approach to such cases. Act 292 provides treatment, not
incarceratior

Now, | want to tell you about a few of the major objections that were raised
by the political opponents of this bill.

The most disingenuous objections came from groups that told people
certain thi bout Act 292 that pa ly are not true, fhen came back to us and
said, “Your bill is scaring our clients.”

Let me give you three specific examples of the type of histrionic scare-
mongering that we encountered. In each case, the statements made about Act 292
are simply not true. In each case, these groundless fears were fostered and spread
by the very people who then used them as a reason to oppose the bill.

The statement was made to me repeatedly, “This bill will scare pregnant
women away from treatment because they will lose their children.” Nowhere does
Act 292 say that treatment under this bill can be used as the grounds for
termination of parental rights.

The claim was also made — repeatedly by some — that Act 292 authorizes the
incarceration of pregnant women who abuse alcohol or drugs. This also is simply
‘not true.

Here is what Act 292 does do: the law allows courts to order treatment-
resistant pregnant women to enter into AODA treatment ~ including inpatient
treatment — but never behind locked doors.

Here is what Act 292 does not do: it does not authorize the incarceration of
pregnant, drug-abusing women. As a matter of fact, nowhere in the law is any
authority for any type of secure detention created.

Finally, it was repeatedly claimed that Act 292 will scare pregnant, addicted
women away from treatment professionals because they will fear being reported.


94

Wendy K. Mariner, Leonard H. Glantz, George J. Annas | 34

taking and their environment contribute significantly to
their developmental functioning.

‘Women who use drugs typically are beset with prob-
emsin addition to substance abuse—from lack of hous-
ing and income to family difficulties—that contribute to
poor birth outcomes. Yet, when a bad outcome occurs,
it is easier to blame it ona drug the women took during
[pregnancy than to recognize the constellation of pos-

sible causes. As a practical matter, it seems almost
impossible to satisfy the standard of proof of causation
ina criminal prosecution, given the complexity of fetal
development and the multiplicity of factors thataffectit.
While drug use is certainly a risk factor, focusing on
drugs drawsattention away from the much more global
problem of inadequate prenatal care.

Sources of Harm

If harmis whatis tobe prevented, then the source of the

fail to get adequate prenatal care or proper nourishment
should be prosecuted. This approach was used in
California when Pamela Rae Stewart's baby died six
weeks afterbirth. She was prosecuted not just for taking
amphetamines but also for disregarding her physician's
advice to refrain from sex with her husband and toget to
the hospital at the first sign of bleedingTM ‘The court
dismissed the criminal action on the grounds that the
child support statute under which it was brought was,
rot intended to apply to refusals to follow physician’s
orders.” Amending the statute to prohibit pregnant
women from having sex with their husbands might
protect some fetuses from harm but would be seen by
‘most people as an outrageous violation of liberty.

A recent study compared the neurological develop-
ment of children bom prematurely whose heart rates
‘were monitored electronically before and during deliv-
ery with children (also born pr ly) whose heart

‘side the hospital have varied from acceptance as normal
to rejection as dangerous or crazy. AA former president
of a state chapter of the American College of Obstetrics
and Gynecology reportedly said that people who have
home births are “kooks, the lunatic fringe, people who
have emotional problems they're acting out.’ Physi-
ians in Alaska even requested the attorney general to
cchargea physician with murder after ababy died follow-
ing a home birth he attended.” Such incidents are
‘reminders of the fallibility of medical opinion and how
quick some are to equate unfashionable conduct with
crime.

There is little doubt that drug use during pregnancy
presents a risk of harm to the fetus. But itis hardly the
only risk. How are we to distinguish the harm from
drug use from harm arising from poor nourishment
during infancy and childhood, from poor parenting
practicessuch as emotional detachment, excessive disci-
pline, or lack of supervision? What kind of duty will

rates were checked periodically by auscultation or “lis:
tening” through the pregnant woman's abdomen.”
‘Children who were monitored with state-of-the-art elec-
tronic fetal monitors had cerebral palsy 2.9 times as
‘often as children monitored by ordinary auscultation.
After adjustment for other risks factors, the risk of
cerebral palsy was 38 higher for the electronically
monitored children than the other group. Does this
mean that the use of electronic fetal monitors is or
should bea criminal offense? Such a law would merely
require women and physicians to avoid using some-
thing that creates a risk of fetal harm.
Variationsin medical practice should make us wary of
relying on current medical standards asideal pregnancy
care. Over the decades, women have been alternately
Praised and chastised for gaining more than ten pounds
during pregnancy. Altitudes toward giving birth out-

There is little doubt that drug use during
pregnancy presents a risk of
harm to the fetus.

preventsuch similar harms? Should we requirea license
to have children, as some have suggested,” obtainable
‘upon proof of adequate parenting capabilities? How
will we define these? Can they be predicted before one
has a child?

The duty pregnant women who use drugs are as-
sumed to have cannot, in fact, be explained in terms of
the harmtothefetusor child or even riskofharm. Harm
canbe caused by more than justdrug use. Thus,theduty
cannot be justified by the desire to prevent the harm

Criminal Justice Ethics


education can compel dealers in their community to pay for the injuries they
cause. This is true even though in most states a producer of a product that
injures a consumer can be liable for injuries resulting from the use of that
product. The Drug Dealer Liability Act fills the gap to make drug dealers
liable — under civil law principles — for the injuries to the families of drug
users.

The first lawsuit brought under a Drug Dealer Liability law resulted in
a judgement of $1 million in favor of a Michigan drug baby and more than
$7 million to the City of Detroit’s expenses for providing drug treatment to
the city’s prison inmates. In addition, this bill could fill a possible gap in
asset forfeitures by law enforcement resulting from the decision handed
down by the U.S. Supreme Court last month that may rule total forfeiture of
a defendant’s assets as an excessive fine under the Eighth Amendment’s
excessive fines clause.

T look forward to working with you Mr. Chairman and my colleagues
on the Speaker’s Task Force to enact the Drug Dealer Liability Act and give
the victims of drug abuse, particularly drug babies, an opportunity to hold
the dealers of this poison accountable under criminal and civil law.

Again, Mr. Chairman, I want to thank you and the ranking Member,
Mr. Barrett, for providing me this opportunity.


7

31

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83

Perinatal morbidity and mortality in substance using families 37

the identification of substance -abusing individuals and the effects of drug
abuse on pregnancy and the family. As a result of the lack of provision
of such services for drug-abusing families, the escalation of the numbers
of individuals and families affected has been dramatic. With
intergenerational transmission of the disease of addiction, perinatal
transfer of HIV and other infectious diseases, as well as perinatal
complications, families are being devastated throughout the world.

Drug abuse is not a new phenomenon. It has existed for centuries,
and in the last three decades it has reached epidemic proportions. While
overall medical progress has been great during this time, there has been
a failure to give appropriate attention to resources for research, treatment
and education concerning the effects of drug abuse and potential inter-
vention strategies. The result has been the devastation of families suffer-
ing from drug abuse and the associated adverse effects on society. The
devastation has reached uncontrollable heights, and many children and
their families are suffering today because of the unwillingness of society
to act with urgency in the past. There must be an end to the physical,
psychological and sociological disabilities that have resulted from the
neglect of issues confronted by families affected by substance abuse. In
1994, the International Year of the Family, the people of all nations must
stand united to avoid the further destruction of the fibre that holds
society together - the family.

References

1. T. A. Hagan, "A retrospective search for the etiology of drug abuse:
a background comparison of a drug-addicted population of women
and a control group of non-addicted women", NIDA Research Mono-
graph Series (Rockville, Maryland, National Institute on Drug
Abuse, 1987).

2. J. Jones, "Nutrition, drugs and their interrelations", Pennsylvania
Health, vol. 35, No. 3 (1974).

3. L. L. Cregler and H. Mark, "Medical complications of cocaine
abuse", New England Journal of Medicine, No. 315 (1986), p. 1495.

4. J. L. Rementeria and N. N. Nuang, "Narcotic withdrawal in preg-
nancy: stillbirth incidence with a case report", American Journal of
Obstetrics and Gynecology, No. 116 (1973), p. 1152.

5. L.P. Finnegan and S. R. Kandall, Maternal and Neonatal Effects of
Alcohol and Drugs, Substance Abuse: A Comprehensive Textbook,
J. H. Lowinson, P. Ruiz, R. B. Millman, eds. (Baltimore, Maryland,
Williams and Wilkins, 1992), p. 628.


5

We have yet to see the full effects of the drug abuse on children
of their addicts.

Initially meth, or crank, was used primarily by males. However,
it is now making inroads with women as well. In fact, last week,
two women were arrested in Boone County, in my district, on meth
charges stemming from a lab, a meth lab, and a bust at that lab.
One of the women was also charged with child endangerment and
three children had to be placed in the care of the lowa Department
of Human Services. Unfortunately, since meth is as addictive as
crack cocaine and the stimulation, or “high,” is sustained much
longer, there may be a greater opportunity for in utero damage to
the fetus of a meth-abusing mother.

This is creating additional problems and challenges for law en-
forcement and human service providers in the Midwest. Drug ba-
bies are clearly the most innocent and vulnerable of those affected
by illegal drug use and are often the most physically and mentally
damaged due to the existence of the illegal drug market in a com-
munity. For many of these babies, the only hope is extensive med-
ical and psychological treatment, physical therapy, and special edu-
cation. All of these potential remedies are expensive.

These babies, through their legal guardians and through court-
appointed guardians should be able to recover damages from those
in the community who have entered and participated in the mar-
keting of the types of illegal drugs that have caused their injuries.
To address this problem, I recently introduced H.R. 4204, the Drug
Dealer Liability Act, which is modeled after similar legislation en-
acted in 11 States, including the chairman’s home State of Indiana.
This legislation is intended to provide a civil remedy for damages
to persons in the community injured as the result of illegal drug
use. These persons include parents, employers, insurers, health
care and drug treatment providers, as well as drug babies. H.R.
4204 would enable them to recover damages from those persons in
the community who have joined the illegal drug market.

A further purpose of the Drug Liability Act is to shift, to the ex-
tent possible, the cost of the damage caused by the existence of the
illegal drug market in a community to those who illegally profit
from that market. It is my hope that the prospect of substantial
monetary loss made possible by the Drug Dealer Liability Act
would also act as a deterrent to entering the narcotics market. In
addition, the bill would establish an incentive for users to identify
and seek payment for their own drug treatment from those dealers
who have sold drugs to the user in the past.

While this legislation is not meant to be a silver bullet, it is an-
other tool to combat and deter drug abuse and trafficking. Today,
in 39 States, it is not clear under established law that families who
lose a child to drugs or a drug baby needing treatment or special
education can compel dealers in a community to pay for the inju-
ries they cause. This is true even though, in most States, a pro-
ducer of a product that injures a consumer can be liable for injuries
resulting from the use of that Pigduet. The Drug Dealer Liability
Act fills the gap to make drug dealers liable under civil law for the
injuries of the families of drug users.

The first lawsuit brought under a Drug Dealer Liability Law re-
sulted in a judgment of $1 million in favor of a Michigan drug baby


ll

Pregnancy asa Crime J 45

have used a controlled substance during pregnancy.
‘The National Association on Perinatal Drug Addiction
and Research (NAPARE) has already observed that
women are being deterred from seeking prenatal care
‘because of this statute.”

‘Those women who do seek care are often too fright-
ened to speak openly to their doctors about their prob-
lems. In Florida, for example, after “uniformed offi-
cers wearing guns entered Bayfront Medical Center ..
toinvestigatenew mothers suspected of cocaineabuse,””
doctors reported that they could no longer “depend on
the mothers to tell them the truth about their drug use.
+ because the word hafd] gotten around that the potice
will have to be notified."

Rather than promoting any legitimate state interest,
much tess a compelling one, these prosecutions are
undermining public health, a fact reflected by the in-
cqeasingly outspoken opposition of public health or-

prosecutions. For example, four-
teen public health and public interest groups, including,
the American Public Health Association, the American
‘Society of Law & Medicine, the National Association of
‘Alcoholism and Drug Abuse Counselors, the American
Society of Addiction Medicine, and the National Asso-
lation for Perinatal Addiction Research (NAPARE),
recently sought to file amicus briefs in opposition to the
conviction of Jennifer Johnson. These groups share the
assessment of the Committee on Ethics of the American

It is understandable that prosecutors and others are
upset or angry that babies are being born with disabili-
ties that in some cases could have been prevented. What
is less understandable is why that anger is so easily and
exclusively directed against the mothers. While noone
views those who run drug abuse programs that tum
away pregnant women or those whoconsistently under-
fund themas fetalabusers, many are willing tocondemn
‘outright pregnant women as selfish people intent on
hurting their developing babies.

But pregnant women who are drinking excessively,
abusing drugs, smoking, or eating inadequately are first
and foremost hurting themselves. In our rush to blame
‘women for their failure to take care of others we are
‘missing the point that they havenever been encouraged
to “selfishly” care for themselves. One reason predom-
inately male or coed drug treatment programs do not
work for women may be that the women “assume
caretaker or partner roles and neglect their own recov-
ery. For example, while a woman was at New Day,
‘one of the country’s only residential drug abuse pro-

The last thing we should do is turn
pregnant women and mothers
into criminals.

College of Obstetricians and Gynecologists, whose 1987
opinion stated that “inappropriate reliance on judicial
authority may lead to undesirable societal consequences,
suchas the criminalization of noncompliance with medical
recommendations.”"' This statement was intended asa
basis for opposing “legal actions against women be-
‘cause they are pregnant and engagein behavior possibly
detrimental to the fetus."

Prosecutions of pregnant women may also violate the
fourteenth amendment’s guarantee of equal protection.
‘While the state can and should enforce against pregnant
‘women criminal laws that apply to the general popula-
tion, any governmental action that singles out women
for special penalties solely because they become preg-
nant discriminates on the basis of gender." These prose-
cutions may also raise race discrimination claims or, at
the very least, issues of selective prosecution because s0
‘many of them are directed against poor women of color.
A recent study conducted by NAPARE in Pinellas County,
Florida, found that, although the rate of drug use by
Black women and white women was the same, Black
women were reported for their drug use ten times more
often than white women

grams run by and for women, the father of her child
called to tell her that he had been arrested for possession
of cocaine, She ed, “I'm the one who always
bailed him out,” but “ItJhis time, she told him, she had
to take care of herself"?

Phyllis Savage, the Family Center Director at Odyssey
House, New York City’s only drug treatment program
‘where mothers and small children can live together,
explained that the lives of the twenty-one women in the
program “havenever been anything buthellish.”" “TAqIt
they know isrageand anger and abuse, ..Thisis the first
place that many of our women have been where they
can‘tgethit Research has shown that 80 to90 percent
of female drug addicts and alcoholics have been victims
of rape or incest."

If what we really want to do is help women and
children, the last thing we should do is turn pregnant
‘womenand mothersintocriminals. AsDr. Ira Chasnotf,
an expert on perinatal addiction has stated: “{T]he
Public must be assured of non-punitive, comprehensive
‘care which will meet the needs of the pregnant woman

WinteriSpring 1990


81

35

Perinatal morbidity and mortality in substance using families

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107

Pregnancy asa Crime | 41

‘AS Id. See, also, Atters, Women and Crack:

Unequal Care, Boston Globe, Nov. 1, 1989, at 1,4.
fen ten eter
Lives. Boston Globe, Nov, 5, 1989 (Magazine), at:

42 Chavkin, supra note 44.
ou

0 tap pent

50 About 375,000infants are born to<

cng iti dy Oye

Education, iat 20, That exceeds the total numberof
‘weatment lots for all addicts—maleand female—in the;
ty.

S51 A prison sentence would make clear that the prosecution
intended

‘was ended to punish nottoalp, the woman because
Iecjyiogniimon pane mee
‘52. Forty percent of the more than 300 hospitals boarder babies
waiting placement daly in New York City were there be

rnateral drug wee C-Darnx W. Cua GH
{eon Sun or hous Amare ‘Vous Hos.

‘rats 1986-87 (New York City Dept. of Health, New York, NY
1987).

Finns Unies States, according 53 Field, supra note 6; Johnsen, supra note 36,
When Becoming Pregnant Is a Crime

LYNN M. PALTROW

Als healthy mothers are essential to vigorous offspring, the
physical well-being of woman becomes an object of public
{interest and care in order to preserve the strength and vigor
of the race?

In 1907, the state's concern for “vigorous offspring”
‘combined with paternalistic views of women led the
‘Supreme Courtin Muller. Oregon, to uphold protective
labor legislation which discriminated against women
and excluded them from the work force. Today, “vigor-
ous offspring” have once again become the “object of
public interest” but now criminal prosecutionsarebeing
‘used to ensure “healthy mothers.”
Although such prosecutions wereonce relatively rare,
an increasing number of women are being arrested for
ted behavior deemed potentially harm-
ful to the fetus. Women who allegedly threaten “the
strength and vigor of the race” face not just
ment? but also criminal prosecution under unprece-
dented interpretations of child abuse and drug traffick-
ing statutes, Thefirst widely publicized criminal prose-

Lynn M. Paltrow isa staff attorney at the ACLU Reproductive
Freedom Project in New York.

ccutions of pregnant women occurred in the mid-nine-
teen-eighties; today there are at least thirty-five cases
around the country, and the trend is growing? Accord-
ing to an article in U.S.A. Today, “experts expect hun-
dreds more cases."

Prosecutors in two South Carolina cities, Greenville
and Charleston, have been particularly zealousin bring-
ing these cases. Inboth places, individualsat local public
‘hospitals joined with state officials to establish a proce-
dure for prosecuting pregnant women who tested posi-
tive for the presence of illicit substances. In Charleston,
‘women who come into the public hospital for prenatal
care or delivery are selectively tested for drugs; those
‘who test positive have their names turned over to the
police. The police then go to the hospital. The women,
‘who are still recovering from the delivery, are hand-
cuffed and taken to jail and stay there until they can
make bail. At least one woman arrived at the jail still
bleeding from the delivery; she was told to sit on a
towels

Like the South Carolina prosecutions, most of the
casesin other states have involved allegations of illegal
drug use during pregnancy. However, none of the
‘women have been arrested for the crime of illegal drug,
use oF possession. Instead, they are being arrested fora

Winter/Spring 1990


92

Wendy K. Mariner, Leonard H. Glantz, George J. Annas | 32,

others. Prosecutions for drug use during pregnancy
appear toenforce an implied license, one that stipulates
the conduct required of those granted the privilege of
pregnancy. Yet pregnancy is unlike driving in more
fundamental ways. Pregnancy is symbolic of the con-
finuation of the human race. For individuals, itis,
ideally, a time of joy, of preparing for an expanded
family. Itinvolves nurturing and growth. To convert it
intoa symbol of woman as threat islikely to profoundly
affect the way society views women in general and to
transform pregnant women from nurturers into sus-

ts
The justifications for wanting stop pregnant women
from taking drugs have to do with preventing harm to
the fetus and insuring the birth of a health baby. This
raises several questions. What is the harm to be
vented? What acts or omissions cause the harm? What
{kind of duty cana pregnant woman have to prevent the
hharm? Can the duty be enforced and the harm pre-
‘vented by prosecuting pregnant womenunderthecrimi-
ral law?

(Criminal prosecutions of women’sconductduring preg-
‘ancy assume that women have a special duty to the
fetus. But precisely what is this duty? And what
‘qualifies asa violation of the duty? General discussions
(of the subject appear toassumne that women havea legal
‘duty not to harm the fetus. (In this article, we discuss
‘only duties arising in existing law, not moral obligations
that may exist in the absence of any legal duty.

‘One of the truisms of criminal law is that it exists to
prevent harm. What is the harm to be prevented in the
case of pregnant women who use drugs? The most
extreme case of harm would be the death of the fetus.
Criminal law governing killing a fetus is already in
place. Inmoststates, homicide canbe committed against
the fetus, butonly ifitdiesafterlive birth." A few states
have made feticide a crime if someone other than the
mother intentionally kills the fetus. Convictions have
been sustained in cases of brutal atacks upon the woman,
often by men who specifically intended to kill the fetus.

The duty to prevent risk to the fetus
amounts to imposing on a pregnant
‘woman a state-defined standard
of care for her own body.

Unintentional or negligent killing of a fetus by one
unaware of the pregnancy, however, is not even man-
slaughter in most states® There are good reasons why
the criminal law has treated feticide differently’ from
homicide. The harm ordinarily sought to be prevented

Duty

is that directed against the pregnant women herself.
Ascribing legal personhood to fetuses for purposes of
applying homicide laws would unnecessarily subject
most stillbirths to criminal investigation. It could also
create two independent rights-holders within the body
of one} ‘woman—the woman and the fetus—with
controversial implications for both criminal and civil
law that society has not yet agreed on and is not likely
soon to accept.

Evenso, one mightargue thata woman hasaduty not,
to cause the death of her fetus." If the duty is to
‘guarantee the fetus's survival tolive birth, then no harm
‘occurs when the baby is born alive. It should beevident
that there is no general duty to guarantee survival to
birth. However, women have been ted when
their babies have been born alive. So death is not the
harm—or at least not the only harm—being targeted.

In the absence of fetal death or stillbirth, the harm
might be any physical or developmental damage that
the living child suffers. If so the duty is to guarantee the
child optimal or at least normal mental and physical
hhealth. Or it might be the seemingly lesser duty of
preventing avoidable injury. But this is not a duty
imposed generally on pregnant women. And with good
reason. First, before the state can accuse one of a
criminal offense, it must define the crime in an under-
standable way. How would we define the degree of
health or well-being that a woman should havea duty to
produce? How would we define the degree of health or
well-being that a woman should not adversely affect?

Second, theres the problem of determining the cause
of any harm. The physical and mental status of a child
is affected by a multitude of actors, some genetic, some
gestational, some perinatal, some environmental in the

Criminal Justice Ethics


60

Thank you, Chairman Hastert, for granting Haymarket Center the oppornumity to be represented

before your Subcommittee today.

I serve as Associate Director of Haymarket Center. As you heard from our President Ray
Soucek during yesterday’s hearing, Haymarket is the largest provider of substance abuse
treatment services in Chicago, and the third largest in the State of Illinois. Founded in 1975 by
Monsignor Ignatius McDermott, we have grown in the past twenty-three years to serve an

average of 13,000 clients annually.

Though Haymarket is a non-sectarian, non-denominational. not-for-profit organization, we
consider our treatment approach to be faith-based since we believe that spirituality plays a role
in recovery. Spirituality in our programs is focused on our efforts to reunite and reconnect

recovering addicts with aspects of their lives from which they have been separated.

Throughout our twenty-three years, we have developed several unique gender-specific programs
to address the needs of especially high-risk substance abusers. The high-risk population of
particular concern to Haymarket in recent years has been pregnant and postpartum women and
their children. Historically, pregnant addicts have had a particularly difficult time receiving
treatment, Models which were originally designed for males would accept women only in the
early stages of the program, not include child care services, and were reluctant to treat high-risk
pregnant women. Haymarket’s willingness to serve as a pioneer in offering services to this
population has resulted in the successful bitth of over 500 drug-free babies, and has opened the
door for other ueatment providers to follow-suit. Still, additional research and evaluation of

treatment effectiveness for this population is needed.


Each of those women would have said the same thing to you. | carry their
message for them, in the terminology which they use: “If it wasn’t for the

Jaw, I’d still be out there”.

Thank you for your consideration of their message.


18

Statistics Relevant to Drug-Exposed Births

South Carolina 1990

Total S.C. births 1990 8,461
Cost per severely drug-exposed (non-alcohol) birth...........................present value
dollars (1993)

Estimated measurably exposed drug births per year.
Estimated drug exposed births w/ impact to age 5, per ye:
Est. drug exposed births w/ impact beyond age 5, per year.
Excess hospitalization costs at delivery (100%)...
Other excess medical costs in 1* year of life (100%)
Costs per early intervention age 0 - 5 (100%).
Costs for special education (non-resid) age 5 —
Costs sheltered workshop 42 years (10%)...
Costs residential care (MR, ED, etc) 55 years (10%).
Excess medical costs age 2 — 60 (100%)... :
Productivity losses (lost wages) 48.5 years (820)...
Total lifetime economic losses per impacted drug birth.

“$100,585

Note: Many of these facts and figures are underestimated due to the fact that the
diagnosis is so often retroactive in later years (symptoms may not manifest
at birth)


47

STATEMENTS OF SHIRLEY BROWN, RN, MN, OUTCOME MAN-
AGER, MEDICAL UNIVERSITY OF SOUTH CAROLINA; PAULA
KELLER, DIRECTOR, SERENITY PLACE; BETTY FOLEY, ASSO-
CIATE DIRECTOR, HAYMARKET CENTER; FRANCINE
FEINBERG, PSY.D., META HOUSE, OUR HOME FOUNDATION;
AND MARY FAITH MARSHALL, PH.D., PROGRAM IN BIO-
ETHICS, MEDICAL UNIVERSITY OF SOUTH CAROLINA

Ms. Brown. Thank you, Mr. Chairman, and Members of Con-
gress. I want to thank you for inviting me to testify at this hearing
regarding substance abuse during pregnancy.

1 effects of cocaine on pregnancy and the infant have been
documented in the medical literature since the early to middle
1980's. General health problems for these women include malnutri-
tion, anemia, hepatitis, AIDS, and other sexually transmitted dis-
eases.

Cocaine abuse increases the risk of spontaneous abortion; pre-
term labor and delivery; intrauterine fetal growth retardation;
intrauterine fetal death; and abruptio placentae, which is the pre-
mature separation of the placenta from the uterus that can result
in fetal death. In 1987, a multi-regression analysis reported in the
Journal of Pediatrics showed that only illicit drug use had inde-
pendent adverse effects on age at birth and birth weight. Smoking,
alcohol, economic status, and prenatal care were not significant fac-
tors.

Neonatal problems resulting from maternal cocaine usage are
somewhat less defined. The neonate may be irritable, difficult to
console, and a poor feeder. Many studies have documented dis-
ordered neurobehavioral development. Based on literature, sub-
stance abuse also places a child at greater risk for abuse and ne-
glect. In Charleston, a toddler died from ingesting a bag of his
mother’s cocaine. The autopsy revealed no food in the child’s stom-

ach.

In October 1988, an increasing evidence of perinatal outcome pa-
rameters suggesting maternal cocaine abuse was recognized at the
Medical University Hospital. Urine drug screens were ordered be-
cause of the poor perinatal outcomes of abruptio placentae or intra-
uterine fetal death, although occasional tests were done to inves-
tigate premature labor or previously known drug or alcohol abuse.
In the spring of 1989, a protocol was adopted requiring urine drug
screens for clinical indicators suggesting cocaine abuse.

In the first 12 months in which urine drug screens were ob-
tained, 119 patients tested positive for cocaine. These patients were
more likely to have inadequate prenatal care and pre-term deliv-
ery; 25 percent of these patients received no prenatal care prior to
delivery or spontaneous abortion. According to the Kessner index,
30 percent of the remaining 89 patients had inadequate care. The
rate of no prenatal care or inadequate care in the general obstet-
rical population at the Medical University was 23.1 percent in
1989. Pre-term labor occurred in 17.4 percent of the patients,
whereas the premature delivery rate in the general obstetrical pop-
ulation was only 11.1 percent.

Except for 15, all of the patients with positive urine drug screens
delivered at a time proximate to the urine collection. Each of these
15 patients returned to the Medical University Hospital in pre-


51

July 23, 1998
Committee on Reform and Oversight

Subject: Expectant Mothers and Substance Abuse

Prepared Statement: Paula Keller
Director of Serenity Place, a long-term residential addictions treatment
facility for pregnant and post partum women and their children. Serenity
Place is a program of the Greenville County Commission on Alcohol and

Drug Abuse, Greenville, South Carolina.

National Board of Certified Counselors

Licensed Professional Counselor/Supervisor

National Master Addictions Counselor

South Carolina Master Addictions Counselor

Licensed Master Social Worker

Licensed Administrator of a Long Term Health Care Facility


Bulletin on Narcotics, vol. XLVI, No. 1, 1994

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142

9. “Opposition to Criminal Prosecution of Women for Use of Drugs While Pregnant and Support
for Treatment Services for Alcohol and Drug Dependent Women of Childbearing Age.” American
Nurses Association Position Statement. April 5. 1991. Washington. D.C.

10. “Guidelines for Perinatal Care.” The American Academy of Pediatrics, the American College
of Obstetricians and Gynecologists. (1992): “Drug-Exposed Infants,” Committee on Substance
Abuse. American Academy of Pediatrics. Pediatrics 86 (1990): 639-642.

I. “Guidelines for Perinatal Care.” The American Academy of Pediatrics, the American College
of Obstetricians and Gynecologists. (1992): “Cocaine Abuse: Implications for Pregnancy,”
Committee Opinion 81. Washington. D.C.. ACOG. 1990.

12. “Illicit Drug Use by Pregnant Women.” Policy Statement 9020, American Journal of Public
Health 81 (1991): 253.

13. Public Policy Statement on Chemically Dependent Women and Pregnancy.” The American
Society of Addiction Medicine. adopted September. 25. 1989. Washington, D.C.

14. “Guiding Principles for Working with Substance-Abusing Families and Drug-Exposed
Children: The Child Welfare Response.” National Association of Public Child Welfare
Administrators, approved January 1991 by the Executive Committee at the National Council of
State Human Services Administrators.

15. Maternal, Infant. and Child Health Council. South Carolina Prevalence of Drug Use Among
Women Giving Birth (Columbia. S.C.: Office of the Governor. 1991): 7-8

16. L.B. Tribble. T.C, Hulsey. $.B. Brown. D.J. Annibale. “Analysis of Hospital Maternal
Cocaine Testing Policy: Its Association with Prenatal Care Utitization Patterns.” preliminary data.

17. Chrisensen. “Criminal Prosecution of Mothers of Drug-Exposed Neonates: A Case Study of,
a Policy Dilemma.” Ph.D. dissertation. School of Graduate Studies. Medical College of Georgia.
1992. citing Greenville News. Aug. 25. 1989 as cited in Dorothy Roberts. Killing the Black Body.
336.

18. “Women’s Health Care in Correctional Settings.” National Commission on Correctional
Health Care Position Paper. Adopted by the Board of Directors September 25. 1994. Chicago.

19. S. Kline Profile of Female Offenders in the Federal Bureau of Prisons.” Federal Prisons
Journal. 3(1); 33-35: as cited in Drug-Dependent Mothers and Their Children: Issues in Public
Policy and Public Health. Mary R. Haack. ed.. Springer Publishing Company. New York
(1997):17.

20 Bureau of Justice Statistics 1992: “Women 1n Jail. 1989." by Tracy L. Snell. Washington.

D.C.: U.S. Department of Justice. Office of Justice Programs as cited in: Kathleen Daly, Gender,
Crime and Punishment (1994) Yale University Press, New Haven:43

v


135

earlier income-related demographic. as crack cocaine use is generally associated with poverty,
homelessness. and inner-city Black communities.”*

Clearly. pregnant women who use marijuana and non-ordered prescription drugs comprise
the largest category of illicit perinatal substance abusers. Women who fall into this demographic.
however. are not the ones most affected by criminal interventions. Women who use crack
cocaine, heroin and other “serious drugs of abuse” are screened and arrested much more
frequently. A prevalence study conducted by the South Carolina governor's office found a high
incidence of barbiturate. marijuana and opiate use among pregnant white women.”* Data from
the Medical University of South Carolina's data bank on newborn prenatal screening showed an
equal distribution of drug use among white and Black patients: A study by Tribble et al at the

Medical University of South Carolina showed that ~ while equivalent proportions of black and

white populations were drug positive (2.52% blacks, 2.54% whites). black mothers were more
likely to use cocaine than white mothers (1.25% blacks. 0.28% whites). Their data also suggested
that the cocaine screening policy was associated with a decrease in the utilization of prenatal care
by women who screened drug positive.” The vast majority of prosecutions in South Carolina and
other states have been against Black women. Of the 41 women arrested under the Medical
University of South Carolina's Interagency Policy. 40 were black. and the sole white woman had

a black boyfriend (as was noted in her medical record). Of 109 women charged with criminal child
abuse for perinatal substance abuse by the Greenville. S.C. solicitor. 101 were crack cocaine
addicts, and 86 of them were Black.”*

The Legacy of Racial and Socioeconomic Bias

The effects of racial discrimination on Blacks and other minority groups are invidious and

10


13

STATEMENT
by Charles Molony Condon

Attorney General of South Carolina

I’m grateful for the opportunity to speak before this
committee in behalf of the citizens of South Carolina -- both born
and unborn. As you may know, the U.S. Supreme Court recently let
stand our State Supreme Court's ruling that a viable fetus is a
fellow South Carolinian and therefore entitled to protection under
the law. These court decisione have enabled us to proceed with a
policy that is successfully bringing pregnant drug users into
treatment centers and reducing the number of babies born with a
dangerous and even fatal addiction.

Our approach is not only highly effective but infinitely
humane. It considers the welfare of both mother and unborn child.
It recognizes the complexity of drug addiction -- its medical as
well as its legal aspects. It treats addicts as patients rather
than as criminals, while recognizing that the abuse of such
substances as crack cocaine and heroin is a serious violation of
the law, particularly when such behavior affects an unborn child.
It allows health-care experts to control the destiny of cooperative
women -- while law enforcement officials wait in the wings,
prepared to act only in worst-case scenarios.

A member of my staff headed the task force responsible for
developing the policy currently used in dealing with pregnant drug
addicts. That task force included representatives from the State’s

social service agencies. The procedures the members developed


187

4. Denial that they had an addiction problem.”

Distancing pregnant women trom both prenatal care and substance abuse treatment is
doubly tragic in that pregnancies involving substance abuse are. by definition, high risk. and
because substance abuse treatment during pregnancy has shown to be effective in reducing the
risk of drug exposure before birth and in improving the woman's parenting skills after birth.”
The Injustice of Political Influence on Prosecution

Substance abusing pregnant women. especially women who are poor and black. are at
particular risk for serving as political scapegoats. Demonized by the politically ambitious and
sensationalized by journalists, the pregnant substance abuser easily becomes a symbol of larger
social ills. Jos. Perlumutter and Marshall expand on this theme in their analysis of the Charleston
Interagency Policy:

The political basis of the policy is not solely due to the gender. race. and

social class of the targeted population. Ingesting illegal drugs while pregnant is a

potent symbol of selfishness and irresponsibility. Compromising the health of one’s

yet-to-be-bom child to satisfy physical desires is anathema to the common

‘expectation that mothers should protect their children. Harming an innocent and

defenseless child-to-be is perceived as beyond the pale. It represents not merely a

lapse of judgement. but also a serious moral failing: behavior that is both unnatural

and illegal. This perspective helps explain why crack babies become a powerful

symbol. an occasion for reaffirming a commitment to basic human values in a

disturbed public order."

The symbol of the “anti-mother” is easily exploited by political opportunists who trade on
symbol. myth, and public fear in order to further their own political agendas. Such practices are

evident in South Carolina. where both the local Charleston prosecutor (now state attorney

general) and the local chief of police have publicly acknowledged the political hegemony that


second largest city in the state, I have not heard of a single baby in a

dumpster.

3 of the 4 primary sources of referrals to my program are the prenatal clinic
and the neonatal nursery at the hospital, and the county Health Department,
evidence that women are continuing to access these healthcare services as

always.

In preparing for this trip, Ms. Christophillis asked me to bring statistics. I
did that, and you will find them attached to your copies. Statistics are not
my area of expertise. I don’t know what to do when faced with 25% of this,
or 68,000 of those.

But when I am faced with an addict across the desk from me, I know exactly
what to do, and that is the approach I have chosen to use in my words to
you; from my heart as a mother, and from my experience in the field. As
proud as I am of both of those things, I really wish it could have been
Amanda and her baby Amber, or Jackie and her babies Whitney and Ray-
Ray standing here in front of you today. Or Dawn and her baby Crystal, or
Lila and Scottie, or any of dozens of others. Because then you could have
seen for yourselves the results of the law in South Carolina, a state which

says, “We will not allow this to happen to our children”.


2

or create a substantial risk of physical injury to a newborn infant
by means of illegal drug use by the mother during pregnancy.”

Similarly, the U.S. Supreme Court, on May 26, allowed the State
of South Carolina to uphold its law making it illegal to refuse or
neglect to provide the proper care and attention that endangers or
is likely to endanger a child’s life. The High Court ruled, “It strains
belief for Lightner,” the South Carolina plaintiff, “to argue that
using crack cocaine during pregnancy is encompassed within the
constitutionality recognized right to privacy.”

More recently, Wisconsin’s cocaine mom law was signed by the
Governor on June 16 and has been widely described as designed for
treatment-resistant cases. It contains no criminal penalties, no
mandatory reporting requirements, and no provisions for termi-
nating Parental rights. Still, it almost certainly will save lives and
more fully protect children.

There’s an ement that the objective of protecting unborn
children from ‘the consequences of parental addiction is laudable.
But there remain open questions, one of which is the best role the
Federal Government can play in protecting America’s at-risk chil-
dren. But we hope, with our expert witnesses, particularly those
with firsthand or clinical experience, we hope they can explain to
us today what the nature of the problem is, its prevalence, and
what methods they believe work best in trying to deal with addicts
who become pregnant. I particularly look forward to hearing from
the Haymarket House, which is in the chairman’s home State of Il-
linois, which is helping prevent drug addicts through the highly re-
garded faith-based treatment program.

Now I'd like to recognize a good friend, the ranking minority
member, Congressman Barrett, fr his opening statement.

Mr. BARRETT. Thank you, Mr. Chairman, and thank you for hold-
ing this very important hearing. Welcome to all of our witnesses
today. I’d like to give a special welcome to my former assembly and
senate colleagues: State senator Joanne Huelsman from Wisconsin;
Mr. William Domina, who is the corporation counsel from the Cor-
poration Counsel’s Office in Waukesha County; and Francine
Feinberg, who is the executive director of Meta House, which is lo-
cated in the district that I represent.

This hearing will focus on two approaches to the problem of sub-
stance abuse by expectant mothers. One approach, enacted by the
Wisconsin Legislature, gives juvenile court judges the power to
order expectant mothers into drug treatment, including confined in-
patient care. Another approach in South Carolina, recently upheld
by the Supreme Court of South Carolina in Whitner v. State, in-
volves the use of the criminal law against child abuse to prosecute
expectant mothers who refuse drug treatment offered by the State.

There are areas of deep disagreement on this issue, both in Wis-
consin and, from what I understand, in South Carolina. But let’s
begin with some common ground: the problem. We all agree that
substance abuse by expectant mothers hurts their unborn children
and must be stopped. We’ve got to do everything we can to keep
pregnant women healthy and off dangerous substances. That’s the
goal.

Now let’s turn to the solution. We are looking at measures in
Wisconsin and South Carolina that certainly, at least on first


174

The Honorable J. Dennis Hastert
July 22, 1998
Page 2

Meeting the need for effective substance abuse therapy must be a national priority. The health
policy issues posed by women who abuse substances during pregnancy can be divided into two
components
How to prevent infants from being exposed to potentially harmful substances before
birth. There is an increased need to explore more effective ways to help prevent women
from abusing substances during pregnancy

How to address the needs of exposed infants and children and their families. The most
basic problem is that demand for treatment programs far exceeds availability

When considering federal policy to tackle the problem of substance abuse in pregnant women,
the Academy offers several recommendations as a starting point:

Funds for substance abuse prevention and treatment programs that have been evaluated for
effectiveness must be available for women of childbearing age, their infants and families

* Substance abusing pregnant women must be assured nonpunitive access to comprehensive
care that meets their needs and that of the infant. The Child Protective Services system
seems well suited to helping these women and their infants, There is no evidence that
substance abuse interventions that are enforced by criminal sanctions prevent in utereo drug
exposure or help drug-exposed children. Without strong evidence that involvement with the
criminal justice system serves to prevent prenatal substance exposure or to improve the
health of children, such interventions are unjustifiable.

* Universal neonatal drug testing is not recommended. Screening for illicit drug use provides
only a narrow window on drug use and does not reveal information about the pattern,
frequency, and timing of the use.

* Funds for research, education, and treatment should be made available for infants who are
exposed to alcohol and drugs during pregnancy.

‘The Academy remains committed to ensuring that children are born healthy and we look forward
to working with you on this issue. We welcome the opportunity to provide our expertise at
future hearings, meetings or briefings. Thank you for your consideration of these
recommendations.

Sincerely,

Joseph R. Zanga, MD, FAAP
President

IRZ mehikbt

fe)


163

happened as well and it becomes fatal fast. These kids are either
stealing or they are high at the time and it endangers basically in-
side their own community. It doesn’t really spread outside.

So it is not a malicious focus on crack that we developed this
way, but as a matter of societal equity. I think we need to make
sure that we aren’t accidentally doing things, but in fact it was to
try to get control of a problem among youngsters who might go on
to more serious drugs for a long term problem, which would be her-
oin or cocaine. We have also seen LSD pop back in.

The other thing I want to say, particularly to Ms. Keller and Ms.
Foley and Dr. Feinberg—and please don’t take my questioning ear-
lier which is in the form of critically trying to examine a point you
made, because I want to reiterate what Congressman Barrett said.
And that is you three, in particular, are right on the front lines,
with very few people congratulating you. Every day is frustrating.
These people come in and their stories are difficult, and you de-
serve tremendous praise from everybody in society for working
with this.

And I can see how you can disagree on how people are going to
react, because you are listening to them and you are very con-
cerned. As policymakers, we have to look at a broad perspective,
but never take anything that we say and any questions other than
as praise for your willingness to sacrifice and work in your life try-
ing to help people who are really hurting. And I wanted to say that
for the official record.

And with that, thank you all for being here. If you have addi-
tional comments or information to insert into the record, we are
going to leave the hearing record open for 2 weeks. With that, this
hearing from the National Security Subcommittee is adjourned.

(Whereupon, at 5:45 p.m., the subcommittee adjourned subject to
the call of the Chair.]

[Additional information submitted for the hearing record follows:]


72

26 Bulletin on Narcotics, vol. XLVI, No. 1, 1994

Impact of maternal substance abuse on foetal welfare

Because of the obvious lack of quality control seen in street drugs,
the pregnant woman frequently may experience repeated episodes of
withdrawal and overdose. Maternal narcotic withdrawal has been associ-
ated with the occurrence of stillbirth [4]. Severe withdrawal is associated
with increased muscular activity, thereby increasing the metabolic rate
and oxygen consumption in the pregnant woman. During maternal with-
drawal, foetal activity also increases, and the oxygen needs of the foetus
can be assumed to increase. The oxygen reserve in the intervillous space
of the placenta may not be able to supply the extra oxygen needed by the
foetus. During labour, contractions further compromise the blood flow
through the uterus. If labour coincides with abstinence symptoms in the
mother, the increased oxygen needs of the withdrawing foetus coincide
with a period of variable uterine blood flow, leading to foetal hypoxia and
possibly foetal death. As the foetus grows older, its metabolic rate and
oxygen consumption increase; therefore, a pregnant woman undergoing
severe abstinence symptoms during the latter part of pregnancy could be
less likely to supply the withdrawing foetus with the oxygen it needs than
would an addict in the first trimester of pregnancy [4]. Many other
effects upon the foetus exposed to narcotics include: acute infection,
intrauterine growth retardation and congenital anomalies. A more
extensive description of these effects is found in reviews by Finnegan and
Kandall [5]. -

Various parameters to assess foetal welfare have been studied in the
drug-abusing pregnant woman, including: content of amniotic fluid,
prostaglandins, corticosteroid production, oestriol excretion, heat-stable
alkaline phosphatase enzyme levels, liver function studies, serum
immunoglobulin M levels and lecithin/sphingomyelin ratios in amniotic
fluid. In comparing the content of amniotic fluid prostaglandins with that
of normal, diabetic and drug-abuse-associated human pregnancies, Singh
and Zuspan [6] did not find any significant differences; however, variable
effects have been reported concerning the other parameters [5].

The low molecular weight and high solubility of cocaine in both
water and lipids allows this drug to cross the placenta easily and enter
foetal compartments. This transplacental passage is enhanced with intra-
venous or freebase use of cocaine. In addition, the relatively low pH of
foetal blood (cocaine is a weakbase) and the low foetal level of plasma
esterases, which usually metabolize this drug, may lead to accumulation
of cocaine in the foetus. Furthermore, the "binge" pattern commonly
associated with cocaine use may lead to even higher levels of cocaine in
the foetus. Transfer of cocaine appears to be greater in the first and third
trimesters of pregnancy. Because cocaine has such potent vasoconstrictive
properties, the constriction of uterine, placental and umbilical vessels may
retard somewhat the transfer of cocaine from mother to foetus. A


27

Abuse of drugs other than alcohol can also have a devastating effect on
unborn children. No one will dispute that the illegal consumption of drugs during
Pregnancy poses a substantial health risk to the unborn child.

Untreated alcohol and drug abuse during pregnancy is of particular concern
to the state of Wisconsin. According to the Wisconsin Department of Health and
Famil Services, each year approximately 70-80 children are born in Wisconsin

Alcohol Syndrome. Another 150-200 are born with the less-severe Fetal
‘icone! Effect. The DHFS estimates the resulting societal costs of these births to
be approximately $90 million each year.

The Wisconsin Department of Health and Family Services does not have any
reliable figures on alcohol consumy Guring pregnancy in Wisconsin, due to
under-reporting by women who cor to di during pregnancy.

But a telling statistic comes from a recent Centers for Disease Control study
that showed Wisconsin does have the ‘ingle hig highest reported rate in the nation of
drinking by women of child-bearing age. The same CDC study also showed that
the nationwide rate of drinking by pregnant ‘women is increasing, not decreasing.

Legal and medical opinions about how we should address chronic, severe
and untreated alcohol and drug abuse during pregnancy run across a broad
spectrum.

At one end of the spectrum are those who are completely to Act
292. Some in this camp even even believe that our response to the specific problem we
have identified should be this: Do Nothing.

‘At the other end of the spectrum are those who wish to punish pregnant
women who severely abuse drugs and alcohol through incarceration and the use
of the criminal code.

Wisconsin Act 292 stands squarely between these two extremes. itis a
moderate and balanced solution to a complex and vexing problem. The bill was
sponsored by a diverse coalition of legislators, pro-life and pro-choice,
Republicans and Democrats.

We chose to take a remedial - as opposed to a punitive — We did
80 in part because the criminal code cannot come into play until the baby is born
and the damage has already been done.

That's why we chose to amend our existing Children’s Code, a civil body of
law used to protect children at risk of serious abuse or neglect, We believe the
social services system is better prepared than the criminal justice system to help
the unborn children of addicted mothers.

The intent of Act 292 is two-fold. First its intended to prevent serious
physical harm to unborn children — — caused by
‘severe, chronic and untreated alcohol or arg ‘expectant
‘Second, it is intended to provide care and reatment | to addicted, expectant mothers
who, for whatever reason, have refused to seek or accept treatment.


10

24 Bulletin on Narcotics, vol. XLVI, No. 1, 1994

In addition to the many potential medical and obstetrical problems,
the lifestyle of the addict is also detrimental to herself, her family, and to
society. To meet the high cost of maintaining a drug habit, the pregnant
drug-dependent woman must often indulge in robbery, forgery, the sale
of drugs and prostitution. Because most of her day is consumed by the
two activities of either obtaining drugs or using drugs, she spends most of
her time unable to function in the usual activities of daily living. The
opiate addict will have intermittent periods of normal alertness and well-
being, but for most of the day she will either be "high" or "sick", The
"high", or euphoric state, will keep her sedated or tranquillized, absorbed
in herself, and incapable of fulfilling responsibilities. The “sick” stage, or
the state during which she is going through abstinence, generally is char-
acterized by craving for narcotics accompanied by malaise, nausea,
lachrymation, perspiration, tremors, vomiting, diarrhoea and cramps. As
a result of such a lifestyle and because she may fear calling attention to
her drug habit, the pregnant addict often does not seek prenatal care.
There may be no experiences of prenatal care, either in a hospital setting
or in the office of a private physician. The woman may be unmarried and
have venereal disease. Tattoos or self-scarring of the forearm to disguise
needle marks may be evident. Due to the diminished pain perception
when smoking while "high", burns of the fingertips and cigarette burns of
the clothes may be found. The use of poorly cleaned needles or shared
needles predisposes the women to serum hepatitis, and jaundiced skin or
sclera may be evident. :

Examination of her personal history may reveal several other aspects
of the pregnant heroin addict's life. She may have several other children
who are currently not living with her but with a relative, or who have
been placed in care. Drug-dependent women frequently are intelligent,
although in a Philadelphia survey the average level of high school
achievement was the eleventh grade [1]. Housing situations frequently are
chaotic, and plans for the impending birth of the child often have not
been considered.

Therefore, when assessing the impact of addiction on the pregnant
woman, one must put into perspective the milieu within which she must
survive. The cycle of addiction not only includes illicit and licit drug use,
but also medical and obstetrical complications, family dysfunction,
psychiatric disorders, physical and sexual abuse, social issues, legal
problems and educational deficits, followed by employment failure and
economic loss. Figure I further elaborates on the tragic problems that
drug-affected families encounter.

In the United States, alcohol and illicit drug use is frequently
associated with tragic fatalities, drownings, suicides, assaults, rape,
manslaughter charges and murders. The above stressors have tremendous
impact on family integrity.


146

ROBERT H H000 Hoop Law Firm, LLC

DKON PEAR
LOUIS KERNS. “ATTORNEYS AT Law ‘CHRISTINE COMPANION
(MARK PrALLPS, esa use Ww

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coun) EMAIL HUF@HOODLAWCOM ROBERT H HOOD,
ses GAOT
ovnecr om coe

August 5, 1998

Joseph C. Good, Esquire

‘Medical University of South Carolina
Office of the General Counsel

171 Ashley Avenue

Charleston, SC 29425

Dear Joe:

At your request, we have been asked respond to the prepared remarks given
by Ms. Mary Faith Marshalll to the U.S. Senate Subcommittee on Thursday, July
23,1998.

‘At the outset, it should be noted that Ms. Marshall has no personal
knowledge of the Interagency policy and was not employed by MUSC at the time of
it's implementation. After commencing her employment with MUSC and learning
of the policy, rather than speaking to the principals involved at MUSC, Dr.
Marshall contacted the future plaintiff attorneys at the Center for Reproductive
Law and Policy.

Her lack of first hand knowledge is evident in her prepared remarks, where
Ms. Marshall misrepresented the Medical University Policy. The Medical
University Policy was applied throughout the Medical University and its clinics, to
both private and Medicaid patients. Local police accepted references from other
local hospitals but did not force them to adopt any formal policies, like the Medical
University. Ms. Marshall's knowledge of the Policy is completely second-hand as
she was not with the Medical University at the time it was developed and
implemented, she was not with any of the pre-natal care clinics that implemented
the Policy.


63

which are gender specific and culturally sensitive. Clients are encouraged to address their issues
as they progress along the continuum of care, and are offered the opportunity to infuse faith and

spirituality into their recovery.

Mr. Chairman, studies have shown that great cost savings can be associated with investing
dollars into treatment programs for pregnant and postpartum women and their children. Our
treatment outcomes continue to show positive findings. However, as the number women we
treat and our positive birth outcomes continue to grow, so does our waiting list for treatment, In
addition to the savings connected to treating the mother, there are significant savings to be
realized by delivering drug-free infants. The expense of intensive hospital care for each drug-
exposed newborn ranges from $20,000 to $40,000 per month. The average total cost of care
from birth to age 18 for each drug exposed child is $750,000 according to the General
Accounting Office. The cost effectiveness of the prenatal program at Haymarket Center is easily

demonstrated - the cost is less than $100 a day per client.

We at Haymarket believe that the drug abuse treatment community is doing exceptional work to
serve clients, Utilizing federal resources, the community can continue to improve its services.
However, to improve local and state-level services, federal policy related to prevention and
treatment must become more coherent and better coordinated, This will enable the treatment
community to further develop and refine the “continuum of care,” and provide better, more

comprehensive services to vulnerable populations.

Mr. Chairman and Members of the Subcommittee, substance abuse disorders do not discriminate
on the basis of race, creed, ethnic origin, age, sex or socioeconomic background. It is imperative

thar we work to assist those who are most vulnerable to the dangers of addiction, namely


20

Ms. CHRISTOPHILLIS. I also would like to ask to be introduced for
the record a statement from Dr. Lee Beasley, who is a woman OB/
GYN who runs a clinic in Pickens, SC, who, and I quote, says that
approximately 70 reports have been made to DSS after our protocol
was implemented by them, regarding drug use and pregnant
wornen after 24 weeks of gestation. All of the women have success-
fully participated in or completed therapy. During this time period,
there has not been an increase in the number of women delivering
no prenatal care at the hospital. This fact would imply that women
are not avoiding prenatal care for fear of urine drug screening.

I’m also asking, for the record, the introduction of our most re-
cent protocol, which was written by a multidisciplinary team of
people, including our medical association, district attorneys, law
enforcement, hospital associations, public defenders, legal service
personnel, as well as our treatment people. This protocol sets up
a layer of intervention that is beneficial for the child and the moth-
er. Treatment is all of our goal and I ask you all to not forget the
cries of these children who so desperately need your help.

ank you.
[The prepared statement of Ms. Christophillis follows:]


37

and 82 of those went into voluntary treatment without any court
action whatsoever. So I think it’s definitely working.

Mr. SouDER. How many people have gone through your program?
Do you have any idea?

Ms. CHRISTOPHILLIS. No. We've recently collected statistics.
When the Whitner case was passed in 1996, it gave us our first op-
Portunity in, really, last year, to do a thoughtful, Statewide study.

e’ve had different counties that have been more involved than
other counties. So we have some history in certain counties, but
nothing specific statewide. But I can tell you from Greenville and
Charleston and some of the other States, I know of hundreds of
women that have successfully completed these programs.

Mr. SOUDER. You had a dramatic story in your testimony. Mr.
Condon, also referred to, lovingly, the New York Times coverage.
When you say you've had hundreds of people successfully treated,
how many of those did you have respond to the first order as op-
posed to the second? And do you have other stories in the second?

Ms. CHRISTOPHILLIS. Well, I think that also Paula Keller, who’s
here in the second panel, who runs our long-term, inpatient drug
facility can tell that these women were not knocking on the door.
They weren’t lining up saying, Here I am for treatment today. That
just—it_wasn’t happening. same thing at our medical univer-
sity in Charleston. So we tried that and it didn’t work.

, the layers of intervention that we set up are least intrusive
as possible with our family court. We had a statewide family court
system that has the Court of Equity and it’s not a criminal court.
And that’s where the bulk of these cases end up going to. I think
it’s pretty similar to what Wisconsin recently passed. We’ve had
that for a long time and it gives us the ability to protect children,
as well as treat the mothers.

Mr. SOUDER. My understanding is in the Atlanta Constitution
they ran a poll that showed that more women favored the criminal

enalties than men. Does that surprise you? How do people react
in both your States?

Mr. ConpDon. It doesn’t surprise me at all. As the other witness
talked about, this gets support across-the-board from all different
groups because I think people realize that we have a responsibility,
as a society, to these innocent children. And if someone could come
up with a better mousetrap, a better solution, let me know about
it. We find this works. That you have some intervention, whether
it’s civil penalties or using probate court or Department of Social
Services on up to the criminal; that’s what the protocol calls for.
And I think what they’ve done in Wisconsin is marvelous.

But the point is to do something. And, sadly, in most jurisdic-
tions in this country, nothing is done.

Mr. Domina. My experience and my concern is that, if there isn’t
sort of a recognition of the common sense middle ground that is
promoted in both States, that there begins to take on a desire of
the population to do something more. And there’s a greater en-
croachment on individual rights and freedoms to the point that I
think is unacceptable. And so, when my case was struck down
which resulted in the legislation, there were many community
members that came up to me and said, Well I think you should go
and mandate sterilization of women that keep producing these


157

And I think that’s what Ms. Keller wants. Ms. Keller has a simi-
lar program in South Carolina, and you want what works. And I
think we can have a good discussion about what works and how
we get there.

I was struck, Ms. Keller, by your comment about the voluntary
programs. And I think you made reference that your program has
great demand, but voluntary programs are lagging. Were you refer-
ring to South Carolina, or were you referring Nationwide?

Ms. KELLER. I was referring to South Carolina.

Mr. BaRRETT. Ms. Foley, in Illinois, can you tell me whether pro-
grams such as the one Ms. Keller has, or Ms. Feinberg, or yours—
the voluntary nature—is there great demand, shrinking demand,
what's the situation in Illinois?

Ms. FoLey. When we first opened the program in 1990, we were
concerned that the demand might not be there. That was not true.
We filled very rapidly. We remained full very rapidly. What has
had the greatest impact on our prenatal program, as well as other
programs—but particularly the prenatal program—has been the
onset of managed care. We find for the first time in the better part
of a decade, we do have empty beds. Managed care—if it is a court
ordered treatment, managed care is denying payment. Their re-
sponse very frequently is that you would have to do it anyway,
whether or not we paid. If they do permit—if managed care does
permit treatment, they are looking at maybe 2, 3, 7 days max-
imum. Our history shows that this is not—these women who have
been abusing drugs throughout multiple pregnancies, did not hap-
pen into this overnight. We're not going to help them to change
their lifestyle to become productive citizens overnight. So, this has
been a tremendous concern.

Mr. BARRETT. But, again, on a demand—the demand though is
still there, from what you’re saying. I don’t mean to put words in
your mouth.

Ms. FOLEY. Yes.

Mr. BARRETT. But the problem is managed care more than lack
of demand.

Ms. FOLEY. That’s correct. The demand is still there.

Mr. BARRETT. And Ms. Feinberg, I think I know from Milwaukee,
but I want to hear your view. Is there demand in Milwaukee for
the voluntary programs?

Dr. FEINBERG. We always have people waiting—voluntarily wait-
ing—to come into the program. If we ever have an empty bed, it’s
the same situation. Not necessarily managed care, because we don’t
have managed care contracts for Meta House. But if there’s an
empty bed, it’s because I don’t have the funding for it. It does not
mean that the woman isn’t out there waiting. We can’t keep up
with the demand.

Mr. BarRETT. Ms. Keller, what impact does managed care have?

Ms. KELLER. I didn’t hear the question.

Mr. BARRETT. What impact does managed care have in your com-
munity, do you know?

Ms. KELLER. Well, it has certainly shortened our stays.

Mr. BarREtT. Has it had a positive or negative impact on treat-
ment?

Ms. KELLER. On treatment, positive.


57

Mr. Souper. Thank you for your testimony.

Ms. Foley.

Ms. Fouey. Thank you, Mr. Chairman, for granting Haymarket
Center_the opportunity to be present before your subcommittee
today. I ask that my written testimony be entered into the record.
I serve as Associate Director at Haymarket Center.

As you heard from our president, Ray Soucek, in yesterday's
hearing, Haymarket is the largest provider of substance abuse
treatment services in Chicago, and the third largest in the State
of Illinois. Founded in 1975 by Monsignor Ignatius McDermott, we
have grown in the past 23 years to serve an average of 13,000 cli-
ents annually. Many of the services have been cited by the Center
for Substance Abuse Treatment as models for replication, and have
been presented throughout the United States and the world.

Throughout our 23 years, we have developed several unique, gen-
der-specific programs to address the needs of the especially high
risk substance abusers. Our population of highest risk are the
pregnant addicts, who have had a particularly difficult time receiv-
ing treatment. Today, pregnant, postpartum, and parenting women
comprise over 50 percent of our client base.

Older treatment models were originally designed for males. They
accepted pregnant women only in the early stages of pregnancy,
did not include child care services, and were reluctant to serve this
high risk population. Haymarket’s willingness to serve as a pioneer
in offering services to this population resulted in the successful
birth of over 500 healthy and drug free babies, and opened the door
for other treatment providers to follow suit.

Significant research has already been done on the treatment ef-
fectiveness for this population. I would like to enter a sample of
this research for the record.

Unfortunately, drug abusing pregnant women are perceived to
exist only in lower economic, minority, and urban areas, while the
more affluent, suburban, middle or upper middle income areas,
where drug abuse is often equally as prevalent, are considered rel-
atively problem free. The effects of alcohol abuse and resultant
fetal alcohol syndrome and fetal alcohol effects in newborns born
in suburbia remain sorely unaddressed. Fetal alcohol syndrome
also is present, but under less scrutiny, than illicit drug use in the
inner city.

In January 1990, Haymarket responded to a newly enacted IIli-
nois law that allowed the Illinois Department of Children and Fam-
ily Services to seize any baby testing drug positive at birth. By pro-
viding residential treatment services for pregnant women in our
maternal addiction center, MAC, we accepted women at any time
during pregnancy, and allowed them to remain until childbirth.
Haymarket chose to capitalize on what appeared to be the major
motivational force to change a drug addicted mother’s lifestyle to
produce a healthy baby that would not be taken away at birth. Our
MAC program has successfully treated over 500 women who have
remained in treatment to deliver just under 500 drug free babies.
The slightly lesser number is accounted for with our several sets
of twins and one set of triplets.

We consider these positive birth outcomes to have saved many
taxpayer dollars and kept many families together. We knew from


23

However, it’s important to understand that the threat of
incarceration following the birth of the child gives a pregnant
addict the strongest possible incentive to remain in a drug
rehabilitation program. It’s ironic that Malissa Crawley, whose
case has been cited as an example of the program's inhumanity, is
the best example 1 know of its success. After giving birth to two
cocaine babies, testing positive on virtually every drug test
subsequent to her initial arrest, and breaking probation by knifing
a known drug dealer, she successfully kicked the habit only when
told that she faced a jail sentence because of her repeated
offenses.

‘This program works because it is humane, caring when
appropriate -- and, when necessary, double tough. In order to
underscore that point, we've submitted written evidence and also
asked a professional in the field to give you the benefit of her
experience.

Thank you.


144

33. Andrew Malcolm. “Crack. Bane of Inner City, ls Now Grippin Suburbs.” New York Times.
Oct. 1. 1989: Al; as cited in Dorothy Roberts. Killing the Black Body:\78

34. Maternal. Infant. and Child Health Council. South Carolina Prevalence of Drug Use Among
Women Giving Birth (Columbia. S.C.: Office of the Governor. 1991): 7-8.

35. L.B. Tribble. T.C. Hulsey, S.B. Brown. D.J. Annibale. “Analysis of Hospital Maternal
Cocaine Testing Policy: Its Association with Prenatal Care Utilization Patterns,” preliminary data.

36. Chrisensen, “Criminal Prosecution of Mothers of Drug-Exposed Neonates: A Case Study of
a Policy Dilemma,” Ph.D. dissertation. Schoo! of Graduate Studies. Medical College of Georgia,
1992, citing Greenville News. Aug. 25, 1989 as cited in Dorothy Roberts, Killing the Black Body,
336.

37. Options for Recovery: Final Evaluation Report Center for Reproductive Health Policy
Research (1994), Institute for Health Policy Studies, University of California. San Francisco: 33.

38. “Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal
Penalties for Potentially Harmful Behavior by Pregnant Women,” Board of Trustees Report,
American Medical Association. JAMA 264 (1990) 2663-2667.; Kary Moss, “Legal Issues: Drug
Testing of Postpartum Women and Newboms as the Basis for Civil and Criminal Proceedings,”
Clearinghouse Review 23 (1990), 1411-12: Michelle Oberman, “Sex, Drugs, Pregnancy and the
Law: Rethinking the Problems of Pregnant Women Who Use Drugs,” Hastings Law Journal 43
(1992): 505.: U.S., General Accounting Office Report to the Chairman, House Subcommittee on
Finance. Drug-Exposed Infants: A Generation at Risk. GAO/HRO-90-138 (June, 1990): 39.;
“Maternal Drug Abuse and Drug Exposed Children: Understanding the Problem.” Report of the
Ad Hoc Drug Policy Group, Sub-Group on Substance Abusing Women and Their Children.
Department of Health and Human Services. Publication No. (ADM) 92-1949 (1992):13.

39. “A Step Toward Recovery: Improving Access to Substance Abuse Treatment for Pregnant
and Parenting Women.” The Southern Regional Project on Infant Mortality. Washington (1993):
5

40. Drug-Dependent Mothers and Their Children, Issues in Public Policy and Public Health.
Mary Haack. ed... Springer Publishing Company. New York (1997): 7.

41. Philip H. Jos, Mary Faith Marshall. Martin Perlmutter. “The Charleston Policy on Cocaine
Use During Pregnancy: A Cautionary Tale.” Journal of Law. Medicine and Ethics, 23
(1995):124.

42. Barry Siegel. “In the Name of the Children.” Los Angeles Times Magazine. Aug. 7.. 1994:37.

43. Ibid:38.


Wendy K. Mariner, Leonard H. Glantz, George}.Annas {30

90

Pregnancy, Drugs, and the Perils of Prosecution

WENDY K. MARINER, LEONARD H. GLANTZ,
(GEORGE J. ANNAS

In the war on drugs an offensive has been launched
against pregnant women who use drugs. Over the past
four years, prosecuting attomeys have been indicting,
women who use drugs while pregnant. In South Caro-
lina alone, eighteen women who allegedly took drugs
‘during pregnancy were indicted last summer for crimi-
nal neglectof a child or distribution of drugs toa minor."
Tin the only successful prosecution so fa, Jennifer Johnson
‘was convicted in Florida for delivering ilegal drugstoa
minor via the umbilical cord in the moment after her
‘child was born and before the cord was clamped? No
one seriously maintains that the transitory “delivery”
was the conduct on trial. Rather, the crime was the
mother's use of illegal drugs during pregnancy. But the
indictment contorted the statute's prohibition against
drug “delivery” to characterize as criminal the kind of
‘conduct that could not have been considered within its
scope by the enacting legislature.

Nonew law had been passed making ita special crimi-
nal offense to use drugs during pregnancy. Rather, the
prosecutions have been based on obviously strained
interpretations of existing law, such as child endanger-
ment or delivery of drugs to a minor. Since both drug,
‘use and criminal laws prohibiting sale, distribution, or
[possession of drugs have been with us for decades, why
should prosecuting attorneys be searching the statute

Wendy K. Mariner is Associate Professor of Health Law at
Boston University Schools of Medicine and Public Health.
Leonard H. Glantz, co-author with George J. Annas and
Barbara Katz, of informed Consent to Human Experi-
‘mentation: The Subject's Dilemma, is Professor of Health
‘Law at Boston University Schools of Medicine and Public
Health. George J. Annas, author of Reproductive Genetics
and the Law, is Eduard R. Utley Professor of Law and
Medicine at Boston University Schools of Medicine and
Public Health

‘Criminal Justice Ethies

‘books today for creative ways to prosecute pregnant
‘women whouse drugs? The answer may lieina peculiar
confluence of changing attitudes towards pregnancy
and drug use. Public attitudes are pro-natalist in the
‘broad sense of supporting efforts to overcome infertility
and to havechildren? Advances in medical technology
have produced new methods for detecting and some-
times correcting fetal abnormalities.‘ which enables us
to think of fetuses as “patients” separately from their
‘mothers. Publichealth studies have found that pregnant
women can have a positive impact on the outcome of
their pregnancies through prenatal care, improved nu-
trition, and the avoidance of teratogenic or toxic sub-
stances like alcohol and drugs. This had ted to a close
scrutiny of thebehavior of pregnant women. Finally, the
war on illegal drugs announced by the Reagan Admini-
stration has spurred intense publicity about the dangers
of drug use and has tended to legitimize virtually any
action to suppress drugs’ indeed, the civil liberties of
individuals ae often seen as.a hindrance to winning the
jar.” Media reports of increases in the number of
infants born with traces of drugs in their systems have
linked the horrors of drugs with our concer for healthy
babies.

“The influence of changing knowledge and values has
Jed us to see the mother as responsible for many ills that
befall hernewborn. If she did not receive prenatal care,
ate poorly, drank too much, or took drugs, she is as-
sumed to be the cause of any injury to the baby—she is
‘a bad mother. It is easy to feel outrage at behavior that
seems avoidable and that risks injury toa newborn. So
itis understandable that many have argued for control-
Jing women to protect a fetus.* Few would argue that a
pregnant woman has no moral responsibility to her
developing fetus. However, violation of this moral
responsibility not to harm is being transformed into a
punishable crime.

Prosecuting women (or prenatal drug use offers im-
‘mediate and visible action against an identifiable “wrong:



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44

argument on both sides of this is very sincere about this. So I take
people at the face value on this issue.

And my first question, Mr. Domina—I keep thinking Mr. Pizza
Hut after what you said before. [Laughter.]

But I know that’s not right. How many women are refusing
treatment? How big a problem do you see, then?

Mr. Domina. I’m a lawyer. I deal with individual cases and, in
some respects, that’s what we had in Waukesha. We had a case in-
volving a woman——

Mr. BarreTT. A horrible case.

Mr. Domina. A horrible case. But one that really cried out for
some sort of issue to be addressed. And I don’t go out and measure
in my profession, women that don’t show up at treatment facilities
or do show up at treatment facilities. I really can’t provide you
with that information today.

Now, with that said, knowing that I’m limiting my answer be-
cause of my lack of experience in the area, I also think you cannot
accept, as a broad brush statement, a response that’s contained in
a statement of one individual. You don’t know how the issue was
presented. You don’t know what factual predicate was part of that
presentation. You don’t know whether or not there was a wink and
a nod in terms of you’re going to be going to jail. They say you're
going to the hospital, but we really know it’s jail. And without that
information and without statistical evidence, you really don’t have
the ability to gauge whether that premise is really factually accu-
rate.

But really, in Wisconsin, we’re kind of scratching the surface on
this. And we cannot present you, I don’t believe, a case that that
premise is accurate or not accurate. I can tell you that I do know,
from my experience, that many women deny that they have a prob-
lem because they’re addicted to cocaine or addicted to alcohol. That
that, in my experience in the court system—and I’m not a treat-
ment professional—is part of the progression of the illness. And,
given that denial, it doesn’t seem to me to be a logical leap that
you would have individuals that, because they don’t think they
have a problem, that they don’t need treatment.

And the only issue I have with that is when they invite injury
onto children that are going to be part of our society.

Mr. BARRETT. What about South Carolina?

Ms. CHRISTOPHILLIS. I think, again, we’ve had almost 10 years
of experience in at least some of our counties, particularly Green-
ville and Charleston where both Attorney General Condon and I
are from. Paula Keller is here and Shirley Brown from both of
those counties and they can answer very specifically, I think, these
questions.

My experience has been on the ground with this issue is it hasn’t
happened. It’s not there.

Mr. BarRETT. What hasn’t happened?

Ms. CHRISTOPHILLIS. There’s no babies being born on the streets
of Greenville. There’s been no women not coming in for prenatal
care because of our policy. It’s—all of those things that were criti-
cized in the very beginning almost 10 years ago, our evidence has
found that it’s just not true. And, actually, they are coming in for
treatment and the vast, vast majority of them are successfully


85

Perinatal morbidity and mortality in substance using families 39

17.

18.

19.

20.

21,

22.

23.

24,

25.

26.

27.

I. J. Chasnoff and others, "Cocaine use in pregnancy", New England
Journal of Medicine, No. 313 (1985), p. 666.

A. J. Hadeed and S. R. Siegel, "Maternal cocaine use during preg-
nancy: effect on the newborn infant", Pediatrics, No. 84 (1989),
p. 205.

C. H. Wang and S. H. Schnoll, "Prenatal cocaine use associated with
down regulation of receptors in human placenta", Neurotoxicology
and Teratology, No. 9 (1987), p. 301.

M. W. Church, "Does cocaine cause birth defects?", Neurotoxicology
and Teratology, No. 15 (1993), p. 289.

B. Lutiger and others, "Relationship between gestational cocaine use
and pregnancy outcome: A meta-analysis", Teratology, No. 44
(1991), p. 405.

G. Koren and others, "Perception of teratogenic risk by pregnant
women exposed to drugs and chemicals in early pregnancy",
American Journal of Obstetrics and Gynecology, No. 160 (1989),
p. 1190.

K. Graham and G. Koren, "Characteristics of pregnant women
exposed to cocaine in Toronto between 1985 and 1990", Canadian
Medical Association Journal, No. 144 (1991), p. 563.

J. F. Connaughton and others, "Perinatal addiction: outcome and
management, American Journal of Obstetrics and Gynecology,
No. 129 (1977), p. 679.

T. M. Doberczak and others, "Neonatal neurologic and encephalo-
graphic effects of intrauterine cocaine exposure", Journal of
Pediatrics, No. 113 (1988), p. 354.

S. J. Isenberg, A. Spierer and S. H. Inkelis, "Ocular signs of cocaine
intoxication in neonates", American Journal of Ophthalmology,
No. 103 (1987), p. 211.

I. J. Chasnoff and others, "Temporal patterns of cocaine use in
pregnancy”, Journal of the American Medical Association, No. 261
(1989), p. 1741.


62

Substance Abuse Treatment as models for replication, and have been presented throughout the

‘United States and the world.

To further our commitment to this parenting population, we opened Sangamon House in carly
1992. Sangamon House is a recovery home for women with children and is located in the
Haymarket Center complex. It offers structured living in a safe environment for women who
have completed treatment and ate working toward fe-entry into society. It also provides on-site

daycare so that mothers may gain employment, further education, or vocational training services.

Other supportive services have been developed in order to address the specific needs of addicted
pregnant and postpartum women and their children. These have been integrated into our
programs in order to holistically meet the clients’ needs. They include child care, transportation,
2shour medical monitoring, extensive counseling, domestic abuse services, ‘putrition,
recteational therapy, parental stress programs and linkages to other medical, dental and
psychiatric needs. In addition, our outpatient programs, specializing in aftercare, provide clients
with an opportunity to make the complete transition from chemical dependency to a productive
livelihood. By working through these levels of service, our clients seek to gain identity,

confidence and self esteem.

Despite our successes with pregnant addicts during the past seven years, we acknowledge a need
to continue to refine what we refer to as a “continuum of care” for our clients. As you heard
from Mr. Soucek, this “continuum” is the integration of drug sbuse prevention, drug abuse
weatment, health services, day care, parent training, vocational education, job placement and
screening for domestic violence and gambling addiction for every Haymarket client. The

continuum provides clients with a comprehensive and integrated range of treatment programs


40

86

Bulletin on Narcotics, vol. XLVI, No. 1, 1994

28.

29.

30.

31.

32.

33.

34,

35.

36.

37.

38.

L. D, Kramer and others, "Neonatal cocaine-related seizures",
Journal of Child Neurology, No. 5 (1990), p. 60.

S. D. Dixon and R. Bejar, "Echoencephalographic findings in neo-
nates associated with maternal cocaine and methamphetamine use:
incidence and clinical correlates", Journal of Pediatrics, No. 115
(1989), p. 770.

A. Salamy and others, "Brain-stem transmission time in infants
exposed to cocaine in utero", Journal of Pediatrics, No. 117 (1990),
p. 627.

L. Shih, B. Cone- Wesson and B. Reddix, "Effects of maternal cocaine
abuse on the neonatal auditory system", International Journal of
Pediatric Otorhinolaryngology, No. 15 (1988), p. 245.

M. van de Bor, F. J. Walther and M. E. Sims, "Increased cerebral
blood flow velocity in infants of mothers who abuse cocaine",
Pediatrics, No. 85 (1990), p. 733.

M. P. Teske and M. T. Trese, "Retinopathy of prematurity-like
fundus and persistent hyperplastic primary vitreous associated with
maternal cocaine use”, American Journal of Ophthalmology, No. 103
(1987), p. 719. :

R. W. Cobrinik, T. R. Hood and E. Chusid, "The effect of maternal
narcotic addiction on the newborn infant; review of the literature
and report of 22 cases", Pediatrics, No. 24 (1959), p. 288.

R. M. Hill and M. M. Desmond, "Management of the narcotic
withdrawal syndrome in the neonate", Pediatrics Clinics of North
America, No. 10 (1963), p. 67.

C. Zelson, E. Rubio and E. Wasserman, "Neonatal narcotic addiction:
10 year observation", Pediatrics, No. 48 (1971), p. 171.

L. P. Finnegan, "Neonatal abstinence syndrome; assessment and
pharmacotherapy”, in Neonatal Therapy: an Update, F. F. Rubaltelli
and B. Granati, eds. (New York, Elsevier Science Publishers B. V.
(Biomedical Division), 1986).

L. P. Finnegan and K. Kaltenbach, "Neonatal abstinence syndrome”,
in Primary Pediatric Care, 2nd ed., R. A. Hoekelman and N. Nelson,
eds. (St. Louis, Mosby Year Book, 1992).


121

Access to Treatment Is Limited

Although treatment for these women is successful, there are few resources to support it. Access
to treatment at Meta House is limited, Instead of being able to offer immediate treatment and
help to any women who calls, I am forced to place woman after woman on the waiting list
because Meta House is always full. Approximately 100 families, women and their children, are
‘waiting to enter the program. Each time there is an article in the media that brings public
attention to a woman Who is drinking or using drugs and has harmed her baby, I look for the
name of that women on our wailing list. On more than one occasion that women tried to get help
for her addiction from Meta House and I had to tell her that she had to wait.

Nationally and locally in Wisconsin, access to alcohol and drug treatment does not meet the
‘current need for services. Nationally, only 50% of the individuals who need treatment receive it.
Waiting lists for alcohol and drug treatment are six months long in some regions. Wisconsin's
public treatment system budget has been cut in half. Health Maintenance Organizations (HMOs)
in Wisconsin, which are tasked with providing alcohol and drug treatment for public assistance
clients, are providing few weatment services. The HMO study conducted by the Wisconsin
Bureau of Health Care Financing indicates that the penetration rate for aleohol and drug
Wreatment in southeastem Wisconsin is approximately 3%. Some HMO's are providing no
treatment services.

Conslusion

Exemplary public policy focuses its impact on the good that it does for the majority of people
affected. Meta House and other programs of its kind have demonstrated their ability to produce
long-term changes in women's ability to raise their children and to live drug-free, law-abiding
lives. For these reasons, women need to feel safe so they will access pre-natal care and enter
treatment. Increasing treatment opportunities for pregnant women and women with children is
imperative and the most sensible public policy to support.

‘Thank you for providing me with the opportunity to testify today. I would be happy to answer
any questions.


124

Because of this, unanimously, professional health care and child
welfare organizations are unanimous in their formal position state-
ments against the criminalization of perinatal substance abuse.
These organizations include the American Medical Association,
American Nurses’ Association, American Academy of Pediatrics,
American College of Obstetricians and Gynecologists, the American
Public Health Association, and the National Association of Public
Child Welfare Administrators.

In their guiding principles they state that, “substance abuse or
the addiction of the parent to alcohol or drugs, in itself, does not
constitute abuse or neglect of a child. Addiction is not a crime.”
And that, “the assumption that the many causes of substance
abuse can be remedied through law enforcement is an error.” And,
“if a jurisdiction elects to mandate drug testing of pregnant women
and newborns, such testing should be universal, conducted on all
pregnant women in all medical facilities, not targeted to specific
populations, and should be used only to identify families in need
of treatment, and to make referrals. Positive test results should not
be used for punitive action.”

So that rather than focusing on punishment and ineffective de-
terrent strategies, policy approaches to perinatal substance abuse
should focus on the well being of children and pregnant women.
Also, the integrity of the family should assure that the harm to be
prevented to children, to clearly exceed the harm of a pregnant
woman's loss of liberty, as well as harms to her other dependents.
It assures that the intervention is expected to be successful in
terms of tangible benefits to the health of the child and the mother.
It should involve the least restrictive means possible, and it should
substantially benefit society and not lead to substantial social

arm.

Td like to point out that a study at the Medical University of
South Carolina by Tribble, et al., showed that while equivalent por-
tions of black and white populations were drug positive during the
course of the interagency policy, black mothers were more likely to
use cocaine than white mothers. Their data also suggested that the
cocaine screening policy was associated with a decrease in the utili-
zation of prenatal care by women who screen positive.

The Southern Regional Project on Infant Mortality showed that
the most frequently reported perceived or experienced barriers to
substance abuse treatment for pregnant women include fear that
their children will be taken away, shame about being alcoholic or
a drug addict, depression which causes inaction, and denial that
they have an addiction problem.

Real concern for unborn children and substance abusing preg-
nant women, real consideration for healthy pregnancies with
healthy outcomes, does not involve political rhetoric or
grandstanding, but involves the following approach on the part of
politicians.


81

I’m a parent of two small children and I'll tell you that I make
lousy choices for them sometimes. And I would regret and be of-
fended by the State’s interest in intervening in my right to make
lousy choices and to learn from those choices as a parent, at times,
and to grow as a parent. That’s not what this bill is intended to

lo.

So, contrary to the verbiage that you may hear that women that
chose to drink casually during pregnancy—although I think it is a
lousy choice—is not a subject of jurisdiction under this api a
women that choose to smoke during the course of pre;
not the subject for this bill. Rather, women that habitually Tae self
control with respect to drugs and alcohol are the subject.

The orders can regulate the mother’s conduct. It can place her
or the child in a least-restrictive setting, again, a constitutional
monitor that provides protection that people are not held in con-
trolled circumstances. And those settings can include the home of
a friend or a relative or may include a hospital. Notice I said hos-
pital, not prison.

bill very clearly does not provide for incarceration. It does
not provide for criminal penalty. Its purpose is one of remedial
intervention. It’s a front-end bill and if you review what cases are
being upheld across this country, many of them involve the crimi-
nal prosecution of women. I think it is abhorrent to wait for chil-
dren to be injured for the criminal justice system to flex its interest
in a situation.

It also provides for the appointment of counsel and for the right
toa jury trial. Very fundamental issues. I want to thank the com-
mittee for inviting me today to present my information. I hope it
is helpful. And I hope it serves as an opportunity to continue this
very important debate. Thank you.

[The prepared statement of Mr. Domina follows:]


156

Ms. MARSHALL. The analogy is not the same as saying I think
I will give my 5 year old a hit of crack cocaine.

Mr. SouDER. No, let’s say the child’s now 6 months, 3 months
old, 1 month old, 1 week old—once the baby is born, it’s now a sub-
stance abuser who has a baby 1 month from delivery and a sub-
stance abuser 1 month after it’s delivered. Is your only distinction
that now you can see the baby, because there’s no differential.

Ms. MARSHALL. No, that’s not my distinction at all. A substance
abuser who happens to become pregnant is not—the point of her
taking substances is not to deliver them to her child. The point of
her taking substances is because she’s addicted to them. That’s
very different than if I had a child sitting next to me, and I handed
him or her a cigarette, or drink of alcohol, or something else. The
intent is not the same. So I don’t think that’s a fair analogy.

Mr. SoupeR. I simply do not understand your point, because the
impact on the child is exactly the same. it you're saying is if
a mother doesn’t understand in the last month before birth that it’s
a child, she doesn’t have the same understanding that it’s a child
ingesting the cocaine or the alcohol, as it would 1 month after

irth.

Ms. MARSHALL. Mr. Chairman, I think you’re putting words in
my mouth. I mean, we may not—I think that we're not agreeing
on perhaps the intentionality of the act. Again, I construe these
problems as substance abusers, whether they’re alcoholics, whether
they are addicted to cigarettes ——

Mr. SouDER. What about child neglect? In other words, we can
also report people for child neglect, which doesn’t involve
intentionality. For example, if a parent leaves drugs laying around,
leaves feces in their house, and didn’t intend to harm the child, but
in fact harms the child through neglect, we report them.

Ms. MARSHALL. That’s true.

Mr. SOUDER. Why wouldn’t that be the same in this case? If
you're saying intentionality——

Ms. MARSHALL. Because it’s impossible for a pregnant woman to
abuse a substance and not have it affect her fetus. That’s the bio-
logical reality. I’m sure if there were some way where she could
abuse substances and not have them affect her fetus, she would do
so.

Mr. SOUDER. Mr. Barrett.

Mr. BarRETT. Thank you, Mr. Chairman. I just want to say at
the outset as I did for the last panel, that I think that everybody
here is speaking from their heart. I don’t see any double standards.
I don’t see philosophical inconsistencies. I think every one of you
people here today has the same goal, and that is to reduce the
trauma on a child—or unborn child—whose mother is using co-
caine. And I frankly don’t see any need to say well this is incon-
sistent or that’s inconsistent.

I want to do what’s the most effective thing. And I think it’s im-
portant that we keep the discussion at that Tevel, because I know
Ms. Feinberg from Milwaukee, I’ve been to the Meta House several
times. I think that you are a woman who has dedicated your life
to helping women who have substance abuse problems. I don’t see
any sinister motive. I don’t think that you're a closet supporter of
drug use, or anything like that. I think you want what works.


Testimony of Representative Tom Latham (IA-5") Before the
House Subcommittee on National Security, International
Affairs, and Criminal Justice

July 23, 1998

Mr. Chairman, thank you for giving me an opportunity to testify here
at this very important hearing on drug babies.

As a member of the Speaker’s Task Force for a Drug-Free America, I
commend you for providing a platform to address the tragedy of the birth of
children addicted to narcotics. Unfortunately, as has been noted by others
testifying today, this is a growing trend across the nation. For years, the
Midwest states thought themselves immune from the drug problems on
America’s coasts and in the big cities. However, this is no longer the case.

In fact, nowhere is the drug problem growing faster than in America’s
heartland. Milwaukee, Wisconsin, in Mr. Barrett’s district, is a perfect
example. A University of Wisconsin Medical School study found that
perinatal substance abuse, evident in 2 percent of births in 1983, had jumped
to 11 percent by 1990. Today in Milwaukee, that rate is upwards of 15
percent and hospitals with stricter drug detection procedures have reported
rates almost twice that. So, it is likely that this problem is more widespread
than we think.

My home state of Iowa is experiencing an influx of methamphetamine
from Mexico and regional clandestine laboratories, and we have yet to see
the full effects of the drug on children of addicts. Initially, “meth” or
“crank” use was predominantly by males, however, it is now making inroads
with women as well. In fact, last week, two women were arrested in Boone
County in my district on meth charges stemming from a clandestine meth
laboratory bust. One of the women was also charged with child
endangerment and three children had to be placed in the care of the lowa
Department of Human Services.


189

University of Mississippi stated in reaction to this anticle:

*Mr. Condon claims that the South Carolina policy was very successful and states that
there was no evidence that the program scared women away from prenatal care. However. these
claims are based‘on a bizarre and methodologically flawed analysis of hospital admissions
described in the original research article. Many experienced and competent individuals have
reviewed the South Carolina Policy and the research article Mr. Condon and his colleagues
published in an attempt to validate its success

Contrary to Mr. Condon’s assertions. there has been uniform agreement among those who
have reviewed the South Carolina Program that the authors did indeed engage in research as
defined in 45 CFR 102 (d). However. the data and subsequent interpretations presented in the
original aniicle that appeared in the Journal of the South Carolina Medical Association (Vol. 86,
No. 10: October 1990: 527-531) are completely without merit or foundation. I submitted this
research article to several other experienced investigators in the field of health services research as.
well as to a class of doctoral students in research methodology, all of whom independently
rejected the research as having any validity whatsoever.""*

Real concer for unborn children and substance abusing pregnant women, real

consideration for healthy pregnancies with healthy outcomes would involve the following

approach on the part of politicians. prosecutors and others involved in developing social policy

responses to perinatal substance abuse. Such policies would:

1. Take into account the formal position statements of professional child welfare and clinical
associations. all of which condemn criminalization as morally inappropriate for clinicians and of
no proven benefit for infant heal
2. Allow for a broader conceptualization of the problem than that of fetal versus maternal rights;
and

3. Include legal. as well as illegal substances under the policy umbrella, with treatment. healthy
pregnancies, and healthy families -- not punishment -- as goals

Because the criminalization approach to perinatal substance abuse is so tainted with

discriminatory application, arbitrary selection, and political opportunism, it should be

ethically rejected. A further reason for its rejection is that it creates impermissible legal

obligations for physicians, nurses, and other statutory mandatory reporters.


147

HOOD LAW FIRM, LLC

Page Two
August 5, 1998
Joseph C. Good, Esquire

Further, the statistics reported by Ms. Marshall on the arrests made
pursuant to the Interagency Policy are inaccurate. Ms Marshall testified that forty
arrests had been made under the policy, all but one being black women not 41
arrests one of which was white as reported by Ms. Marshall. Under the Interagency
Policy there were 30 arrests, two of which were white women. Arguably one,
Theresa Joseph, was of mixed race. She reported her race to be white in the
medical record although the arrest record lists her as “mixed?” (See attached
records as Exhibit A). Further, Ms. Marshall alleges the medical record of the one
white woman arrested noted the race of her boyfriend. This begs the question of
how Ms. Marshall obtained this confidential information. This information was
released to the plaintiff's attorneys under a confidentiality Order by Judge Houck
and should not have been available to Ms. Marshall for review without violation of
that Order (attached hereto as Exhibit B).

In the prepared statement, Ms. Marshall makes reference to a “study by
Tribble et al at the Medical University” for the proposition that the policy
discouraged women from seeking prenatal care. The abstract was written by a then
neonatology fellow, Dr. Linda Tribble, along with Dr. Thomas C. Hulsey, Dr. David
Annibale and Shirley B. Brown, RN., M.N. The abstract was a reflection of a
preliminary report of a work in progress. Subsequently, due to a concern over
potential misinterpretation of the abstract, the authors issued the attached letter
on May 17, 1994. The letter states that the authors continued to investigate the
issue, however, concluded that confounding factors, such as a change in the
Medicaid reimbursement program for obstetrical patients, which was designed to
facilitate low income women into private OB offices, may have accounted for the
data. To have pursued publication of such data would not have been scientifically
valid, and therefore the authors felt no conclusion could be supported by the data
reported.

Ms. Marshall also makes reference to the South Carolina Medical Journal
article documenting the success of the Interagency Policy as an unauthorized
research study. This was not a research study and was never intended to be. This
was merely a report of what appeared to be a successful program in the Charleston
experience.

Ms. Marshall references amicus curae briefs filed by professional
organizations which were purportedly ignored by the judge and jury who rendered a
verdict on behalf of MUSC. There were no amicus curie briefs submitted to the jury
for consideration. In fact, other than affidavits filed at the Preliminary Injunction
stage, no amicus briefs were filed until after the judge's ruling and the jury’s
verdict.


153

climinating alternative explanations were unsuccessful,

‘The problems encountered which force that conclusion are, to a large degree, related to the fact
that the policy was instituted as a clinical tool, not a research protocol. As such, there were no
‘mechanisms built into it that would allow policy evaluation. Indeed, as the policy developed, it
actually changed, with testing being directed toward larger populations as clinical thoughts
changed. Time periods when testing criteria were formal and constant were sometimes short,
while in other time periods, testing criteria were less rigid. Legal responses also varied.
Additionally, information regarding the rate of drug positivity among non-tested women are
‘unavailable, a key requirement in making definitive conclusions.

For these reasons, we have re-directed our efforts. We now feel that the data concerning the
‘original question is incomplete and cannot support any definitive conclusion, We also feel that to
pursue publication of such data would not be scientifically valid. We are currently, therefore,
planning to use this policy as an example of the need for evaluation methodology in clinical policy.
‘We hope to use the issues raised by our efforts in interpreting the effects of this policy as an
‘example in that regard

In reviewing the attached abstract and presentation, we think itis important to recognize that the
information was preliminary, presented to further discussion and interpretation, rather than
conclusive. We conclude that the data cannot be definitively interpreted.

David J.“Anibale, MD. ‘Thomas C. Hulsey, M.S.P.H., Sc.D

Prt, A Boor 29m) Kenda ff, Dubble Me

Shitley B. Brown RN, MN. Linda G. Tribble, MD.

HUL-SE-eoaaaaeaze



46

to individuals. Doctors do report child abuse with children that are
born and it has not invaded the ability of people to seek physician
treatment.

Mr. BARRETT. Thank you. And one other quick question for South
Carolina. If the woman completes the treatment, the baby is born,
is there still a referral? I couldn’t tell from your testimony.

Ms. CHRISTOPHILLIS. If she was reported during the period of li-
ability?

Mr. BarRETT. I’m trying to find your testimony here. But if you
can look at your testimony. It’s unclear to me what happens after
the baby is born.

Ms. CHRISTOPHILLIS. If there’s been no intervention—all right,
let’s say that the baby was born in a hospital and, under our pro-
tocol, meets the criteria to order a drug screen for a newborn.
Then, if it is positive, then it’s reported to DSS, and DSS has to
investigate it and either indicate or unfound that case. And then
they would take that to family court for an order for treatment.

But if the woman was identified during the period of viability in
the third trimester and sought treatment and was successful, like
a majority of cases in Dr. Beasley’s clinic, then they never go to
court. They're just monitored for a period of time to complete the
treatment and that’s—then the case is closed.

Mr. BarRETT. Thank you, Mr. Chairman. Thank you.

Mr. SouDER. I wanted to do one followup. Mr. Domina referred
a second ago and said, In child abuse cases, similar complaints or
concerns were raised. And I wondered if that was true in South
Carolina too. In other words, if a drug abusing mother has a 3-
year-old and they whack them upside of the head or they insert
drugs into their system, do people say, We shouldn’t intervene
there because they might not go into—they might avoid the system.
They might not use Head Start. They might not use prenatal care
or other types of things. Or is there a double standard?

Ms. CHRISTOPHILLIS. There’s a double standard. No, that’s not
true.

Mr. SoupeR. I thank you all very much for your testimony and
for your patience as we've gone through all the votes. You’re now
excused. fuaughter.]

If the second panel could come forth. I’m going to go ahead and
introduce the second panel as you come forth. And I want to thank
you, in particular, for sitting here for hours and hours as we've
both gone through the first panel and had all the votes.

The first witness in the second panel will be Ms. Shirley Brown.
She’s outcome manager with the Medical University of South Caro-
lina. The second witness is Ms. Paula Keller, is director of Serenity
Place. The third witness is Ms. Betty Foley, associate director of
the Haymarket Center. The fourth witness is Dr. Francine
Feinberg. She’s with the Meta House and Our Home Foundation.
The fifth witness is Dr. Mary Faith Marshall. She’s with the pro-
gram in bioethics at the Medical University of South Carolina.

Now that you're all comfortably seated, would you please stand
and, as you heard earlier, we swear in all our witnesses.

{Witnesses sworn.]}

Mr. SouDER. Ms. Brown, if you could go ahead with your testi-
mony.



6

and more than $7 million to the city of Detroit’s expenses for pro-
viding drug treatment to the city’s prison inmates. In addition, this
bill could fill a possible gap in asset forfeitures by law enforcement
resulting from the decision handed down by the U.S. Supreme
Court last month that may rule total forfeiture of a defendant’s as-
sets as an excessive fine under the eighth amendment’s excessive
fines clause.

I look forward to working with you, Mr. Chairman, my colleagues
on the Speaker’s Drug Task Force, to enact a Drug Dealer Liability
Act and give the victims of drug abuse, in particular, drug babies,
an opportunity to hold the dealers of this poison accountable under
criminal and civil law. Again, Mr. Chairman, I want to thank you
and the ranking member, Mr. Barrett, for providing me with this
opportunity.

The prepared statement of Hon. Tom Latham follows:]


40

they would fall in a “may” category. But they are not mandatory
reporters.

But we have a specific statute that spells out, in our protocol, ex-
actly who is mandated to report. And that’s been around for—like
I said—for at least 20 years.

Mr. BaRRETT. Does the South Carolina protocol apply to all hos-
pitals or just public hospitals?

Ms. CHRISTOPHILLIS. Yes. All hospitals. In fact, in the protocol
that the medical association wrote, “The criteria herein are in-
tended to be applied in all clinical settings, both inpatient and out-
patient and clinic and private physicians’ offices.” And part of my
job is to train all of those ple in the medical field, as well as
other agencies that deal with this issue. And I have been—we have
95 hospitals in South Carolina and I’m making my way through all
of them, county by county and training these physicians and nurses
and risk managers who deal with this issue. And we've been very
successful.

Mr. BARRETY. Mr. Chairman, if I could have another minute or
two? One of the concerns that was raised with me with respect to
South Carolina was a racial impact, that more African-American
women were being prosecuted under this statute than white
women. Could you address that issue please? Or maybe, the attor-
ney general, if you’d like——

Mr. Conpon. I would reference, first off, what I testified to ear-
lier in terms of a court decision. That’s one thing. | guess, nice
about being sued, you do get a result. And the ACLU heavily fund-
ed the case. It was a priority with their Center For Reproductive
Rights. They funded it heavily; hired private lawyers and cost was
no object. Of course, they offered—they wanted us to settle for nui-
sance value and—against the chief of police. I was sued, several
other officials were sued personally. We wanted—you want a court
decision, let’s get a court decision.

And the decision is extremely strong in terms of these allegations
of racial animus. There is no evidence of that. The court found it.
The Federal judge found it. The jury found it. So, you know, when
you hear these things, I would hope you would keep in mind, we’ve

ad an orderly procedure that went for weeks and weeks and
weeks in which all these issues were raised and addressed and
clearly decided.

Having said that, when you look at some raw numbers—I have
never checked the raw numbers in terms of racial composition—but
it would surprise me—if your main concern is crack cocaine in
terms of damage to children—it would surprise me, based upon so-
ciological data, that most wouldn’t be African-American. It simply
is a sociological fact. Every study has seen this.

You'll often hear people quote this study out of Pinellas County,
FL. I actually went down there and looked at what they were
doing. They’re doing exactly what we're doing, forced treatment.
And Dr. Ira Chasnoff, in his first sentence in his article, always
says, “Statistics show that drug use among all groups are roughly
the same.” Well, that’s a very disingenuous statement, because
when you get his raw data—which I have gotten—his data shows
exactly what we’ve found, is that for some reason, I don’t know
why, that crack cocaine is very popular among African-Americans.


120

is unclear what conduct is punishable under the statute: only illegal drug abuse? Or is alcohol
‘abuse also punishable? Is other activity which may endanger the health of the fetus, such as
smoking, illegal? As Justice Moore said in his dissenting opinion,". . . the impact of {the
majority's} decision is to render a pregnant women potentially criminally liable for myriad acts
which the legislature has not seen fit to criminalize.” Whitner. 492 S.E.2d at 788 (Moore, J.,

‘Wisconsin

‘The Wisconsin legislature recently passed and enacted Assembly Bill 463 which amends

‘Wisconsin's child protection laws to make them applicable to pregnant women. Sex A. 93-463,
1 Legis. Sess. (Wisc, 1997). The new law states that a fetus is a “child” and is thereby
protected by Wisconsin law. See id. The law further provides that a court may order a pregnant
women to receive alcohol and drug treatment. If the woman refuses to enter treatment, and there
is a showing that there is « “rubstantial risk that the physical health of the unborn chitd. and of
the child when born, will be seriously affected or endangered” by the woman's addiction, then the
court may order that the state tnke the woman into physical custody. Seg id. A law enforcement
officer can take a woman into custody if he/she belioves thar there is a risk that the fetus will be
in danger unless the woman is taken into custody. A woman may be held in the home of an adult
relative or friend, a residential facility, hospital, physician's office, or public treatment facility.
See id.

Punitive measures ignore the root causes of addiction for so many women - sexual abuse and
battering - during which women ure victimized. Punitive approaches such as these make women
victims again. This undermines all we have leaned in treating women about how important it is
to enable them to take control of their lives rather than punishing them. So, like in the Whliner
decision, the Wisconsin tew will ereate obstacles, rather than incentives, to getting treatment.
Fearing being forced into custody, and perhaps separated from her children, 2 pregnant woman
will likely avoid the alcobol and drug treatment and prenatal care that she needs

In addition, the law has the potential of placing the woman in grave physical danger and
exposing her to continued drug use. By allowing 4 pregnant woman to be held in the home of an
adult relative or friend, the Inw has the potential to force a woman to stay in the household of 3
batterer or to remain in a residence where drugs are being bought, sold, or used. Keeping
pregnant woman in « physician's office or a hospital for 72 hours similarly accomplishes litle
and is a misuse of resources.

Futhermore, the law gives police officers dangerously wide discretion in determining whether to
take a pregnant woman into custody. Law enforcement officers ere not health professionals
trained to recognize and treat addiction. Leaving the decision whether to take a pregnant woman
into custody to an untrained police officer opens the door to widespread abuse and errors in
judgment that could result in devastating effects on the health and well-being of the waman and
fetus and serious constitutional violations.


19

Statistics Relevant to Alcohol-Exposed Births
South Carolina 1990

Total S.C. births 1990... «58,461
Cost per severely alcohol exposed birth present value
dollars (1993)

Admitted alcohol exposed births per year......
Estimated alcohol exposed births w/ measurable impact (FAE).
Estimated Fetal Alcohol Syndrome births per year ( FAS).
Excess hospital costs at delivery (100%)
Other excess medical costs, 1* year of life (100%)..
Cost for 14 years non-residential special education (44%).
Costs of sheltered workshop 42 years (44%).
Costs of residential care (MR, ED, etc) (56%).
Excess medical costs, ages 2 — 60 (100%).
Productivity losses (lost wages) 48.5 years (
Total lifetime economic losses per FAS birth.
Total lifetime costs per FAE birth...
Total average life costs per FAS or FAE birth.

Note: FAS refers to Fetal Alcohol Syndrome
FAE refers to Fetal Alcohol Effects, which can be just as devastating as FAS, but
lacks one or more of the symptoms of the full Syndrome

Note: Many of these facts and figures are underestimated, due to the fact that the
diagnosis is often retroactive in later years (may be difficult to diagnose at time of
actual birth, and access to later diagnostic services may be limited)


14

reflect a diversity of viewpoints and concerns. But the final
report revealed a unanimity of purpose.

The highest priority of all involved was to spare bebies the
unimaginable suffering they experience when they come into the
world as drug addicts. Some don’t survive the trauma. Others are
horribly impaired for the rest of their lives. Most experience
exquisite pain during their first days.

The task force's second priority was to rehabilitate
mothers, enabling them to care for their own children and to lead
healthy, productive lives. Fortunately, those two priorities were
perfectly consistent with each other; and the procedures the task
force established have been implemented throughout the state.

Following my remarks, some of those who developed this policy
and who administer it will tell you exactly how it works and just
how well it succeeds. However, I warn you that what you‘ll hear
from them will bear little resemblance to descriptions of the
procedures given in recent weeks by the media.

For example, Bob Herbert of the New York Times attacked the
program as “irrational and extreme." He suggested we recently sent
one woman to prison merely because she “smoked cocaine when she was
pregnant in 1991." We did this, he said, after she “overcame her
drug habit, obtained employment and has successfully been raising
three children."

In fact, we don’t put pregnant addicts in jail. The woman in
question was sent to prison years later, only after she'd violated
her probation -- by attempting to knife a known drug dealer in a

domestic dispute. The Department of Social Services reported she


3

blush, have tremendous appeal. Both have the potential to deter
substance abusers who refuse treatment and, by their own irre-
sponsibility, place their unborn children at risk. But opponents
argue that both have the potential to do more harm than good, to
do more grievous injury to unborn children, and their substance
abusing mothers.

Unfortunately, we don’t have conclusive data on the effect of
these measures in Wisconsin and South Carolina. But we are hear-
ing from health care and substance abuse professionals that preg-
nant women who use drugs are afraid to come into the system for
prenatal care and drug treatment. Why? Because many in the sub-
stance abusing population are already wary of the system and now
they believe that they risk arrest or losing custody of their chil-

ren.

This is an unintended consequence for sure, but one that ma‘
drive more pregnant women away from drug treatment than it will
attract. The impact will fall most heavily on the unborn children,
not only because they will continue to be exposed to harmful sub-
stances, but because they will be denied the benefits of basic med-
ical care that their mothers might otherwise obtain. Just one exam-
ple: For those expectant mothers with HIV, unborn children could

e denied medication that has been demonstrated effective in pre-
venting transmission of the disease.

For this and other related reasons, the leading associations of
health care professionals oppose punitive approaches to this prob-
lem. These include the American Medical Association, American
Nurses Association, American Academy of Pediatrics, American
College of Obstetricians and Gynecologists, and American Society
of Addiction Medicine.

For those of us in Congress, this is an unusual problem, because
I think that everybody who is appearing before us today really
cares about this issue. This is not one where there are a lot of deep
ideological differences. We all want to make sure that we can help
these women and help the children. And that’s very important. I
can tell you that it’s very important for the district that I rep-
resent, because cocaine use is a serious problem in the district that
I represent and we have seen a sharp increase in the number of
women who have entered hospitals who have a cocaine problem.

So this is an issue that hits home in all parts of this country.
But, like physicians, the first duty of all politicians ought to be do
no harm. If it is the child that we are to protect—and that is the
undisputed goal—we must help and encourage expectant mothers
into treatment. It’s not simple and it’s expensive. But I suspect it’s
the best way to get the results that we all want. Finally, I think
we have to recognize that this problem is also a problem of re-
source allocation. There are many places in this country where
these programs are simply underfunded or not funded at all. And,
as we debate this, if we are going to be serious about dealing with
the problems of women who use cocaine during pregnancy, we have
to make sure that the resources are there, not only in a punitive
measure, but also in a treatment measure, so that we do not have
to go to the judicial system at any resort.

Thank you, Mr. Chairman. I look forward to hearing the testi-
mony of our witnesses today.


132

to their incarceration.

Not surprisingly. this profile mirrors that of women arrested for perinatal substance abuse.
Since 1985. mbre than 240 women in 35 states have been criminally prosecuted for using illegal
drugs or alcohol during pregnancy. Between 70% and 80% of these women are minorities.”
Many factors influence this discriminatory approach. Poor women (a category that is inherently
disproportionately Black) are at greater risk for drug detection because of their necessarily close
relationship with social service and other government agencies. Greater scrutiny by government
officials results in disproportionately higher rates of drug screening and reporting." Lack of
prenatal care, frequently a trigger for pre- or postnatal drug screening. correlates directly with
race and income. as Black women are twice as likely to receive late or no prenatal care than white
women because of poverty and other logistical barriers

A landmark study in Pinellas County. Florida. in which women presenting for obstetrical
care at public health clinics and private physician's offices were anonymously tested for drug use.
found that Black women were ten times more likely to be reported for positive drug screens
while pregnant than white women.” This finding is especially disturbing given the results from
the same study that drug use prevalence was similar across racial and socioeconomic groups (drug
use among white women was actually slightly higher (15.4%] than for Black women (14.1%] -= a
finding consistent with the national trend in illegal drug use). Studies in other states have revealed
similar evidence of racial bias in perinatal drug screening and reporting despite similar prevatence
rates of substance abuse across racial lines.“ Consistent with these data, a recent GAO report
found that infants of non-Medicaid patients in private hospitals were screened less often than

infants in public hospitals.”


110

Lynn M. Paltrow | 44

statutes were created to provide state protection toborn
persons from post-birth actions, ‘Thus, at a minimarm
these women’s due process rights have been violated
because there was simply no notice that these laws
‘would apply to them,

‘These cases also raise serious questions about prose-
cutorial ethics. The American Bar Association Stan-
dards for Criminal Justice states that “the duty of the
[Prosecutor is to seek justice, not merely to convict.”

A law which interferes with a fundamental
privacy right must withstand searching
judicial examination.

‘The provision concerning noncriminal disposition of
cases also states that “prosecutors should be familiar
‘with the resources of social agencies... "% But when
‘prosecutors know or should know that drug abuse
‘treatment for women is unavailableand thatthe statutes
they are using were not enacted to punish addicted
‘women for becoming pregnant, how are the interests of
justice being served? Statements like one made by the
Muskegon County, Michigan attorney that the “main
concern is to send a message to drug abusers that they
should seek treatment before the criminal justice system
has to become involved” seems self-serving at best
‘when treatment is unavailable in the frst place.

But even if statutes were passed with the express
intent of criminalizing pregnant women's behaviors,
‘such lawsinall likelihood wauld fallasunconstitutional.
‘Alaw which interferes witha fundamental privacy right
‘must withstand searching judicial examination. For the
law to survive, the state must establish that it has a
compelling interest and must demonstrate that the law
isnartowly tailored and furthers the asserted interest”

In most of these cases the asserted state interest is in
the fetus, However, the Supreme Court has held thatat
no stage of development is a fetus a “person” with
rights separate from the woman." Neither legally nor
biologically are fetuses independent parties with rights
enforceable against the woman. As the Illinois Supreme
‘Court observed:

{tis, after al the whole life ofthe pregnant woman which
impacts on the development ofthe fetus. As opposed tothe
third-party defendant itis the mother’s every waking and

Detter or worse, shapes the
forms the world forthe devel
‘ping fetus. That this so is not a pregnant woman's fault:
itisa fact of iteTM

sleeping moment which, for
‘environment which

‘These prosecutions seek to create what the Illinois Su-
preme Court has called the “legal fiction’ that the fetus
"isa separate legal person with rights hostile ... to the
woman.”

‘But whether the asserted state interestis in etal rights
or in the health and well-being of women and children,
the state would be unable to prove that such a statute
would improve either maternal or fetal health through
theleastintrusivemeans, Ifprosecutionsactually fright-
‘ened women into going cold turkey (and they don’t),
abrupt withdrawal from certain drugs, such as heroin,
could cause fetal death. Putting women in prisons,
‘where drugs may still be available.TM and where there is
neither drug abuse treatment nor prenatal health care,
will not further any legitimate health interest¥ And
even if prosecutors could prove that the outcome of a
few pregnancies was improved asa resultof threatening
orimprisoning pregnant women. it would not justify the
imposition on women’s freedom that results from treat-
{ng them like incubators.

In reality, prosecutions and convictions deter preg
nant women from getting what little health care is
available. AsSenator Herb Kohl stated atCongressional
‘hearings on perinatal substance abuse, “ImJothers —afraid
of criminal proséeution—fail to seek the very prenatal
care that could help their babies and them." In San
Diego, after Pamela Rae Stewart was prosecuted, health
care workers! that patients became distrustful,
believing that they would be turned in. Some potential
patients refused to come in for treatment” According,
to Ricardo Quiroga, who is helping to set up an alcohol

Neither legally nor biologically are fetuses
independent parties with rights
enforceable against the woman.

recovery house for Hispanic women with children in
Massachusetts, women “don't want to seek help for fear
they will lose their children.’ The State of Minnesota
recently enacted a law which, among other things, re-
quires hospital officials to report to the local welfare
agency pregnant women who have or are believed to

Crvminal justice Ethics


69

Perinatal morbidity and morality in substance using families

23

Table 2. Medical complications seen in cocaine abusers

Type and description
CARDIOVASCULAR MISCELLANEOUS
Myocardial infection Acute hepatic necrosis
Arrhythmia Hyperpyrexia
Aortic rupture Loss of sense of smell
Hypertension Perforated nasal septum
Cardiomyopathy Loss of eyebrows, eyelashes
PULMONARY Sexual dysfunction

Decreased diffusing capacity
Pneumomediastinum
Pulmonary oedema
NEUROLOGIC

Stroke

Subarachnoid haemorrhage
Seizures

Fungal meningitis
Headache
GASTROINTESTINAL
Intestinal ischaemia

Colitis

Motor vehicle accidents
Trauma

Sudden death
Endocarditis

HIV infection
PSYCHIATRIC
Psychosis

Depression

Personality changes
Delusions of paranoia

Source: Adapted from J. Lowinson, J. Ruia and R. Millman, eds., Substance Abuse: A

Comprehensive Teabook (Baltimore, Maryland, Wi

Table 3. Obstetrical complications
associated with substance abuse

ms and Wilkins, 1992), pp. 657-674.

Type and description

Foetal wastage resulting in
‘Spontaneous abortion

Intrauterine death

Amnionitis

Chorioa:anionitis

Gestational diabetes

Premature rupture of membranes and septicaemia

Placental disorders
Abruption
Infarction
Insufficiency

Foetal growth ret:

lation

Premature labour with or without breech presentation



24

Mr. SoupER. Thank you very much.

Senator Huelsman.

Ms. HUELSMAN. Thank you. Thank you very much, Mr. Chair-
man, Mr. Barrett, for the opportunity to tell you a little bit about
why we passed 1997 Wisconsin Act 292, which has been commonly
known as Wisconsin’s cocaine mom law.

First of all, I need to comment on the fact that this bill was in-
troduced to address a specific problem: How does society provide
treatment for women who are pregnant, who have every intention
of carrying their pregnancy to term, who repeatedly refuse to seek
treatment, and, if it is offered, refuse to accept it? That is the prob-
lem that we sought to address in the bill that we passed.

We've talked here today about the fact that untreated and chron-
ic abuse of alcohol and drugs during pregnancy is a devastating
public health problem. We know that severe alcohol or drug abuse
by pregnant women during any part of the pregnancy can cripple
a child for life. However, unlike other disorders, the damage caused
by alcohol and other drugs is 100 percent preventable.

Untreated alcohol and drug abuse during pregnancy is of par-
ticular concern to the State of Wisconsin. We have—I don’t think
T’ve heard anyone say—comment here today about the problems
with Fetal Alcohol Syndrome, that Fetal Alcohol Syndrome alone is
the leading known cause of mental retardation in America, sur-
passes both Down’s Syndrome and spina bifida in frequency.

When we look at the cost to the State of Wisconsin, according to
the Wisconsin Department of Health and Human Services, each
year approximately 70 to 80 children are born in Wisconsin with
Fetal Alcohol Syndrome, another 150 to 200 with Fetal Alcohol Ef-
fect. And the Department estimates the cost of these births to be
approximately $90 million each year.

When we've looked at how to address this chronic, severe, and
untreated alcohol and drug abuse during pregnancy, the legal and
medical opinions run across a broad spectrum. At one end are those
who are completely opposed to the bill, to the law that we passed.
They say we should just do nothing. At the other end are those who
say, well, wait until the child is born and use the criminal statutes.
That doesn’t do any good for the unborn child.

We believe that the bill that we passed stands squarely between
these two extremes. It’s a moderate and balanced solution to a com-
plex and vexing problem. The bill was supported in the Wisconsin
Legislature by a diverse coalition of legislators: pro-life and pro-
choice legislators, Democrats, and Republicans. We chose to take a
remedial, as opposed to a punitive, approach. And part of the rea-
son, as I commented, if you go with just a criminal approach, very
often. you can’t do anything until the baby has already been born
and it’s too late then for the baby.

So, we chose to amend our existing Children’s Code, looking at
a two-fold intent. First of all, to prevent serious harm to the un-
born child and the child when born and second to provide care and
treatment for addicted, expectant mothers who, for whatever rea-
son, have refused to seek or to accept treatment.

We approached the issue as a child protection issue. We've talked
here today about the fact that we're really talking about child
abuse. I’ve spent a fair amount of time in the legislature working


143

21. L.A. Greenfield and S. Minor-Harper. “Women in Prison.” (March. 1990) Washington. D.C.:
U.S. Department of Justice. Office of Justice Programs. Bureau of Justice Statistics (NCJ-
127991): Tracy L. Snell. “Women in Jail. 1989." Bureau of Justice Statistics 1992.

22. PJ. Banuch. Mothers in Prison. Transaction Books. Brunswick (1985) as cited in “Women’s
Health Care in Correctional Settings.” National Commission on Correctional Health Care Position
Paper. September 25. 1994. Chicago.

23. Lynn Paltrow and Sdzanne Shende. “State by State Case Summary of Criminal Prosecutions
Against Pregnant Women.” unpublished memorandum to ACLU affiliates and interested parties,
Oct. 29. 1990.; Matemal. Infant. and Child Health Council, South Carolina Prevalence of Drug
Use Among Women Giving Birth (Columbia. S.C.: Office of the Governor, 1991),pp. 7-8; as cited
in Dorothy Roberts, Killing the Black Body’ 172.

24, Molly McNulty. “Pregnancy Police: The Health Policy and Legal Implications of Punishing
Pregnant women for Harm to their Fetuses.” New York University Review of Law and Social
Change \6 (1988). pp.277. 319.

25. Ira J. Chasnoff. Harvey J. Landress. and Mark E. Barrett, “The Prevalence of Illicit-Drug or
Alcohol Use During Pregnancies and Discrepancies in Mandatory Reporting in Pinellas County.
Florida.” New England Journal of Medicine 322 (1990) pp. 1202-1206.

26. Helaine Olen. “Racial Tinge to Drug Testing of New Moms.” Chicago Tribune, Dec,
19,1991. p.C14 as cited in Dorothy Robens. Killing the Black Body. 175.

27. Mary R. Haack. “Comprehensive Community-Based Care: The Link between Public Policy
and Public Health.” in Drug Dependent Mothers and their Children: Issues in Public Policy and
Public Health, Mary R. Haack. ed... Springer Publishing Company. New York (1977):4.

28. Veronika E.B. Kolder. Janet Gallagher. and Michael T. Parsons, “Court-Ordered Obstetrical
Interventions.” New England Journal of Medicine 216 (1987), 1192.

29. “Effects of In Utero Exposure to Street Drugs.” tmerican Journal of Public Health.
December supplement to vol. 83 (1993)

30. Louis A. Pagliaro and Ann Marie Pagliaro. “Drugs as Human Teratogens.” Problems in
Pediatric Drug Therapy. 3rd ed.: 1105-243.

31. National Pregnancy & Health Survey: Drug Use Among Women Delivering Livebirths
1992. National Institute on Drug Abuse (1996). U.S. Department of Health and Human Services.
National Institutes of Health. Rockville.

32. Dorothy Roberts. Killing the Black Body: \78.


10

Mr. SouDER. Thank you very much. We're looking forward to
working with you on your legislation.

Mr. Condon.

Mr. Conpon. Thank you, Mr. Chairman. I’m Charlie Condon, at-
torney general in South Carolina and I, too, am grateful for the op-
portunity to be here today on behalf of the citizens of South Caro-
lina, both born and unborn.

As you may know, the U.S. Supreme Court recently let stand our
State supreme court’s ruling that a viable fetus is a fellow South
Carolinian and, therefore, entitled to protection under the law.
These court decisions have enabled us to proceed with a policy that
is successfully bringing drug users who are pregnant into treat-
ment centers and reducing the number of babies born with a dan-
gerous and even fatal addiction.

Our approach is not only highly effective, but infinitely humane.
It considers the welfare of both the mother and unborn child. It
recognizes the complexity of drug addiction, its medical as well as
its legal aspects. It treats addicts as patients, rather than as crimi-
nal, while recognizing that the abuse of such substances as crack
cocaine and heroin is a serious violation of the law, particularly
when such behavior affects an innocent, unborn child. It allows
health care experts to control the destiny of cooperative women
while law enforcement officials wait in the wings, prepared to act
only in worst-case scenarios.

Now, a member of my staff headed the task force responsible for
developing the policy currently used to deal with pregnant drug ad-
dicts. Phat task force included representatives from the State social
service agencies. The procedures the members developed reflected
a diversity of viewpoints and concerns, but the final report revealed
a unanimity of purpose.

The highest priority of all involved was to spare babies the un-
imaginable suffering they experience when they come into the
world as drug addicts. Some don’t survive the trauma. Others are
horribly impaired for the rest of their lives. Most experience ex-
treme pain during their first days.

The task force’s second priority was to rehabilitate mothers, ena-
bling them to care for their own children and to lead healthy, pro-
ductive lives. Fortunately, those two priorities were perfectly con-
sistent with each other and the procedures the task force estab-
lished have been implemented throughout the State of South Caro-
lina.

Now, following my remarks, some of those who developed this
and who administer it will tell you exactly how it works and just
how well it succeeds. However, I want to warn you that what you'll
hear from them will bear little resemblance to descriptions of the
procedures given in recent weeks by the media. I’m sure that never
happens to people on this committee.

For example, Bob Herbert of the New York Times attacked the
program as, “irrational and extreme.” He suggested we recently
sent one woman to prison merely because she “smoked cocaine
when she was pregnant in 1991.” We did this, he said, after she
“overcame her drug habit, obtained employment, and has success-
fully been raising three children.”


M41

Endnotes

1. “Legal interventions During Pregnancy: Court-Ordered Medical Treatments and Legal
Penalties for Potentially Harmful Behavior by Pregnant Women.” Board of Trustees Report,
American Medical Association. J1.\/4 264 (1990) 2663-2667. Kary Moss. “Legal Issues: Drug
Testing of Postpartum Women and Newborns as the Basis for Civil and Criminal Proceedings.”
Clearinghouse Review 23 (1990). 1411-12: Michelle Oberman, “Sex. Drugs, Pregnancy and the
Law: Rethinking the Problems of Pregnant Women Who Use Drugs.” Hastings Law Journal 43
(1992); 505.; U.S.. General Accounting Office Report to the Chairman, House Subcommittee on
Finance. Drug-Exposed Infants: A Generation at Risk, GAO/HRO-90-138 (June, 1990): 39.:
~Matemal Drug Abuse and Drug Exposed Children: Understanding the Problem.” Report of the
Ad Hoc Drug Policy Group, Sub-Group on Substance Abusing Women and Their Children.
Department of Health and Human Services. Publication No. (ADM) 92-1949 (1992):13.

2. Dorothy Roberts, Killing the Black Body. Pantheon Books. New York (1997): 175.

3. National Pregnancy & Health Survey’ Drug Lise Among Women Delivering Livebirths: 1992.
National Institute on Drug Abuse (1996). U.S. Department of Health and Human Services.
National Institutes of Health. Rockville.

4. Chrisensen, “Criminal Prosecution of Mothers of Drug-Exposed Neonates: A Case Study of a
Policy Dilemma.” Ph.D. dissertation. School of Graduate Studies. Medical College of Georgia.
1992. citing Greenville News. Aug. 25. 1989 as cited in Dorothy Roberts, Killing the Black Body,
336.

5. Lynn Paltrow and Suzanne Shende. “State by State Case Summary of Criminal Prosecutions
Against Pregnant Women.” unpublished memorandum to ACLU affiliates and interested parties.
Oct. 29. 1990.; Maternal. Infant, and Child Health Council. South Carolina Prevalence of Drug
Use Among Women Giving Birth (Columbia. S.C.: Office of the Governor. 1991).pp. 7-8: as cited
in Dorothy Roberts. Killing the Black Body: 172.

6. tra J, Chasnoff. Harvey J. Landress. and Mark E. Barrett. “The Prevalence of Illicit-Drug or
Alcohol Use During Pregnancies and Discrepancies in Mandatory Reporting in Pinellas County,
Florida.” New England Journal of Medicine 322 (1990) pp. 1202-1206.

7. Options for Recovery Final Evaluation Report. Center for Reproductive Health Policy
Research (1994). Institute for Health Policy Studies. University of California, San Francisco: 33.

8. “Legal Interventions During Pregnancy; Court-Ordered Medical Treatments and Legal
Penalties for Potentially Harmful Behavior by Pregnant Women.” Board of Trustees Report.
JAMA 264 (1990): 2663-2670.


29

The focus of Act 292 is addicted, expectant mothers who are refusin: bi
seek or accept treatment. | don’t know how you can scare someone away
treatment that they are refusing in the first place.

Now, | know that there will be questions as to why Act 292 does not address
any and all threats to pregnancy. Tobacco, for example, or even poor nutritional

The simple answer is that we did not pretend to to have a universal solution to
every Single ‘substance-related or heal to pregnancy. The fact that
We are tral te suive thle ote problem does not obligate ue io invent a'sokation ts
every problem. We are simply trying to solve one major public health problem.

who are josed to Act 292 say that the answer to the problem we
have idenutied fs simph ly increased government spending on treatment.

But this proposed solution is not responsive to the specific problem we are
responding to.

Regardless of the merits of increased spending on treatment for women who
want it, the problem we seek to address is not those pregnant women who
voluntarily seek treatment and who accept it when available.

Rather, the problem we seek to address is pregnant women with i acidictions,
women who refuse to seek treatment and who
them - women who are unable on their own to Ip they

Passage of Act 292 offered a unique and perhaps: unprecedented opportunity
for je who are pro-life and people who are pro-choice to find common ground
and unite on an issue that will improve the health of the children of our state.


200

Hospital in Detroit were studied 2-5 days
postpartum. We attempted to survey a similar
sample in a state with a punitive law involving
incarceration; but all known chemically-
dependent women refused to participate. The
Detroit women were all English speaking, had
been delivered of viable singleton infants and
agreed voluntarily to participate. The sample,
collected over a 6-month period, consisted of
women who were listed as ‘walk-ins,’ i.e. did not
have a physician associated with the hospital
and patients who were pre-registered at the
hospital through an associated prenatal clinic;
we attempted to interview the same number of
walk-ins and pre-registered patients in any
given week. Our strategy was to oversample for
‘women who received little prenatal care and, in
line with our previous studies, would be more
likely to use illicit drugs (Poland et al., 1990).

Procedures

Data collection consisted of a 1-h interview
with open ended and fixed choice questions and
review of the mother's medical chart. We cacose
the interview over a self administered question-
naire due to the length of the questionnaire and
to overcome problems of illiteracy. Two inter-
viewers were trained by one person for consis-
tency of approach. The research protocol was
approved by the Institutional Review Boards of
the University and the Hospital.

‘The interview was similar to the one used in
our previous study as reported in detail
elsewhere (Poland et al,, 1987). It assessed
sociodemographic information, attitudes toward
the pregnancy, barriers to prenatal care, use of
cigarettes, alcohol and illicit drugs, the amount
and sources of prenatal care and contained four
questions relating to how women would behave
if laws were changed in Michigan to prosecute
‘women who used illicit drugs during pregnancy.
‘The questions were prefaced by a statement
that described a law in another state where
women who had a baby born addicted to drugs
went to jail. We added that ‘while this was not
alaw in Michigan at this time, we were wonder-
ing if a law like this one was enacted, how it
might affect drug-using pregnant women: seek-

166

ing prenatal care, having a test for drug use and
seeking drug treatment.’ Answers were record-
ed as ‘more likely,’ ‘no difference,’ and ‘less like-
ly,’ with comments. The final question asked
was: ‘Do you think pregnant women who use
drugs should be put into jail? Answers were
recorded as ‘yes,’ or ‘no’ and ‘don’t know,’ with
comments.

Measures
Variables from the interview were reduced to
scales as described below.

Drug use

Use of illicit drags was assessed over preg-
nancy. Amount of drugs used was scored as
none, light and heavy based upon amounts above
and below the sample mean score.

Amount of prenatal care

Amount of care was derived from a redified
Kessner Index as described previousir and
scored 1-4 with one representing no care and
four representing adequate prenatal care
(Poland et al., 1987).

Punitive lowe
Responses to the three questions relzting to
opinions about a change in behavior of substance

Since these responses were significantl
correlated, they were added together to vield a
total score. The question about incarcerating
women was scored: yes (1) and no (2).

Statistical analysis

Univariate frequency distributions along with
descriptive sample statistics were calculated for
all variables. Intercorrelations of the sociodemo-
graphic variables, quality of prenatal care, drug
use, the composite score for the three change in
behavior questions and the fourth question
regarding whether or not women should be jail-
ed, were computed. Significance was estzblished
at P < 0.05 level and care was taken io avoid
over-interpretation of the results. A goodness-
offi chi-square analysis was used to vest the


98

Wendy K. Mariner, Leonard H. Glantz, George}. Annas | 38

sustenance. Itseparatesmother and child at the time the
child most needs a mother, and relegates the child to the
woefully inadequate system of institutional or foster
care.

‘Criminal prosecutions assume that women have a
special duty tothe fetus that men donothave. But when
they are examined closely, that duty cannot be found.
‘Any duty not to harm the fetus would cover a wide

-of concededly lawful behavior. The more expan-
siveduty toavoid any risk to the fetus would prohibitan
‘even larger sphere of ordinary conduct. A pregnant
‘woman might be assured of satisfying such a duty only
by having an abortion.

‘Singling out pregnant women highlights the fact that
they are being punished not for any act harming the
fetus but because they are pregnant and use drugs.
Making pregnancy one of the elements of a crime is
disturbing. Itaffects the way we think about pregnancy,
making all pregnant women suspect. Moreover, pun-

ing persons. It is dangerous because it would create a

for controlling pregnancy and women in general.
‘Any rationale that justifies prosecuting pregnantwomen
for risking harm toa fetus may be used to justify control-
ling all behavior of pregnant women. If the goal is to
protect the fetus, then there would be no impediment to
controling the behavior ofall women of childbearing

Finally, criminalizing certain conduct by pregnant
‘women is likely to be counterproductive, deterring wornen,
not from drug use but from prenatal care and other
services that have a realistic probability of improving
the health of their children.

‘The effects of drug use are tragic for women, children,
and society Injecting the criminal law can only deepen
the tragedy. The answer lies not in punishing women
‘butin helping them toemerge from their own misery. It
is an expensive and lengthy process requiring better
education about pregnancy care, expansion of prenatal

ishment cannot ly be to deter either
drug use or,

Imposing a legal duty on pregnant women to protect
the fetus—especially one enforceable by criminal law—
requires stripping women of their status as rights-bear-

care intoaddiction ‘and the
creation of treatment facilities. It won't get headlines,
but it can work, Drug use during isa real
problem. {tisa public health problem that can only be
compounded by treating it as a crime.

NOTES

1 Pregnant and Newly Delivered Women ailed on Drug Charges,
2 Ramnouncrot Recs Urpare Feb. 2, 1980, a 6.
2fosan State No 991765 (Fa Dist Ct App sini,
). Johnson was convicted and sentenced t6 15 years on

probetonand aquired toabein rom drug nd alcoho use
Af pregant and t'comply with prenaal care recommend

pop is or ing spp
Te Pel They 3) Lee Mi. ee

4S. Buus & GJ. Areus, Remoouctne Gawncs aso mee Law
0987.

3 Robertson draws

5 Glantz, A Nation of Suspects: Drag Te
Avene Pa | Pine Has Ta

ed te Four

{ats etudnglimiatons on execs and marta vex, Some
heads of Maternal-Fetal would detain
Nomen falioabidedy herp et physicians wonders Mt Ser
ily, Field, Controlling the Women to Protec the Fetus, 17
Eee Man Hiss Ca 14985), Rhoden, The agen he
Daelrery Room: ce of Court-Ondered Cesarean, 75
‘Ca Roy. 195) 0987) Th
tal diagnosis and screening for genetic
ruling women o undergo testing and
Son tocorvect fetal ‘On the scope of genetic screen-
ing, se generally, 5. Buns & GJ. Arous, supre note 4; ARRAS,
Whos fr ofthe men Genome? 19 Haste Coma Bar 19
Sa coeetare
roblems. Commercial industry has excl
jobs that could expose them to
erties Pad 1172 (th
Union vote Cont nc. 86
1S. (1950),

=e
SIT nabs ogi
SSeS ance eee aoe
ter i als pa

ir ping wid
eoalnge

7 Lewin Drag UseinPoprany: New sss forth Conrts,N.
Y. Times Feb. 5, 1990, at Ald

Criminal Justice Ethics


140

Clinical Medical Ethics

Criminalization of perinatal substance abuse has generated moral dilemmas for many
health care clitficians and mandatory reporters. Most public health organizations and medical
organizations. such as the American Medical Association. the American Nurses Association,””
the American Academy of Pediatrics."* the American College of Obstetricians and
Gynecologists.” the American Public Health Association. °° the American Society of Addiction
Medicine." the National Association of Public Child Welfare Administrators” have all formally
rejected the imposition of criminal sanctions as (1) inappropriate to the care giver’s role. and (2)
counter to the best interests of the prenatal human and the pregnant woman. Whiter v. State. and
the statewide policy it has engendered, place many of the South Carolina's mandatory reporters in
what they consider an ethically untenable position. This is a clear example of the political will
conflicting with clinical norms.

Rather than focusing on punishment and ineffective deterrence strategies. policy
approaches to perinatal substance abuse should
1. Focus on the well being of children and pregnant women and the integrity of the family:
2. Assure that the harm to be prevented to the child-to-be clearly exceeds the harm of the
pregnant woman’s loss of liberty as well as harms to her other dependents:
3. Assure that the intervention is expected to be successful in terms of tangible benefits to the
health of the child mother: symbolic success. such as sending a message is not sufficient:

4. Involve the least restrictive means available:
5. Substantially benefit society and not lead to substantial social harm.


91

Pregnancy, Drugs, and Prosecution | 31

doer.” It is always a news story. Unable to make
significant inroads against drug traffickers, prosecutors
can appear to take a strong stand against illegal drugs
and for protecting children. The:

the drug supply, finding effective treatment for drug,

No one realy disagrees that drug use, among other
things, risks jeopardizing fetal health, and that, ideally,
such drug use should be eliminated. The question is
who should be responsible for, and who will be effective
in, taking steps to protect fetal health-—the public health

‘community or the criminal justice system?

‘This article examines the assumptions that underlie
‘current prosecutionsof pregnant women whousedrugs.
It argues that the professed goals of such prosecutions
cannot be achieved through the criminal law. The
offense that pregnant women are thought to commit
cannot be defined in terms of any intelligible duty en-
forceable by the criminal law. Prosecuting pregnant
‘women for drug use is unlikely to alter the spread of
drugs or the health prospects of children. Instead, it is
likely to threaten the rights of women as autonomous
individuals and, ultimately, the future of their children.

The Goal of Prosecution

‘Most prosecutors argue that their actions are not in-
‘tended to punish women. For example, one prosecutor
‘was reported to say, “We are not really interested in
convicting women and sending them to jail. We're just
interested in getting them to stop using drugs before
they do something horrible to their babies.”” If the goal
isto stop drug use, there is noneed to resort torationali-
zations about protecting the fetus in order to prosecute.
In virtually all states, the manufacture, delivery, or
Possession of controlled substances (illicit drugs) is al-
ready a criminal offense.* This applies to everyone, not
just pregnant women. Women are not immune from
prosecution for these crimes merely because they are
pregnant. Few pregnant women, however, areinvolved
in drug trafficking. At most they might be guilty of
illegal drug possession. Yet because they are not ordi-
narily discovered until their children are born and drug
‘metabolites are found in the newborn's system, there is
notlikely tobe proof sufficient to permita conviction for
the offense of ‘Thus, as a practical matter,
pregnant women are not likely to be successfully prose-
cuted for drug

Drug use, by itself, is not ordinarily a criminal of-
fense,’ largely because of the difficulty of proof and
because offenders can ordinarily be charged with pos-
session. Moreover, if druguseresultsinharmtoanother
Person, such as an assault, the undesirable behavior is
ordinarily proscribed by another criminal statute, such
as that making assault a criminal offense, In such cases,
however, the prosecution is limited to the crime of
assault, independent of drug use. Thus, drug use that
results in harm to a fetus cannot be prosecuted unless
‘either drug use alone or harm to the fetus by itself isan

‘crime, If neither is punishable as a crime,
their co-existence should not constitutea crime. If drug
use alone is not a criminal offense, then what is being
‘punished is the status of being pregnant.'° This makes
Pregnancy @ necessary element of a remarkable new
‘criminal offense: pregnancy by a drug-dependent per-
‘son, or drug use by a pregnant woman.""

‘Thereare instances in which twolawful activities con-
stitute an offense when combined. Driving while intoxi-
cated is the most obviousexample. Yet this offense does
‘not automatically justify criminalizing the combination
‘of pregnancy and drug use. It is not the act of drinking

To convert pregnancy into a symbol of
woman as threat is likely to transform
pregnant women from nurturers
into suspects.

that offends but the condition of intoxication that pre-
cludes the driver from safely managing a vehicle. After
all, motor vehicles are inherently dangerous objects. Itis
for this reason that driving itself is regulated. Driving is
rot permitted without a license, obtainable only upon
demonstration of atleast a minimal level of competence
and skill. Pregnancy, in contrast, is not deemed a
privilege for which licensure is required." Pregnancy is
condition, notan activity, and while it poses some risks
tothe pregnant women, itis not inherently dangerous to

Winter/Spring 1990.


11

In fact, we don’t put pregnant addicts in jail. The woman in
question was sent to prison years later, only after she violated her
probation by attempting to knife a known drug dealer in a domes-
tic dispute. The Department of Social Services reported she had re-
peatedly flunked her drug tests while in treatment and was unable
to hold down a job.

However, this story, even this story, has a happy ending. This
woman did indeed kick her drug habit and obtain a legitimate job,
but only—but only—after she faced the prospect of serving time.
Indeed, she’s the best example I know of why we need to threaten
the hardest cases with jail if they don’t give up drug use following
delivery. In several instances, that threat has worked, and only
that threat.

Finally, for the first time in my experience as a public pros-
ecutor, I believe we’re making progress in solving this problem.
We've learned how to mix compassion with tough love, providing
pregnant addicts with positive encouragement to do what's right,
while reminding them that we intend to enforce the law if they
continue to do what’s wrong. I want to thank you for the oppor-
tunity to share this information to you.

And I do feel I would be remiss if I couldn’t also testify in light
of the concern of the ranking member about the official positions
of the different medical groups. If you read those positions, what
they address—and here’s what they say, “The opinions listed by
medical organizations actually state that criminalization of any il-
licit substance, whether used by pregnant women or not, does not
work as well as treatment in reducing substance abuse.” They don’t
address the type of program that we have where you force them in
through prosecutions into drug treatment.

Additionally, there will be a witness later on named Mary Faith
Marshall from my home town of Charleston at the Medical Univer-
sity of South Carolina. I've seen her testimony. I’ve been there,
done that, and I’ve got the t-shirt. Here’s the t-shirt. She makes al-
legations of racial bias; political opportunism; unconstitutional—il-
legal, the program that we’ve developed.

Please let the record reflect that there was a civil trial in
Charleston where I was sued for millions of dollars personally,
along with the police chief, who happens to be African-American,
along with officials of MUSC. That witness testified at that trial
and the jury and judge—judge appointed by President Carter—
reached conclusions in which all these claims were dismissed.

If I could briefly quote from the order; won't take but a second.
“The evidence shows that white cocaine users were treated the
same as black cocaine users. If a patient had cocaine in her system,
then she was given a choice of treatment or jail. No disparity exists
in that form of treatment.” The judge also writes, “The court con-
cludes that the policy was necessary to help cocaine dependent
mothers and their babies.” The court concludes: “And actually
achieve that goal, as evidenced by the fact that a substantial ma-
jority of plaintiffs stopped abusing cocaine.” The judge found the
policy worked, obviously along with the jury.


97

Pregnancy, Drugs, and Prosecution | 37

women who want to get off drugs will be able to. In _languishas boarder babiesin hospitals waiting forplace-
these circumstances, there is litte justification for mak- ment? The emotional deprivation that is necessarily
ingthe pregnant woman'sdruguseacrime. Thewoman typical of institutional care may harm these children
‘would be punished for society's more general failure to more than living at home with their mothers. The
providetreatment. Some prosecutorshaveclaimed that paucity of resources devoted to caring for children
they prosecuted women in order to get them into treat-_belies the assertion that the purpose of separating mother
‘ment, and indeed, have recommended sentencing them and child is to protect the child. William Bennett, the
toa treatment program instead of prison." Thistypeof Bush Administration's “drug czar,” has recommended

children from every woman who uses drugs.
But prenatal drug use, by itself, does not predict postna-
talabuseor neglect. Ifthe mother demonstrates conduct

Punishment is the only goal served by sufficient to constitute child abuse or neglect after birth,

i existing a morethan adequate take the child i
defining drug use by pregnant a wis © child into
women as a crime. Treen dea that punishments the ony goal hat

served by defining drug use by pregnant women as a
crime. No one can seriously maintain that prosecution
servesthetraitional goal of deterrence. Existing prohi-
‘sentence assumesan obligation on the part of drug users ions and increased penalties have not
to join a treatment program, an obligation they cannot distribution or use of drugs. Inthe absence of equate
meet because of the woefully inadequate treatment fa- _ treatment programs, “rehabilitation” cannot be pro-
cillties available. The irony of requiring a criminal _ vided. Rehabilitation is generally conceived as appro-
conviction in order to gain access to treatmentisappar- _ priate for recalcitrant offenders who have refused to
‘ent. Prosecutions cannot be justified aslongasthereare comply with the law. Creating a new crime for the sole
insufficient treatment programs to meet the needs of purpose of getting pregnant women into treatment stands
Pregnant women. the goal of rehabilitation on its head. Jennifer Johnson
Finally, criminalizing drug use during pregnancy is __ wasunable togetintoa drug treatment facility whenshe
ikely to be counterproductive in protecting the fetus. became pregnant. After she was convicted, s
‘There is reason to believe that women will avoid prena-___sentenced, in part, toa treatment program. This i
tal delivery care if detection of their drug use could lead _rehabilitation. It is using the criminal law to gain access
to their arrest or loss of child custody. Several states to social services. Why should a pregnant woman have
currently require that health care providersreporttothe to be convicted of a crime in order to enter a social
state womenor theirnewbornswhoaredrugdependent —_ program thatis, in theory, open to anyone? While some
oor exhibit drug withdrawal symptoms. The state may _ prosecutors may think of themselves as heroes because
act to take custody of the newborn and may notify the _their conviction forced a treatment program to accept a

district attorney to initiate criminal charges. ‘woman (no longer pregnant), in reality the government
‘Newborns are rarely protected by such a system. If is giving its stamp of approval to a barrier that keeps

‘women avoid prenatalcarefor fear oflosing theirbabies __ pregnant women out of treatment programs.

‘orgoing tojail, the child’sbirth weightand development If neither deterrence nor rehabilitation is served by

arelikely tobe prejudiced. Removingthechild from the prosecuting pregnant women, only punishment remains.
mother after birth the injury. There are Pregnant women who use drugs need help, not punish-
already too few foster homes available without adding ment. Butall that prosection can accomplish is convic-
‘tore children to the system. Many of these children tion and punishment.

Conclusion

Prosecutions of drug-using pregnant women are based _tions, In reality, such prosecutions substitute punish-
‘onan iflusion, and a dangerous one at that. They foster ment for protection. By treating women as threats to
the illusion that society is protecting its future genera- their own progeny, society rejects the only sourceof fetal

Winter/Spring 1990


‘was essentially a prison and thet treatment was not systemat-
ically available.

In contrast to the California program, the New York expe-
rience generally has been deemed a failure, with overreliance

on ermine titin nd peronnel, a ahortage of
‘i

102

about the dangers of driving while drunk; others report. no

large

rates, a paroun eran eflrtaTM Anaya oe Fes
‘eral Treatment Alternatives to Street Crime program, which
refers “criminal justice clients” to community-based treat-
ment, concluded that compulsory treatment was positively
associated with longer stays in treatment programs (6 to 7

addicts:

DeLeon wriewed he eeperience of therapeutieconmuni-
ties (ie, structured treatment environments with emphasis on
‘group process and usually include former addiets on staff) and
concluded that le was a consistent predictor of
retentionin treatment, which in turn was the best predictor of
4 successful outcome, However, one multisite study that
reported on female addicts who entered drug treatment un-
der legal pressure indicated that they were less likely to
remain in treatment than women who entered voluntarily."
Civil Commitment.

Civil commitment refers to mandatory
pernons diagnosed as addicted and considered to be incapable
of self-care or to be potentially threatening to the publics
safety because of their addiction, but who have not been
accused or convicted of any crime. Allstates and civil commit-
‘ment statutes require due process and include
sing tins on the paved parmied for eel eon
, this model is distinguishable from the
Inwenfrcement mode previously deseribed.

However, when dealing with addiction, itis virtually im-
possible to disentangle the civil from the criminal." For exam-
ple, both the California and New York programs grouped
together civilly and criminally committed addicts, ostensibly
{for treatment but often in settings that more closely resem-
bled prisons." In Massachusetts, civilly committed female
addicts were sent to prison until publie outery forced the
creation of treatment, programs. Yel now that the need for
treatment far exceeds the capacity, many women in Massa
het who have een ly commitie for treatment are

been separate efforts to evaluate civil commitment for redue-
ing drug use.
Precondition for Obtaining Privilege

Many localities impose mandatory trestment as aprecondi-
tion for maintaining a driver’ license after being convicted of
driving under the influence of alcohol The term treatment in
this context, however, subsumes a wide variety of interven-
tions, from brief didactic sessions on the perils of drunk
driving to short-term inpatient detoxification, but it general-
ly excludes Jong-term intensive treatment for alcoholism.
‘Some studies have demonstrated a reduction in rearrests for
driving while intoxicated or improvements in knowledge

AMA, September 18, 1991 ol 266, No. 11

‘gests that those parents mandated to treatment fare about
‘the same as those who participate voluntarily."

‘OTHER CONCERNS

In addition to such basic questions as whether treatment as,
an to incarceration has ever been well implement-
‘ed and whether it has proven efficacious in reducing addiction
and/or preventing further criminal activity, critics have
raised a number of other concerns. These alao apply to the
civil eommitment and precondition to privilege models.
‘mequity

A basic criminal justice principle is that the nature and

‘example,
to whether the primary goal of the New York Nareotic Addic-
tion Control Commission was protection of society from the
addict or therapy for the addict resulted in basing the length
of mandatory treatment on the severity ofthe criminal charge
rather than on therapeutic considerations.”

If, on the other hand, the purpose of mandatory treatment
i the conventional criminal justice goal of punishment, then
‘NewmanTM has argued that itis inequitable to punish people
differently who have been convicted of the same offense solely
because one is an addict and one is not.

Inadequate Quality and Availability of Treatment in
General and in Alternative Programe in Particular
‘The scarcity of drug treatment openings compared with the
need for them has received much attention in this era of the

ther, the National Institute on Drug Abuse documented a
decade ago that most drug treatment programs failed to
effectively include women by not offering services women
specifically need, such as prenatal care.“'The current need for
<drug treatment services for pregnant women and mothers far
out their a

1n 1967, the Presidential Commission on Law Enforcement
and the Administration of Justice stated that mandatorily
imposed treatment must be substantive and distinguishable
from imprisonment." As & prerequisite to civil commitment
for drug and aleohot dependency, 14 states require evidence
that appropriate treatment is available, and five require that
thetreatmentisbeneficial, Many authoritiesin charge of child

Mandavory Diag TeatmentinPlegnancy-Chavein 1857


118

Meta House's successes are typical of women's treatment services across the country. According
to 1996 data for the Center for Substance Abuse Treatment’s (CSAT) Pregnant and
Postpartum Women and Infants programs, after treatment:

= 86.5% of children were living with their mothers

= 67.4% of women were not using drugs or sleoho!

+ 903% of women were not involved with the criminal justice system
= Employment of women increased by 820%
‘Treatment at Meta Honse

Pregnency provides a window of opportunity for women with alcobol and drug problems. Every
day at Meta House we get phone calls from women who are pleading for help. They literally say
‘that they are afraid that they are going to hurt their babics without treatment. When women find
‘out that they are pregnant they want their babies to be healthy, Now they ask if we are going to
tum them in.

Pregnant and parenting women who use drugs have complex histories. Over 95% of the women
in treatment at Meta House have a history of being brutally abused sexually and by other types of
violence. Over 65% of the women also have e mental health diagnosis in addition to their
alcoholism and drug dependence. Poverty exaccrbates the stress and illness that many of these
women and their families face,

The treatment offered at Meta House helps to reduce and alleviate many of the problems that
these women face. Women stay et Meta House fram 9 to 18 months and participate in an
extended aftercare program for support. During residential stays at Meta House, women leam to
identify what feelings are behind their addiction and how to cope with these feelings. Women
‘earn about health care, nutrition, and parenting. They also resume their educations and find
employment and housing. Meta House also provides children with services that help thera
recover from the effects of substance abuse and help to prevent these children from using drugs
in the future.

The data discussed above demonstrates that treatment works for the child and family as well as
for the mother.

‘The Negative Effects of Punitive Approaches

‘Health and substance abuse professionals agree that providing alcohol and drug treatment to
Pregnant women and women with children is the most effective way to reduce the negative
impact of substance abuse on children, their mothers and their families. The experience of Meta

2


65

Offprint from Bulletin on Narcotics, vol. XLVI, No.1, 1994

Perinatal morbidity and mortality in substance using
families: effects and intervention strategies
L. P. FINNEGAN

Senior Adviser on Women’s Issues, Office of the Director, National
Institute on Drug Abuse, National Institutes of Health, United States
Department of Health and Human Services, Bethesda, Maryland, United
States of America

ABSTRACT

The epidemic of drug abuse has overwhelmed men,
women and children and caused incalculable damage to an
honoured structure in human civilization - the family.
Moreover, during the past decade, increasing numbers of
pregnant drug-dependent women have been presenting
themselves to medical facilities, some to receive ongoing
prenatal care, but others only to deliver their babies with-
out the benefit of any medical services. The present
chapter reviews the current literature, as well as the
experiences of the author, with regard to the sociomedical
characteristics of pregnant, drug-dependent women. The
effects of substances of abuse on pregnancy, the foetus
and the newborn with respect to morbidity and mortality
are presented. Recommendations for management of both
the pregnant drug- dependent women and her child, on the
basis of clinical research, are also outlined. Although
overall medical advances have escalated during the past
three decades, there is still much to learn with regard to
the effects of drugs of abuse upon families. Moreover,
methods of prevention and treatment still need consider-
able study. By re-evaluating the areas of strength and
weakness in the body of available knowledge, future
research will be able to enhance the ability to help those
unfortunate families that are effected by substance abuse.

Social and medical characteristics of pregnant substance-
dependent women that influence the intrauterine milieu

The use of psychoactive substances has led to an ongoing and
increasing number of individuals suffering from the chronic, relapsing

19


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Perinatal morbidity and mortality in substance using families

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16

Mr. SoupeER. I wanted to ask, for the record, I assume the New
York Times ran a front-page apology with your picture and every-
thing for their story?

Mr. Conpbon. Even better than that; we actually had a good re-
sponse, written letter to the editor, and faxed it to them. I believe
it might have been the second or third day. They said it was too
late. Didn’t respond quickly enough.

Mr. SoupER. Thank you for your testimony. I’m going to go
where the other Members did—went to go to vote.

Mr. Conpon. I understand. Thank you.

Mr. SouDER. So we're in recess. And we'll pick up the testimony
afterwards.

[Recess.]

Mr. SouDER [presiding]. This hearing is now called back to order.
I apologize for the long delay. We wound up with five different
votes.

I also wanted to ask unanimous consent to insert into the record
the letter to the editor that Mr. Condon had referred to. And also
any other materials that the witnesses want to provide as addi-
tional supplements now and in this panel and the next panel.

Hearing no objection, so ordered.

One of the things that we do through this hearing process is
build an official public record and that way, if you here, people in
the second panel—if people in the second panel want to put addi-
tional information in, it makes for a good record.

Ms. Christophillis, would you go ahead with your testimony.

Ms. CHRISTOPHILLIS. I’m Catherine Christophillis, the drug pros-
ecutor from the State of South Carolina. As Attorney General
Condon has demonstrated, our program has often been misrepre-
sented. To clear up any misunderstandings, allow me to review the
current policy.

In the first place, if someone reports drug use by a pregnant
woman after 24 weeks of gestation, the information is not handed
over to a law enforcement agency, either local or State. An inves-
tigation is initiated by South Carolina Department of Social Serv-
ices. Thus, at the onset, the woman is treated as a patient, rather
than a criminal.

DSS is directed to obtain all relevant information about the via-
ble fetus, the mother, and other household members. Again, the
State’s clear purpose is to understand the family situation, rather
than to gather evidence for a prosecution. DSS may call on a re-
sponse team, which is a multidisciplinary team of people, to partici-
pate in the investigation. When the facts are gathered, the re-
sponse team is empowered to recommend a treatment plan.

If the Department’s investigation indicates abuse or neglect, ac-
cording to the protocol, “The Department of Social Services shall
take all steps necessary to ensure the health and welfare of the
fetus and to effectuate treatment for the mother and other house-
hold members.” It’s important to note that, while the welfare of the
fetus is placed first, perhaps because the unborn child is the family
member least able to take care of itself, the mother’s health is also
of immediate concern. So is the well-being of other family members.

Under current policy, the Department of Social Services is the
lead agency in the case, even when an investigation reveals that


160

et cetera. It was not happening when we started our program, and
it is not happening now.

Mr. SOUDER. Could I ask both you and Ms. Keller, being from
South Carolina, I agree with one concern. I believe the data has
been distorted and we have had multiple hearings on this racial
issue, and we have had multiple of the major researchers in who
question some of the basic research, and we have heard them de-
bate in front of us.

But there is sometimes, in my opinion, an unintended con-
sequence because of the nature of what drugs we pick for putting
into these programs. Would you, in fact, be supportive of, rather
than focusing just on crack cocaine, also making sure that pow-
dered cocaine, methamphetamines, heroin, other drugs that endan-
ger the young children, would also be included in this.

Would you encourage prosecutors or courts or whatever means
necessary to get people into treatment? Because, as we have heard,
an implication here has been on incarceration. But it is not; the
focus is treatment. But do you oppose other drugs being involved
in that, other than crack?

Ms. BRowN. Our urine drug screens back in 1988 forward, we
screen for all drugs. We do not distinguish between crack cocaine
or powdered cocaine. And in the current State policy on the screen-
ing, it does not. I think the reason that everyone says cocaine, is
that seems to be the prevalent drug that we are seeing right now.

We are fortunate in that we have not had any cases of ice de-
tected. We are beginning to see an increase in heroin, and heroin
will be treated as cocaine in the State of South Carolina.

Mr. SoOuDER. Methamphetamines, as well.

Ms. Brown. Any illegal drug will be treated under the current
State policy. Everyone is screened. It is not the public hospital or
the private hospital. This is a policy that is statewide. All positions
that deliver care have received the guidelines that the South Caro-
lina Medical Association helped in the development of.

I am on the Medical Council Subcommittee on Substance Abuse
and Pregnancy. We have reviewed this policy. It is statewide.

Mr. SOUDER. Dr. Marshall, do you have any comments on this?

Ms. MARSHALL. I guess my general comment is this. Crack co-
caine is a sexy issue. I will go back to my original statements and
maintain that people who have genuine interest in healthy preg-
nancies and healthy outcomes should focus on the primary prob-
lem. And the primary Problem is not the illegal drugs. The primary
problems, the things it cause the most damage to the most ba-
bies and the most born children are legal drugs. They are alcohol,
tobacco, and they are misapplied use of legal drugs.

So I guess sort of the challenge or the question that I would pose
from a health policy perspective is why the attention on drugs that
are illegal per se, when the goal is healthy pregnancies and healthy
outcomes of pregnancies? And if that truly is the case, then the
focus should be on the substances, whether legal or illegal. The le-
gality of the drug is not the issue. The outcome of its use should
be the issue.

Mr. SoupbERr. I agree with that, and that is why I favor stronger
efforts on fetal alcohol syndrome and also the education efforts. Al-
though we haven’t yet proven the clear damage to the fetus in the


99

Pregnancy, Drugs, and Prosecution | 39

8 Unf, Cont, Subst. Act §401,9 U:L.A.91( 1988) makes it un-
aweful forany person to manufacture, deliver,or possess with
intent to manufacture or deliver, a controlled substance (the
traficking crimes, or knowing or intentionally wo ponens2

substance. Distribution to persons underage eight-
‘SEnivaloanoterse The Acthasberne forty aight
‘tates, the District of Columbia, Guam, Puerto Rico, and the
Virgin Islands.

9 Mere wees
included as an

sates suchas California havemad.
In re Orosco, 82 Cal, App. 3d 924, 147,
However, use refers to 4 present state of bei
influence of a controlled substance, nt use in
People. Spann 1987Cal. App. 3d 400,232Cal. ptr.

31 (1986).

inst the

30 Note,Meteral Rightsand Fetal Wrongs: The Case
5, 1007.n.

Grimtinalization of “Fetal Abuse,” 101 Haxy. L.Rv.
79.988).

11. Criminalizing pregrancy by

Megane depen onsttas hesat af bang prog
and thestatusol drug dependency. Since Robinson Se
‘ia, 370 USS. 660 (1962), ciminalization of drag addiction has

been recogni as impermissible punishment of satus in

tional agegianeamen The dolar
any bass for the crminalzaion of preg

‘ith the eactings of Rabo, my

12 For an argument that parents should be licensed before
‘having children, see Melntre, Parenthood Training or Manda-
tory Birth Controk: Take Your Choice, Powcrexocy Tooay , Oct.
197, aM. Mcintir'sargument however, applies evenhand:
satytoboth en and women. Ticenaureof pregraney would
burden only women.

13 Aertel ey ay sue ties Seed
statusasa person. ascebi othe fetusisa
much harder cove fo make than imposing a uty tthe fetus
regis ol whether considered a person with all the

and privileges granted to those already born. This
Eewssion oeusehan te nature ofthe duty rater than the
legal status ofthe fetus because its the duty, ifany, thats the
critical element of the crime.

14 Kahn, Of Woman's First Disobedience: Forsaking a Duty of,
Careto Her Fetus—Is Thisa Mother's Crime?, $3 BaoortvsL. REV.
807, 818-20 (1987),

1S Butee Commonwealth v Ca 52Mans 738 67 NEA
{524 1980 holding tata ferae asa person” for purposes
of vetlel homictte statute),

16 Any duty not to cause the death ofthe fets i obviously
complicated by lawful abortion and would require sor
prneiple fo dtingutsh lawful aboruon fom aw kifing.
This canbeand has been accomplished when the person doing
the killing is a third party, such asa felon who assaults the
‘mother and causes thedeathof the fetus. Butdefining theduty
‘on the part of the pregnant women requires more.

17S, Buns & GJ. Annas, supra note &

18 1k thus depends for its justification on the justification for
any duty to the fetus. Inaddinon, itrequiresanempiricalbasis
for claiming that specific acts or omissions harm the fetus in
particular, avoidable ways.

19 See Reyes v.Superior Ct, 75 Cal. App.34 214, 217, 14 Cal
Rpt. 912 (970. rP

20 International Union v Johnson Contrls Ine, 886 F.2d 871 (rb,
(Cir 1988), cert granted US. (1990).

21 Rosenthal, When « Pregnant Woman Drinks, N.Y. Times ,
Feb. 4, 1990, §6 (Magazine), at 30,49, 61

22 S. Buns & G). Annus, supra note &

23 Chasot Prat Efecto Cetin, ConrsronanrOn/Grt
164 1987); Zuckerman, Frank, Hingson, Amaro, Levenson,
Kane, Parker, Vine, Fried Cabral, Tamper &eBauchner,
sof  Marjuana nd Cocaine Use on Fetal Growth,
Now Eve Meo, 742190) erislter ted a Eel
Petit fe Coleman, Coonine and the Risk of Low Birth Weight, 80
weey Poe Hel C990.

2 Frank Zuckerman, Amaro, Aboapye
Fried, Hingsan, Kane,

ezine Use Daring P

‘Proxatiacs 888:

Bauchner, Cabral,
Reece & Vinci, Co-

Preclener and Cores, 82
5b foe apr ote 2.

25 Binsacca, Elis, Martin dePetitti, Factors Associated with Low
Birtaeight in am Inner City Population: The Role of Financial
Probe, 77 A}. Ponac Hear 305 (1987) Laveno, Cunning:
tam, Roarke, Nelson de Williams, Prenatal Care and the Low
‘Birth Weight Infant, 65 Ons. & Grr 599 (1985); Miller, Infant
Mortality n the US, 253 5a. Aw. 31 (1985).

26 USS. Gover Accounmenc Ornce, Passatat Case: McA
‘Recmrevrs ao Uneamsn Wowen Omran Insurnciext Cane, Sept,
1987, at 13,31.

27 Drug Babies: An Ethical Quegmire for Doctors. MEDAL
Wont Ris eb. 12, 1990, at 39, 45,45,

28 Stewart had placenta previa which separated from the
ters causing hemorrhaging are severe damage tothe fetus
Her husband was not prosecuted for having sex with his wife
or failing to take her tthe hospital,

22 Reape Sen, No. MESH, ipo. (an Diego Co,

t, Fer 2) 1987. InReyes Superior Court 73Cal. App. 34
ath Gi Ht S18 UBT, Marge Reyes was hago
‘ath felony chldendangermect for sangheromand falling to
Seok prenualcare agaist the advice ofs public health nurse
She fave birth fo teins who were addicted to heroin and
Sulied withdrawal. The. prosecution wo probibited be
ause te court found that the staat cid not apply to unborn
‘Bidens pended pty 9 pata,

rir. nay Xv. Misia, 379 Maas. 265,256, 366NE, 24
Cath eae dry of sport ines he Mass
Jett chile support statute was eld to extend only toa child
ind not oan unborn fs

30 Shy, Luthy, Bennett, Whitfield, Larson, van Belle, Huy

Winter/Spring 1990


21

STATEMENT
by Catherine Christophillis
Assistant Deputy Attorney General of South Carolina

As Attorney General Condon has demonstrated, our program has
often been misrepresented. To clear up any misunderstanding, allow
me to review the current policy.

In the first place, if someone reports drug use by @ pregnant
woman after 24 weeks of gestation, the information is not handed
over to a law enforcement agency, either local or state. An
investigation is initiated by the S.C. Department of Social
Services. Thus, at the outset, the woman is treated as a “patient*
rather than a “criminal.”

DSS is directed to obtain all relevant information about the
viable fetus, the mother, and other household members. Again, the
State’s clear purpose is to understand the family situation rather
than to gather evidence for a prosecution. DSS may call on a
“Response Team" to participate in the investigation. When the
facts are gathered, the Response Team is empowered to recommend a
treatment plan.

If the Department’s investigation indicates abuse or neglect,
according to the protocol, “{the] Department of Social Services
shall take all steps necessary to ensure the health and welfare of
the fetus and to effectuate treatment for the mother and other

household members."


50

Whitney and Ray Ray, or Dawn and her baby Crystal, or Leila and
Scottie, or any of dozens of others, because then you could have
seen for yourselves the results of the law in South Carolina, a
State which says we will not allow this to happen to our children.
Each of those women would have said the same thing to you. I
carry their message for them in the terminology which they use.
“If it wasn’t for the law, I’d still be out there.”

I thank you for your consideration of their message.

[The prepared statement of Ms. Keller follows:]


95

Pregnancy, Drugs, and Prosecution | 35

itself, 1k must be justified, if at all, by the need to
proscribe specific drug use that causes harm that does
not result from other sources. The only distinction
between cases of possible harm toa child from drug use
‘and cases of harm arising from alcohol, tobacco, malnu-
trition, lack of prenatal care, and physical trauma is the
assumed source of the harm_—the drugs. The duty that
isreally imposed hereis the duty not to use drugs,aduty
that may already exist regardless of pregnancy. If the
real concer is toavoid fetal harm, there isno principled
‘way to distinguish between harm caused by drugs and
harm caused by these other avoidable factors, and,

therefore, no principled way to limit prosecutions to
drug using pregnant women,

But, it might be argued, the harm from drug use can
be singled out because drug useiisalready illegalin some
states or could be made unlawful. Certainly drug use
could be prosecuted as an offense. But itsillegality does
‘not distinguish it from other risks of harm to a fetus.

‘Anyone—male or female—could be prosecuted forille-
gal drug use. Prosecuting only pregnant women for
drug use requires a justification beyond illegality based
on harm to the fetus that other risk factors donot create.

Duty to Whom?

‘The idea of a duty raises the additional question of to
whom the duty is owed. If the law is criminal, then the
duty is owed to the state. This transforms any normal
desire toavoid harm tothe fetusintoan obligation tothe

government.

Parents do have obligations to their children. Analo-
izing to child abuse and neglect laws, some commenta-
tors have argued that pregnant women should have an
‘enforceable duty not to take drugs that risk harm to the
fetus. This notion of “fetal abuse” however, treats the
fetus better than a child. The harm to children prohib-
ited by civil child abuse laws is both greater in degree
and easier toidentify than the more general risk of harm
toa fetus. While drug use may expose a fetus to risk,
harm occurs only in a proportion of cases. The fetus is
also at risk from other factors. Child abuse intervention
ordinarily occurs only when a child has suffered real
injury. Only in the most extreme cases of intentional,
long-lasting injury are parents charged with a crime.
Even then, the crime is not a special offense of child
abuse but ordinary homicide or assault.

Child abuse laws are most active—and most
successfulin the civil sphere. They create a system of

social services intended to enable the family to provide
adequate care for a child. This isa social service model;
the intervention is directed at the family unit, parents
and child together. Ifthe parents refuse tocooperate, the
state may take custody of the child, but this is not
automatic and is ordinarily viewed as a last resort.
‘Children whoare abused can be removed from parental
custody because they are physically separate persons.
“Fetal abuse,” however, cannot be stopped without
physically intervening on the mother, or at the least,
seriously restricting her liberty. As long as the two are
physiologically united, such an intervention subordi-
nates the woman to the fetus. The concept of fetal abuse
can be justified only by granting to the fetus rightsof an
independent live-born person and denying such rights,
to the woman. Pregnant women would be treated as
chattel, as inert “fetal containers.” Even temporary
denial of the rights of personhood to women is incom:
patible with the fundamental principles of individual
autonomy and equal respect for persons that form the
core of our law.” If theresa duty tothe fetus, it cannot
be bootstrapped into a fetal abuse hypothesis.”

Intent

Attaching criminal liability todrug use raises theissue of
criminal intent—whether, in taking drugs, the woman
could be said to have intended the harm in question.
Criminal intent is sometimes attributed to reckless con-
duct, in which the risk of harm is consciously diste-
garded, even though the actor has noreason or desire to

cause harm. What is often thought to provide an expla-
nation or reason for the action—the motive—is gener-
ally considered to be irrelevant. Were motive relevant,
the absence of any purpose to harm would render many
reckless actions nonculpable.

Motive and intention are not always easily distin-

Winter/Spring 1990


33

The juvenile court’s detention order was affirmed by the Wisconsin Court of Appeals in an
opinion authored by the Honorable Neal P. Nettesheim. Judge Nettesheim indicated that
the detention was a natural “consequence of [the mother’s] choice” to carry the child to
term and to place the child at risk of serious physical injury through the use of cocaine.
‘The Court of Appeals also held that the Wisconsin’s child abuse law applied to a viable
fetus in the same way that other remedial civil statutes have been interpreted to apply to
viable fetuses. See Angela M.W. v, Kruzicki, 197 Wis.2d 532, 541 N.W.2d 482 (Ct. App.
1995).

Following the Court of Appeals’ decision, Angela gave birth to a baby boy, who appeared
healthy and did not suffer from the withdrawal symptoms frequently exhibited by cocaine
children. This child was placed in foster care and was the subject of a termination of
parental rights proceeding by Waukesha County.

‘On a 4-3 vote the Wisconsin Supreme Court reversed the Wisconsin Court of Appeals. The
Supreme Court applied a narrow construction of Wisconsin’s child abuse statute and held
that because the Wisconsin legislature never used the word “fetus” when defining a “child”
in this remedial law, that the Court would not infer such coverage. The Supreme Court
reversed the detention order. See Angela M.W, v, Kruzicki, 209 Wis. 2d 112, 561 N.W.2d
79 (1997).

It was with this backdrop that the Wisconsin legislature with the support of Senator
Joanne Huelsman and Representative Bonnie Ladwig took up the charge, resulting in the
passage of the “Cocaine Mom” law.

The Wisconsin law uniquely attempts to allow the public the right to intervene in an
extreme case where a pregnant mother is habitually using illegal drugs or chronically
abusing alcohol. Like Angela’s case, it is premised on the concept that children who
mother’s choose to bring into this society deserve to start life healthy and drug free. This
law differs from the direction of most states who choose to use the local criminal codes to
prosecute women who use drugs or chronically abuse alcohol during pregnancy.
‘Wisconsin's approach recognizes that the protection of children is of paramount
consideration and that waiting until a child is damaged to criminally prosecute women
misses such consideration,

Specifically, the Wisconsin law provides:
1. A judge may intervene where a pregnant woman habitually lacks self-
control in the use of drugs or alcohol to a severe degree which places her
unborn child at severe risk of physical injury; and,

2. For voluntary services; and,

3. Orders to be entered by the Court regulating the conduct of the mother,
which may include taking the mother into custody with placement in the least


202

apunitive law (r = -0.2, P < 0.05). There were
no other significant correlations with the first
three questions.

Comments made in response to these ques-
tions indicated, in general, that substance using
pregnant women would ‘go underground’ to
avoid detection and treatment for fear of in-
carceration and loss of their children. Women
who used drugs felt that a law threatening in-
carceration would discourage women from seek-
ing medical care, but one that helped women
receive drug treatment may be viewed.as.an
incentive.

Interestingly, 46.5% of the respondents felt
pregnant ly dependent women should
go Women ‘who answered ‘yes’ had lower
parity (r = 0.26, P < 0.01) and were younger
(r = 0.30, P < 0,01). We compared responses of
acknowledged drug users (NV = 21) with non-
users. No significant differences were noted
although there was a trend toward drug using
women answering ‘no’ (r = 0.15). Comments to
‘yes — women should go to jail’ — included:
"Women should be punished, especially if they
hurt their baby," ‘It's the only way to get them
to stop,’ and ‘It will get them out of my
neighbourhood.’ One respondent who used
drugs during pregnancy and answered ‘yes’ to
this question saw jail as a form of domiciliary
care that she had been unable to obtain. Three
other women who used drugs during pregnancy
and answered ‘yes’ all stopped using drugs on
their own in the first trimester and felt other
women should also. Comments under ‘no,
women should not be jailed’ — included: "They
need rehabilitation and treatment, not jail,’
"Most of these women don’t want or need babies,
0 just take the baby away and help them from.
getting pregnant,’ ‘There are drugs in jail too,”
and ‘These laws are just for poor Black women,
not rich White ones!”

Comment

The American College of Obstetricians and
Gynecologists opposes legislation which would
impose criminal sanctions on women who use il-
licit substances during pregnancy (Moore, 1990).

168

However, legislation in several states has been
enacted which mandates testing without inform-
ed consent and subsequent reporting to
authorities. of drag use by pregnant women
(Moore, 1990), Similar legislation requires
testing of newborns and assumes child abuse for
those who test positive (Chavkin, 1990). The
problem with these opposing views is that they
are not based upon empirical data.

‘The key finding in this survey is that our sam-
ple of low-income mothers in Detroit strongly
believed that punitive legislation would further
alienate pregnant substance-using women from
needed health care. Further, this opinion was
held by women who did and those who did not
use drugs themselves during pregnancy.

Several caveats must be noted. First, this was
‘a convenience sample with over-representation
from those who received little or no prenatal
care and exclusion of women with non-viable in-
fants. Therefore, it may not be representative of
most pregnant women. Nonetheless, we studied
the population truly at risk for chemical depen-
dency and for prosecution under a new state
law. Second, responses to the questions about
the punitive law represent beliefs and attitudes
and do not represent actual behavior in response
to a change in state law. We used an extreme ex-
ample of a legal response in order to encourage
discussion following each answer. Of con-
siderable note is that we attempted to conduct
an identical study in a state with a law threaten-

who were known to use drugs
in that survey for fear of further

This study has important program and policy
implications, The ultimate intention of
policymakers who support criminalization of
drug use during pregnancy is to decrease
perinatal morbidity and mortality by isolating
offenders in prison. This study suggests that
punitive laws may have the opposite cffect. For
example, it can be speculated that women who
receive prenatal care will be less candid when
answering questions pertaining to drug-use if
they are under the threat of incarceration. The
most important question is how a law mandating


133

Racial and socioeconomic discrimination in the obstetrical realm go beyond perinatal
substance abuse. Historically. most coercive approaches to obstetrical care have involved poor
minorities. Suctt coercion includes the vast majority of court-ordered obstetrical interventions,
including forced cesarean section. A survey published in the New England Journal of Medicine in
1987 showed that of the eighteen cases in which court orders allowed coercive obstetrical
interventions (out of twenty-one cases petitioned). eighty-one percent of the pregnant patients
were minorities."* Socioeconomic status was played an even greater role, as each of the women
was either receiving public assistance or was being treated at a public hospital.

Arbitrary Selection Among Illegal Drug Users

Further evidence of racial and socioeconomic bias in the application of criminal statutes to
perinatal behavior is seen in arbitrary selection of certain types of drugs for reporting or criminal
prosecution. Criminal sanctions are imposed against women who use illegal drugs much more
frequently than those who use legal drugs. Certain illegal drugs, such as crack cocaine. heroin.
and marijuana. are often specifically targeted for screening programs while illegal drugs such as
powdered cocaine, crank (methamphetamine) or non-physician-ordered psychotherapeutics are
largely ignored. Pregnant women who use targeted drugs, such as crack cocaine. are much more
likely to be reported and arrested than pregnant women who use non-targeted drugs, such as
powdered cocaine, narcotic analgesics. and psychotherapeutic agents.

Prevalence studies demonstrate clear racial and socioeconomic dividing lines among use of
various substances. Data from the 1992 NIDA report, National Pregnancy & Health Survey: Drug
Use Among Women Delivering Livebirths provide national estimates of the prevalence and

patterns of use of illicit drugs, cigarettes. and alcohol before, during, and after pregnancy. These


17

the law has been broken. If the mother refuses to cooperate, does
a_law enforcement agency move in? No. The current policy reads:
“Should the mother refuse to voluntarily cooperate with the treat-
ment plans, Department of Social Services shall petition the family
court,” which is the Court of Equity in South Carolina, “for author-
ity to intervene.”

In such a case, the likely intervention would be involuntary com-
mitment of the mother to a drug treatment program. As the pro-
tocol states: “The intervention of the Department of Social Services
should include a requirement that the mother and other household
members complete a treatment program certified by the Depart-
ment of Alcohol and Other Drug Abuse Services, if appropriate.”
Up until this point, nothing has been said about prosecution of a
mother by law enforcement agencies. After the child is born, DSS
continues to monitor the case.

Only at this stage does the protocol talk about legal aspects.
First, the policy requires medical professionals to report abuse to
the County Department of Social Services. By the way, this is the
same policy in force for cases of abuse among children who are al-
ready born. However, it’s important to understand that the threat
of incarceration following the birth of the child gives the pregnant
addict the strongest possible incentive to remain in a drug rehabili-
tation program.

It’s ironic that Melissa Crawley, whose case has been cited as an
example of the program's inhumanity, is the best example I know
of its success. r giving birth to two cocaine babies, testing posi-
tive on virtually every drug test subsequent to her initial arrest,
and breaking probation by knifing a known drug dealer, she suc-
cessfully kicked the habit only when told that she faced a jail sen-
tence because of her repeated offenses.

This program works because it is humane, caring when appro-
priate, and, when necessary, double tough. In order to underscore
that point, we’ve submitted some written evidence and also have
asked some professionals from South Carolina in the second panel
to give you the benefit of their experience.

[The information referred to follows:]


61

In addition, drug abusing pregnant women are perceived to exist only in lower income minority
urban areas — while more affluent suburban middle-upper income areas, where drug abuse is
equally as prevalent, are considered relatively problem-free. The effects of alcohol abuse and
resultant fetal alcohol syndrome in newborns in suburbia as well as in the inner-city remains

sorely under-addressed.

In January 1990, Haymarket responded to a new Ilinois law that allowed the Illinois Department
of Children and Family Services to seize any baby testing drug-positive at birth. To meet the
new treatment demands resulting from this law, Haymarket began to provide full treatment
services for pregnant women, during any trimester, and established a permanent “Maternal
Addiction Center,” abbreviated (MAC). Haymarket's strategy has been to capitalize on what
appears to be a major motivational force to change a drug addicted mother's lifestyle and
produce a healthy baby that will not be taken away at birth, The MAC has successfully treated
over 500 women who have delivered drug-free babies ~ keeping families together, and saving

many taxpayer dollars,

We also recognized that just helping an addicted pregnant mother to achieve abstinence was not
enough, In 1991, in order to serve those women in # more supportive and holistic manner,
Haymarket established postpartum programs to allow mothers to remain in treatment with their
newborns. These programs integrate parenting with recovery, and assist mothers to gain tools

for self sufficiency so they might re-enter society as productive citizens and healthy parents.

Haymarket’s other residential and outpatient programs offer specialized services similar (o those

of our pre-natal and postpartum units. Many of our services have been cited by the Center for


130

brought charges against the Medical University. the police department, and the prosecutor.
Notwithstanding unanimous opposition to such collaborations by professional organizations.
(listed above): tmany of which filed amicus briefs for the plaintiffs, citing long standing clinical
norms such as privacy and confidentiality, informed consent, and the right to refuse treatment, a
federal jury dismissed all charges against the hospital, the police, and the prosecutor.

On July 15. 1996 (in State of S.C. v. Whitner) the South Carolina Supreme Court
established that a viable fetus can be considered a person under the child abuse and neglect
statute. Thus. a pregnant woman may be held criminally liable for any action during her pregnancy
that would “endanger the life. health or comfort” of her fetus. The High Court explicitly noted
that the statute applies to acts that are either legal or illegal. In June, 1988. the United States
Supreme Court refused. without comment. to hear the Whitner appeal. Since that date. two S.C.
‘women whose newborns tested positive for marijuana and cocaine respectively have been charged
with unlawful conduct to a child.

Racial and Socioeconomic Discrimination

A prevalence study conducted by the South Carolina governor's office found a high
incidence of barbiturate. marijuana and opiate use among pregnant white women." Data from
the Medical University of South Carolina's data bank on newbom prenatal screening showed an
equal distribution of drug use among white and Black patients. A study by Tribble et al at the
Medical University of South Carolina showed that ~ while equivalent proportions of black and

white populations were drug positive (2.52% blacks. 2.54% whites), biack mothers were more

likely to use cocaine than white mothers (1.25% blacks. 0.28% whites).” Their data also

suggested that the cocaine screening policy was associated with a decrease in the utilization of


114

Mr. SouDER. Thank you very much for your testimony. Chairman
Hastert is coordinating our health bill, which we’re going to have
to vote on tomorrow morning, so he’s busy trying to keep the coali-
tion together. But I know he visited your facility and was very im-
pressed.

Dr. Feinberg.

Dr. FEINBERG. Good afternoon, Mr. Chairman, Congressman Bar-
rett. Thank you for inviting me to testify today. My name is Dr.
Francine Feinberg, and I am the executive director of Meta House
in Milwaukee, WI. Meta House is a community-based residential
program that treats alcohol and drug problems for pregnant,
postpartum women, and women with their children.

Prenatal alcohol and drug use is a serious public health problem,
and we are all in agreement that something should be done to treat
it. Meta House and many other treatment centers for pregnant
women and women with children throughout the Nation recognized
this problem many years ago. And now we have an enormous
amount of experience addressing it.

I'm here to tell you that we are succeeding, but I’m also here to
tell you that based. on both the research and my 15 years of experi-
ence, the primary reason many pregnant women with alcohol and
drug abuse problems do not seek prenatal care or treatment for
their addiction is fear of being turned into the authorities and ulti-
mately losing their children. The approaches of Wisconsin and
South Carolina confirm these fears.

Meta House has already seen a dramatic drop in the number of
pregnant women seeking treatment. Recently, two pregnant women
left treatment because we were unable to convince them that we
would not turn them over to the authorities. In an attempt to help
a few women and their children, these approaches will adversely
impact many others who would have sought help, but now will hide
in fear.

It is possible to get expectant mothers into treatment and have
positive birth outcomes. At Meta House we strive to achieve two
goals. We help mothers deliver healthy drug free babies, and to
provide these children with a mother who can then give them the
physical and emotional support necessary to help them mature into
healthy adults.

Meta House has consistently achieved both these goals. During
a 4 year period, 50 babies were born while their mothers were in
treatment at Meta House—all were born drug free. Within a 2-year
period, 205 children who had been in foster care were returned to
their mothers either during treatment or very soon thereafter. An
evaluation of Meta House by an objective outside organization con-
cluded that 85.5 percent of the women at Meta House no longer use
cocaine 2 years after treatment. In addition to that, over 81 percent
of the Meta House clients were either gainfully employed or suc-
cessfully engaged in Wisconsin’s Welfare to Work Program.

Meta House successes are typical of women’s treatment services
across the country. According to the 1996 data from the Center for
Substance Abuse Treatment’s Pregnant, Postpartum Women and
Infants Program, over 86 percent of their children were living with
their mothers, and over 67 percent of the women were not using
drugs or alcohol.


,

CK

Years
of Service
1963 - 1993

116

“Hits Hobe

300 E Capac” Drive 7. fen T7362
| -Mibvevtes Wi $3511 eiweukees” Ws? 52211
Prunes 1414) 962-1200 tat) 39622305

‘Testimony of

Dr. Francinn Feinberg,

Executive Director

of

‘Mata House,

Before the

House Government Reform and Oversight Conmittee’s

‘Subcommittee on National Security, Internationial Affairs and
(Criminal Justice

‘Thursday, July 23, 1998

Our Moma Foundation, Inc, [-) A United Way Agency


4

Mr. SoupDER. Thank you very much. At this time, I’d like to intro-
duce our first panel. First off, I want to welcome our distinguished
colleague and fellow classmate of mine, Congressman Tom Latham
of Iowa. Congressman Latham has introduced a bill, H.R. 4204, the
Drug Dealer Liability Act, which is intended to provide a civil rem-
edy for damage to persons in a community injured as the result of
illegal drug use. He also serves as an active member of the Speak-
er’s Task Force For A Drug Free America.

Mr. Charles Condon is the attorney general of the State of South
Carolina. Ms. Catherine Christophillis is the director of drug pros-
ecution for the State of South Carolina. Senator Joanne Huelsman
is the State senator from the State of Wisconsin. Mr. William
Domina is the senior assistant corporation counsel for Waukesha

ounty.

It is a rule of our committee that we swear in all our witnesses,
so would you please stand and raise your right hands.

[Witnesses sworn.]

Mr. SoupER. Members of Congress are the only people in Wash-
ington who don’t have to swear to tell the truth. [Laughter.]

Actually it’s in our—

Mr. BARRETT. They figure it won’t do any good.

b Mr. SOuDER. Actually, it’s in our oath, so we're already covered
ry it.

Mr. Latham, will you begin.

STATEMENTS OF HON. TOM LATHAM, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF IOWA; CHARLES CONDON,
ATTORNEY GENERAL, STATE OF SOUTH CAROLINA; CATH-
ERINE CHRISTOPHILLIS, DIRECTOR OF DRUG PROSECU-
TION, STATE OF SOUTH CAROLINA; JOANNE HUELSMAN,
STATE SENATOR, STATE OF WISCONSIN; AND WILLIAM
DOMINA, OFFICE OF CORPORATION COUNSEL, WAUKESHA
COUNTY

Mr. LATHAM. Thank you very much. Mr. Chairman, I thank you
for giving me the opportunity to testify here today at this very im-
portant hearing on drug abuse among expectant mothers. As a
member of the Speaker’s Task Force For A Drug Free America, I
commend you for providing a platform to address the tragedy of the
birth of children addicted to narcotics.

Unfortunately, as others will testify today, this is a growing
trend across the Nation. For years, the Midwest States thought
themselves immune from the drug problems on America’s coasts
and in the big cities. However, this is no longer the case. In fact,
there is a drug problem growing faster in America’s heartland.

Mr. Barrett’s district, Milwaukee, WI, is a perfect example. A
University of Wisconsin Medical School study found that perinatal
substance abuse, evident in 2 percent of the births in 1983, had
jumped to 11 percent by 1990. Today in Milwaukee that rate is up-
wards of 15 percent and hospitals with stricter drug attention pro-
cedures have reported rates almost twice that.

So it is likely that this problem is more widespread than we
think. My home State of Iowa is experiencing an influx of meth-
amphetamine from Mexico and regional clandestine laboratories.


93

Pregnancy, Drugs, and Prosecution | 33

postnatal period, many unknown.” Many of these lie
‘outsidea woman's control, such as her geneticcontribu-
tion to the child or her exposure to rubella or toxic air
pollutants. How is the state or anyone else to know
‘whether and when a crime has been committed? Must
every birth with an Apgar score of less than 10 be
investigated? There is no general duty to produce.a
perfect or even a healthy or “normal” child. Thus, this
cannot be the duty that pregnant women are said to
violate. Moreover, any general duty to perform or
refrain from specific acts that harm the fetus in some
clearly identifiable way would be derivative of a more
‘general duty not to harm the fetus.*

Interestingly, few prosecutions of drug-using women
‘have demonstrated that a drug actually caused harm to
a newbom. The offense that is prosecuted is not the
‘materialization of harm at birth. It is the conduct that
‘exposes the child to risk. This conduct takes place
‘during pregnancy, not after birth." Thissuggests that it
is not enough toavoid harm. The duty implied is really
a duty to prevent any risk of harm. Since the fetus is
integrally connected to the pregnant woman, prevent-

ing risks of harm to the fetus requires caring for the
woman's body or at least preventing harm toher. Thus,
the woman’s duty to the fetus is necessarily a duty to
protect her own body, for she cannot take proper care of
the fetus uniess she cares properly for her own body.
This duty to prevent risk to the fetus amounts to impos-
ing on a pregnant woman a state-defined standard of
‘are for her own body, or conduct toward herself. It is
noteworthy that while the state justifies ts prosecutions
‘on the basis of its interest in protecting the fetus, it does
not undertake any duty to ensure the necessary care for
the woman's body. Instead, itimposes that duty on the
pregnant woman,

The Johnson Controls case now before the United
States Supreme Court will decide whether a company
can impose controls on women employees to protect a
future fetus—excluding those without proof of sterility
from higher-paying jobs that expose them to lead. If
criminal prosecutions are acceptable, it would follow
that not only may employers impose such controls, they
‘must do so, and women must abide by them.

Causation

‘The evidence that drug use harms the fetusis suggestive
but problematic as a basis for criminal offense. The
‘harmful effects of heroin and alcohol when taken fre-
quently in very large quantities are well known. Yet a
surprising number of children of substance abusers
‘escape damage. For example, the Public Health Services
has estimated that 86 percent of women drink at least
‘once during pregnancy, with 20 to 35 percent drinking,
regularly” Mostoftheirchildren arebornquitehealthy.
Alcohol appears to be teratogenic only if used on a few
specific days of gestation” Different substances have
different effects on the fetus at different times during
Pregnancy. For example, significant damage to organs
generally occurs early in pregnancy; birth weight prob-
ems happen later; there is still uncertainty about when
brain damage can occur. Given the difficulties in esti-
‘mating gestation in general, how are we to know whether
a particular substance caused a particular harm in one
infant?

The evidence with respect to cocaine use is still being
accumulated. Women who use cocaine have newborns
with low birth weight (5.5 pounds or less), reduced head
‘circumference, some congenital malformations, and an

Winter/Spring 1990

increased risk of premature birth and of abruptio placen-
tae resulting in stillbirth.» However, cocaine’s precise
contribution to these and other risks remains uncertain
and under study. The effect of occasional as opposed to
regular heavy use is unclear. Studies indicate that the
health of women who used cocaine during pregnancy is
often impaired by other factors, such as poor nutrition
and the use of alcohol, cigarettes, marijuana, and other
drugs Some researchers studied only poor minority
‘women, who typically have poorer prenatal health than
the general population. Poverty, poor nutrition, lack of
prenatal care, and even stress adversely affect fetal
development One of the most important determi-
nants of low birth weight (itself a major risk factor for
infant mortality) is inadequate prenatal careTM Thus,
drug use may not be the primary determinant of poor
birth outcomes. Stopping drug use during pregnancy
will not guarantee a healthy baby. Continued drug use
does not always cause damage. Moreover, the long-
termeffects of drug useare still under study. The degree
to which children who are born prematurely, or with
low birth weight or small head size, are actually preju-
diced in their development remains to be seen.” Care-



38

drug-addicted children. And I find that to be, gosh, a little bit more
invasive than what we did.

But that type of flavor of community reaction is there if there
isn’t some attempt to intervene and deal with the situation in a
common sense way.

Mr. SouDER. Thank you. I have to go make sure I get my vote
in. The hearing stands in recess.

[Recess.]

Mr. BarreETT [presiding]. The hearing will reconvene. Congress-
man Souder is voting. He will be back shortly. I’m staging a little
coup here, though. [Laughter.]

Again, I apologize. We’re trying to make it—it’s too late to be as
painless as possible for you, so we're just trying to make sure we
can at least give you a chance to get out of here. I don’t know if
we've lost Mr. Condon? Have we lost our South Carolina delegation
here? Maybe we'll just wait a moment for them.

Ms. HUELSMAN. They were waiting for another bell to ring.

Mr. BarRETT. Well, let me start. And, again, welcome to both of
you. I feel sort of cozy here; I could be back in Wisconsin with this.
But I’m curious as to the opposition in the State of Wisconsin. Ob-
viously, we’ve got some providers who have raised some concerns.
Do you find that—and, Senator Huelsman, I'll direct this to you—
do you find that most of the opposition comes along the line of:
You're going to discourage women from coming into the system at

Ms. HUELSMAN. There were two primary concerns that I would
say that I heard from people. One is that you’re going to scare
women away. That they won't come in. And the other is: We need
more money.

On the scaring women away concern, I’m concerned about some
of the misinformation that women somehow got. Now maybe
women get that because of the situation that they’re in. But when
I referred to the misinformation about the fact that some women
think that that means that their kids are going to be taken away
from them or some women who think they’re going to be put in
jail—neither one of which is true.

So somehow we have to make sure that all of those who are pro-
viding treatment help get the word out to people that this isn’t
going to mean that we're going to take the kids away. This just
may mean that you're more likely to be able to keep your kids. This
isn’t going to mean that you're going to be put in jail. We have to
get that factual information out to the women who are, as I under-
stand it—and I think other people would agree with that—are kind
of afraid of the system anyway.

But, again, we’re looking at women—as we developed the bill, we
were looking at women who, right now, just plain refuse to accept
treatment. to say that you’re going to scare them away, they’re
not coming now.

Mr. BARRETT. And who is the reporting—is there a reporting re-
quirement?

Ms. HUELSMAN. No. There is no reporting requirement. And I
think that is where one of the problems came in. en the bill was
originally drafted it was drafted as all the rest of our child abuse
statutes to put in a reporting requirement. And so that scared peo-


158

Mr. BARRETT. You'll get better treatment with shorter stays?

Ms. KELLER. Well, we’ve kind of compacted things—we’ve moved
more toward a level of care model. In other words, Serenity Place
as a residential facility used to be able—we had the luxury of keep-
ing a woman long enough to turn out a finished product. Whereas
now, with managed care, we’re turning out a woman who is capa-
ble of functioning at a lesser level of treatment.

Mr. BARRETT. OK. Are you moving to that with all your patients,
or just your managed care patients?

Ms. KELLER. Well, I only operate a managed care program.
That’s the only frame of reference I have to answer you. But I
would like to point out that I think the term voluntary when you’re
talking about addicts is a very broad concept. I have a very large
voluntary waiting list now too.

Mr. Barrett. I was referring to your comment in your testimony
where you said voluntary programs seem to be lagging.

Ms. KELLER. I was referring to prior to the law.

Mr. BarRETT. I don’t mean to put words into your mouth.

Ms. KELLER. Prior to the law in South Carolina. Women just
didn’t turn up for treatment.

Mr. BARRETT. I mean, the reason I ask that is that based on the
Illinois experience and the Wisconsin experience, it does not seem
to be that there is a lack of demand for voluntary Programs, Now
there might be—and maybe [ll ask that Ms. Foley and Ms.
Feinberg—under voluntary ms, do you have less compliance?

Ms. FOLEY. Can you clarify that—less compliance as far as treat-
ment completion, or compliance as far as response to court rec-
ommendations?

Mr. BARRETT. Let’s say treatment completion.

Ms. FOLEY. Primary treatment, the treatment compliance rate
for the direct mandated length of stay is higher for that which is
ordered directly by the court. When you get into the after care con-
tinued care, portion, you will find that they pretty much level off.

Mr. BarrRETT. OK. And Ms. Feinberg, is that the same that you
see!

Dr. FEINBERG. Basically, it is the same. I think though that the
question has more to do with what we’ve learned more recently
about women’s treatment. Substance abuse treatment kind of went
the way as many other medical treatments, and that is that is
what normed and developed for white middle class men. And in-
deed, women didn’t stay in treatment, and treatment did not work
for these women.

Within the last 10 years or so, we've learned a lot about this, and
with learning about this and providing treatment that’s appro-
priate for women, the compliance rate is way up, completion rate
is way up, and the successful completion for the women after
many, many years is way up.

So, I think sometimes we’re comparing apples and oranges,
which is another thing that worries me a little Bit about the bills,
because I know that there are many women who come to our pro-
gram that they have failed other treatments an average of four
times. And when I ask them about their treatment, it was very
clear to me that they didn’t fail treatment, the treatment failed
them. It was an inappropriate treatment for them because it was


125

Mr. SoupERr. Dr. Marshall, I need to interrupt you. We've let you
go almost twice the amount——

Ms. MaRSHALL. Oh, sorry.

Mr. SoupER. We'll insert your full statement into the record.
We're going to go over and vote and we'll be back well before 6, so
you can get to your plane; get questions done.

Ms. MARSHALL. All right. Thank you very much.

[The prepared statement of Ms. Marshall follows:]


100

Wendy K. Mariner, Leonard H. Glantz, George]. Annas | 40

Won fe Siena Efe of Eton Fett Ree Mow
ts Compara with Pea Asction nthe Nea

(of Premature Infants, 322 New Exc. J. Me.
(1950).

Berton Cote, Oct 16,1977 Os

Suce w Born Oveas be Foshan Sos At
0984).
32 at 56.

33 See, eg. Melntire, supra note 12.

34 Myers, Abuse and of the Unborn: Can the Sate
Intervene? Z3 Duguama L. Rev. 1 (1964); Robertson, Legal Issues
in Fal Therapy, 9 Saaasny Paxmntosooy 136 58S)

35 fen vats douna medial dagasisofdrugaddctionsr
‘fnegi for Perpoes of determining whee parce are
‘parents are it
{S rettn custody of the child after Baty a Ree Search 97,
§ eto (a, Ura Coos Avs § 78.365; In re Sih, 128
976 PANY $24 291 Fam Ct 18 Ire Baby 7
Mich. App. 111, 293 N.W-2 736, (1980) Still, the.
ton focuses on whether the petits
child after itis born, ‘The termi

qual protection, The Unie Sates Supreme Court has nt

of equal protection for t women.
Ieee v citer 9Us 1S (TO Ceduldigy
ig US een, Te Discrimination Act
978, 42 USC. sec. Z000E (i), was enacted to protect
pant women from ite bind of warkplocedactiniaton
that the Court found the Constitution dl

38 Ifa breach ofthis
remediable

“day pune crim awit
should be ve damages

by a civil action for

theinfant, in Curlender v. Bio-Science Laboratories, 1
34.811, 16S Cal Rpt. 4771980, the Cou an
for wrongtal ie where bor

nts case of

of
eT corset with the
oetdopucloee inneatetemnenectaies
Sc commited before br

Armas, Women ated Conings16Hoerss Corman 33
(1986). ‘See generally, Johnaen, The Cretion of Fetal Rights
Confit si Women’s Costutional Rig ior Pty,
and Equal Protection, 95 Yas L. |. 399

23 ninal as prohibiting drug use only by pregnant
‘women would single out pregnant women for punishimen

on the basi usr xt reproductive cepacty. Tis
the: of SidenrnRcnecnSrnegt
proser is nota s justification for making it
‘rime for pregnant women, but not men, to take drugs. The
iat this in because only women can
‘harm the fetus by drug use only underscores the discrimina-
‘tory nature of the purported law. Men can cause harm to a
fetus by using rg alcoho tat afc the sperm ad ut
mately the deliere hl rby Psa ng Pe
nant woman for example On the eet of dug a ohel
te by males om reproduction, se

RESEARCH
{May une 1988. Environmental exposure to lead and ober
hazards can cause rior to. ion. See,
eoorsgeeeatcy Sai ston in
‘te for Occupational Exposure Laat (3 Fan Ra $5959 (197)
UUneren Nanenes Scan: Conmarter on Tt Errects oF Aroux
‘Ragan, Sources awoEsrecTsoFlontzncRacaTios (1977), What
‘men cannot do, of course, is transmit drug metabolites to a
fetus via the placenta. Allocating duties a

Ahe basis of sex is fundamentally at odds wi

ould sues sei
sae ‘Goan 102 Mic App 356 3 NW 24869190),
Michigan court permit. causeof action n negligence for

used of tetracycline, which
ers use, during pregnancy

Madly any pro peal is mre defy seed han

atmougets evan] ius Cont Pca Or Cane

Por 0) guinea Merete

Unlty, 8 Cana. ust. Enacs 3, (Winter/Spring 1989). Husak

‘cuss ths sateen ah accurate deception of he

‘ciniton a any oem Mee tmprany hut
from intention

on prin:
Gplesina significant proportion ofcasesandisthusa relevant
fator im dekamining chal habit. aswel es punahe
ment.

40 Husak, supra note 39.

41 Weignore ere the possiblity of delensessuchasnecesty
‘or sel-cefense that might excuse otherwise reckless beha\

42. Anas, Protecting the Lier of Pregnant Pins, 316 Now
Enc, Mm. 12131987

43 Treatment is generally scarce in the United States. A Na-
tional Institute on Drug Abuse official said that only 336,365
ublic and private drug treatment slots were available in 1987
{the most recent gues) for an estimated 4 milion addicts
Malcolm, in No Accord on Treatment, N.
Y. Times, Nov. 19,1989, 1, at 1. The majority of these serve
sen only Sere Helps Had Find for Adc Mathers LA
Times, Dee. 12,1986, at.

44 Chavkin, Drug Addiction and Pregnancy: Policy Crossroads,
180 Aw, J. Pumac Heatne 483 (1990),

Criminal justice Ethies


41

Mr. BARRETT. Have there been prosecutions for powder cocaine?

Ms. CHRISTOPHILLIS. Yes, yes. But mainly, you know, when we—
prosecution—that term is really misleading. Because this is—we’re
really talking about intervention. I mean, people really—it’s almost
like you have to break into the jailhouse under this protocol. It so
rarely happens in the less than 1 percent of the cases.

Mr. BaRRETT. Again, if you can give me a split. How many cases
have involved crack cocaine? How many have involved powder co-
caine?

Ms. CHRISTOPHILLIS. I don’t think—we never distinguish the dif-
ference. We never—I mean, it’s—cocaine, heroin, LSD, PCP, and
their derivatives, and amphetamines.

One thing I’d like to say about the protocol, that these doctors
wrote objective criteria, not subjective criteria. They're neuro-
logical, gastrointestinal, and automatic, specific, objective criteria
that happens maternally or newborn to trigger a screen. That’s ex-
tremely important I think.

Mr. BarrETT. I think my time is——

Mr. SouDER [presiding]. I wanted to say for the record, too, that
Charleston Police Chief Greenberg has been alluded to several
times. He’s an African-American police chief there. He couldn’t be
here to testify today because of a funeral of a good friend. But he
has said that, “The program’s opponents don’t care about the race
issue, they’re just using this as tactics. I was glad that somebody
was finally doing something to help kids in the black community.
This is giving kids a chance who otherwise would not have had
anything close to an equal playing field. At least at the point of
birth, that child ought to be given the best opportunity for a full
and productive life.”

I think that there are legitimate questions of how we, as a soci-
ety, have distinguished between powder and crack cocaine. I think
that’s a great argument for upping the penalties on powder, not for
lowering the penalties on crack. And, initially, those penalties were
changed at the request of many in the minority community. But it
is something that we should make sure that there is fairness there
and I think we pretty much understand that we need to do that.
But it shouldn’t be a back-door way to lower the accountability for
crack users.

A common argument—and I understood both from South Caro-
lina and Wisconsin that this wasn’t true—but a common argument
against intervention is whether the sanctions would discourage
people from moving into treatment, which should be shown in sev-
bral different ways. Either you’d see a rise in abortion. You'd see
a lowering in treatment waiting lists. Have you seen any evidence
in either State that the imposition, the establishment of these two
laws have discouraged people from seeking treatment or shunning
prenatal services: not going to WIC, not going to Head Start, not
going, to a licensed child care facility where people might report
them?

Ms. CHRISTOPHILLIS. We have seen none and I think we have a
little bit more history. Wisconsin just passed their law. Because,
particularly in my county that I’m from—I’ve been personally in-
volved with this issue since 1989—it’s just the opposite.