The prosecutor’s office in Big Horn County, Montana, has announced an “immediate crackdown” on any expectant mothers who use drugs or drink alcohol.
County Attorney Gerald “Jay” Harris said his office will seek civil restraining orders against those pregnant women. When there are “provable” violations of such orders, the county will ask for jail time in order to “incapacitate” the mothers, according to a Jan. 11 press release announcing the new policy.
Harris encouraged the public to report instances of mothers-to-be drinking or using drugs to the sheriff.
“It is simply not satisfactory to our community that the protection of innocent, unborn children victimized in this manner and subject to a potential lifetime of disability and hardship relies exclusively on social workers removing the child from the custody of the mother at birth,” Harris said in the press release. “This approach is not timely and has not proven to be a sufficient deterrent to this dangerous, unacceptable behavior and will no longer be the State’s policy in Big Horn County.”
Harris’ policy is part of a larger movement to prosecute and incarcerate pregnant women grappling with drug addiction. Roughly half of all U.S. states now consider substance abuse during pregnancy to be child abuse.
The Big Horn County prosecutor may have good intentions. The rate at which Montana babies were born exposed to narcotics increased tenfold from 2000 to 2013 ― from 0.8 per 1,000 live births to 9 per 1,000 live births. Withdrawal symptoms, which can last for days or weeks, are most commonly seen in babies exposed to opioids.
Nationwide, the incidence of newborn withdrawal increased 300 percent between 2000 and 2013. Heroin use during pregnancy is associated with everything from birth defects to sudden infant death syndrome (SIDS).
But research and experience show that treating pregnant women punitively can do more harm than good. An already vulnerable population of women may be discouraged from seeking prenatal care or help stopping their drug use. And abrupt discontinuation of opioids during pregnancy — as would happen when an expectant mother is jailed — can lead to preterm labor, fetal distress and even fetal death. That’s why the medical community, the American Civil Liberties Union and women’s advocacy groups have likened this kind of regime to “The Handmaid’s Tale.”
‘Zero Scientific Evidence That This Will Work’
The American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, and other major medical groups were quick to condemn Big Horn County’s proposed crackdown as “ineffective” and “harmful.”
“These kind of things come up periodically. People want to respond to the opioid crisis, or the problems related to drug use in pregnancy, with these kind of punitive responses, but there really is zero scientific evidence that this will work,” said Dr. Lauren Jansson, director of pediatrics at Johns Hopkins Bayview Medical Center’s Center for Addiction and Pregnancy.
“Any time you try and separate the well-being of the fetus from the well-being of the mother, you get into a kind of slippery slope,” the doctor said. “The fetus relies on stable maternal physiology to properly develop, and if you put a woman with an addiction disorder under constant stress — if you put them in jail, if you deny them treatment, if you deny them medication — that’s not going to be optimal for the fetus.”
Addiction experts warn that a prosecutorial approach also perpetuates the idea that addiction is a moral failing or a bad choice. Jansson balked at the notion of a prosecutor’s office urging other citizens to report on pregnant women, likening it to the attitudes behind the Salem witch trials.
Worry Among Local Health Care Providers
Big Horn County’s proposed policy will only dissuade pregnant women grappling with addiction from seeking the prenatal care they need for fear they’ll be punished, according to Dr. Tersh McCracken, an OB-GYN in Billings, Montana.
The county is a low-resource, sparsely populated area with no hospitals that offer obstetric care, he said, so women already travel more than an hour to Billings to deliver their babies. That can be a significant challenge logistically and financially.
“This is a reaction by the county attorney to a very real problem, but it’s the wrong solution,” McCracken argued. “It drives a wedge between a patient and her physicians or other care providers. I think it would delay or prevent women from seeking prenatal care, and they already have huge barriers.”
While county attorneys generally can propose policies as they see fit, Sell said, “our brief analysis of this is that the legal grounds on which Jay Harris has proposed this policy are quite suspect. It still hasn’t been decided yet by a judge if this is legal, but it’s quite dubious at this point.”
The ACLU of Montana has promised to challenge the prosecutor in court.
“Our issue is not with the [American College of Obstetricians and Gynecologists], but with the problems associated with clouded and harmful decision-making by expecting mothers brought on by alcoholism and drug addiction,” he said.
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