By Jean E. Herskowitz
Wednesday, May 3, 2000
Eighteen states have anti-drug laws that may interfere with a woman's right to choose and could be applied in a racially discriminatory manner. Mothers may also loose custody to a foster care system that is often inadequate.
Concerned about effects of prenatal drug use, eighteen states have enacted anti-drug laws that specifically target pregnant women with penalties that range from filing a report with state authorities to arrest and termination of parental rights, a new report says.
These laws may have gone too far and compromise the civil rights of expectant women and even the well-being of some infants, conclude the authors of "Year 2000 Overview and Survey of State Legislative Responses to Pregnant Drug-Using Women," published by the National Advocates for Pregnant Women.Lynn M. Paltrow, program director for the organization, said that states require or permit various methods of collecting information about the drug use of pregnant women. Public hospitals--with a large proportion of low-income patients--perform the tests most often and report the results to legal authorities. Private physicians rarely perform the tests, she says.
Laws requiring medical care providers to report a pregnant woman's drug use became fashionable in the 1980's at the height of the crack scare, when news reports and public service campaigns regularly showed disturbing scenes of sickly infants who, it was said, were ill because their mothers used cocaine. The term "crack babies" became synonymous with urban infants suffering abuse at the hands of mothers high on drugs.
Paltrow, however, is an ardent opponent of the laws. She says they are part of a "war on women and abortion," because some states give the fetus full rights of personhood. In addition, the laws have also been applied in a discriminatory manner, she says, with African American women being targeted for drug tests and subsequent arrest.
Paltrow represents 10 African-American women in a South Carolina case now before the U.S. Supreme Court. Her clients, all patients in a public hospital, charge they were singled out and arrested because of their race. In South Carolina, the fetus is considered a person after 28 weeks and the women were charged with distributing an illegal drug to a minor.
Another problem with the laws, Paltrow says, is that the test results are often "simply wrong--a mistake, maybe they mixed up the results of two women."
Her report says that some staff members in drug treatment programs see these revised child welfare laws as deterring women with drug problems from seeking prenatal care, for fear of losing custody of their children. In contrast, the laws assume that women don't get help for their drug problems because of a lack of commitment to mothering, said Paltrow.
"The truth is, there is not enough drug treatment for anybody in this country who wants it, and especially for pregnant women who often have concurring health problems like post-traumatic stress disorders that aren't addressed by existing treatment programs."
The 18 states that have amended their civil child welfare statutes to address a pregnant woman's use of controlled substances are Arizona, California, Florida, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, Oklahoma, Rhode Island, South Carolina, Texas, Utah, Virginia, and Wisconsin.
"Seventeen do it in a way many women would experience as punitive," said Paltrow.
But officials in states with these laws say they are applied with compassion and good sense.
The report says that in South Carolina, if a toxicology test of either the mother or the child at birth is positive for any controlled substance, it is presumed that the newborn is neglected and "cannot be protected from further harm without being removed from the custody of the mother."
However, Catherine C. Christophillis, assistant deputy attorney general with the South Carolina Attorney General's office, says her state's law makes a presumption of neglect only if it's the mother's second "crack baby." The presumption can be rebutted if the father or another adult will care for the child in the mother's home--which is usually what occurs--even with the second positive case, she added.
The Department of Social Services might intervene to treat an alcoholic for potential neglect in her parenting abilities, but not because she used alcohol while pregnant, said Christophillis. "We try to have healthy families. We're not locking women up in jail."
Paltrow argues that even California's less stringent law has been abused. It requires a report be made on pregnant drug users, but doesn't make a positive toxicology screen on the infant, in and of itself, sufficient for reporting child abuse and neglect.
She claims that a Californian had her parental rights terminated when she tested positive for a drug her doctor had given her during labor--a case Paltrow said is not unique. The incident involved "a woman of color, so the hospital and state jumped to conclusions," she said.
Martha Ryan, executive director of San Francisco's Homeless Prenatal Program, agrees that the officials remove infants occasionally when it's not necessary.
For example, the children's protective services staff sometimes removes infants from their mothers' care without first checking the mothers' current status in a treatment program, she says. Ryan adds officials sometimes recommend the mother enroll in a residential treatment program, although the state does not have sufficient treatment centers.
South Dakota allows pregnant drug or alcohol users to be confined to treatment centers for up to nine months, but fails to provide a clear definition of "abusing alcohol or drugs," the report states, leaving judges the discretion as to how much alcohol is "too much" for pregnant women.
If the woman "abuses alcohol to the degree that the child had fetal alcohol syndrome, she'll probably lose her rights to the child," said Tony Sanchez, assistant attorney general with South Dakota's Department of Social Services. He added that if the department is granted custody of a child on Medicaid, the department's staff must make reasonable efforts to return the child to his or her family-- except in the case of substance abuse, where reasonable efforts to reunite child and family aren't required.
Wisconsin law permits police and other officials to arrest a pregnant woman if they believe her use of alcohol poses a "substantial risk to the physical health of the unborn child"-- again leaving the subjective decision of how-much-is-too-much to the arresting police officer.
The report also points out that the Wisconsin code allows guardians to be appointed for "unborn children" allegedly in need of protection. "Consequently, if a woman decided to have an abortion while her case was pending, the guardian would undoubtedly be expected to oppose it in the 'best interests' of the 'unborn child,' " the report says.
Bill Domina, principal assistant corporation counsel for Waukesha County in Wisconsin, doesn't think the statute has been abused.
"We have historically been informed by hospitals when they have an infant who tested positive at birth. There's never been a challenge to that, or a question as to whether it's subject to the mandatory reporting laws."
He added that taking a woman "into custody" in Wisconsin does not necessarily mean jail. It can mean that the court has jurisdiction over her activities, such as knowing where she is living, requiring drug tests from her, or ordering her into an outpatient substance abuse program.
"If you've made a choice to carry a child to term, that child deserves to have a fair start at life," stated Domina, who describes himself as pro-choice.
While Domina acknowledges that the state's standard for alcohol abuse is "vague," he believes the statue would not apply to women with no drinking problem who had "over-imbibed" while pregnant.
"You almost have to prove a mother who had a pattern of giving birth to fetal alcohol children," he said.
Other parts of the code, however, concern Domina more. The law defines an "unborn child" as a "human being from the time of fertilization to the time of birth." Using this meaning, the court can enter orders affecting a woman's conduct at any time during that period, creating an "inherent jurisdictional or constitutional problem," he said.
Paltrow argues that while removing children from drug addicted parents may seem wise, it is not necessarily a panacea. Child welfare authorities should be called in only when there is an indication beyond a positive drug test of an inability to parent, she says.
"Those concerned with pregnant women's drug use should focus on making drug treatment, prenatal care and other reproductive and mental health services widely available to women," Paltrow adds.
Others may agree. A recent study by Mark E. Courtney, a social work professor at the University of Wisconsin at Madison, suggests that young adults in Wisconsin who had been in foster care were "at high risk of incarceration, homelessness, public assistance dependency, out-of-wedlock childbearing and victimization--being sexually and physically victimized."
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