Prosecutors Targeting Pregnant Drug Users: Some fear women will shun treatment

November 23, 2003

By: Kirsten Scharnberg, Chicago Tribune, November 23, 2003

NEW YORK -- Stacey Gilligan is accused of drinking so much vodka during her eighth month of pregnancy that her baby was born drunk.

Tayshea Aiwohi is charged with consuming such huge amounts of crystal meth while she was pregnant that her son died of methamphetamine poisoning two days after his birth.

Regina McKnight was convicted of using so much cocaine during her pregnancy that her baby was stillborn.

Across the country, prosecutors increasingly are leveling criminal charges against women who abuse drugs or alcohol while pregnant. The charges range from misdemeanor counts of endangering the welfare of a child to criminal homicide. At least two women who were convicted were sentenced to life in prison.

The prosecutions are rousing intense passion on every side of the issue. Abortion rights supporters are furious about the prosecutions, charging that a fetus is not a constitutionally protected person. Substance abuse counselors claim that an unintended side effect of the prosecutions has been to make drug-addicted pregnant women reluctant to seek treatment. Family and child advocates counter that prosecuting these women is the only way to send a message that America values its children.

"This is certainly a complicated one," said Dr. Mary Ellen Rimsza, chairwoman of Arizona's Child Fatality Review Board and a member of a governor-appointed commission studying whether positive drug tests on newborns should be grounds for the state to accuse a mother of child abuse.

South Carolina, where more than 70 such cases have been heard in the courts since 1989, has led the charge on these prosecutions. But despite being one of the earliest and most aggressive states in bringing charges against drug-abusing mothers, South Carolina now has plenty of company: Texas, New York, Arizona, Hawaii, Utah and California.

In recent years, Illinois has backed off from prosecuting women who use drugs during pregnancy. However, in 1989, Illinois became the first state to charge a woman with manslaughter after her baby was stillborn, allegedly from toxic levels of cocaine. A Rockford grand jury refused to indict, and prosecutors have since been reluctant to bring such charges.

Law-enforcement officials in Riverside County, Calif., known as the nation's methamphetamine capital, have declared these prosecutions "a top priority."

"Sometimes the cases and the effects of drug abuse on children and infants are so egregious that I believe we are left with no other option but to prosecute," said Riverside County District Atty. Grover Trask.

Plenty of people disagree, vehemently.

The addiction

Lynn Paltrow, director of National Advocates for Pregnant Women, is passionate about the issue, and she gets so animated when discussing it that she can scarcely decide where to start her criticisms of such prosecutions. To begin with, she says, criminal charges do not address the root of the problem: the woman's addiction.

"People don't become addicts because they want to do harm to their own bodies or, if they are pregnant, to harm the fetus in their body," Paltrow said.

Just as worrisome, she said, is what may be a chilling, inadvertent consequence of the highly publicized prosecutions: that other drug-addicted pregnant women will not seek treatment--or even prenatal care--because they are terrified they will wind up in jail or lose other children they may already have. About 50 public heath organizations, including the American Public Health Association and the American Academy of Addiction Psychiatry, have denounced the prosecutions for the same reason.

The experience of at least one state that has pursued these prosecutions indicates Paltrow's fear may be well-founded.

In Utah, where in the late 1990s there were several high-profile prosecutions of women for substance abuse during pregnancy, state officials saw coinciding drops in the requests for treatment and help from drug-addicted women. The Pregnancy Risk Line, a toll-free service operated by the state's public health department, typically took at least four calls a month from a pregnant woman seeking drug counseling before the prosecutions began. But after news of the prosecutions hit the newspapers and television shows, those calls dropped to almost zero per month.

`A double whammy'

"Women were showing up at hospitals in droves to deliver babies having had no prenatal care and no substance abuse treatment," said Lynn Martinez, director of the hot line and of the state's birth defects and genetics program. "When asked why they hadn't sought help, their answers were almost universal: They were worried they would either lose their children or be prosecuted. So suddenly you had a double whammy: babies exposed to drugs and babies not getting prenatal care."

Just as worrisome to Paltrow--and to many who oppose such prosecutions--is whom prosecutors will target most often.

"This has become a general assault on poor people, and disproportionately on minorities," said Richard Wexler, director of the National Coalition for Child Protection Reform. "Take a guess which pregnant women are most likely to be screened for drug abuse when they walk through the doors of a hospital. It isn't some upper- or middle-class woman who can afford the best of everything. But those women often are just as likely to be using substances during pregnancy that put their child at risk."

Statistics seem to support that. Rimsza, the Arizona pediatrician, said studies indicate that about 3 percent of women use illicit substances during pregnancy, while about 54 percent of women use legal substances that could be harmful to a fetus, including alcohol and tobacco.

In California, where prosecutors are aggressively prosecuting women who use drugs while pregnant and have vowed to step up punitive measures, the statistics are even more grim. Statewide surveys have put the number of women who take illegal drugs during pregnancy at about 11 percent, and the drug being used most often seems to be methamphetamine.

"It's hit epidemic proportions," said Trask, the Riverside County district attorney.

Just last month in Riverside, a mother of four was sentenced to life in prison for the second-degree murder of her 3-month-old son, Jacob. Amy Leanne Prien, 31, was charged with killing her infant by feeding him high doses of methamphetamine either through her breast milk or through tainted plastic bottle liners that she had been using to package the drug in her home.

During Prien's trial, the prosecution said she had not only risked her son's life by exposing him to a drug as toxic as methamphetamine, but when Jacob was found unresponsive, she delayed calling paramedics until she had hidden all her drugs.

"It's amazing to me that so much of the debate is over what is best for the mother, what is fair to her," Trask said. "I think it's long overdue that we focus on the effects addictive drugs like methamphetamine are having on the children. We have to send the message that, hey, if you don't care about yourself, that's one thing. But people need to understand that we expect them to care about the innocent children they are bringing into the world."

Trask disputed the criticism that pregnant women who seek treatment for their addictions will be prosecuted upon entering a hospital or treatment facility.

"Of course we don't do that," he said. "If they are in programs, we won't prosecute them."

But that isn't how it often works, critics insist. In South Carolina, for example, Paltrow said several pregnant women went looking for treatment at a hospital only to leave the facility hours later in handcuffs.

When life begins

In Prien's case, because the child died well after he was born, the hot-button legal and emotional issue of "when does life begin?" didn't come into play. But sometimes that is not as clear, as in the cases of Tayshea Aiwohi in Hawaii and Stacey Gilligan in New York. Aiwohi was charged with manslaughter after her baby died of methamphetamine poisoning two days after his birth; Gilligan was charged with child endangerment when her baby was born with a blood alcohol content of .18, more than twice the legal limit for an adult in New York.

In those cases, still working their way through the courts, defense attorneys have said the charges are not valid because the women are accused of doing something to a "child." The lawyers say the women never gave illegal substances to a child, but rather to a fetus, and that state laws in Hawaii and New York do not protect fetuses.

On Thursday, Warren County District Atty. Kate Hogan, who is prosecuting Gilligan, stood outside a courtroom, preparing to fight a defense petition to dismiss all charges in the case.

"Any pregnant woman can drink, and we can't charge her," Hogan said. "But when that child draws its first breath, it is protected under the law. In this case, when that child drew its first breath, its blood alcohol content made it legally drunk. At that point, the mother can be charged. That's what I'm arguing."

The judge is expected to rule on whether the Gilligan case can go forward in the next couple of weeks.

For all the talk and debate about women who use illegal drugs during pregnancy, Gilligan's case highlights one point many experts wish was discussed more: that alcohol is the most damaging to a fetus in utero and to children in the long run. While many babies born with addictions to drugs such as methamphetamine or cocaine will experience painful withdrawal symptoms during their first weeks and months of life, those exposed to alcohol often will suffer lifelong effects. Rimsza estimated that the average IQ of a child with fetal alcohol syndrome is 68, and she added that studies indicate one drink of alcohol a week translates into an increased risk for delinquent, hyperactive and aggressive behaviors for the exposed child.

"While the public seems to be most concerned about the baby who has been exposed to illicit drugs such as cocaine, far more babies in this country are damaged by alcohol," she wrote in a letter to Arizona legislators studying the issue.

But Rimsza also emphasizes that she thinks good policy should focus less on public law and more on public health. She fears a slippery slope when states begin prosecuting women for drug abuse during pregnancy--first, prosecutions for illegal drugs such as cocaine and methamphetamine, then for legal substances such as alcohol and tobacco, then for potentially risky behavior such as not taking prenatal vitamins and not eating properly.

"There is no evidence that prosecutions will do any good in terms of prevention of these behaviors." she said, "and it doesn't do any good for the baby who's already died."