Women’s advocacy and drug-policy reform
organizations are calling on the Department of Justice (DOJ)
to “publicly renounce” enhanced criminal penalties for pregnant
women. It’s an issue that’s been gaining more attention since
the July 2014 conviction of Lacey Weld, a Tennessee woman who was
found guilty of conspiracy to manufacture methamphetamine. Because
Weld was pregnant at the time she made (and used) meth, she
received an extra six years of prison time for child
endangerment.
At the time of Weld’s conviction, U.S. Attorney William
C. Killian said enhanced sentencing policies were
necessary in light of the “tragic rise in the number of babies born
addicted to drugs. Through this prosecution, the U.S. Attorney’s
Office sends a message that, should a child, born or unborn, be
exposed to a substantial risk of harm through the manufacture of
methamphetamine, we will pursue any available enhancements at
sentencing.”
Babies can’t actually be born “addicted” to a drug, though they
may develop a physical dependence that leads to withdrawal
symptoms. This is sometimes seen when women use opioids or
drink excessively during pregnancy. There’s little evidence that
meth, however, results in any particular withdrawal symptoms. The
American College of Obstetrics and Gynecology’s position is that
there “is no syndrome or disorder that can specifically be
identified for babies who were exposed in utero to
methamphetamine.” And as
Jacob Sullum noted here recently:
The Food and Drug Administration puts methamphetamine (a.k.a.
Desoxyn) and other amphetamines (e.g., Adderall) in Pregnancy
Category C, meaning “animal reproduction studies [using doses much
higher than people generally take] have shown an adverse effect on
the fetus,” but “there are no adequate and well-controlled studies
in humans.” Doctors will prescribe Category C drugs, which include
antidepressants such as Prozac and Zoloft, for pregnant women if
they believe the benefits outweigh the risks.
Many object to charging a pregnant meth user with “child
endangerment” on the grounds that an embryo or fetus is not yet a
“child”. But we also lack sufficient evidence of
endangerment, or at least that this danger is greater than
that posed by common legal substances. Research indicates that
heavy drinking and poor nutrition are much more dangerous to
developing fetuses than exposure to methamphetamine, which would
seem to have an impact similar to that of prescription drugs like
Adderall.
“The effort to impose an enhanced penalty is based on
the argument that Ms. Weld exposed her ‘unborn’ child to ‘a
substantial risk of harm’,” notes Lynn M. Paltrow, executive
director of National Advocates for Pregnant Women (NAPW),
in an
October 7 letter to the DOJ.
This claim not only provides the basis for separate and
unequal treatment of pregnant women, it is also one that
cannot legally, logically, or medically be limited to use of or
exposure to criminalized substances. …
Numerous actions, conditions, circumstances, and substances
have been found to create equal or greater risks of harm to
fertilized eggs, embryos, and fetuses than any of the criminalized
drugs, including methamphetamine.
The DOJ’s support for Weld’s enhanced sentence “suggests that
actions that are not ordinarily criminal may become criminal
if performed by a pregnant woman,” Paltrow continued, pointing out
that drug possession, not use, is a crime under
Tennessee and federal law.
That possession rather than use is criminalized is based in
part on the recognition that some use is the result of addiction, a
health condition over which people have limited control.
According to the DOJ press release and the sentencing decision in
this case, drug use (including addiction) has effectively been
criminalized for one class of persons—women who become
pregnant and seek to continue their pregnancies to term.
The letter was sent on behalf of nearly 50 nonprofit
orgnizations, including the Drug Policy Alliance and the American
Civil Liberties Union’s Reproductive Freedom Project. The groups
allege that enhanced penalties for pregnant women defy the
constitutional principles of equal protection and due process as
well as the ban on ex post facto laws.
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