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Pregnant Women Are Being Arrested for Crimes They Didn't Know They Committed

In the United States, state-level legislation is being used to prosecute pregnant women who use drugs—violating their civil rights and making it impossible for them to get the help they need.

Kimberly Lawson

Kimberly Lawson

Photo by Cameron Zegers via Stocksy

Laurie was five months pregnant when she used methamphetamine. She'd previously been on anxiety medication, but her doctor switched her to an opiate when she told him she had history for drug addiction. She said the opiate made her addiction "a whole lot worse."

After her son was born, just as she was getting ready to take him home, the 23-year-old found herself handcuffed in front of her family. She was charged with "chemical endangerment," a law passed in Alabama intended to protect children from environments where they could be exposed to drugs, but has since been interpreted to apply to pregnant women themselves.

At the time of her interview with human rights organization Amnesty International, she was in residential drug treatment. "I'm on drug court for 18 months," she told researchers. "Will be hopefully getting my son back, but I'm looking at prison time. I still think I should have gotten an opportunity to go into treatment while I was pregnant. I should have been aware of how it was going to play out. I was unaware. I had no idea about this law."

Laurie is just one of the women whose stories are featured in a new report released today on the impact of pregnancy criminalization laws, or laws that police pregnant women's actions and circumstances. "These laws put pregnant women in a double bind, forcing them to choose between risking their health and risking punishment," Carrie Eisert, policy adviser at Amnesty International and author of the report, said in a statement. "Drug dependence is a health condition but US authorities are treating it as a crime, failing to ensure treatment is available for pregnant women and then punishing them for their ongoing condition. These harsh and discriminatory laws are making pregnancy more dangerous and trampling on human rights in the process."

Read more: Women as Incubators: How US Law Dehumanizes Pregnant Women

Specifically, Amnesty International focused on Alabama's chemical endangerment law, which was passed in 2006, and Tennessee's "fetal assault" law, amended in 2014 to become the first in the country to make it a crime to give birth to a child who appears to show symptoms of exposure to narcotics. (The Tennessee statute has since expired because of a termination clause, but state legislators are aiming to bring it back.) The aim of the report was to show how such legislation—spawned from a history of racial discrimination in policing women's bodies, growing restrictions on reproductive rights, health care inequities and ineffective drug laws—actually discourages women from seeking healthcare, prenatal care, and even drug treatment.

These laws disproportionately impact low-income women and women of color. A study highlighted in the report from the National Advocates for Pregnant Women found 413 arrests, detentions, and forced interventions on pregnant women between 1973 and 2005, and of those cases, 71 percent were for low-income women and 52 percent were for black women.

"Criminalization is often referred to by its proponents as a 'velvet hammer' approach to getting pregnant women to seek help for issues with substance use," New York human rights attorney Farah Diaz-Tello said in the report. "But you don't provide healthcare with a hammer. There is a growing understanding that there is a maternal health crisis in the USA, but it's not something we can arrest our way out of."

Eisert, the report's author, says that despite the fact that the research focused on two particular laws in the South, policing pregnant women is a nationwide problem. "The report makes it clear this issue is not limited to any particular region and there have been prosecutions in almost every state," she tells Broadly. "In the 2017 legislative session, over 300 bills were introduced to restrict women's and girls' sexual and reproductive health and rights, including through a range of 'fetal assault' and 'personhood' measures."

"In addition," she continues, "policymakers at the state and federal level are currently reconsidering their policy responses to drug dependence and access to treatment given high rates of dependence and overdose from the use of opioid drugs. Given these intersections, and the fact that pregnancy criminalization laws are also being used to build restrictions on access to abortion and limit women's bodily autonomy and privacy, ultimately, these restrictions matter to everyone."

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Amnesty International ultimately recommends amending or repealing these kinds of laws, and, more importantly, ensuring "access to affordable, scientific evidence-based, gender-appropriate drug dependence treatment and sexual and reproductive healthcare services without discrimination."

"In the USA, pregnant women lie at the center of a contested battleground over their sexual and reproductive rights and for some, this intersects with a stigmatizing and punitive state response to drug use," the report concludes. "However, neither the condition of pregnancy nor one's drug use justify the violation of individuals' human rights."

For supporters of these laws who believe fetuses/babies need someone to protect them from "bad mothers who don't care about their kids and just want to get high," Eisert offers this message: "Policies that ensure the human rights of pregnant women provide conditions that enable maternal and infant health," she says. "Policies that support women are also going to help their kids."