04.25.2016
women

Smoking Weed While Pregnant Can Land You in Prison

Because the War on Drugs fits so well with the War on Women.

On March 6, Alabama resident Sandra Louise Terry gave birth to a baby boy who tested positive for marijuana at Decatur-Morgan Hospital.

Local outlets reported that Morgan County Department of Human Resources conducted a joint investigation with the Decatur Police Department and determined that Terry “had smoked marijuana during her pregnancy, fully aware that she was pregnant at the time.”

On April 1, Terry was booked into the local jail where she was arrested and charged with a law unique to Alabama—chemical endangerment of a child. It’s a felony crime; Terry could face up to 20 years in prison.

Reports of the arrest make no mention of what happened to Terry’s newborn son—whether he was left with his father or other relatives or transferred to a foster home. They do, however, include a statement from Decatur police, who say they are unsure of what long-term effects the infant’s mother’s marijuana use will have on him.

The impact of removing a child, particularly a newborn, from its mother can be devastating.

Those effects don’t seem too difficult to extrapolate. Two separate decades-long longitudinal studies on the children of mothers who used marijuana during pregnancy conducted at the University of Pittsburgh and in Ottawa have revealed effects that Canadian researcher Peter Fried describes as “quite subtle.” (Fried spearheaded the Ottawa Prenatal Prospective Study, which launched in 1978 and is ongoing.)

According to Fried, measurable effects emerge around age four and include a slight increase in impulsivity and slight decrease in visual-spatial reasoning. He notes that a schoolteacher would be unable to perceive the differences in kids in their classroom.


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No impact on IQ was observed, and birth weight was average when the researchers controlled for cigarette smoking by mothers. (Fried believes a recent meta-analysis of existing evidence conducted by Arizona’s Department of Health Services in Phoenix may have failed to control for extenuating risk factors.) 

“It’s hard to come up with a hard, fast description of what the effects are, and if there are effects. The effects are relatively subtle, certainly compared to other drugs that the fetus might be exposed to, like heavy alcohol and tobacco, crack and so on,” Fried explains, while acknowledging that the risk factors associated with using pot while pregnant, however mild, should not be dismissed.

Meanwhile, the impact of removing a child, particularly a newborn, from its mother can be devastating.

“It is difficult to take a swing at so-called bad mothers without the blow landing on the children,” says Richard Wexler, child welfare advocate and director of the National Coalition for Child Protection Reform. “Children suffer enormously from needless removal from their parents.”

The mildest conviction under the law results in imprisonment of one to ten years. 

Wexler points to a study done at the University of Florida with two groups of infants that were both born with cocaine in their systems. One group was placed in foster care, and one was left with the birth mothers. At six months of age, the children were evaluated using normal measures of infant development: Sitting up, smiling, reaching out, rolling over, etc. Consistently, the children left with their birth mothers performed better. 

“For the foster children, the removal from the mothers was more toxic than the cocaine,” Wexler says. In addition to the harm removing a child can do, Wexler and many others have noted, repercussions—criminal or otherwise—can deter a woman from seeking prenatal care or giving birth in a hospital.

(If you think that’s an exaggeration, visit online forums for expecting mothers and type “marijuana” into the search query. Behold thousands of pregnant women very concerned about what will happen if they are caught using pot and frantically seeking advice on how to avoid penalties.) 

Bill Fortenberry, president of the Christian, pro-life advocacy group Personhood Alabama, insists that the chemical endangerment law does not treat all controlled substances the same. “If someone subjects a child to a controlled substance which has no possibility of causing harm to the child, then that violation results in a lesser penalty than if someone subjects a child to a controlled substance which is so strong that it causes the child to die,” he says. 

The key qualifier is lesser. The mildest conviction under the law results in imprisonment of one to ten years. If the child dies—whether or not it’s scientifically possible to prove the child died as a result of the mother’s substance use—the mother can face life imprisonment.

“Instead of providing a list of which substances produce which penalties, the legislature wisely decided to base the level of punishment on the level of harm caused to the child,” Fortenberry says.

That means that the law encompasses any controlled substance, including marijuana and drugs prescribed by the mother’s doctor. An in-depth joint report on the law by ProPublica and AL.com relates the case of Casey Shehi, who was charged under the law for taking half a Valium on two occasions during her pregnancy. 

The chemical endangerment law was initially passed in 2006 to target parents who operated meth labs in their homes, therefore putting their children at risk. But because the Alabama Supreme Court ruled in 2013 and 2014 that the term “child” in the law included an “unborn child,” pregnant women’s wombs can now be legally interpreted as a “meth lab” or dangerous environment, as determined by the state.

Liberty Counsel, an organization specializing in Evangelical Christian litigation, has written amicus briefs in support of the chemical endangerment law. A lawyer for Liberty Counsel, Daniel J. Schmid, says that the harm on the developing child caused by the mother’s use of any drug “fails to respect the dignity, worth, and value of those children made in the image of God.”

Schmid did not directly answer whether the law should differentiate between different controlled substances and the respective harm each may cause the fetus.

He maintains that science is not in dispute “concerning the effects of controlled substances on a child's development.”

But as scientist Fried notes, any observed harmful effects could be strongly confounded by cigarette use, nutrition, socioeconomic level, and other risk factors.

“We would never take a baby away or charge a mom if she smokes a package of cigarettes,” Fried says.



“You can’t be assured that someone who has used pot is a bad mother…just like you can’t be sure that someone that doesn’t smoke up is a good mother,” he adds.

Terry’s case is not unusual. On Feb. 14, 20-year-old Alabama resident Courtney Marie Isbell was arrested and charged for giving birth to a baby that tested positive for marijuana. In essence, she’s a bad mother until proven innocent.

Alabama isn’t the only state where you can face prison time for smoking up (or chowing down on medibles). Tennessee and South Carolina both have laws on the books that permit women to be arrested if their newborn child tests positive for a controlled substance.

Even pregnant women who use marijuana in recreational-marijuana friendly states such as Colorado, Washington, Oregon, and Alaska are not immune to consequences. The same goes for women in medical-marijuana friendly states such as California, Arizona, Montana, Vermont, New York, Maine, Illinois, Minnesota, and 12 others.

Child protective services (CPS) can be called to intervene in any state. It is technically legal for a pregnant woman to use marijuana if she lives in a state that has legalized marijuana for recreational use or if she qualifies for medical marijuana, but any medical professional—from a doctor to prenatal nurse—can report a mother’s or infant’s “dirty” test to CPS as potential child abuse.

 "The systems, even though they’re carried out by social workers, are punitive systems.” 

In some states, hospitals are required to report mothers to CPS if they or their newborns test positive for any drug, including marijuana. (Minnesota is one of the states that requires reporting; an OB/GYN based there confides “It always feels very strange having to report marijuana use in pregnancy." She adds that doctors are not informed of what actions are taken against the mother as a result of the report.)

In other states, doctors and other healthcare professionals are only required to make a report if they believe there is evidence of abuse—a subjective assessment.

(Ironically, Wexler says Alabama has a “relatively enlightened” child-welfare system and has a low rate of child removal compared to most states.)

What happens after a report is made depends on state policy and on the discretion of the social worker assigned to the case.

According to Farah Diaz-Tello, senior staff attorney for National Advocates for Pregnant Women, a child-welfare investigation can be almost as harrowing as arrest. 

“The most important thing to realize is that the systems, even though they’re carried out by social workers, are punitive systems,” she says. “People often think it’s this sort of kumbayah thing, where we’re just going to sit around the table and decide what’s in the best interest of the child. The reality is very different.”


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Richard Wexler and Diaz-Tello both contend that a social worker’s personal beliefs can have a huge impact on a case. A mother may simply be interviewed once by a social worker and never bothered again. She may have a great relationship with her social worker. She can also lose her children. If a social worker harbors the belief that a woman who uses marijuana or any substance is a de facto bad mother, then he or she may consider parents who smoke marijuana in the home to be unfit and advocate for their children to be removed.

“It’s people who are totally unqualified to practice medicine, essentially telling people how to live their lives,” Diaz-Tello says.

Diaz-Tello and Wexler agree that in some cases a mother’s drug use puts a child in real danger and warrants removal of the child; but the mere presence of marijuana (or other drugs) in a mother’s bloodstream or household should not automatically constitute abuse.

"When pregnant women have fewer rights, all women do, because all women have the potential to become pregnant.”

There’s growing bipartisan admission that the War on Drugs of the ‘80s and ‘90s, and it’s highly punitive approach to drug use, has done more harm than good. Within the past year, several thousand federal prisoners serving lengthy sentences for drug charges were released. More than 100 others were granted clemency by the president. 

Meanwhile, acceptance of marijuana is growing: In addition to the 23 states (and the District of Columbia) that have legalized marijuana in some form, 2016 is expected to see 25 more states consider legalization bills.

Pregnant women have not benefitted from these reforms.

“Calls for compassion and evidenced-based and health-based approaches [to drug use] are really leaving pregnant women behind,” Diaz-Tello says. “That is the most evident is in states where cannabis use is now legal, but women are still paying penalties due to the child-welfare system.”

“There’s a gendered impact of drug policy, and that’s not often recognized,” says Sara Ainsworth, advocacy director of the women’s right group Legal Voice based in Seattle. “Women get their children taken out of their care [in Washington] even though they’re not violating any law, and they’re not doing anything different than what anyone else is doing.” 

Ainsworth points out that calls to treat drug use as a health issue have not been heeded for anyone, not just pregnant women. Despite lip service given to lofty legislative and social change, laws that were put in place during the War on Drugs have largely been left intact. But pregnant women, particularly poor women of color, suffer disproportionately.


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“When a person happens to be pregnant and has a drug-use issue, demonization is magnified,” Ainsworth says.

As long as marijuana is classified as a Schedule I drug and remains illegal in a majority of states, Deputy Director of National Organization for the Reform of Marijuana Laws Paul Armentano believes “state regulators, prosecutors and hospital staff will continue to overzealously and selectively target suspected marijuana consuming mothers and their children—regardless of whether such interventions are scientifically warranted or in the best interest of the child.” 

There’s been a long tradition in the United States of discriminating against women based on their reproductive capacity.

Arguably, more is at play. Proponents of the chemical-endangerment law in Alabama (and similar laws) tend to be proponents of the personhood movement, which seeks to recognize the unborn—an embryo or fetus—as fully human, with full legal and medical rights. These laws are one piece in the puzzle to bolster fetal rights and ultimately outlaw abortion.

Legalizing marijuana will prevent the arrest and incarceration of women like Sandra Louise Terry and Courtney Marie Isbell. It will not spare pregnant women who use other controlled substances the same fate in Alabama or South Carolina. It will not prevent additional states from adopting similar criminal penalties for prenatal drug use. The child-welfare system has clearly revealed its resistance to change in light of legalization at the state level.

Ainsworth says that as long as pregnant women are subject to punitive laws and actions for actions that are legal for others, “They’re not the equivalent of adult constitutional people. They are separate, and they have fewer rights. When pregnant women have fewer rights, all women do, because all women have the potential to become pregnant.”

She notes that there’s been a long tradition in the United States of discriminating against women based on their reproductive capacity, but that the courts have consistently protected them. We have laws that protect people from being fired because they’re pregnant and from being told that they can’t work at a certain job because they’re pregnant. But, Ainsworth concludes, “when it comes to the interplay between the drug war and pregnant women, that’s where those protections have fallen down.”

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