Pregnancy, Drug Use, and Why Prison Is Not the Solution

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In New Hampshire, a bill to redefine opioid use or addiction in “custodial parents,” including pregnant women, as child abuse is making its way through the legislature, despite vocal objection from the state’s medical community. Much media treatment of this bill and similar bills in other states presumes women are not generally held criminally responsible for terminating—or losing—a pregnancy.

This illusion is increasingly hard to sustain.

In March 2015, Purvi Patel, a 33-year-old woman in Indiana, was sentenced to 20 years imprisonment for, prosecutors claim, inducing an abortion. Patel has maintained she had a miscarriage, and has never tested positive for any of the abortifacients the prosecution claims she took. In fact, the pathologist for the prosecution partially relied on the long discredited “lung test“ to determine if the recovered fetus had been born alive: a practice from the 17th century disproven as bad science over a century ago. Whether a miscarriage or an induced abortion, it is clear that Patel is in jail for not carrying a pregnancy to term.

Indeed, state legislators increasingly seek to hold women criminally responsible for not having healthy pregnancy outcomes. Since the beginning of this year, at least eight state legislatures have introduced bills to redefine legal personhood as starting at “fertilization” or “conception.” Though voters have generally rejected personhood measures when put to a vote—three times in Colorado alone—they keep resurfacing in new versions.

From a medical perspective, fetal personhood bills make no sense. “Conception“ is not a medical term and is interchangeably used to refer to the moment an ovum is fertilized and the moment a fertilized ovum implants in the uterine lining. “Fertilization“ is a medical term—referring to fusion of male and female gametes to form a zygote—but not all fertilized ova implant in the uterine lining (that is: not all result in a pregnancy), and the precise moment of both fertilization and implantation is hard to determine. As a result, the length of a pregnancy is usually calculated with reference to the pregnant woman’s last period—when she clearly was not pregnant yet—because that moment is an observable factor that can be defined.

There are also obvious logistical problems with fetal personhood bills. An estimated 10 to 20 percent of known pregnancies end in miscarriages, with the actual number likely much higher as many women miscarry before they know they are pregnant. In addition, the risk of miscarriage is higher for specific groups of women, such as older women, women with weight problems, women who have already miscarried, those who have contracted infections or who have immune response issues, and those who regularly use drugs, including alcohol and nicotine.

As a result, the implementation of fetal personhood laws would require unconstitutional discrimination and invasion of privacy. If a fertilized ovum has the same rights as a person after birth, each miscarriage (or failure to implant) would need to be scrutinized for intentional or reckless neglect. Detection would only be possible by registering all incidents of unprotected sex, and effective surveillance would require regular pregnancy testing, in particular of women at risk of miscarriage (think mandatory weekly pregnancy testing for women over 40 until they reach menopause). Of course, no one is advocating this.

Proponents of punitive pregnancy-related provisions have, however, successfully advocated for the growing surveillance of pregnant women from marginalized or stigmatized communities through social services, and in particular through medical providers. The organization National Advocates for Pregnant Women has documented the growing arsenal of state laws that treat drug use and addiction in pregnant women as a form of child abuse. Because health care providers in all states must report child abuse to the authorities, this reframing forces doctors and nurses to breach patient confidentiality for pregnant women who admit to struggling with drug use or addiction. The predictable result is a breakdown in the therapeutic relationship at best, and at worst, a reluctance to seek care at all for the women who arguably need it the most.

Many of these bills are pushed through without consulting the medical community, which is the case for the bill currently pending in New Hampshire. House hearings are under way, and both pediatricians and obstetric-gynecologists will testify to its predictably disastrous effects on the provision of addiction treatment and child welfare.

To be sure, both child abuse and drug addiction are serious matters, which require appropriate state support. Attempts to redefine drug use or addiction as child abuse in pregnant women, however, disregard the medical and psychological needs of both abused children and pregnant women. Advocates of such legislation are attempting to transform the fiction of fetal personhood into law by appropriating the problem of child abuse and punishing pregnant women in need of treatment for substance dependency or addiction.

A fetus is not a child and a women’s right to choose an elective abortion should not be circumvented by legislating punishment for women in need of treatment for substance use disorders. Legislators should listen to the medical community. Whether the conversation is about elective abortion, treatment for substance use disorder, or any other medical intervention, decisions about care are best made by the patient in private consultation with her doctor.