Study
Comes
Out
Against
Jailing
of
Women
Who
Use
Drugs
During
Pregnancy
8/14/98
A study funded by the Robert Wood Johnson Foundation came out against the jailing of women who use legal or illegal drugs during pregnancy. The report, released earlier this week, was headed by Lawrence Nelson, of the Markkula Center for Applied Ethics at Santa Clara University, and Mary Faith Marshall, of the Medical University of South Carolina. Nelson, Marshall and other researchers concluded that the criminalization approach is counterproductive to the needs of the children themselves, and has been conducted in a racially biased manner, and often in violation of the U.S. Constitution. The report is divided into sections on bioethics and legal issues. Ethical concerns cited about the criminalization of perinatal substance abuse were that criminalization has had no demonstrated effect on improving infant health or deterrence of substance abuse by pregnant women, and that such women may forego needed prenatal care or substance abuse treatment for fear of losing their children or being arrested; criminalization creates obligations for health care providers that are legally and ethically untenable; and the criminalization approach has been tainted with race and class biases and political opportunism. Criteria recommended for coercive state intervention were that 1) The harm to be prevented to the child-to-be must clearly exceed the harm of the pregnant woman's loss of liberty as well as other harms to her and her dependents; 2) The intervention must be expected to be successful in terms of tangible benefits to the health of the children and the mother -- symbolic success, such as "sending a message" is not sufficient; 3) The policy intervention should involve the least restrictive means possible; and 4) The policy must substantially benefit society and not lead to substantial harm. Criminalization fails all four of these criteria. The report also notes that removal of the child from parental custody may or may not be appropriate, as substance use or addiction on the mother's part may or may not indicate poor parenting ability, and removal of the child may precipitate social harms in the deterrence of prenatal care and substance abuse treatment, a decrease in confidential patient/clinician communication overload of the social service and foster care systems and through race, gender and class discrimination. The pervasiveness of judgmental attitudes toward substance use may cloud the ability of social services workers to make objective assessments regarding the ability of a parent to care for her children. For a copy of the RWJF report, e-mail Prof. Nelson at [email protected].
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