BERGER: A lose-lose situation

Legislation incarcerating pregnant women addicted to drugs is short-sighted and ultimately harmful

There is talk of legislation in certain States that will punish women who abuse illegal substances while pregnant. Depending on the law, some women will receive court-ordered treatment, while others will face prison sentences.

Tennessee's legislature, specifically, approved a bill back in April that criminalized some drug-addicted pregnant women, depending on the outcome of their pregnancy. The bill allows prosecutors to charge a woman with an "assaultive offense or homicide" if she takes illegal narcotics during her pregnancy, if "the child is born addicted, is harmed, or dies because of the drug."

Such laws would, in practice, be potentially harmful. Criminalizing this type of drug use could act as a deterrent for pregnant women who abuse illegal substances from seeking medical advice from their doctors, if they believe they could be prosecuted. The goal of this legislation should not be to hinder women from coming forward, but instead to cultivate an environment in which their addiction is not stigmatized and they are not judged. It is easy to judge a pregnant woman who abuses illegal substances; however, addiction is a disease and, like other diseases, it is not easy to overcome.

I am not condoning the actions of these women; what they are doing is dangerous. Substance abuse during pregnancy can significantly harm the child. Illegal drugs, like marijuana, cocaine and heroin can slow the baby’s growth and create breathing problems, decrease blood circulation and cause brain damage, and make the baby an addict, respectively; but incarcerating these women is not the answer. According to Mary Faith Marshall, director of the Program in Biomedical Ethics at the Center for Biomedical Ethics and Humanities at the University of Virginia, “The overwhelming conscience in the clinical and child welfare world is that such prosecutions are wrong, and for many reasons…[they are] not healthy for pregnant women, or for fetuses in development. It’s harmful, and it’s hypocritical,” Marshall said. “Addiction is complex disease, as opposed to simply a moral failing.”

People tend to pass moral judgment on drug abusers, when in fact many substance abusers suffer from a disease. Being pregnant does not change the fact that one is an addict, but it does change the scenario completely. Addiction is harmful, and a person should strive to control his or her disease, but when the addiction begins to physically harm two people, like in the case of pregnancy, greater measures must be taken. Not legal, but medical measures.

Sending women to prison if their babies test positive for illegal substances is not effective, since doing so will not solve the problem of their addiction, and instead will pull them away from their families. It might keep them clean for a little while, but they will immediately fall back into the addiction during the child’s infancy, which is why pregnant women who suffer from addiction should instead receive help from certified doctors in rehabilitation facilities, before their baby is born, as a proactive measure.

Some believe that the opportunity for treatment is available and that women who do not immediately take advantage of such opportunities should be prosecuted. I agree that the help is out there, but it can be difficult for an addict to reach a point where she is ready to seek help.

Because it is difficult for addicts to seek help themselves, state involvement is necessary, but in the form of forced education and rehabilitation. Rehab will not work if a patient does not want to receive treatment, but perhaps educating these women on the damage their substance abuse is causing their unborn babies will motivate them to accept treatment and to work to actively manage their disease.

Additionally, there are facilities that accept pregnant women with drug problems, but these facilities are sometimes not well-known, too pricey or poorly funded. Perhaps legislation can instead go toward creating more of these facilities and making them more affordable. Pregnant women then have more opportunities to actively control their substance abuse so that they can save the baby from further damage, and can continue to have a handle on their addiction postpartum.

Educating women and putting them in centers specifically for rehabilitation purposes will increase the mother’s and child’s chances of survival. Prison will in theory prevent the woman from obtaining illegal substances for a short time, but the goal should not be to punish the mother and subsequently punish her family by taking her away; the goal should be to help the mother manage her disease during her pregnancy and hopefully throughout the child’s entire life.

Meredith Berger is an Opinion Columnist for The Cavalier Daily. She can be reached at

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