Montana Attorney Moves to Prosecute Women Who Use Drugs and Alcohol During Pregnancy

Resources for treating addiction are scarce in Montana, especially for pregnant women. According to government data, from 2000 to 2013, the state’s incidence of neonatal abstinence syndrome — essentially a form of withdrawal in newborns who are suddenly cut off from the drugs they became dependent on while developing in an addicted mother’s womb — rose at twice the rate of the national average. And with budget cuts digging into funding for Big Sky Country’s already overburdened foster homes and drug treatment programs, pregnant women are often pushed to the back of the line.

Last week, Big Horn County Attorney Jay Harris announced a proposal to issue restraining orders compelling women who use non-prescribed drugs and alcohol during pregnancy to stop.

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But one local official has a solution that has drawn fierce criticism for its lack of scientific justification and regressive social implications. The American Civil Liberties Union has promised to challenge the new measure in court.

Last Thursday, Gerald “Jay” Harris, the Attorney for Big Horn County in the south of the state, announced a “crackdown” on pregnant women who use non-prescribed drugs or alcohol, promising to slap them with a restraining order to compel them to comply. If mothers-to-be violate the order of protection, Harris’s order decrees, they could find themselves in jail. “I regret not taking a more proactive approach until recently,” Harris told Undark. “You’ve got a potential generation of young folks that are going to have disability because of the prevalence of meth addiction, alcoholism, and other types of drug addiction. I don’t think it’s worth the risk.”

Harris has urged other prosecutors nationwide to implement similar measures and has called on the public to report any pregnant women who use drugs or alcohol to the sheriff’s office. He says he is also exploring the legal issues involved in involuntary committing women to treatment centers. But most of all, pregnant drug users are told they need to turn themselves in. “Expecting mothers acknowledging their own drug or alcohol addiction problems should immediately self-report to the Department of Public Health and Human Services and enroll in voluntary daily substance abuse monitoring in order to avoid prosecution,” the January 11 notice reads.

Denunciations of the measure have been swift. The National Advocates for Pregnant Women, a New York-based nonprofit, condemned the move in a statement last Friday, saying it “irresponsibly promotes medical and scientific misinformation, promotes an environment of fear, and reflects a shocking disregard for the rights and well-being of women and families.”

“There’s zero evidence that punitive approaches work,” says Lynn Paltrow, NAPW’s executive director, “and in fact, lots of indication that it’s completely counterproductive.”

Dr. Sheryl Ryan of the American Academy of Pediatrics expressed similar concerns.

Last March, AAP’s Committee on Substance Use and Prevention, which she chairs, published a policy statement urging a public health response, rather than a punitive approach, to pregnant women who use narcotics.

“Women who abruptly stop using substances, there’s an increased rate of fetal demise, early onset of labor, and poor pregnancy outcomes for the mother as well,” Ryan says. “If we’re a country that is so interested in a welfare of our children, then we really need to put our money where our mouth is.”

As I reported in November, forcing a pregnant woman to suddenly stop using opioids can put the mother and baby at greater risk than the drugs themselves. The withdrawals a mother experiences will also be experienced by the fetus, often leading to premature birth or miscarriage.

Harris claims his statement is about the rights of the unborn — what he calls “Natural Law” — but according to Ryan, Paltrow, and others, this crackdown could have the unintended effect of encouraging abortions, both spontaneous and clinical. A now-scrapped law in Tennessee that allowed mothers who used drugs to be charged with “fetal assault” drove some women to terminate their pregnancies.

Harris warned in his public notice that if a drug-using woman aborts to avoid jail time, the state’s attorney general should prosecute them. Though Big Horn County has a population of just over 13,000, Harris wrote in the notice that he would be reaching out to surrounding tribal prosecutors in the hopes that they — along with other communities across Montana and the country — adopt similar policies.

“A drug- or alcohol-addicted expecting mother doesn’t have the full mental capacity to exercise the ‘right to abortion,’ as set forth in case law, that a non-drug or alcohol-addicted expecting mother would,” Harris says.

In response to the ACLU’s pledge to challenge any attempt to enforce his proposed policy, Harris said he would respond to any legal arguments in court.

Troy Farah is an independent journalist from California. His reporting and criticism covering drug policy and harm reduction has been published in The Outline, VICE, The Fix, and other outlets. He can be reached on Twitter at @filth_filler.