Texas proposed law could jail women for taking drugs during pregnancy

Image by Matt MahurinA bill in the Texas House seeks to criminalize substance abuse during pregnancy. Currently, no such state or national law exists; however, for years, various lawmakers have attempted to change law in their state so that in the future, it will be possible for women to serve jail time for prenatal drug abuse.

Texas Rep. Doug Miller (R-New Braunfels) introduced a bill early this month that would amend the state’s penal and family codes, making it a state felony offense for a woman to ingest a controlled substance while pregnant, as well as a state felony offense for another person to introduce a controlled substance into the pregnant woman’s body.

Under Texas’ criminal code, state jail felonies are punishable by 180 days to two years in a state jail facility and a maximum fine of $10,000.

Additionally, those who violate the law could be subject to a lawsuit that would affect the “parent-child relationship,” and could result in the removal of the baby from the parent.

"I am interested in providing additional safety and protection for our next generation, and it must happen now," said Miller in an e-mail to The American Independent. "The Texas Legislature can no longer sit idly by while its next generation is born addicted to illegal drugs, born with physical and mental abnormalities, set up for educational hardship, and destined to be on Social Security benefits.  Parents must be responsible for their actions."

Miller declined to answer further questions about the bill.

It's hard to argue with the general belief that women should not be consuming harmful, illegal substances during their pregnancies, but some reproductive rights groups argue that imprisoning women caught with drugs in their system is the wrong way to address the problem.

“If the purpose is to try to improve maternal health and infant health, this is not the way to do it," said Elizabeth Nash, a public policy associate for the Guttmacher Institute. “When you criminalize these behaviors, you’re ostracizing women further from health care, and they are less likely to seek treatment because they become more mistrustful.”

Nash said these laws have been introduced for years but never made it into law; she noted that Miller’s legislation is not new for Texas, just a new approach.

In other states, bills have been introduced this year to establish protocols to drug-screen pregnant women and to establish a standardized drug-treatment plan.

A bill was introduced in Indiana early this year to develop a study of unlawful ingestion of controlled substances by pregnant women.

And in New York, a bill has been introduced in the State Assembly that "Amends definition of maltreated or neglected child to include children of alcohol or drug abusers who are unable to provide minimal care to the child or where such parent used alcohol or drugs during pregnancy resulting in the drug dependency of the child at birth."

In light of proposed legislation from this year and years past, the National Advocates for Pregnant Women on Tuesday released a compilation of public health statements on the prosecution and punishment of pregnant women (PDF).

From 2011 report from the American College of Obstetricians and Gynecologists:

Seeking obstetric-gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing. These approaches treat addiction as a moral failing. Addiction is a chronic, relapsing biological and behavioral disorder with genetic components. The disease of substance addiction is subject to medical and behavioral management in the same fashion as hypertension and diabetes.

From a 1990 report by the American Medical Association:

Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician's knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.

From the National Perinatal Association (2010 statement)

The NPA opposes criminal prosecution of women solely because they are pregnant when they used alcohol or drugs . . . No evidence exists to show that [prosecution] either prevents prenatal drug or alcohol exposure or improves the infant’s health . . . It undermines the relationship between the health care providers and their patients and may keep women from giving accurate and essential information vital to their care.

According to the Guttmacher Institute (PDF), 15 states (including Texas) consider substance abuse during pregnancy to be child abuse under civil child-welfare statues, and three consider it grounds for civil commitment. Fourteen states require health care professionals to report suspected prenatal drug abuse. The institute notes that 19 states have either created or funded drug treatment programs specifically targeted toward pregnant women, and nine (including Texas) provide pregnant women with priority access to state-funded drug treatment programs. Four states prohibit publicly-funded drug treatment programs from discriminating against pregnant women: Iowa, Kansas, Missouri and Oklahoma.

“If the idea is we want to help women be able to be part of society and to be able to have healthy babies and have access to medical care; when you put someone in jail, none of that happens," Nash said. "It doesn’t help the baby’s health."