Q&A: Pregnant people with substance use issues need treatment, not jail, advocates and experts say

Although the mother was initially charged and convicted of murder in the stillbirth of her child, serving more than a year in jail, the dismissal of her charges led to the California attorney general weighing in on how the state’s law on murder should be interpreted in these kinds of cases.

Last year, a murder charge was dismissed in the case of a 26-year-old woman who had allegedly used methamphetamine while pregnant, with prosecutors arguing that her drug use led to the stillbirth of her child. Reproductive health and justice experts and advocates say that there is insufficient scientific evidence to draw a conclusive line between drug use during pregnancy and miscarriage or stillbirth. They also contend that a 1970 amendment to the state’s penal code for murder only intended to criminalize third-party violence against someone who’s pregnant, and not the pregnant person. Attorney General Rob Bonta agreed earlier this month, saying, in part, “Penal Code section 187 does not impose criminal liability on a person carrying a fetus for allegedly causing the miscarriage or stillbirth of that fetus.”

To discuss this legal understanding and the reproductive health and justice issues that intersect with this interpretation, I spoke with Lucinda Finley, Joelle Puccio, and Dominika Seidman. Finley is the Frank Raichle Professor of Law at the University at Buffalo, State University of New York, where she specializes in issues of gender in the law, reproductive rights and justice, and how the law does and doesn’t support the needs and interests of pregnant women. Puccio is a registered nurse and co-founder of the Academy of Perinatal Harm Reduction, an organization working to improve the lives of pregnant people and parents with substance use disorders. Seidman is an obstetrician/gynecologist at the University of California, San Francisco and Zuckerberg San Francisco General Hospital, and co-founder of Team Lily, a program providing services to pregnant people experiencing significant barriers to care. (These interviews have been edited for length and clarity. )

Q: The Associated Press recently reported on the California attorney general’s guidance on interpreting state law in a way that does not charge pregnant people with murder in the event of the death of a fetus, including if the pregnant person’s behavior is believed to have contributed to that death (e.g. substance use). Can you talk about why this was happening? What are some reasons that prosecutors seem to be inclined to file these kinds of charges?

Finley: These sorts of charges against women for various conduct while pregnant, that is alleged to cause harm to their fetuses, has been going on for decades. States like South Carolina, back in the ‘70s, ‘80s, and ‘90s, were particularly notorious for arresting pregnant women and for bringing lots of prosecutions against them. There was a case from South Carolina (Ferguson v. City of Charleston) that went to the U.S. Supreme Court. The public hospital there that treated predominately poor, Medicaid patients who were predominately women of color, had a policy of drug testing every pregnant patient that came in, without their consent. If they found any evidence of drugs in their urine, instead of getting medical treatment, they referred them to prosecutors and women were getting prosecuted without any proof of any harm to their fetuses. The U.S. Supreme Court said that it was an unconstitutional search to take urine without the women’s consent. That’s just an example of some of the sorts of issues that come up, but there have been periodic waves of efforts to prosecute pregnant women that correspond with waves of either criminal justice concerns, or public health concerns about various illegal drug use epidemics.

A lot of the prosecutions I was referring to in the ‘80s and ‘90s were attributable to the sort of hysteria about a so-called “crack epidemic.” Subsequently, medical science determined that crack wasn’t nearly as harmful to babies as they thought it was. I think what’s driving several of these prosecutions now is the perception of the public health crisis regarding the use of opioids, fentanyl, methamphetamines. I think there are prosecutors in certain areas of the country, based on their politics or the politics of their constituents, who feel like they’re taking a stand in the war on drugs and standing up for the health of babies by going after pregnant women and trying to prosecute them for taking drugs while pregnant. I think it’s very linked to the political climate and the perceptions of the need to get tough on whatever the drug abuse problem of the moment is. Throughout history there have been many efforts to want to control, police, or regulate the behaviors of pregnant women, and this is just one manifestation of that.

Q: The executive assistant district attorney in Kings County in the San Joaquin Valley, where the murder charge in the death of a stillborn child was dismissed, was quoted as saying that their cases “are not about abortion nor women’s reproductive rights in any way.” From your perspective, are they right?

Puccio: I think he probably was saying that his intention is not about abortion or reproductive rights in any way; sure, maybe he doesn’t intend for this to be about abortion, but it absolutely is. What he’s saying is, “If you put something in your body that we think might have contributed to the loss of this pregnancy, then we’re going to charge you with murder.” That is the definition of what medication abortion is, so these two issues cannot really be separated, in terms of the legal perspective. For folks that say this isn’t about abortion and not wanting to touch that hot topic, it absolutely is about abortion because, honestly, this isn’t about miscarriage or pregnancy loss. If you look at the laws that are being twisted and used to prosecute women and other people who become pregnant, none of them were intended for this purpose, which is what the state attorney general is saying, is that the laws were intended to create harsher punishments for people who hurt someone who’s pregnant.

Q: For people who read or hear about these cases and might think, “Of course people who use illegal substances while they’re pregnant should face criminal charges. They broke the law, they endangered the health of their unborn child,” what’s your response to that understanding?

Seidman: I think what we, as a society, are really missing and forgetting there, is that substance use disorders are a medical condition. When we think about other medical conditions, high blood pressure in pregnancy or diabetes in pregnancy, for example, if someone is not able to control their blood pressure or their diabetes, we don’t charge that person with murder. If we think about a substance use disorder in the same light, we need to think about the loss of a pregnancy in a similar light, in that we were not adequately treating those substance use disorders.

In addition, we know that the loss of a fetus is a very complex event that, in general, is poorly understood. The data on the association between substance use and pregnancy loss is incredibly complicated by the tremendous number of social and structural forces that affect people with substance use disorders, including poverty, racism, history of trauma, barriers to accessing medical care and prenatal care. All of those pieces are incredibly important factors that can also increase the risk of fetal demise. So, first and foremost, we don’t have strong evidence drawing an association between use of a given substance and demise of a fetus. Second, when we think about substance use disorders as a health condition, we need to think about them just like we would hypertension or diabetes in pregnancy and how when there is a bad outcome in those other conditions, we don’t blame the birthing person. We think about how we could have better cared for that health condition; we need to apply that same lens to substance use disorders.

Q: What are some of the potential ramifications of criminalizing the actions, or inactions, of pregnant people in the event of the death of a fetus or stillborn child?

Finley: One has to be very careful in jumping to conclusions about what the cause of the stillbirth or miscarriage is, or what the consequence will be long-term for the children. It’s also very important to stress that neither I, nor anyone else who’s opposed to these prosecutions, is defending taking drugs while you’re pregnant, or saying that’s a good thing. What we’re saying is that, rather than a criminal law response, which is not good for the woman or the child, the better response is a public health response that gets the woman proper support and treatment for the drug problem. A response that provides her with good prenatal care to minimize the risk to the fetus, and then to provide the child with excellent health care and support and provides the mother and the child with insurance, health care, and other resources that they’re going to need to thrive and stay off drugs.

One of the reasons that I think the criminal and prosecutorial approach is so harmful is that there have been many research studies that show that it does nothing to improve the health outcomes for the babies. It does nothing to improve the quality-of-life chances for the babies, and it has a serious deterrent effect on pregnant women with drug problems from seeking the help they need to try to get treatment and good prenatal care. So, the punitive criminal approach is actually extremely detrimental to the health of the woman and the child. If prosecutors say that they’re doing this out of concern for the health of the babies, their concern is misguided because the criminal approach of going after the woman, extensive research has shown, seriously undermines the health of the woman, her incentives to get good care and treatment, and the health of the children.

Puccio: There’s a decent amount of research showing that these kinds of laws do not decrease substance use during pregnancy, and they do increase barriers to substance use treatment and prenatal care. Every time a story like this is as big in the news as it is now, in a community, people see that. People who may have found themselves with a drug problem and then become pregnant, and are scared and don’t know what to do, even without this harmful environment that we’re creating with these laws, it’s already a big deal to find out that you’re pregnant, no matter what choice you end up making. So, we’re putting additional barriers on top of folks. Usually, when somebody who has a drug dependence that they’ve been unable to beat on their own, when they become pregnant, the first thing they do is try to stop using before they seek prenatal care because they know that they are likely to be mistreated, disrespected, have their body fluids tested without their consent — all of these things routinely happen to pregnant people who use substances. When you throw the threat of jail on top of that, it’s doing real damage to maternal and infant health in our communities.

Q: In what ways do these kinds of charges more adversely impact people of color, poor people, and immigrants?

Puccio: We know that people with various poor social determinants of health — such as poverty, experiencing racism, poor nutrition, these kinds of things — those folks are already at higher risk of pregnancy loss. We know that those folks are more likely to experience a miscarriage because of various oppressions and barriers that our society has built for them, not because of anything inherent to race or genetics. There’s decent evidence showing that, when you have you have a population that is under increased scrutiny because of those issues (i.e. people of color, poor people, young people, unmarried people, people more likely to receive care in a hospital that accepts Medicaid, more likely to have already been involved with the foster care system), we end up with a lot more blame for these folks for their health outcomes and pregnancy outcomes. Finally, it’s also just plain old racism, even when we correct for all of these other factors, we know that Black and Brown people — particularly Black and Indigenous people — get reported at higher rates than White people. They get investigated at higher rates than White people, they get prosecuted at higher rates than White people, and they go to jail at higher rates than White people. At every level of this punitive system, people of color are targeted, as opposed to White people or wealthier people. It’s not a new story, it’s the same story of racism and oppression that’s been the story of our country for hundreds of years, it’s just applied in this area.