Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs

Background

Throughout the 1980s and into the 1990s the media gave extraordinary coverage to the war on drugs.  News reports were typically presented in extremely alarmist terms, reporting crack as "‘a plague’ that was ‘eating away at the fabric of America.’"  Such claims were routinely made despite the lack of evidence to support them.

Unsupported and misleading stories highlighting the effects of prenatal exposure to cocaine received widespread coverage.  These sensational and often inaccurate news reports convinced many that the use of cocaine during pregnancy inevitably caused significant and irreparable damage to the developing fetus.  Today, dozens of carefully constructed studies establish that the impact of cocaine on the developing fetus has been greatly exaggerated and that other factors are responsible for many of the ills previously attributed to pregnant women’s use of cocaine.

Indeed, a 1999 study found that poverty has a greater impact than cocaine on a child’s developing brain. According to the study’s lead author, "[a] decade ago, the cocaine-exposed child was stereotyped as being neurologically crippled—trembling in a corner and irreparably damaged. But this is unequivocally not the case. And furthermore, the inner-city child who has had no drug exposure at all is doing no better than the child labeled a ‘crack-baby.’"

Nevertheless, spurred on by the media barrage concerning pregnant women and drugs,  legislators in the mid 1980s began introducing numerous legislative proposals addressing the subject. Proposed legislation ranged from bills that would increase services and treatment to pregnant women and their children to ones that would create new criminal penalties for drug using pregnant women. Sterilization or forced Norplant implantation also surfaced as proposed solutions to the problems of substance use and pregnancy.

During the late 1980s and 1990s, legislatures rejected the most punitive approaches. For example, in 1990, thirty-four states debated bills relating to prenatal exposure to drugs.  Of these, fourteen states passed bills designed to help pregnant women through preventive and educational programs, six states established studies to determine the extent of the problem, and eight states considered but failed to pass legislation that would make it a crime to be addicted and be pregnant.