NOFAS Opposes New Policy to Prosecute Expectant Mothers for Using Alcohol or Drugs

NOFAS opposes the, “immediate crackdown policy of civilly prosecuting any expecting mothers found to be using dangerous drugs or alcohol,” announced last week by Montana’s Big Horn County Attorney Gerald “Jay” Harris.

Under the new policy, “The State will seek an order of protection restraining a pregnant female from any non-medically prescribed use of drugs or alcohol.” The announcement added that the State will prosecute “provable violations” and, “seek incarceration in order to incapacitate the drug or alcohol-addicted expecting mother.”

NOFAS opposes any law or policy that would impose a criminal penalty on a pregnant woman suffering with an addiction to alcohol or drugs. Women who experience addiction during pregnancy require medical intervention and treatment. Incarceration is not a solution to their underlying healthcare need. This so-called “crackdown” may result in pregnant women choosing not to discuss their alcohol or drug use, even with medical providers, out of fear of criminal sanction. As a result, women with an alcohol or substance use disorder could go unidentified and untreated. This could have the unintended result of increasing the exposure and severity of substance use by pregnant women.

NOFAS is also concerned by the following statement in the public notice announcing the policy:

“In furtherance of this crackdown policy, the County Attorney’s Office is asking the public to report any known instances of pregnant females using drugs or alcohol to the Big Horn County Sheriff’s Office by using the County Crime Stoppers Hotline, by calling the Child Abuse Hotline…”

Attorney Harris is wrong to stigmatize pregnant women through his use of judgmental language, referring to their “unacceptable behavior” and “careless decisions.”  This is a public health issue, not a moral or legal issue. Alcohol use disorder and substance use disorder are recognized by the U.S. Department of Health and Human Services and by all medical and behavioral health disciplines as chronic, progressive diseases with genetic, psychosocial, and environmental factors, requiring medical and therapeutic intervention. These diseases should not be subject to moral condemnation.

The notice makes no mention of any plan to address the healthcare needs of the expectant mother that might provide a solution to her addiction. There is no reference to the availability of addiction treatment services or any plan to enhance access to such services.

The County Attorney also only targets women using non-prescription drugs when a significant proportion of women who have given birth to an infant born with neonatal abstinence syndrome (NAS) were provided legal opioid prescriptions by physicians.  According to the U.S. Centers for Disease Control and Prevention, health care providers wrote 259 million prescriptions for painkillers in 2012, enough to give every American adult a bottle of pills. Ten of the highest-narcotic prescribing states were in the region with the highest incidence of NAS.

NOFAS friend Morgan Fawcett, a young man living with FASD, has said, “When it comes to FASD, there are never perpetrators.” NOFAS Vice-President Kathy Mitchell says, “No pregnant woman drinks in order to intentionally cause lifelong brain damage to her child. Women who drink during pregnancy and have children with FASD generally fall into three categories: 1) they suffer from the disease of alcoholism/addiction; 2) they are not aware that they are pregnant; or 3) they lack knowledge or are confused about the risks of alcohol to their baby.”

NOFAS applauds advocates and lawmakers who want to prevent alcohol-related birth defects through legislation and policies that support, rather than criminalize, women and children. Let’s work together to ensure that physicians are approaching healthcare with methods other than opioids and that they are educated about  addiction and treatment. And let’s provide safe and effective treatment for women including pregnant women and women with children in all communities. NOFAS welcomes the opportunity to work with policymakers at all levels to develop policies that support pregnant women and provide adequate diagnostic and treatment services for all living with FASD.

Please refer to our previous statement on this topic, “NOFAS Opposes Criminalizing Alcohol Use by Pregnant Women.”