Oklahoma is a scary place to be a pregnant person. Abortion is severely restricted in the state, and elected officials seem to largely support a homegrown movement demanding the death penalty for women who access abortion care. The number of women dying during pregnancy has also increased by nearly 50%. And then there’s the district attorney who has gone out of his way to target pregnant women for prosecution for alleged use of controlled substances, a move that contradicts the recommendations of every leading medical group and not only separates women from their children, but subjects them to felony charges, prison time, and excessive bonds.

But this isn’t just happening in Oklahoma. Across the U.S., pregnant people alleged to have used controlled substances are being prosecuted. According to advocates who spoke to Prism, when women become pregnant they not only become more policed, but they lose civil rights.

Prosecuted while pregnant

In December 2017 Oklahoma District Attorney Craig Ladd called for the increased prosecution of women who are pregnant and alleged to have used criminalized drugs. At the time, he revealed that 10 women had already been prosecuted for alleged substance use during pregnancy in Carter, Love, Murray, Marshall, and Johnston counties. Organizations like the National Advocates for Pregnant Women (NAPW) came to the defense of women targeted by Ladd’s deeply questionable tactics. The organization advocates on behalf of pregnant and parenting women, focusing on those who are most likely to be criminalized, including low income women, women of color, and drug-using women.

In a September 2018 letter to Ladd signed by 42 local and national legal advocates, medical organizations, and experts in reproductive health and gender equality, NAPW outlined the danger of Ladd’s policy and the many ways that targeting pregnant women and prosecuting them for drug use harms maternal, fetal, and child health. But it didn’t stop Ladd, who has stated publicly that his prosecutions are not authorized under Oklahoma law.

“Even though the law, as it pertains to ‘child neglect,’ does not recognize a fetus as a child, we have taken the position that when newborn babies test positive for drugs, then proof of those positive tests establishes that the mother essentially neglected her newborn by her prior use of drugs while the baby was in utero,” Ladd told a local news outlet in 2017.

In January of this year, NAPW learned that Ladd’s office charged four new mothers with child neglect shortly after they gave birth, based upon the claim that they used a controlled substance while pregnant. NAPW sent another letter to Ladd’s office in April, signed by dozens of organizations, medical professionals, and advocates, once again reminding Ladd that his policy of prosecution contradicts the American Medical Association, the American College of Obstetricians and Gynecologists, the American College of Nurse-Midwives, the American Academy of Pediatrics, and the March of Dimes, all of which have concluded that pregnancy and drug use should be addressed through education and evidence-based treatment, not through the criminal legal system.

“[I]t is wrong to assume or suggest that women could get care if and when they need it. Many drug treatment providers in Oklahoma do not serve pregnant women, and the State has not created or funded drug treatment programs that address the specialized needs of pregnant women who use drugs,” the letter said. “The arrests in your districts assume that pregnant people can set aside their medical conditions at will, and that they should be held criminally liable if they ‘fail to properly accommodate the children (sic) they carry.’ Medical knowledge about dependency and treatment demonstrates that patients do not and cannot simply stop drug use as a result of threats of arrest or other negative consequences.”

Ladd and other prosecutors are perpetuating a long history of stigmatizing and criminalizing pregnant women for alleged drug use while also weaponizing junk science long refuted by medical experts.

The myth of the “crack baby”

Fifteen years ago, NAPW’s founder and executive director, Lynn Paltrow, noted that “new legislative proposals on the subject of drug-using pregnant women appear each year throughout the country at both the federal and state levels,” treating “a single positive drug test as presumptive child neglect.” At no time was this more true than during the 1980s public health crisis known as the “crack epidemic.” Black mothers in particular were targeted and charged with a wide array of serious crimes, including child abuse, distributing drugs to a minor, and assault with a deadly weapon because of the incorrect belief that crack was permanently and uniquely damaging to a fetus and that substance-dependent pregnant women were choosing to use crack due to some sort of moral failing.  

The myth of the “crack baby” was deeply rooted into the public psyche and largely the result of racist stereotypes perpetuated by the media. In 2018, the New York Times ran a series of reporting acknowledging its role in fueling the “moral panic” that “expanded the war on drugs into the womb” and promoted “the view that fetuses needed to be protected from dangerous mothers who would kill them.”

This “moral panic” continues today.

As Paltrow wrote in 2010, “There is no such thing as a ‘crack’ or ‘meth baby’ and no state has a statute that makes it a crime for a drug-using pregnant woman to continue her pregnancy to term, to give birth, or to suffer a miscarriage or stillbirth.” But new mothers across the United States are still being arrested after they give birth and test positive for an illegal drug or alcohol. This includes women like Brittany Cravatt, Megan Messenger, Racheal Ned, and Charmaine Bruner, who were charged with child neglect by Ladd’s office in January because they were alleged to have used meth while pregnant.

“Nothing about the use of criminalized drugs creates a greater risk to pregnancy than poverty, smoking, drinking alcohol, or exposure to substances that are permanently damaging, such as lead in the water,” Paltrow told Prism. “Every single pregnancy has a 10-15% risk of miscarriage. By being pregnant, a woman is inherently putting the life of an ‘unborn child’ in danger. If states want an excuse to control women and to surveil them, they can simply do that by formally recognizing the risk to ‘unborn life’ as a crime.”  

“Special crime for pregnant women”

The “personhood” movement pushed by anti-abortion advocates is active in all 50 states, according to Rewire.News, but these proposed laws don’t just harm pregnant people seeking abortion care. These laws seek to classify fertilized eggs, zygotes, embryos, and fetuses as “persons” and grant them full legal protection under the U.S. Constitution.

In 2013, Paltrow used Mississippi’s Proposition 26, a “personhood” measure that sought to establish separate constitutional rights for fertilized eggs, embryos, and fetuses, as an entry point for systematically identifying and documenting 413 cases from 1973 to 2005 in which a woman’s pregnancy was a necessary factor leading to “attempted and actual deprivations of a woman’s physical liberty.” Paltrow told Prism there has been a slow and steady criminalization of pregnant people over the years, and that it’s rooted in misogyny.

“Oklahoma has the highest rate of incarceration of women and it’s an embarrassment, but you have Ladd calling for the increased incarceration of women by targeting those who are pregnant,” Paltrow said. “It is not a crime in Oklahoma to use drugs; it’s a crime to possess drugs. Ladd is essentially asking for a special crime for pregnant women who use drugs. It’s gender discrimination, but the bigger problem is that it’s extremely dangerous for the health of pregnant women and their future children.”

These types of arrests deter women from getting health care and lead to the illusion that the state is doing something positive when it’s actually being incredibly harmful and destructive by discouraging effective, evidence-based approaches to substance dependence and scaring pregnant people away from accessing prenatal care. Paltrow said that the most important thing that can be done for someone with an actual drug dependence is to make them feel like they can trust their healthcare provider and that they can recover in a timetable that is realistic. Ladd’s approach does none of this.

“Unborn child abuse”

Two years ago the abortion rights organization Reproaction partnered with NAPW to address “deep concerns” regarding Wisconsin Act 292, passed in 1997. The Unborn Child Protection Act, also known as the “cocaine mom law,” allows Wisconsin to accuse certain pregnant people of “unborn child abuse.”

“Specifically, the state can take a pregnant person accused of using alcohol or drugs now or in the past into custody, appoint a lawyer for their embryo or fetus, subject them to forced medical intervention, and force them into a drug treatment program, mental hospital, or jail regardless of whether they need drug treatment. And that’s not all—pregnant people are not entitled to legal representation in the very important early stages of these closed, secret court proceedings,” Nataley Neuman reported for Rewire.News.

Though Act 292 was ruled unconstitutional by a federal district court in April 2017, it remains in effect. Reproaction’s co-founder and co-director Pamela Merritt told Prism that for years, young people going through the juvenile court system have been caught in the dragnet of Act 292 often without knowing the law existed. Her organization wanted to do something about it.  

Not only is Reproaction calling on Wisconsin’s Democratic governor, Tony Evers, to repeal the law, the organization launched a campaign with two goals: To disseminate information about the enforcement of Act 292, and to get resources about patient rights into the hands of people vulnerable to enforcement.

“Any pregnant person who used drugs in the past, is currently using drugs, or is on a methadone program needs education and needs to be empowered regarding the enforcement of this law. It is often not about what they know, but rather what they suspect—relying on stereotypes about who might be using drugs. That’s enough to get you sucked into this,” Merritt said. “Marginalized communities are prioritized for criminalization and they are the most vulnerable to enforcement. All it takes is one prosecutor who wants to make a name for themselves.”

A large portion of Reproaction’s work in Wisconsin has involved “meeting people where they’re at,” Merritt said, handing out informational packets at drug treatment centers, methadone clinics, prenatal and pregnancy centers, WIC offices, coffee shops, laundromats, and emergency rooms. The organization focused specifically on emergency rooms because people without health insurance often go to emergency rooms for medical care, unaware that healthcare providers are mandated reporters. Merritt said pregnant people should know that if they are currently using drugs and provide a urine sample to a healthcare provider for a separate issue, it’s considered a “disclosure.” This is also true when a patient notes marijuana use for anxiety on a medical form.

In speaking to OB-GYNs, Merritt learned that nationwide, if a pregnant person smells like marijuana or if a healthcare provider notices track marks or other stereotypical markers of drug use, the healthcare worker can call in a social worker to trigger an investigation.  

“It’s always important to keep in mind that a hospital is a business. It has a board and overseers who will take a risk-averse policy to protect the business,” Merritt said. “In order to be a nurse or physician in a hospital, you have to adhere to their regulation and they’re going to err on the side of caution to protect the business, even if that means criminalizing pregnant people.”

Drug use is a public health issue, but it’s rarely treated as such, especially for communities of color. Merritt said that the people most vulnerable to enforcement are already dealing with racial health disparities and are underserved by public health institutions. Sometimes pregnant people seeking health care aren’t even funneled into the criminal justice system by medical providers.

“In the hospital setting, you’re in close quarters with other people in the community. If they’re xenophobic and they think you’re undocumented, if they have an axe to grind about people having multiple children, if you’re in a same-sex relationship, they have tremendous latitude in making an accusation and the process for pregnant people to prove they didn’t use drugs or aren’t currently using drugs is awful,” Merritt said.

Reproaction has a series of recommendations for pregnant people in Wisconsin who may be subject to Act 292, including:

  • Continue to get prenatal care.

  • If you have used alcohol or other controlled substances in the past or since you became pregnant, or you are in medically assisted treatment, consider talking with a lawyer before you disclose this information to your healthcare provider. Also, your medical provider should know that they are not required to violate your confidentiality by reporting your pregnancy and drug or alcohol use to anyone.

  • If you are using alcohol or other drugs and feel like you need help, you can find resources online, by calling 608-266-1865, or asking a trusted medical provider.

  • If you are accused under the “Unborn Child Protection Act” and need legal advice, contact NAPW.

  • Look for legal help in Wisconsin.

The criminalization of substance use during pregnancy is not based on science or concern for families—it is quite the opposite, and it is dehumanizing. In Wisconsin in particular, pregnant people are treated as a vessel and deprived of their humanity. Merritt said that we need to start talking about how the state has been given the authority to strip people of their rights and dignity because they are pregnant.

“No one has ever stopped using heroin because they were thrown in prison. Stigma doesn’t help anybody. It’s deeply harmful and it’s horrible that we treat people this way,” Merritt said. “I just want [people experiencing this] to know that they’re not alone. The laws harming them are regressive and a legacy of the ‘crack baby’ myth. We stand with you and we’re ready to organize on your behalf.”

Tina Vasquez is Prism’s gender justice reporter. Follow her on Twitter @TheTinaVasquez.

Tina Vásquez is the editor-at-large at Prism. She covers gender justice, workers' rights, and immigration. Follow her on Twitter @TheTinaVasquez.