a bird and a bottle

Guest Post: NAPW Staff Attorney Tiloma Jayasinghe

Continuing with the Bean in Berlin Guest Posts, National Advocates for Pregnant Women‘s Staff Attorney, Tiloma Jayasinghe, today contributes her thoughts on the prosecutions of pregnant women, which are occurring in ever-increasing numbers around the country. Together with Feministing’s series of posts by NAPW National Summit presenters (here, here, here), Tiloma’s post shows how vulnerable women’s civil rights are, particularly when a woman becomes pregnant. So without further ado….Tiloma:


I am working right now on a case in New Mexico where a woman was charged with child endangerment for continuing her pregnancy to term in spite of her cocaine addiction. She gave birth to a baby that tested positive for drugs, pled guilty at the trial court stage while reserving her right to appeal, won a favorable decision before the appeals court, and now the State of New Mexico has appealed that decision and the case is going before the Supreme Court of New Mexico.

Among the facts that I am forced to use, since the facts were stipulated to at a lower level, and on appeal, you can only rely on what is in the record, is that Ms. Martinez told staff at the state health department where she received some prenatal care that she used drugs. Instead of being provided with treatment, she was censured and told that using drugs harms her baby. End of story. And now that one fact is also being used by the prosecution to show a sense of knowing intent to harm her baby – that she was told that drugs were bad, so you can’t say she didn’t know it could impact her baby.

That assumption, that argument is wrong on two counts (if not more). Medical science has not established a link between drug use and adverse pregnancy outcomes. The crack baby myth of the late 80s has been now debunked – most of those children, their trembling, their wailing, could not be adduced to cocaine, because their mothers were poor, and also used alcohol and tobacco. These were “poverty babies” more than anything else, resulting from lack of adequate nutrition faced by so many low income women. And scientific research could not target a particular harm established by cocaine, separate and apart from the impact that alcohol and tobacco had on the developing fetus.

And that brings me to the next point why this argument is wrong – EVERYTHING a woman experiences during her pregnancy could potentially affect her fetus. If we are talking about licit or illict drugs, tobacco and alcohol are shown to cause fetal harm, as does large doses of aspirin, and certain anti-depressant drugs. Now let’s expand our focus to all the things present in this world that can affect a woman’s pregnancy – stress, violence, depression, eating mercury-laden fish, living with a smoker, breathing the air of our cities, crossing the street, skiing, having sex, drinking a Guinness, drinking caffeine, standing on a crowded subway, riding a bumpy bus, taking care of other children who may have measles, or chicken pox, or the flu.

The argument that these prosecutions are to deter women from engaging in behavior which could potentially harm their pregnancies does not fly, in that case, because tobacco and alcohol have proven adverse effects on pregnancy outcomes, but they are still legal, although there is always that one prosecutor who tries to violate the Constitution and prosecute a pregnant woman for smoking or having a glass of wine. Anything a woman does could potentially harm their fetuses.

But women do everything they can during her pregnancy also protects her fetus. Cynthia Martinez went to a STATE public health facility to seek prenatal care, because she cared about her pregnancy. She may not have been able to seek or obtain drug treatment, but she accessed the services that she could to ensure a health pregnancy. She even confessed to authorities about her cocaine addiction because she was seeking assistance to ensure a healthy pregnancy.

Even if you don’t believe the science, do you really think that incarcerating a pregnant woman is the best way to deal with issues of addiction and pregnancy? Do you think throwing a pregnant woman in jail, where she will not receive adequate nutrition, rest, exercise, prenatal care, vitamins or support will enable her to have a healthy pregnancy and birth? Do you think that giving birth alone in a jail cell, or bound by shackles on your arms and legs is a healthy way to give birth?

And did you ever think about why that woman is using drugs in the first place? In a NIDA funded review by Dr. Lisa M. Najavits and her colleagues at Harvard Medical School in Boston, they found that among women in drug abuse treatment, 55 percent to 99 percent reported a history of physical or sexual trauma. “Most of the trauma occurred before age 18 and was commonly related to repetitive childhood physical or sexual assault. When the women are victims of both types of abuse, they are twice as likely to abuse drugs as are those who experienced only one type of abuse.”

Prosecuting a woman for self-medicating away her painful memories of child abuse or other trauma is not going to resolve anything. Treatment and education and providing access to resources is the real solution to this issue. Medical and scientific groups are unanimous that prosecuting pregnant women only deters them from seeking prenatal care and drug treatment, which harms both maternal and fetal health. Addiction is a medical condition that responds to treatment. There are few treatment centers that accept pregnant women – even less that accept them on Medicaid, and even lesss that accept them and their other children. There aren’t many family-based residential treatment centers, which is one of the best type of facility for women and children. There are few treatment centers at all accessible by low income women. There are not much of anything in rural areas – prenatal clinics or drug treatment centers.

Instead of passing bills to punish pregnant women, or bills to limit abortion, or bills to regulate and limit licensure of birthing centers and the practice of midwifery, why not pass some bills to really improve and impact women’s health? Why not increase funding to rural prenatal clinics? Why not increase funding to residential, family-based treatment centers? Why not foster a dialogue between addiction treatment professionals, medical doctors, legislators, child welfare workers, domestic violence activists and other interested parties to really address the issue properly?

I would like to be out of a job. I would like to not have any reason to have to educate any court that not only are prosecutions of women like Ms. Martinez unconstitutional, but also bad in terms of promoting and protecting maternal and fetal health.


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[…] NAPW Staff Attorney Tiloma Jayasinghe guest-posts at A Bird and a Bottle. […]

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