Should a Mother Be Prosecuted for Taking Drugs While Pregnant?

Ever since the term crack baby came into vogue, state courts have been hearing arguments about whether mothers can be prosecuted for creating them. The Maryland Supreme Court answered no in 2006, overturning the convictions of two cocaine-addicted mothers. If these women could be charged with child endangerment, the judges wrote, then so could any mother for so-called reckless activity, even “exercising too much or too little.”

Now, Kentucky’s Supreme Court is taking the issue on again. Last week, judges heard oral arguments in the case of Ina Cochran, who was charged in 2005 with “wanton endangerment” because her newborn tested positive for cocaine at birth. Maternal addiction is not a “victimless crime,” Assistant Attorney General James Shackelford argued before the court on Thursday. “The victims are real live human beings and they’re directly affected,” he told the judges. “We would ask the court not to strip the protection of the penal code from Baby Cochran and all the other Baby Cochrans in the Commonwealth.” He describes this kind of criminal prosecution of new mothers as a necessary “last resort.”

These cases are hotly contested because they play into the abortion wars. Cochran’s attorney originally got the case dismissed based on a 1993 Kentucky State Supreme Court case stating that a pregnant woman could not be charged with child abuse because her fetus was not a person. But the Kentucky attorney general’s office appealed the decision in light of a 2004 law, which made it possible for someone who kills a pregnant woman to be charged in two deaths—and the appellate court reinstated the indictment based on this fetal homicide act.

The ACLU and many pro-choice groups have been fighting laws that protect “unborn victims of violence” in many states. In Cochran’s case, there’s an additional argument to make against her prosecution. The charge against her is based on the assumption that any cocaine use during pregnancy causes severe damage to the child. In fact, experts have discovered that the “crack baby epidemic” that was predicted in the late 1980s has never been borne out by the facts.

Cochran gave birth to her daughter, Cheyenne, in December 2005. Cheyenne was healthy even though both mother and newborn tested positive for cocaine. In Kentucky, hospitals are required to report positive drug tests to Child Protective Services, and law enforcement agencies are notified of potential child abuse. “If a lady who is eight or nine months pregnant takes an illegal substance that they know will damage their child, I think they ought to be prosecuted,” Casey County Commonwealth’s attorney Brian Wright told a reporter at Louisville’s Courier-Journal.

Part of the problem here is that law enforcement lumps all illegal drugs together, making blanket references to babies who are born “drug addicted.” In fact, babies born with cocaine or crack cocaine in their systems are not physically “addicted” and do not suffer medical withdrawal, explains Hendree Jones, an associate professor of psychiatry and behavioral sciences, gynecology, and obstetrics at Johns Hopkins University who researches the issue. Babies whose mothers were addicted to opiates like heroin can be born addicted and suffer withdrawal—but the two drugs have very different chemical responses and ought not be conflated.

In the scheme of things, the physical effects of cocaine exposure on a newborn are fairly minor. Barry Lester heads up the nation’s largest clinical trial of children exposed to cocaine in the womb and spends a lot of time undoing the “crack baby myth,” he says. In the ‘80s, researchers began doing animal studies on pregnant rats and mice to assess the in utero effects of cocaine. They saw all kinds of problems, from cardiac defects to physical malformations to brain damage. “But they were giving the animals huge, huge doses,” Lester says, “Nothing like the doses that humans take.”

Medical chart reviews of women who used cocaine during pregnancy showed a host of physical problems. But these studies failed to factor in other things associated with women who use cocaine, says Lester. The women often also smoke, drink alcohol, and maybe pop OxyContin, says Lester. “They tend to have poor nutrition, poor reproductive history. They don’t take care of themselves or get prenatal care.” There’s also sometimes domestic violence associated, and often the children of these drug users end up in foster care or experience a general lack of stable parenting.

In 1993, the National Institutes of Health tried to separate out these other factors from the effects of cocaine, and Lester’s Maternal Lifestyle Study was born, tracking more than 1,400 now-15- and 16-year-olds. For the most severe medical outcomes—brain lesions, cardiac defects, and other birth defects—there is no effect of prenatal cocaine exposure, his group found. Some babies are born premature but only by nine days. Lester says there can be an increase in “jitteriness” or “visual tracking,” but these babies are certainly not going through any physical withdrawal from the drug.

By age 4, though, they were seeing some differences in mental acuity. The cocaine-exposed kids had IQs approximately 4.5 points lower than the control group, and by age 11 the kids were slightly more likely to have behavior problems, like impulsivity and acting out. But to put it in perspective, Lester compares it to cigarette smoking. “The kinds of effects you see from cocaine are almost indistinguishable from what you’d see from tobacco use of 10 cigarettes a day,” says Lester. “This whole process has been a real eye-opener for the scientific community,” Lester says. “A lot of the statutes these women are being prosecuted under are based on the assumption that cocaine causes severe problems in a child—and that a mother is knowingly harming her fetus by using this drug.” But the research clearly indicates otherwise.

Still, Kentucky prosecutors are not letting the scientific facts interfere with their position. In court, the judges peppered Shackelford with questions about the scope of the state’s prosecutions, asking if Kentucky now intended to prosecute all women who use cocaine while pregnant. Then they took the argument to its logical conclusion, asking also whether the state will begin prosecuting women for downhill skiing or for using over-the-counter or prescription drugs that are not recommended for pregnant women. Shackelford said his office would make a “case by case” determination.

In her summation, Cochran’s attorney, Jamesa Drake, picked up on the vagueness and potential abuse of this standard: “How is a pregnant woman supposed to know what conduct she can engage in and cannot engage in, even if we are to assume that a fetus is an unborn child?” Does “wanton endangerment” mean police can do a sweep of Starbucks to check for visibly pregnant women drinking a cup of coffee? After all, she pointed out, there are studies that say 10 ounces of coffee doubles the risk of miscarriage.

Shackelford tried his best to distinguish between legal substances, like coffee, and illegal substances, like cocaine, but the court didn’t buy it. “Why is it relevant whether the conduct is legal or illegal,” the judges demanded. After all, Cochran was being charged with endangering her child. “So the legality of it is not the point; it’s whether it is harmful.”

Lester, based on his National Institutes of Health study answers that question—and offers some legal advice: “In basketball you’d say, ‘No harm, no foul.’ ”