Should a Mother Be Prosecuted for Taking Drugs While Pregnant?

Photograph of pregant woman by Getty Images.

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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.”