Medical and Public Health Group Statements revised March 2017 (4)

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Medical and Public Health Group Statements

Opposing Prosecution and Punishment of Pregnant Women

Revised October 2017

American Medical Association

“Transplacental drug transfer should not be subject to criminal sanctions or civil liability . . .

In particular, support is crucial for establishing and making broadly available specialized

treatment programs for drug-addicted pregnant women wherever possible. . .” American

Medical Association, Policy Statement - H-420.962, Perinatal Addiction - Issues in Care and

Prevention (last modified 2016).

“Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that

their physician's knowledge of substance abuse or other potentially harmful behavior could

result in a jail sentence rather than proper medical treatment.” Report of American Medical

Association Board of Trustees, Legal Interventions During Pregnancy: Court-Ordered

Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant

Women, JAMA Vol. 264, No. 20 p.2667 (1990).

“Judicial intervention is inappropriate when a woman has made an informed refusal of a

medical treatment designed to benefit her fetus. If an exceptional circumstance could be

found in which a medical treatment poses an insignificant or no health risk to the woman,

entails a minimal invasion of her bodily integrity, and would clearly prevent substantial and

irreversible harm to her fetus, it might be appropriate for a physician to seek judicial

intervention. However, the fundamental principle against compelled medical procedures

should control in all cases which do not present such exceptional circumstances. The

physician's duty is to provide appropriate information, such that the pregnant woman may

make an informed and thoughtful decision, not to dictate the woman's decision.” American

Medical Association, Policy Statement - H-420.969, Legal Interventions During Pregnancy (2016).

“Our AMA supports language recently adopted by the New Mexico legislature that ‘an adult

or juvenile correctional facility, detention center or local jail shall use the least restrictive

restraints necessary when the facility has actual or constructive knowledge that an inmate is

in the 2nd or 3rd trimester of pregnancy. No restraints of any kind shall be used on an

inmate who is in labor, delivering her baby or recuperating from the delivery unless there are

compelling grounds to believe that the inmate presents: an immediate and serious threat of

harm to herself, staff or others; or a substantial flight risk and cannot be reasonably

contained by other means.’” American Medical Association, Policy Statement - H-420.957,

Shackling of Pregnant Women In Labor (2010).

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American College of Obstetricians and Gynecologists

“Pregnancy is not an exception to the principle that a decisionally capable patient has the

right to refuse treatment, even treatment needed to maintain life. Therefore, a decisionally

capable pregnant woman’s decision to refuse recommended medical or surgical intervention

should be respected… The College opposes the use of coerced medical interventions for

pregnant women, including the use of the courts to mandate medical intervention for

unwilling patients.” American College of Obstetricians and Gynecologists Committee on

Ethics, Committee Opinion 664, Refusal of Medically Recommended Treatment During Pregnancy

(2016).

“Drug enforcement policies that deter women from seeking prenatal care are contrary to the

welfare of the mother and fetus. Incarceration and the threat of incarceration have proven to

be ineffective in reducing the incidence of alcohol or drug abuse …The use of the legal

system to address perinatal alcohol and substance abuse is inappropriate.” American College

of Obstetricians and Gynecologists Committee on Health Care for Underserved Women,

Committee Opinion 473, Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-

Gynecologist (2011, reaffirmed 2014).

“Seeking obstetric–gynecologic care should not expose a woman to criminal or civil

penalties, such as incarceration, involuntary commitment, loss of custody of her children, or

loss of housing. These approaches treat addiction as a moral failing. Addiction is a chronic,

relapsing biological and behavioral disorder with genetic components. The disease of

substance addiction is subject to medical and behavioral management in the same fashion as

hypertension and diabetes.” American College of Obstetricians and Gynecologists

Committee on Health Care for Underserved Women, Committee Opinion 473, Substance

Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist (2011, reaffirmed 2014).

“…[I]t is important to advocate for this often-marginalized group of patients (patients

with substance use disorders) particularly in terms of working to improve availability of

treatment and to ensure that pregnant women with opioid use disorder who seek prenatal

care are not criminalized. Finally, obstetric care providers have an ethical responsibility

to their pregnant and parenting patients with substance use disorder to discourage the

separation of parents from their children solely based on substance use disorder, either

suspected or confirmed. In states that mandate reporting, policy makers, legislators, and

physicians should work together to retract punitive legislation and identify and

implement evidence-based strategies outside the legal system to address the needs of

women with addictions.” American College of Obstetricians and Gynecologists

Committee on Obstetric Practice, Committee Opinion 524, Opioid Use and Opioid Use

Disorder in Pregnancy (2017).

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American Academy of Family Physicians

“[T]he AAFP supports public and individual education about the risks of any substance use

and abuse during pregnancy. The AAFP opposes imprisonment or other criminal sanctions

of pregnant woman solely for substance abuse during pregnancy, but encourages facilitated

access to an established drug and alcohol rehabilitation program for such women.”

Ame rican Academy of Family Physicians, Policy, Substance Abuse and Addiction, section

entitled “Pregnant Women, Substance Use and Abuse by” (2003, 2016 COD).

National Perinatal Association

“NPA opposes punitive measures that deter women from seeking appropriate care during

the course of their pregnancies. . . NPA supports comprehensive drug treatment programs

for pregnant women that are family-centered and work to keep mothers and children

together whenever possible. The most successful treatment models will include access to

quality prenatal and primary medical care, child development services, crisis intervention,

drug counseling, family planning, family support services, life skills training, mental health

services, parent training, pharmacological services, relapse strategies, self-help groups, stress

management, and vocational training.” National Perinatal Association, Position Statement,

Substance Abuse Among Pregnant Women (revised 2012).

“The National Perinatal Association opposes legislation that defines personhood as

beginning at or after viability…The NPA encourages its members to oppose any legislation

defining fetal personhood at conception and encourages its members to support legislators

in favor of leaving this discussion to the medical sphere.” National Perinatal Association,

Position Statement, Supporting The Legal Autonomy of Pregnant Women (2013).

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American Society of Addiction Medicine

“Criminal prosecution of chemically dependent women will have the overall result of

deterring such women from seeking both prenatal care and chemical dependency treatment,

thereby increasing, rather than preventing, harm to children and to society as a whole.”

American Society of Addiction Medicine, Public Policy Statement on Chemically Dependent Women

and Pregnancy (1989).

“In order to prevent harm to mothers and infants, ASAM recommends the following:

…Substance use disorder treatment services able to meet the specific needs of women,

including pregnant and parenting women, and their families: Preservation of the physician-

patient relationship, so that laws or regulations should not require physicians to violate

confidentiality by reporting their pregnant patients with current or past history of substance

use to legal authorities and/or child welfare services in the absence of evidence of child

abuse or neglect.” American Society of Addiction Medicine, Public Policy Statement on Women,

Alcohol and Other Drugs, and Pregnancy (2011).

“It is inappropriate to reflexively move from the possibility to an alleged certainty of

defective parenting or danger to the child simply because of evidence of substance use . . .

Sanctions against parents under child protective services interventions should be made only

when there is objective evidence of danger, not simply evidence of substance use.” American

Society of Addiction Medicine, Public Policy Statement on Substance Use, Misuse, and Use Disorders

During and Following Pregnancy, with an Emphasis on Opioids (2017).

“State and local governments should avoid any measures defining alcohol or other drug use

during pregnancy as ‘child abuse or maltreatment,’ and should avoid prosecution, jail, or

other punitive measures as a substitute for providing effective health care services for these

women.” American Society of Addiction Medicine, Public Policy Statement on Substance Use,

Misuse, and Use Disorders During and Following Pregnancy, with an Emphasis on Opioids (2017).

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American Public Health Association

“Recognizing that pregnant drug-dependent women have been the object of criminal

prosecution in several states, and that women who might want medical care for themselves

and their babies may not feel free to seek treatment because of fear of criminal prosecution

related to illicit drug use . . . [the Association] recommends that no punitive measures be

taken against pregnant women who are users of illicit drugs when no other illegal acts,

including drug-related offenses, have been committed…” American Public Health

Ass ociation, Policy Statement No. 9020, Illicit Drug Use by Pregnant Women (1990).

“Maternal mortality is also a significant human rights issue. Preventable maternal mortality is

associated with the violation of a variety of human rights, including the mother’s right to life,

the right to freedom from discrimination, and the right to health and quality health care.”

American Public Health Association, Policy Statement No. 201114, Reducing US Maternal

Mortality as a Human Right (2011).

American Nurses Association

"ANA opposes laws that may result in punitive legal actions and result in incarceration of

pregnant women because of substance use disorder." American Nurses Association, Position

Statement, Non-punitive Treatment for Pregnant and Breast-feeding Women with Substance Use

Disorders (2017)

"ANA supports the fact that substance use disorders are diseases that require treatment, not

incarceration." American Nurses Association, Position Statement, Non-punitive Treatment for

Pregnant and Breast-feeding Women with Substance Use Disorders (2017)

"Criminalization of pregnant women with substance use disorder often results in more harm

than good. The threat of criminal prosecution prevents many pregnant women from seeking

prenatal care and treatment for their substance problems (Schempf & Strobino, 2009).

Prisons are not prepared to provide for the specialized needs of pregnant women (Cardaci,

2013; Skerker, Dickey, Schonberg, Macdonald, & Venters, 2015)." American Nurses

Association, Position Statement, Non-punitive Treatment for Pregnant and Breast-feeding Women

with Substance Use Disorders (2017)

"Contrary to claims that prosecution and incarceration will deter pregnant women from

substance use, the greater result is that fear of detection and punishment poses a significant

barrier to treatment (Stone, 2015)." American Nurses Association, Position Statement, Non-

punitive Treatment for Pregnant and Breast-feeding Women with Substance Use Disorders (2017)

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Association of Women’s Health, Obstetric and Neonatal Nurses

“The Association of Women’s Health, Obstetric and Neonatal Nurses (AWHONN)

opposes laws and other reporting requirements that result in incarceration or other punitive

legal actions against women because of a substance abuse disorder in pregnancy. . . [t]he

threat of incarceration has been shown to be an ineffective strategy for reducing the

incidence of substance abuse, while medication and behavioral therapies serve as important

elements of an over-all therapeutic process.” Association of Women’s Health, Obstetric

and

Neonatal Nurses, Criminalization of Pregnant Women with Substance Use Disorders (2015).

“The Association of Women’s Health, Obstetric and Neonatal Nurses (AWHONN) believes

that any woman’s reproductive health care decisions are best made by the informed woman

in consultation with her health care provider. AWHONN believes these personal and private

decisions are best made within a health care system whose providers respect the woman’s

right to make her own decisions according to her personal values and preferences and to do

so confidentially.” Association of Women’s Health, Obstetric and Neonatal Nurses, Health

Care Decision Making for Reproductive Care (revised 2016).

American College of Nurse Midwives

“ACNM supports a health care system in which women with substance addictions in

pregnancy are treated with compassion, not punishment. Women should not be deterred

from seeking care during pregnancy due to fear of prosecution. Optimal care for women

with addiction occurs within a multidisciplinary environment in which holistic care is

provided that considers the context of her social environment and her unique health risks. In

the health policy and legislative arena, efforts should be directed towards comprehensive

approaches to promoting addiction recovery.” American College of Nurse Midwives,

Position Statement, Addiction in Pregnancy (updated 2013).

“It is the position of the American College of Nurse Midwives (ACNM) that: Physiologic

vaginal birth is the optimal mode of birth for most women and babies. Cesarean birth is

valued as a surgical procedure when there are maternal, fetal, or obstetric indications . . .

Women have the right to accurate, balanced and complete information regarding the risks,

benefits and potential harms of both vaginal and cesarean birth.” American College of

Nurse

Midwives, Position Statement, Elective Primary Cesarean Birth (updated 2016).

“It is the position of the American College of Nurse-Midwives (ACNM) that: All women

who have experienced cesarean birth have the right to safe and accessible options when

giving birth in subsequent pregnancies. Women who have had a prior cesarean birth have

the right to evidence-based information to guide their decision-making when considering a

trial of labor after cesarean (TOLAC) versus an elective repeat cesarean birth.” American

College of Nurse Midwives, Position Statement, Vaginal Birth After Cesarean Delivery

(2011).

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American Academy of Pediatrics

“The American Academy of Pediatrics (AAP) first published recommendations on

substance-exposed infants in 1990 and reaffirmed its position in 1995 that ‘punitive

measures taken toward pregnant women, such as criminal prosecution and incarceration,

have no proven benefits for infant health’ and argued that ‘the public must be assured of

nonpunitive access to comprehensive care that meets the needs of the substance-abusing

pregnant woman and her infant.’ . . . The AAP reaffirms its position that punitive measures

taken toward pregnant women are not in the best interest of the health of the mother-infant

dyad.” American Academy of Pediatrics, Committee on Substance Use and Prevention,

Policy Statement, A Public Health Response to Opioid Use in Pregnancy (2017).

“The existing literature supports the position that punitive approaches to substance use in

pregnancy are ineffective and may have detrimental effects on both maternal and child

health . . . [T]he AAP supports an approach toward substance use in pregnancy that focuses

on a public health approach of primary prevention, improving access to treatment, and

promoting the provider-patient relationship rather than punitive measures through the

criminal justice system.” American Academy of Pediatrics, Committee on Substance Use and

Prevention, Policy Statement, A Public Health Response to Opioid Use in Pregnancy (2017).

March of Dimes

“The March of Dimes opposes policies and programs that impose punitive measures on

pregnant women who use or abuse drugs. . . The March of Dimes believes that targeting

women who used or abused drugs during pregnancy for criminal prosecution or forced

treatment is inappropriate and will drive women away from treatment vital both for them

and the child.” March of Dimes, Fact Sheet, Policies and Programs to Address Drug-Exposed

Newborns (2014).

American Psychological Association

“…[T]he American Psychological Association [a]ffirms its view that alcohol and drug abuse

by pregnant women is a public health problem and that laws, regulations and policies that

treat chemical dependency primarily as a criminal justice matter requiring punitive sanctions

are inappropriate…[The APA a]ffirms the use of health care strategies to foster the welfare

of chemically dependent women and their children by expanding access to prenatal care and

to reproductive health care generally. . .” American Psychological Association, Policy,

Resolution on Substance Abuse by Pregnant Women (1991).

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National Organization on Fetal Alcohol Syndrome

“NOFAS opposes any law or policy that would impose a criminal penalty on pregnant

women for drinking alcohol. Alcohol use during pregnancy is a serious problem, yet

criminalization is not a solution. Criminalizing alcohol use during pregnancy interferes with

the private patient/doctor relationship and intrudes on the rights of women. Such laws could

result in pregnant women choosing not to disclose their alcohol use to medical and allied

health providers out of fear of criminal sanction. As a result, women with alcohol

dependence or an alcohol use disorder could go unidentified and untreated. Alcoholism is a

primary, chronic disease with genetic, psychosocial, and environmental factors and should be

treated accordingly.” National Organization on Fetal Alcohol Syndrome, Position

Statement,

NOFAS Opposes Criminalizing Alcohol Use by Pregnant Women (no year).

American Psychiatric Association

“The use of the legal system to address perinatal alcohol, tobacco, and other substance use

disorders is inappropriate. APA opposes the criminal prosecution and incarceration of

pregnant and/or newly delivered women on child abuse charges based on the use of

substances during pregnancy. (Social services and legal actions may be appropriate if positive

evidence of substance use or neglect is found following the birth of a child).” American

Psychiatric Association, Position Statement, Assuring the Appropriate Care of Pregnant and Newly-

Delivered Women with Substance Use Disorders (2016).

“Subsequent incarceration in jails or prisons or in locked psychiatric units deprives the

mother of her liberty and disrupts the incipient or nascent maternal-infant bond. This

vulnerable patient population needs comprehensive care for both immediate and long-term

symptoms in order to restore a healthy maternal-infant relationship and improved

functioning in the mother.” American Psychiatric Association, Position Statement, Assuring

the Appropriate Care of Pregnant and Newly-Delivered Women with Substance Use Disorders (2016).

“The American Psychiatric Association opposes all constitutional amendments, legislation,

and regulations curtailing family planning and abortion services to any segment of the

population; The American Psychiatric Association reaffirms its position that abortion is a

medical procedure for which physicians should respect the patient’s right to freedom of

choice. . . The American Psychiatric Association affirms that the freedom to act to interrupt

pregnancy must be considered a mental health imperative with major social and mental

health implications.” American Psychiatric Association, Position Statement, Abortion and

Women’s Reproductive Health Care Rights (reaffirmed 2014).

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National Association of Public Child Welfare Administrators

The National Association of Public Child Welfare Administrators has stated that “laws,

regulations, or policies that respond to addiction in a primarily punitive nature, requiring

human service workers and physicians to function as law enforcement agents are

inappropriate.” National Association of Public Child Welfare Administrators, Guiding

Principles for Working With Substance-Abusing Families and Drug-Exposed Children: The Child

Welfare Response (1991).

National Council on Alcoholism and Drug Dependence

“[A] punitive approach is fundamentally unfair to women suffering from addictive diseases

and serves to drive them away from seeking both prenatal care and treatment for their

alcoholism and other drug addictions. It thus works against the best interests of infants and

children by involving the sanctions of the criminal law in the case of a health and medical

problem.” National Council on Alcoholism and Drug Dependence, Policy Statement,

Women, Alcohol, Other Drugs and Pregnancy (1990).

Association of Maternal and Child Health Programs

“The threat of criminal prosecution prevents many women from seeking prenatal care and

early intervention for their alcohol or drug dependence, undermines the relationship

between health and social service workers and their clients, and dissuades women from

providing accurate and essential information to health care providers. The consequence is

increased risk to the health and development of their children and themselves.” Association

of Maternal and Child Health Programs, Law and Policy Committee, Statement Submitted to the

Senate Finance Committee Concerning Victims of Drug Abuse: Resolution on Prosecution (1990).