War of the Womb

Share this with your friends

The Jim Crow fueled Drug War has produced at least one pernicious effect that does not get enough attention in many of our discussions.  Pregnant women, especially low-income women of color, are the object of scrutiny by purported child protection agencies. While a white, upper class woman may not be scrutinized through urine screens during pregnancy, low income women and women of color are often subjected to tests to determine if “illicit” drugs are in their system.

Pregnant women, especially low-income women of color, are the object of scrutiny by purported child protection agencies.

The logic drug warriors-turned-child-protectors use is simplistic in these situations.  Since a drug is illegal – just illegal – its use during pregnancy presents a danger to the fetus or actual harm to the born child. Putting aside the selectivity of their actions, these agencies often ignore the fact that many state child protection statutes do not define a fetus as a child.  More on that in a bit.

In my practice, I have seen these unfair cases at work. Low income women, women of color, women with tattoos – the usual suspects – are subjected to testing during their pregnancy or during delivery. The mere presence of an “illicit” drug, particularly marijuana, is usually cause for child welfare agencies to seek to intrude upon the lives of the new mothers and their children, sometimes placing children in foster care or with relatives of the parents.  As one former client described it to me, what should have been the happiest day of her life became the most horrific, all because of a test, which did not quantify let alone identify, any harmful effects of the metabolites in her urine. The legally prescribed drugs of upper class women do not invite a similar invasion of parental rights. It is the biased notion that a supposedly illicit substance, cannabis, somehow is a danger to a fetus or child.

There are few rights more fundamental in life than the right to have children, to raise them and to have familial relationships. The simple presence of marijuana metabolites in one’s blood or urine at birth is one of the greatest injustices of the Drug War. For, as noted above, it is usually the mere presence of this “illicit” substance that justifies the battering ram through the privacy of family rights without any real evidence of harm.

The invasion of privacy is total. At the extreme end, it could lead to a termination of parental rights entirely. At the lower end, it requires regular, often involuntary, visits by child protective service workers into the home to look for illicit drugs, to test the child, to demand parents obtain drug treatment even in the case of cannabis, where there are few if any credibly known dangers.

Should a parent object to these intrusions after a court order allowing the agency to enter the privacy of the family relationship, those parents could face parental termination or extremely harsh restrictions. It is not unusual for unfortunate suspects of state child protective agencies to have this intrusive and unnecessary supervision go on for years. Nor is it unusual for victims of this aspect of the Drug War to lose their children, at least temporarily, and be required to visit them only in a supervised setting.

Recently, in New Jersey Division of Youth & Family Services vs. A.L., the  New Jersey Supreme Court ruled unanimously that the state’s child protection laws do not give Child Protective Services (CPS) jurisdiction over pregnant women and that drug use during pregnancy does not establish abuse or neglect. Succinctly stated, the Court rejected the fact that the newborn needed supervision in its life, just because of the findings noted above. But, the Court stressed that New Jersey’s child protection statute does not define a fetus as a child and thus, the mere presence of illicit substances in the fetus or pregnant mother, do not trigger the authority of protective agencies to enter the lives of the parents.

The National Advocates for Pregnant Women (NAPW) noted that to uphold the trial court’s decision allowing for the mere presence of an illicit substance to trigger invasion of privacy, would disproportionately harm low income and minority communities inasmuch as those persons would avoid prenatal care in greater numbers than less-suspect upper class women.

NAPW and their experts noted scientific evidence does not support a per se finding of abuse or neglect based solely on drug tests indicating that a pregnant woman used cocaine, or any other criminalized or non-criminalized drug during pregnancy.

The decision is worth celebrating but it causes concern in a number of ways when it is read closely. For instance, the Court did not condemn the hearing at the trial level that invaded this mother and child’s rights in such a cavalier fashion.

Instead, the Court gave great weight to the fact that New Jersey’s specific statute “reveals that it applies to a child and not a fetus.” The Court went further saying, “because the abuse and neglect statute by its terms does not extend to a fetus, the law’s protection is limited to the condition of a child after birth.”

Indeed, in the opinion of this author, the Court unnecessarily went on to note many state statutes around the country that do define a child as a fetus. True, the Court was clear to say “drug addiction does not automatically equate to child abuse or neglect.” According to the Court, “…..even though drug use is illegal, [the statute] is not intended to extend to all parents who imbibe illegal substances at any time….not all instances of drug ingestion by a parent will substantiate a finding of abuse or neglect.”

Further, the Court properly stated, “judges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm. Instead, the fact-sensitive nature of abuse and neglect cases… turns on particularized evidence.

The Court went on to note that the experts provided by Advocates for Pregnant Women represented “…that the presence of cocaine metabolites… does not mean the presence of active cocaine.” Similarly, the experts represented metabolites of what was once the drug itself is broken down or inactivated by enzymes in the body, and may indicate that drugs were used in the past, but not recently.  The terms were not explored at the fact-finding hearing.

Despite such encouraging pronouncements, the New Jersey Supreme Court did describe in the case how prenatal drug use could be used to substantiate abuse.

Unfortunately, the case is also an exhortation that the legalization movement must be prepared for pushback by drug warriors to reinvent statutes so as to allow them to countenance privacy invasions for mere prenatal drug use. Additionally, since the Court required actual proof of danger to a child after birth, one cannot help but think that State protective agencies with drug warrior mindsets will now set about finding purported experts to intone that even once born, a child has somehow been impacted by a substance as benign as cannabis.  In other words, although this is a good case, its logic can also be employed to help with the likes of other anti-women’s health entities like those moving to make abortion impossible through the use of trans-vaginal probes or undue restrictions on women’s services clinics in their states.

This article was written by Ladybud’s former attorney, William H. Buckman, who unfortunately passed away October 2014. We miss him and hope you will keep his memory alive by sharing his words and learning from them. Find out more about our beloved ‘The Buckman’:

RIP Bill Buckman: Ladybud Attorney, NJ NORML Board Member & Celebrated Civil Rights Activist

Photo: MONKOPhoto