Instead of learning from the unfounded hysteria of the crack baby era, we’re repeating it. 

Pregnant in prison.
Many of the 38 states with feticide laws have twisted the intent of the legislation to target pregnant women. 

Photo by Kostsov/Thinkstock

In 1985, as crack cocaine use was surging in American cities, the New England Journal of Medicine published a provocative study. Based on preliminary data from 23 women who’d used cocaine while pregnant, the study yielded a rash of news stories suggesting that cocaine use during pregnancy could lead to birth defects and developmental disorders. In time, more studies, many of them failing to account for the effects of poverty and poor prenatal care, led to op-eds and outrage over a generation of so-called crack babies. They would have lowered IQs and be unable to feel love, potty-train, or dress themselves—a “bio-underclass” of black children facing lives of “certain suffering, of probable deviance, of permanent inferiority.” Starting in the mid ’80s, hundreds of women were arrested for using cocaine and other drugs while pregnant, even though the majority gave birth to healthy babies. Thirty women at a hospital in South Carolina, almost all of them black, were surreptitiously tested for cocaine use (some still pregnant, others having just delivered) and arrested, several still dressed in their hospital gowns and bleeding from labor.

As we now know, the mass hysteria over “crack babies” and their deviant mothers was unfounded. Crack cocaine doesn’t do the kind of damage we thought it did to developing babies. It can lead to “small but measurable differences on certain neuropsychological tests,” Boston University professor of pediatrics Deborah Frank says, but nothing like the devastating effects that researchers and the press predicted. Cocaine use during pregnancy is about equivalent to tobacco in terms of its effect on the fetus, and a lot less harmful than heavy alcohol use, says Frank. Unfortunately, instead of learning from this heady mix of bad science, a sensationalist press, over-reaching prosecutors, and the narrative of the selfish mother content to damage her baby, we’re repeating it.

Repeating it and worse. Ten years ago, “meth babies” were supposed to “make the crack baby look like a walk in the nursery,” and when that scourge failed to materialize, we got “oxytots,” as Fox News charmingly dubbed the children born dependent to prescription opioids like Oxycontin. According to National Advocates for Pregnant Women, there were 413 arrests or forced interventions of pregnant women between 1973 and 2005, most involving allegations of drug use and charges of child abuse or neglect. Since 2005, the group has tracked 380, a stunning ramping-up in the last decade. The rise has coincided with a raft of states passing anti-abortion legislation, and that’s no coincidence. By cementing the idea that a woman and her fetus have divergent rights and interests, these arrests are helping the anti-abortion cause.

Under current laws, the approach to pregnant women often falls somewhere between cruel and absurd, turning doctors into police informants and judges into doctors, minus the medical expertise. Lacey Weld, a Tennessee woman with an apparent drug problem, was sentenced to 12 years this summer for her involvement in a meth ring. Six years of that was tacked on under “enhanced sentencing” guidelines because she was pregnant when the crime was committed—an extra penalty the U.S. attorney justified because of the danger to her “unborn” child. And yet it’s not clear that a baby exposed to the drugs Weld is believed to have taken, meth and opioids, will suffer long-term harm.

Researchers steeped in the data say the basis for the latest rounds of arrests—the idea that certain addictive drugs cause significant, long-term damage to children—has been hyped, just as it was during the crack era, to fuel a moralizing approach instead of a medical one. It’s dangerous to mother and baby to use drugs during pregnancy, no question. Babies exposed to opioids like Percocet in the womb may develop neonatal abstinence syndrome and need to be carefully treated for it; in some cases they are slowly weaned by means of morphine or methadone. But Hendree Jones, a professor at the University of North Carolina School of Medicine and expert in the syndrome, says that from what she and other researchers have seen so far, once they’re treated, the so-called oxytots appear to be like other babies. She points to a recent meta-analysis showing that prenatal exposure to opioids “does not have deleterious effects on the children, at least up to age 5.”

As for methamphetamine, despite news accounts of babies born with heart defects and club feet and arms growing out of their necks, Jones says there isn’t much data to show what the long-term effects might be: “The jury is still out.” There may prove to be subtle effects similar to the those of cocaine, she says, but what studies exist don’t show the clear-cut damage caused by, say, tobacco.

Yet no one arrests a pregnant woman smoking a cigarette—in part, Frank noted in a fascinating lecture, because we assess harm based not on the science but on the social meaning of different drugs. We assume that illegal drugs must be more dangerous than legal ones to a developing fetus. We assume recreational drugs must be more dangerous than medically necessary ones. (The notion of a woman pursuing pleasure at the slightest risk to her fetus is seen as morally egregious—hence our culture’s ban on sushi for pregnant women, but not for the much more risky but workaday act of driving.) There are drugs known to cause birth defects in developing babies, but they’re legal, not necessarily what you’d expect, and definitely not what women are arrested for using. The acne treatment Retin A, for instance, and antiepileptic drugs.

Unlike in the ’80s, when Ira J. Chasnoff, the lead author of the 1985 study, spurred the whole “crack baby” craze, there’s no single researcher fueling the panic over women who use opioids and methamphetamine. But there is a sector of the medical establishment that’s arguably giving cover to the largely conservative forces that are once again politicizing the issue. Tennessee’s recent law, for example, which goes further than any other by explicitly criminalizing women who take drugs while pregnant, was backed by the Tennessee Medical Association, which warned of children born in “agonizing withdrawal” with a “dangerous and costly disease.” And in many cases, the forces behind the “cocaine mom” laws and fetal homicide laws being used to prosecute pregnant women are anti-abortion activists.

Many of the 38 states with feticide laws—ostensibly passed to be used in the context of crimes like domestic violence—have twisted the intent of the legislation to target pregnant women. In Alabama, a chemical endangerment law passed to protect children from meth labs has been used against at least 60 mothers whose newborns test positive for drugs—a move justified this spring by the Alabama Supreme Court, which equated the fetus with an “unborn child.” It’s easy to see why legislators and prosecutors get away with this sleight of hand. Legislation that protects children from meth labs is bound to be politically popular on both sides of the aisle, while the women targeted by such legislation are bound to be unpopular. “One clever thing about using drug cases this way,” feminist scholar Sara Zeigler told ProPublica’s Nina Martin, “is that the average person is not going to be at all sympathetic” to pregnant drug users.

Perhaps that’s why law enforcement and politicians still touch on many of the same themes today that were employed during the crack era, like harping on the selfishness of drug-addicted women, instead of referring to addiction as a disease. “The worst of the worst,” is how one Tennessee state rep recently described the addicts she wants to prosecute. If “someone is addicted and they can’t get off for their own child, their own flesh and blood, it’s sad,” a Tennessee sheriff remarked. And while the racial disparities of prosecutions have lessened somewhat since the crack era, NAPW’s executive director Lynn Paltrow told me it is consistently the poorest and most vulnerable women who are targeted. Paltrow also says the states making the most arrests are also the ones making it most difficult for poor pregnant women to get both prenatal care and drug treatment by doing things like turning down Medicaid expansion. (Presumably, conservative state legislators want expectant addicts to simply yank themselves up by their own bootstraps, if they can see over their bellies.)

In some cases, weirdly enough, treatment itself has been used as a kind of punishment. Last year, in a case chronicled by the American Prospect, an Ohio woman addicted to painkillers discovered she was pregnant and underwent treatment, at the urging of her doctor, with a drug called buprenorphine. From a health perspective, that’s the right thing to do—quitting cold turkey could have caused her to have a miscarriage. Yet, because of the state’s damned-whatever-you-do approach to pregnant substance abusers, after the woman’s son was born with buprenorphine in his system, Child Protective Services took her to court for civil child abuse and neglect. (The case was dropped after she contacted NAPW, which is at once reassuring and worrying, the latter for all the women who don’t have the time or know-how to challenge the system.) And in Wisconsin last year, after a pregnant woman named Alicia Beltran told her medical provider that she’d recently kicked a Percocet addiction, and despite a urine test backing up her story, she was taken before a family court commissioner in shackles. Even though her fetus was assigned a legal guardian, Beltran was not given a lawyer, and she was told she’d be sent to jail if she didn’t enter an in-patient treatment program and complete another course of Suboxone, the anti-addiction drug she’d already used to wean herself off her addiction. In other words, she was ordered to undergo treatment twice. The difference was that the first time Beltran had used Suboxone, she’d had to obtain it from a friend because she couldn’t afford the prescription. The elusively high cost of treatment, the senselessness of forcing a clean person back onto a prescription opioid—Beltran’s story sounds like a dystopian satire. The 78 days she spent in an in-patient facility cost her her job.

Linda Fentiman, a professor at Pace University School of Law, says since the late ’90s, prosecutors have upped the ante by bringing tougher charges like murder instead of the lesser charges (like child abuse) favored during the previous decade. Even if the case is weak, relying on bad science, or might eventually be reversed on appeal, a woman could spend a long time in jail before she even goes to trial. She might lose her kids. Some women plead guilty because they’re not in a position to do anything else.

Legislators and prosecutors like to talk about sending pregnant drug abusers “a message,” but you have to wonder what exactly the message is, if threat of punishment does little to help women gripped by addiction. As Kylee Sunderlin, an attorney at NAPW, points out, “I haven’t seen a single piece of legislation that is about increasing access to treatment.” And treatment is, of course, exactly what a drug-addicted pregnant woman needs, whether she was hooked on crack in the ’80s or on painkillers today.