When Chelsea Becker was eight-and-a-half months pregnant, she delivered a stillborn baby. An autopsy found high levels of methamphetamine in its system, and Becker, then twenty-five, was subsequently charged with first-degree murder. Bail was initially set at $5 million, then lowered to an equally out-of-reach $2 million. As a result, Becker has been in pre-trial detention at the King County Jail in Hanford, California, since November 2019.
“Prosecuting someone like Chelsea Becker doesn’t bring her fetus back or help her grieve her loss. Unfortunately, miscarriages and stillbirths are not uncommon; quite simply, ‘fetal protection’ laws are terrible public policy.”
Becker is not an anomaly. In fact, over the past five decades, hundreds of people—71 percent of them low-income, and 59 percent people of color—have been locked up, sometimes in mental hospitals and sometimes in prison or mandatory treatment programs, for drug or alcohol use during pregnancy.
“We know this is an undercount,” Paltrow tells The Progressive. “We are currently updating the survey, but we already know that law enforcement has ramped up since 2005. From that year to today, there have been at least 800 arrests, twice as many in half as much time as we found in our earlier research.”
Paltrow says this uptick reflects a prosecutorial shift. “In the 1970s, 1980s, and early 1990s, law enforcement tended to focus on pregnancies after viability—but there is now talk about controlling, detaining, and arresting pregnant people from the moment of conception,” she says. This is due, at least in part, to the 1992 Supreme Court decision in Planned Parenthood v. Casey, which emphasized the state’s interest in protecting fetal life. The decision further allowed states to restrict abortion as long as the qualifiers did not cause an ill-defined “undue burden” on either the provider or patient.
The upshot has been the enactment of a slew of “fetal protection” laws throughout the country. Vox reports that, as of August 2020, thirty-seven states had passed statutes that have been used to criminalize pregnant people who use drugs or alcohol or engage in behaviors that put the health of a fetus “in danger.”
Alabama’s Chemical Endangerment of a Child law is one example. The ordinance makes it a felony to “knowingly, recklessly, or intentionally cause or permit a child to be exposed to, or ingest, or inhale, or have contact with a controlled substance or drug paraphernalia,” including glass pipes and bongs.
What’s more, eighteen states regard drug use during pregnancy as child abuse, and several, including Minnesota, South Dakota, and Wisconsin, consider maternal drug use to be grounds for civil or involuntary commitment in a drug program prior to giving birth.
Predictably, these policies have curried favor with law-and-order advocates and those supporting the war on drugs. But groups like the American Medical Association (AMA), the American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, the American Society of Addiction Medicine, Amnesty International, and the March of Dimes have been outspoken in their opposition to the measures.
A survey of drug treatment programs conducted in 2018 found that only 23 percent were specifically geared toward serving folks who are pregnant or parenting.
“Transplacental drug transfer should not be subject to criminal sanction or civil liability,” the AMA has written. Punitive laws, it argues, lead people to avoid prenatal care, or worse, give birth without trained medical personnel on hand.
“There is a growing consensus that drug use should be treated as a public-health issue, not a criminal issue,” longtime prison abolition activist Victoria Law, co-author of Prison By Any Other Name, says. “Prosecuting someone like Chelsea Becker doesn’t bring her fetus back or help her grieve her loss. Unfortunately, miscarriages and stillbirths are not uncommon; quite simply, ‘fetal protection’ laws are terrible public policy.”
Law is also critical of both mandatory drug treatment and preemptive lockup to keep someone from using. Her first concern, she says, involves prison conditions.
“Pregnant people who are locked up get awful medical care which can lead to stillbirths, low-birth-weight babies, miscarriages, and other bad birth outcomes and the prison system is never held to account for any of this,” Law says. “The medical neglect of pregnant prisoners, coupled with bad prison food, is an outrage. And forcing someone into treatment that they don’t want or are not yet ready for, never works.”
Moreover, a survey of drug treatment programs conducted in 2018 found that only 23 percent were specifically geared toward serving folks who are pregnant or parenting.
Paltrow of National Advocates for Pregnant Women agrees with Law. “Just as some inroads are being made to end the war on drugs, the arrest of pregnant women is providing the fuel for continuing, or perhaps even expanding, it,” she says. “While legislators cite lots of ‘fetal protection’ laws, the fact is that no state legislature—with the exception of Tennessee, which passed a ‘fetal assault’ law that was in effect from 2014 to 2016—has passed legislation that authorizes arrests as a way to address pregnancy and drug use.”
This, of course, does nothing to help Chelsea Becker as she languishes in prison.
“The district attorney prosecuting Becker clearly believes that it is wrong to treat drug use as a matter of public health. He sees it as a moral issue that should be handled through arrest,” Paltrow says. “Just as some people are denying the science around COVID-19, many prosecutors and supporters of the drug war are denying the science around pregnancy, refusing to acknowledge that poverty, racism, and lack of equal access to high-quality medical care have more to do with healthy pregnancy outcomes than drug use.”