Pregnancy and the Drug War

Suzanne Wills, Drug Policy Chair

December, 2003

In August, 1999, Rogers County, Oklahoma police found Julie Starks in a trailer they had raided as a methamphetamine laboratory. She was seven months pregnant. A local judge ordered the state to take custody of the fetus she was carrying on the grounds that it was a "deprived child." Starks was jailed for 36 days. "It was nasty, just nasty,” she says. “There were 10 people in a cell for six. The bathroom and the sink were out in the open. I didn't get any milk; no prenatal vitamins for two weeks." She suffered weight loss, dehydration, bladder and urinary tract infections and was rushed to the hospital with premature contractions. Her baby boy was born healthy. Two years later the Oklahoma Supreme Court unanimously overturned her conviction.

Regina McKnight was not so fortunate. McKnight, a homeless drug addict with an IQ of 72, was convicted of committing "homicide by child abuse" after hospital workers detected cocaine in her system shortly after she gave birth to a stillborn girl in 1999. In a one-line order issued in October, the US Supreme Court let the decision stand. South Carolina is the only state in the nation with a homicide statute tied to stillbirth, something 26,500 US women experience each year. There was no evidence that Ms. McKnight knew that cocaine might harm her fetus. Lawyers described her as grief-stricken by the stillbirth. They say she suffered from two medical conditions which, independent of cocaine use, could have caused it. The South Carolina Supreme Court opinion stated, "Given the fact that it is public knowledge that usage of cocaine is potentially fatal, we find the fact that McKnight took cocaine knowing she was pregnant was sufficient evidence to submit to the jury on whether she acted with extreme indifference to her child’s life." She will serve 12 years in a South Carolina prison without possibility of parole.

Since 1985 more than 200 US women have been arrested on the grounds that they jeopardized their pregnancy. That number could increase. South Carolina prosecutors intend to use the McKnight decision to prosecute even women who use a legal substance, criminalizing any potentially harmful prenatal activity that precedes a stillbirth or miscarriage – from drinking alcohol or inhaling secondhand smoke to taking prescription medications to working in an unsafe environment. Doctors and nurses are being encouraged to notify state authorities if they suspect that their pregnant patients have engaged in any activity that, according to the McKnight standard, is “publicly known” to harm fetuses.

Pregnant women who use drugs often react to punitive laws by aborting or by not seeking prenatal care to avoid a charge of "supplying drugs" to the fetus while it is still connected by the umbilical cord.

When thousands of retarded children failed to materialize as a result of crack cocaine use in the early 1980s, pediatric experts reassessed the risk. Most now consider lack of pre-natal care to be the most serious risk to infants. Ira Chasnoff, the Chicago doctor whose 1985 article in the New England Journal of Medicine started the crack-baby panic, now cautions that crack is only a small part of the problem for small, undernourished, and sickly babies. Today he says the worst thing that can happen to a fetus is "poverty."