An American state is threatening to jail women who drink while pregnant

With an obesity rate well below the national average, superior levels of physical activity and some of the cleanest air in the country, the state of Montana, located in the America's northeastern corner, is generally considered to be a pretty healthy one. However, when it comes to drug and alcohol consumption, there's a different story to be told; the state ranks within the bottom 10 nationally in terms of excessive alcohol usage, and after a steady period of declining drug use, the past few years have seen a huge increase in the prevalence of addiction to illegal drugs, particularly meth and opioids.

Despite repeated warnings about the dangers of drug and alcohol use in pregnancy, it seems that Montanan mums-to-be are not immune from this trend. While data from the United Health Foundation shows that rates of alcohol use during pregnancy in Montana are more or less in line with the national average of 10 per cent, the incidences of babies born addicted to opiate-based drugs have risen at twice the national rate. Now in an effort to curb the trend, one county is seeking an “immediate crackdown” on women who use drugs or alcohol during pregnancy, even threatening to jail those who do.

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Gerald Harris, the attorney for Big Horn County, claimed in January 2018 that the state “will seek an order of protection restraining a pregnant female from any non-medically prescribed use” and that if this restraining order is violated, jail time could follow. As well as urging prosecutors across the country to follow his lead, he also called on individuals to report women who drink and take drugs during pregnancy to the police, and for pregnant women already struggling with substance issues to turn themselves in. Women who choose to have an abortion rather than refraining from drugs or alcohol, should also be prosecuted, he said, as they do not have "the full mental capacity to exercise the ‘right to abortion.'"  

In many ways, these concerns are understandable. Babies born with neonatal abstinence syndrome may experience gastro-intestinal illnesses, disturbed sleep patterns and seizures, and there is strong evidence that drinking alcohol during pregnancy may lead to what is known as foetal alcohol syndrome (FAS). This condition can cause physical and mental impairments in the baby including slow growth, a head that is smaller than usual, learning difficulties and behavioural problems. According to current guidelines set by the CDC, America’s health protection agency, expectant mothers should avoid all alcohol for the duration of their pregnancy, stating that: “There is also no safe time during pregnancy to drink". It also suggests, perhaps idealistically, that: “Women also should not drink alcohol if they are sexually active and do not use effective contraception” in case they drink while pregnant unknowingly.

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But is taking such a harsh line even legal? Well, it seems everyone is a little unsure. Despite the CDC advice, drinking alcohol during pregnancy is not a crime in any US state, and while drug abuse during pregnancy is currently classed as child abuse in almost half of US states, Montana is not one of them. Tennessee is the only state where the act itself is actually a crime. Montanan law defines a foetus as existing from eight weeks of pregnancy until birth, and while the Unborn Victims of Violence Act of 2004 recognises a foetus as a legal victim if injured or killed through a violent crime, drug or alcohol abuse is not covered by this.

However, Harris is calling on article II, section three of the Montanan Constitution, which guarantees “defending their lives and liberties” of all people and “seeking their safety, health and happiness in all lawful ways.” The damage caused by prenatal foetal drug and alcohol abuse, he argues, is in contradiction to this. At present, Montana Department of Justice attorneys have refused to comment on the grounds that they are unsure where this ruling stands legally.

Unsurprisingly, Big Horn County’s stance has received sharp criticism from a number of camps, including Planned Parenthood Montana and the American Civil Liberties Union, who have promised to legally challenge the move on the basis that: “Policies such as Harris’s have no positive impact on the health and wellbeing of pregnant women. These cruel policies will foster a climate of anxiety and mistrust between doctors and patients and will drive women away from the health care and treatment they need.”

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The approach also goes against the advice of the American Academy of Paediatrics’ Committee on Substance Use and Prevention, who in 2017 published an advisory warning that when women abruptly stop using substances there is "an increased rate of fetal demise, early onset of labor, and poor pregnancy outcomes for the mother as well”, going on to argue that putting funding into a public health response to the use of drugs and alcohol during pregnancy would be more effective than a penal one: “If we’re a country that is so interested in a welfare of our children, then we really need to put our money where our mouth is.”

But despite the criticism, Harris is unapologetic: “I regret not taking a more proactive approach until recently,” he told Undark magazine. “You’ve got a potential generation of young folks that are going to have disability because of the prevalence of meth addiction, alcoholism, and other types of drug addiction. I don’t think it’s worth the risk.”

It's almost without debate that Montana, and America more widely, does need to do something to combat the increasing number of babies born with foetal alcohol and neonatal abstinence syndromes. Right now, there's a whole generation of children that aren't getting the best start in life because of addiction. But whatever the correct approach to reducing the use of alcohol and drugs during pregnancy is, it is clear that Big Horn County’s is a controversial one, which pretty clearly misses the point that addiction isn't a choice.