Saturday, February 24, 2018

Alcohol bottles line the shelves at a liquor store. Under a recent policy by Big Horn County Attorney Gerald “Jay” Harris, pregnant mothers who use non-prescribed drugs or alcohol may be liable for monitoring by law enforcement or incarceration.

‘The most vulnerable of our society’

County attorney calls for ‘immediate crackdown’ on drug, alcohol abuse by pregnant mothers
In a move considered “unique” by the Montana Department of Justice, Big Horn County Attorney Gerald “Jay” Harris has called for an “immediate crackdown” on pregnant mothers who abuse drugs or alcohol. With his approach, Harris wrote last Thursday, the State of Montana “will seek an order of protection restraining a pregnant female from any non-medically prescribed use” of these substances.
In other words, if a pregnant mother is proven to be using alcohol or illicit drugs – “particularly methamphetamine and opioids” – she might be monitored by law enforcement or sent to jail to protect her fetus from chemical harm in the womb. Montana Code defines a fetus as “an organism of the species Homo sapiens from eight weeks of development until complete expulsion or extraction from a woman’s body.”
Harris stated in an email that mothers would not be given “immunity” from this rule, even if their pregnancy were the result of rape or incest.
“In the event an expecting mother chooses to abort an unborn child instead of refraining from drug or alcohol use and litigation extends beyond our local courts,” Harris wrote, “we trust Attorney General Fox will make the right decision on behalf of all Montanans and continue this fight to the extent necessary to ensure justice is afforded to the most vulnerable of our society.”
Montana Department of Justice attorneys were unable to comment on the grounds that they are unsure where this ruling stands legally. A DOJ spokesperson said Harris had not contacted them before his announcement.
“I don’t think this has ever been done before,” the spokesperson said. “I don’t think the legality of this has been settled.”
Harris believes his policy is in accordance with Article II, Section 3 of the Montana Constitution. This document states all people “have certain inalienable rights,” such as “enjoying and defending their lives and liberties” and “seeking their safety, health and happiness in all lawful ways.”
“This policy rests upon a legal concept known as the ‘Natural Law,’” he wrote, “which provides that all human beings are afforded inherent legal rights by virtue of their humanity.”
According to Harris, “unborn children” whose mothers abuse drugs or alcohol are “subject to a potential lifetime of disability and hardship.” Having social workers remove a child from his or her parents’ custody at birth, he continued, “is not timely and has not proven to be a sufficient deterrent.”
“This is something that should have been done yesterday, it should have been done years ago,” Harris said of his new policy. “I am somewhat regretful that it [wasn’t implemented sooner].”
The Unborn Victims of Violence Act of 2004 recognizes an embryo or fetus in utero as a legal victim if injured or killed through a violent crime. Drug or alcohol abuse, however, does not fall under this category in federal law.
In addition, Title 45, Chapter 5, Part 1 of Montana Code states prosecutors may not charge someone for the death of a fetus if it is the result of “a woman with respect to her fetus.” Chapter 5 also specifies that if an abortion is in accordance with Montana law, charges may not be brought against the mother for her fetus’ death.
Ashley Quanbeck, family physician for Bighorn Valley Health Center in Hardin, shares Harris’ concerns, but she disagrees with his approach. As someone who regularly sees the long-term impacts of drug and alcohol abuse by pregnant mothers on their children, she believes “substance abuse is a medical condition to be treated, not punished.”
Her approach is in keeping with a 2011 study by The American College of Obstetricians and Gynecologists, which found that incarceration “with an intent to produce healthy birth” has “proved to be ineffective.” Even legally-mandated drug testing, the report states, can cause a breakdown in the physician-patient relationship.
The American College of Obstetricians and Gynecologists is a nonprofit organization whose membership consists of about 58,000 obstetrician-gynecologists and women’s health care professionals.
“Studies – pretty well across the board – show [incarceration] does not protect the babies from substances and it is detrimental, because it keeps women from coming in for prenatal care,” Quanbeck said, noting that the mothers also contend with a societal stigma. “Women who are using substances, and are afraid they will be thrown in jail or lose their other children…will simply not come for care.
“They know it’s not good for them and they know it’s not good for their babies, but they have an addiction – an illness – that is preventing them from making different decisions.”
Despite their differences, Quanbeck said she would like to take this opportunity to work with Harris and find “a positive way to get the women who have a substance abuse issue in to care.” That way, she said, “we can…educate him on what the science shows and how we can make a positive impact.”
A number of health center personnel already have met about Harris’ announcement, she said, and they intend to have a roundtable meeting “at the end of this week or early next week.”
“What Mr. Harris is trying to get at is well intended: He wants to get people clean, so their babies are safe,” Quanbeck said. “But the way in which he’s doing it is probably not the most informed and if there’s a way – as a medical community – we can come to a better outcome, that’s what we’d like to do.”