NAPW Testifies Against Two Wyoming Bills Criminalizing Pregnancy and Substance Use

NAPW has submitted written testimony opposing two bills in Wyoming, both of which would criminalize substance abuse during pregnancy. Read more for details on each bill and the reasons behind our opposition.

Download PDF version of testimony opposing HB0085.

Download PDF version of testimony opposing SF0089.

Testimony in Opposition to HB0085, "Child endangering-controlled substance use while pregnant"

Thank you for the opportunity to submit this testimony to the Senate Judiciary Committee of the Wyoming Senate. National Advocates for Pregnant Women (NAPW) respectfully submits this written testimony in opposition to HB0085. We are a non-partisan advocacy organization dedicated to the health and welfare of pregnant people and their families. Our testimony draws on over 20 years of experience studying and addressing state responses to such issues as pregnancy and drug use. While this law, if passed, would raise a host of constitutional issues and would undoubtedly be subjected to numerous legal challenges, our most important objection is based on the fact that responding to the health issues of pregnancy and drug use through new criminal legislation will be bad for babies.

HB0085 would create a new crime of felony child endangerment, specifically authorizing the arrest and prosecution of a person, who, while pregnant, “knowingly consumes methamphetamine or a controlled substance classified in Schedule I or II that is a narcotic drug, as defined in W.S.35-7-1002(a).” Every leading medical group to address this issue has opposed laws that create criminal penalties for being pregnant and using a controlled substance. This list includes the American Academy of Pediatrics, which first opposed such punitive criminal measures in 1990 and reaffirmed its position in 1995 and 2017, concluding “that ‘punitive measures taken toward pregnant women, such as criminal prosecution and incarceration, have no proven benefits for infant health.’” [1] Over a dozen medical organizations unanimously agree that laws such as HB0085 endanger the lives and health of mothers and children. [2] As the American College of Obstetricians and Gynecologists explains, “criminalization of pregnant people for actions allegedly aimed at harming their fetus poses serious threats to people’s health and the health system itself…Criminalization makes people less safe and harms the confidential patient–practitioner relationship by creating uncertainty as to whether law enforcement will become involved.” [3]

Indeed, experience in Tennessee, after it became the only state in the nation to pass a similar “fetal assault” law, showed that it was so clearly counterproductive to the health of babies that the state allowed the law to sunset after a mere two years. The law has now been studied, and empirical evidence shows that Tennessee’s law deterred pregnant women from accessing prenatal care and appropriate drug treatment and resulted in an increase in fetal and infant death. [4] For example, in 2015 alone, the year after the law went into effect, the law resulted in twenty more fetal deaths and sixty more infant deaths than would have otherwise occurred. [5]

The penalties under HB0085 create the impression that prosecutions and convictions will result, at least in the first instance, in a state-supervised addiction severity assessment and an American Society of Addiction Medicine (ASAM) placement evaluation followed by appropriate treatment. First, it is important to note that ASAM has consistently opposed the use of criminal law to respond to the issue of pregnancy and drug use, beginning with this statement: “Criminal prosecution of chemically dependent women will have the overall result of deterring such women from seeking both prenatal care and chemical dependency treatment, thereby increasing, rather than preventing, harm to children and to society as a whole.” [6]Second, the Tennessee fetal assault law was similarly passed based on the illusion that arresting and prosecuting women because they were pregnant and used certain substances would somehow facilitate care. What actually happened was that the majority of women brought into the criminal system were neither offered nor received care. Instead, they were subject to incarceration, bail they could not raise, fines they could not pay, probation conditions they could not meet, and the ever-present threat of more punishment. [7] It denied pregnant patients the confidentiality in the health care they needed and typically resulted in family separation, and family dissolution.

The negative impacts on fetal and infant health show that laws, such as HB0085, which criminalize becoming pregnant and using certain drugs, actively run counter to the state’s interest in protecting infant and fetal health. [8] This law will cause no less harm because it includes the pretext that women will be provided with treatment. Arrest and prosecution in order to force women into treatment has never been proven to improve the health of women and babies. If Wyoming were to pass this law, it would stand alone in the country as the only state to take this grievous step, which has now been proven to increase fetal and infant death, and will funnel women into the criminal legal system, far from their healthcare providers, their community, and their families.

Footnotes:

1. American Academy of Pediatrics, Committee on Substance Use and Prevention, Policy Statement, A Public Health Response to Opioid Use in Pregnancy (2017).
2. National Advocates for Pregnant Women, Medical and Public Health Group Statements Opposing Prosecution and Punishment of Pregnant Women (June 1, 2021), bit.ly/medicalgroupsstatements
3. American College of Obstetricians and Gynecologists, Statement of Policy: Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period (2020).
4. Boone & McMichael, State-Created Fetal Harm, 109 GEO. L.J. 475, 501 (2021).
5. Id.
6. American Society of Addiction Medicine, Public Policy Statement on Chemically Dependent Women and Pregnancy (1989).
7. Wendy Bach, Prosecuting Poverty, Criminalizing Care, 60 WILL. AND MARY L. REV., 809 (2019).
8. Boone & McMichael supra n. 4.

Testimony in Opposition to SF0089

National Advocates for Pregnant Women (NAPW) respectfully submit this written testimony in opposition to SF0089. We are a non-partisan legal advocacy organization dedicated to the welfare of pregnant people and their families. Our testimony draws on over 20 years of experience on cases in which state actors intervened in a pregnant woman’s medical decision making and/or criminalized or penalized a pregnant woman on the basis of, or for the outcome of, her pregnancy.

SF0089 would explicitly criminalize pregnant women who use drugs during their pregnancy. Currently, no other state has such a dangerous law on its books. One state, Tennessee, enacted such a law for a two-year period. The impact of that law, which similarly criminalized pregnancy and drug use, has now been studied, and empirical evidence shows that Tennessee's fetal assault law resulted in an increase in fetal and infant death, because the law undermined the ability of mothers to access prenatal care, worsened birth outcomes, and increased both fetal and infant death rates. [1] For example, in 2015 alone, the year after the law went into effect, the law resulted in twenty more fetal deaths and sixty more infant deaths than would have otherwise occurred. [2]

The negative impacts on fetal and infant health show that laws, like SF0089, which seek to criminalize drug use and pregnancy, actively run counter to the state’s interest in protecting infant and fetal health. [3] If Wyoming were to pass this law, it would stand alone in the country as the only state to take this grievous step, which has now been proven to increase fetal and infant death, and will make it harder for women to seek the care they need.

This is exactly why every major medical and public group in the country universally and resoundingly opposes the use of criminal laws to address pregnancy and drug use as counter to the best interests of pregnant women and their babies. For over 30 years, the American Medical Association has opposed criminalizing pregnancy because “[p]regnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician's knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.” [4] The American Medical Association reaffirmed its position in 2020, stating that it “oppose[s] legislation which criminalizes maternal drug addiction or requires physicians to function as agents of law enforcement – gathering evidence for prosecution rather than provider of treatment.” [5] Similarly, the American College of Obstetricians and Gynecologists opposes any policies or practices that seek to criminalize individuals for conduct alleged to be harmful to their pregnancy, because the “criminalization of pregnant people for actions allegedly aimed at harming their fetus poses serious threats to people’s health and the health system itself…Criminalization makes people less safe and harms the confidential patient–practitioner relationship by creating uncertainty as to whether law enforcement will become involved.” [6] Over a dozen groups unanimously agree, including the American Academy of Pediatrics, which first opposed such measures in 1990 and reaffirmed its position in 1995 and 2017: “that ‘punitive measures taken toward pregnant women, such as criminal prosecution and incarceration, have no proven benefits for infant health.’” [7]

Medical and public health professionals unequivocally denounce efforts like this one because it endangers mothers and their future children by undermining trust between women and their medical providers, deterring women from seeking prenatal care, and funneling women into the criminal legal system, far from their healthcare providers, their community, and their families.

Footnotes:
1. Boone & McMichael, State-Created Fetal Harm, 109 GEO. L.J. 475, 501 (2021).
2. Id.
3. Id.
4. Report of American Medical Association Board of Trustees, Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women, JAMA Vol. 264, No. 20 p.2667 (1990).
5. American Medical Association, Policy Statement H 420.970, Treatment Versus Criminalization – Physician Role in Drug Addiction During Pregnancy (last modified 2020).
6. American College of Obstetricians and Gynecologists, Statement of Policy: Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period (2020).
7. American Academy of Pediatrics, Committee on Substance Use and Prevention, Policy Statement, A Public Health Response to Opioid Use in Pregnancy (2017).