Last month, a Montana prosecutor made a major move to criminalize pregnant women. Big Horn County Attorney Gerald “Jay” Harris announced he would issue civil restraining orders against pregnant women who use drugs or alcohol. Under these court orders, pregnant women can be monitored for such conduct by law enforcement. If they are found in violation of the orders, they can be sentenced to jail time.
“In the event there are provable violations of any such protective court orders, the State will further prosecute on a contempt basis and seek incarceration in order to incapacitate the drug or alcohol-addicted expecting mother,” Harris stated in a January 11 press release.
Harris also called on the public to be his eyes and ears. “In furtherance of this crackdown policy, the County Attorney’s Office is asking the public to report any known instances of pregnant females using drugs or alcohol to the Big Horn County Sheriff’s Office,” the press release stated. “Reporters must be willing to testify in court.” He also asked pregnant women with addictions to report themselves to the Department of Health and Public Services and voluntarily enroll in substance abuse monitoring. In Montana, health care workers are also required to report suspicion of drug use by pregnant women.
But critics say his plan is likely to backfire. “I think this whole idea of policing pregnancy that Jay Harris is encouraging is very counterproductive and dangerous,” said Caitlin Borgmann, director of ACLU Montana, “if what we’re wanting to do is help these women have healthy pregnancies.”
Harris is not the the first Montana county attorney to attempt to protect fetal rights. In 2014, a prosecutor in Ravalli County tried to charge a woman with criminal endangerment based on her drug use during pregnancy. The charges ended up being dismissed by the judge, who noted that a fetus is not protected from criminal endangerment under state law. That may be why Harris chose to utilize civil instead of criminal charges against women; he likely assumes he won’t run afoul of a Montana law that prohibits the type of “fetal assault” charges used in other states.
In response to Harris’s announcement, groups like ACLU Montana and the Coalition against Domestic Violence and Sexual Violence signed a letter calling the prosecutor’s move “counterproductive, paternalistic, and cruel … [as well as] illegal” and condemned the crackdown for building barriers to substance abuse treatment.
ACLU Montana and several other organizations also said they will sue Harris, arguing that his move to punish pregnant women would violate the dignity and due process statutes as well as the equal protection statutes of Montana’s constitution. It would also violate Montana’s Human Rights Act, they say, which prohibits discrimination based on sex and pregnancy status.
Laws designed to punish pregnant drug users can be found across the country. According to the Guttmacher Institute, “24 states and the District of Columbia consider substance use during pregnancy to be child abuse under civil child-welfare statutes, and three [Wisconsin, South Dakota, and Minnesota] consider it grounds for civil commitment.”
According to an Amnesty International report released last year, fetal assault laws enacted in 2014 in Tennessee and 2006 in Alabama disproportionately affected rural women and Black women. Arrests in Shelby County, Tennessee, a Black-majority county, comprised a quarter of all arrests under the fetal assault law in that state, despite Shelby County having one of the lowest rates of babies born exposed to opioids. In interviews Amnesty conducted with women charged under fetal assault laws in Tennessee and Alabama, low-income women told the organization they avoided obstetrical care because they were worried they might get drug tested. Furthermore, Amnesty reported high arrest rates in areas like East Tennessee where access to treatment centers and medical options for addiction are scarce.
The ACLU’s Borgmann says that DA Harris’s plan to pursue civil charges against pregnant women will similarly target minority communities and low-income residents generally.
“Attorney Jay Harris reached out specifically to the Crow and Northern Cheyenne reservation to ask them to help him implement this policy,” Borgmann told In Justice Today by phone. “So I think we do have to be concerned that this will disproportionately be targeting Native women in Montana.
“Low-income women tend to have more interactions with the government,” Borgmann continued. “For housing, for medical care, for other kids of social services — so their drug use is more likely to be caught. It doesn’t mean that they’re necessarily doing higher rates [of drug use], but it’s because of … their increased interactions with the government that they tend to be disproportionately targeted.”
Worse, in Montana there are few options for pregnant women with addictions. According to the Missoulian, only 7 percent of the state’s treatment centers have programs specifically for pregnant women or women who just gave birth. Addiction treatment providers say that after getting their Medicaid reimbursement funding cut in 2017, it’s difficult to meet the needs of addicted people in the state, especially pregnant women. And Big Horn County doesn’t have a residential treatment program specifically for pregnant women; the county offers only outpatient services for them, according to Lenette Kosovich-Edgerton, CEO of Rimrock, the largest treatment center in Montana.
In order to receive residential treatment services, a pregnant woman from mostly rural Big Horn County, population 13,343, would have to go to the largest city in the state: Billings, Montana, which is about 50 miles away. She would then likely be placed on a waiting list before she could be admitted into the center.
Borgmann of the Montana ACLU fears that Harris’s plan to crack down on pregnant women in a state where there is already a lack of treatment centers would likely lead to low-income women and rural women avoiding necessary health care services.
Both she and Kosovich-Edgerton say the best way to help pregnant women with substance abuse problems is not to criminalize them, but to provide more accessible and affordable treatment centers that are designed to treat them, and to encourage such women to seek treatment via education and public awareness campaigns. “It would basically be the opposite of what [Harris] is suggesting,” Borgmann said.