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Feature: Arkansas Law Punishing Mothers Whose Newborns Test Positive for Drugs Accomplishes Little, Study Finds

Submitted by Phillip Smith on (Issue #472)
Politics & Advocacy

As legislators at statehouses across the country ponder laws that criminalize or civilly punish drug use by pregnant women, researchers in Arkansas have evaluated the working of a similar law there -- and found it wanting. Meanwhile, bills are pending in at least five states -- Idaho, South Carolina, South Dakota, Virginia, and Wyoming -- that would do the same thing. Proponents of such laws portray them as aimed at "saving the children," but critics argue such laws do little for children and are really aimed at controlling drug use by punishing young, poor, and minority women.

In 2005, Arkansas legislators passed a bill popularly known as Garrett's Law, after a baby supposedly born with methamphetamine in his system. [Editor's Note: Be wary of any law named after a victim; they seem to pass easily in a rush of emotion with science and reason brushed aside.] Under Garrett's Law, the mothers of newborn infants who test positive for illegal drugs are presumed to be guilty of parental neglect under the state's civil code, and medical personnel can report them to police and child protective service workers.

Last fall, at the request of policy analysts studying the law, the Arkansas Department of Health and Human Services, Division of Children and Family Services commissioned a report on how the law had been implemented and what its impact had been. Among that report's key findings:

  • There were 412 referrals under Garrett's Law in the 12-month period examined. With some 38,405 births recorded during that period, Garrett's Law referrals amounted to a rate of 10.7 per every thousand births.
  • Marijuana was by far the most commonly found drug, mentioned in just over half of all cases, while amphetamines and cocaine were found in about 25% of cases and heroin, barbiturates, or prescription drugs were found in about 7% of cases.
  • In two-thirds of cases, "no health problems" were reported in the infants. On the other extreme, eight infants died, but there is no evidence that the mother's drug use was the cause of death. Marijuana was most likely to be associated with no health problems, while health problems were more likely to be associated with stimulant use by the mother. Instances of death appear to be most commonly associated with barbiturate use.
  • A finding of child neglect was found to be "substantiated" in two-thirds of all cases referred and a Protective Services case was formally opened in 62% of all cases.
  • Slightly less than one-fourth (23%) of children involved with referrals were removed from the family home. The drug most associated with removal of children was cocaine, followed closely by amphetamines.
  • Only 5% of children removed from parents received any medical treatment related to the alleged maltreatment, although the report says it does not have complete numbers.
  • Either 6.6% or 20% of mothers reported received drug treatment. Again, the report complains of sloppy reporting and does not resolve the different figures.
  • Some 64% of mothers reported received some sort of "service," but in most cases that "service" was only drug testing.

"This report basically says there is nothing in the data that supports the notion these kids have health problems," said Lynn Paltrow, executive director of National Advocates for Pregnant Women. "This law is not about children's health, but has everything to do with controlling drug use in certain populations. They say people who use drugs are bad parents, but I say show me some evidence-based research that documents the extent to which drug use and parenting ability are truly associated," she said. "You have 72 million people admitting to having used marijuana -- are they all bad parents?" Paltrow continued.

While some analysts supported the law because of the broad goals of protecting the health and welfare of infants and their mothers it is supposed to advance, even they had serious concerns about its impact. "While it is critically important that women who are pregnant and giving birth and have an illegal drug in their system need to be looked at closely -- it is an indicator that something is going on -- there are several problems with Garrett's Law," said Paul Kelly, senior policy analyst for Arkansas Advocates for Children and Families, who sits on the Garrett's Law advisory group. "One thing we have found is that there are a lot of women who are not being tested. That means we are relying on the judgment of the attending physician to decide who is and is not being tested."

Kelly raises an interesting question about who is being subjected to the law. The report on the law's working does not provide a race and class breakdown of who is being reported, although that information is presumably readily available. The report does provide a breakdown by age, and not surprisingly, most of the women reported under the law were in their twenties.

"Another problem with the law is that in many cases, the finding of substance use is the sole cause of the finding of mistreatment," Kelly continued. "They may have other children who are doing well, are well-cared for, doing well in school, yet they may be taken from their mother because of substance use without any consideration of other factors involved."

The report's low figures on treatment for women in the report -- either 6.6% or 20%--also raise concerns. "There is a terrible lack of treatment available to these women," said Kelly. "We take their children away from them, yet we are not providing appropriate treatment. Are we here to help or punish? This law has had some consequences that need to be corrected."

An effort to do just that is just getting under way early in the legislative season. "We're in the middle of trying to revise Garrett's Law to make it a little less punitive and more family-friendly," said Cynthia Crone, executive director of the Arkansas Center for Addictions Research, Education and Services (Arkansas CARES), which, among other things, runs the state's largest treatment program specifically aimed at mothers suffering from substance abuse.

Advocates are in the final stages of drafting reform language and now have a sponsor in the statehouse, Kelly said. "There are several things we are looking at. We don't want the fact that an illegal substance was found in the child's body at birth to be the sole determinant of whether there is child abuse going on," he said. "If the only finding is that these women have drugs in their system, they should not be placed on the child abuse registry, but given the opportunity to seek treatment. We don't want to ruin their ability to care for their children and have gainful employment because of making foolish mistakes."

"This report doesn't find a strong association between any kind of prenatal exposure to drug use and health problems in the infant," said Paltrow. "For legislators to focus on maternal drug use as the primary threat to children's health when there are eight million children without health insurance is absurd. If we focus on things like this, it distracts our attention from much larger issues, like the 46 million uninsured, the lack of treatment, no paid maternity leave, those fundamental problems. They say it's about the kids, but the result is not more funding or treatment; instead, we're out arresting mothers."

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

I'm pregnant right now with my second child. I smoked weed with my first daughter and I smoke weed now. My two year old is already at a 3 year old level of thinking, potty trained, and she is beautiful and healthy. The government wants to control weed so bad that they'll say anything. There is no research any where that links marajuana directly to any health problems in people or un-born babies. Maybe if instead of trying not to look bad, the goverment would stop and take a look, they would realize that alcohol is more physically damaging than weed. And honestly, the goverment would probably prosper a little more if they legalized it.

Mon, 07/27/2009 - 3:00pm Permalink
Anonymous (not verified)

My sister in law just gave birth to a beutiful girl and she is very healty. We she did not know she was preganant until she went into labor(she had her period the entire time and has had a negative test 2 times in the last 6 months. Her daughter has tested postive for meth and the mother tested negative. She had a sinus infection the last couple of weeks and she was taking Claritan D. Well the state took her baby and her other 2 daughters away. I would like to know if there is some way we can help her fight this. Thanks for any advice.

Wed, 07/29/2009 - 12:15pm Permalink
Anonymous (not verified)

I didn't know i was pregnant til i was half way into my 6th month ( still got my period and had only gained about 5 pounds ). I am 28 yrs old, and suffer from insomnia. I didn't like the way sleep aids made me feel and the side effects are insane. I choose to self medicate by taking a few hits of weed before bed, and I have found this to be very effective. My employer does not offer health benefits so i was uninsured when i found out i was pregnant, because pregnancy is viewed as a pre-exisiting condition i was unable to obtain private health insurance and was forced to go on medicaid just to be seen by a doctor ( I won't even begin to get into that issue ). The problem is that because of my marijuana use i now fear that my baby will be taken away from me. I live in South Eastern Pennsylvania and can't find any information on forced drug testing on mother or baby or the legal ramifications of testing positive. Both of us will pass a pee test since i am no longer using, but if they test the baby's first bowel movement it will show positive. I have learned that if you ask your doc they will automatically test because of reasonable suspicion so i don't know what to do. Someone with some knowledge on the subject please HELP!!!!!!!!!

Thu, 09/10/2009 - 4:10pm Permalink
Tired of it... (not verified)

My sister -in- law is a crack whore.... she doesn't have nor see or speak to her two beautiful children she already has.... and is pregnant with another! I have racked my brains trying to figure out what to she doesn't cause anymore damage.. ( my husband and I would like to adopt the baby..) Nobody in this backwoods state will help... till the baby is born... So how does this make sense, she is actively using METH.. smoking pot and allegidly shooting meth or whatever she can get her hands on! I have called everyone I can think of and nobody seems to help! I feel like I am going crazy! How can she do more damage and its okay until the birth...? So another question.. you are not allowed to have an abortion past a certain time because the fetus then is considered a "life", but you can do whatever drugs you want while pregnant because a fetus is not "a life" WTF! If anyone can offer any advice please let me know I am at a brick wall, she has about two months left... trying to keep it from being too messed up! HELP!

Wed, 06/09/2010 - 3:51pm Permalink
katco (not verified)

In reply to by Tired of it... (not verified)

I have just experienced a family member's newborn baby being taken from her under "Garrett's Law."

When she was 12 weeks pregnant she had some bleeding went to the local ER and tested positive for meth.

This was documented and a social worker from the hospital was assigned to the case.  She continued to use drugs and to test positive when going to the clinic for her pre-natal check-ups.   Her chart was RED flagged and she was listed as HIGH RISK!  No help was offered, she went to the hospital in labor and tested positive for Methadone, and the baby was born addicted to methadone.

The social worker from February shows up and states I remember you, but stated she couldn't find a rehab

that would take an addicted pregnant woman.  So the baby was taken and placed in Foster Care, the mother walked free and was using again within 24 hours while this innocent child went through withdrawl.  What's wrong with the system, this women endangered the welfare of a child and no telling what long term problems he will have from the drug use.  Taking the child after the fact is not fixing anything--just creating more children born with behavioral problems, learning disabilities, etc.  Being place in Foster Homes for the state to support for the rest of their lives.

Smoke your dope, pop your pills while you have a baby growing inside you, but don't leave your dog in the

car at WalMart or you will go to JAIL....Wake up, this is a serious problem!  What can we do?




Wed, 08/24/2011 - 12:49am Permalink
Anonymous 12 (not verified)

I have been an "in the closet" marijuana smoker for 10 years now. I had my first daughter in 2008. I smoked throughout the entire pregnancy. I have been clinically diagnosed with ADHD and Insomnia since age 12. It is horrible that I cannot afford my prescription medication but I can buy a sack of weed. I'm not saying that it's ok to smoke while pregnant but at the same time I need to sleep and concentrate throughout the day. My daughter is fixing to be 4 in March and she is the most intelligent child that I personally have ever met. I have numerous friends that have smoked pot through their pregnancies too. Yet I have yet to see one of their kids or mine have any kind of health issues or mental problems or anything of the sort. I'm not going to argue with women that don't smoke and never have cuz it would be pointless. But I will say this much, in this situation, at least as far as marijuana, I say to each their own.

Thu, 09/29/2011 - 3:40pm Permalink
henry joe (not verified)


BEST INTERESTS ARE  BEING SERVED!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 

Fri, 12/16/2011 - 7:35am Permalink
toshantynlee (not verified)

I am a twenty one year old mom to a six month old baby girl!! And I am actually six months clean as well.. my clean date is my daughters birthday, the day she was born!! And yes I used during my pregnancy, my drug of choice was meth, but I took pills here n there n smoke weed as well throughout my nine months! And by the grace of God my daughter was born healthy and normal, but when she got taken from me four days after she was born, my world came crashing down. The last day I got high or used any mind altering substance was the day before she was born ( which is what put me in labor two weeks early) my life has changed completely, my daughter comes up n spends every weekend with me but in about twenty days she will be home for good, but if it wasn't for the Garretts law and DHS I would of never stopped using drugs. I wanted so badly to stop getting high before my baby was born but the drugs had control over my life!! I am so thankful for someone getting this law going because I'm not only a mom that lost her baby n has rose up n beat the odds of staying clean n getting her daughter back but I'm the baby that got taken from her mom as well due to drug abuse and I am thankful DHS took me from mine so I could be raised right with morals! Anyways I could go on n on about how great this law is I'm living proof that it does save a mom n daughters life!
Thu, 05/09/2013 - 5:53pm Permalink

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