The Arizona Senate Judiciary Committee Monday approved a bill that would allow the state to detain pregnant women who use methamphetamine and hold them involuntarily in drug treatment programs. The bill also creates the crime of child abuse against a fetus. With a 4-3 "do pass" vote in the committee, the measure now heads for the Senate floor.

The bill, SB1500, is sponsored by Sen. Pamela Gorman (R-Anthem). In committee, Gorman said she is not normally a proponent of government interference in the private lives of citizens. "But I do think that the state has some very specific roles," she said. "And one of them is to protect people from harm from other people."

Under the bill, if state Child Protective Service workers know or have reasonable grounds to believe a pregnant woman is using meth and is not voluntarily seeking treatment, they must seek a court order requiring her to cooperate in a treatment program. If the woman refuses to cooperate, the bill would allow CPS to ask a judge to have sheriff's deputies pick up the woman and take her to a treatment facility. As the bill itself puts it:

"Allows a CPS worker to petition the court for an emergency custody order directing a sheriff or law enforcement officer to take the expectant mother into custody and transport the expectant mother to an institution or facility specified in the order, if either of the following applies:

a) the expectant mother refuses to comply with an issued order to cooperate.

b) the CPS worker reasonably believes that the expectant mother has previously failed or refused to comply with an appropriate prescribed course of treatment or monitoring and believes that emergency custody is necessary to protect the unborn child."

Such an unprecedented intervention is necessary given the "highly addictive" nature of meth, Gorman said. Even women highly motivated to stay clean could backslide, she warned. "I would propose that a child can't wait for a year for backsliding off good intentions to be released from being forced-fed methamphetamines by the mother," Gorman said.

Meth-using pregnant women had no advocates at the committee hearing. The three committee members who voted against the measure did so not out of concern for the well-being of those women, but out of fear that Gorman's measure could be a stalking horse for cracking down on abortion in the state. The portion of the bill that creates the crime of child abuse against a fetus could be used to halt abortions, they warned.

In a case that pitted hard-nosed legislators and prosecutors against an array of women's rights, public health, medical, and drug reform groups, the New Mexico Supreme Court ruled May 11 that a state law expanding criminal child abuse laws to include drug use by pregnant women was unconstitutional. In a summary opinion, the state high court upheld a state Court of Appeals decision that reached the same conclusion.

The ruling came in the case of Cynthia Martinez, who was charged with felony child abuse in 2003 after her newborn child tested positive for cocaine. Under the law in question, she was charged with "permitting a child under 18 years of age to be placed in a situation that may endanger the child's life or health" by ingesting illicit drugs while pregnant.

While the state argued that a pregnant woman who is addicted to drugs should be sent to jail as a felony child abuser, both the appeals court and the state Supreme Court disagreed. During oral arguments, the justices appeared to be particularly concerned about issues raised in an amicus curiae brief submitted by the Drug Policy Alliance and National Advocates for Pregnant Women on behalf of nearly three dozen other leading medical and public health organizations, physicians, and scientific researchers. The justices repeatedly mentioned the DPA/NAPW brief and expressed grave concerns about the deterrent effect such prosecutions would have on women seeking prenatal care.

Such rulings are critical to avoid criminalizing poor women, said NAPW staff attorney Tiloma Jayasinghe. "Making child abuse laws applicable to pregnant women and fetuses would, by definition, make every woman who is low-income, uninsured, has health problems, and/or is battered who becomes pregnant a felony child abuser," she explained. "In oral argument, the state's attorney conceded that the law could potentially be applied to pregnant women who smoked."

Szczepanski said, "I hope that this case serves as a reminder that pregnant women who are struggling with drug use should be offered prenatal care and drug treatment, not prosecution. There are better ways to protect our children in New Mexico, and ensure that future generations will be safe and healthy."

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."