Co-authored by Farah Diaz-Tello
Why is it, we wonder, that when it comes to decisions regarding women and pregnancy, science is so often ignored? A case going to the New Jersey Supreme Court involving child neglect charges against a woman who allegedly used cocaine while she was pregnant directly raises this question. Disregard for science, however, isn't limited to cases involving pregnant women and the war on drugs.
Consider a few examples. As documented in Jennifer Block's book Pushed: The Painful Truth About Childbirth and Modern Maternity Care and Childbirth Connection's Milbank Report Evidence-Based Maternity Care: What It Is and What It Can Achieve, a surprisingly large number of routine medical interventions used during labor and delivery (including induction of labor, continuous fetal monitoring, and restriction of food and water) have not been shown by evidence-based research to improve maternal or infant outcomes.
In the context of abortion, numerous states are passing laws in which "medical" claims are made without any basis in scientific or clinical evidence. South Dakota, for example, passed a law requiring doctors to follow an "informed consent" protocol that included giving pregnant women scientifically inaccurate information, such as the notion that having an abortion creates an "increased risk of suicide ideation and suicide." Scientific research summarized by the American Psychological Association, however, tells us that it does not.
Even Supreme Court Justice Kennedy doesn't seem to think science matters when it comes to pregnant women. In Gonzales v. Carhart, the Supreme Court upheld, for the first time, a federal law banning women from obtaining a certain kind of abortion procedure, even if that procedure is necessary to preserve the woman's health. One basis for this ruling was Justice Kennedy's suggestion that having such abortions would cause women to suffer emotional harm even though he admitted he could "find no reliable data to measure the phenomenon."
The New Jersey Supreme Court, however, will soon have the opportunity to bring science back into decision-making about pregnant women.
In New Jersey Division of Youth and Family Services (DYFS) v. A.L. a woman, identified by court records as "A.L" gave birth to a healthy baby. A.L. had tested positive for cocaine at the time of delivery, and DYFS argued the positive drug screen alone was enough to prove harm or imminent harm to her baby. The lower courts agreed, finding her guilty of child neglect. This is a breathtaking ruling that would, if upheld, set a precedent establishing that a woman may be judged to have neglected her child before it is even born.
According to fifty medical, public health and child welfare experts and advocates who asked the NJ Supreme court for permission to file an amicus curie (friend of the court) brief in the case, the lower court decisions are based on popular assumptions about drugs, pregnant women, and child welfare that lack any foundation in evidence-based, peer-reviewed research. They noted that DYFS presented no evidence that the child had suffered any actual injury at birth or at any time after birth, and presented no witnesses with expertise regarding the effects of prenatal exposure to cocaine, what drug test results mean, or the association between a pregnant woman's drug use and a likelihood of abuse or neglect of a child once born. Nor did DYFS present or the lower courts consider the vast body of medical and social science research on these questions.
As Lawrence S. Lustberg, Esq. of Gibbons P.C., co-counsel representing amici, explains: "the New Jersey Supreme Court has been a national leader in recognizing that when cases raise scientific, medical, or other technical issues, the evaluation of these issues must be informed by existing scientific knowledge, including expert testimony." The amici hope that this case will not be an exception.
Scientific knowledge makes clear that numerous substances, conditions, and circumstances raise similar or greater risks to fetuses as the prenatal exposure to cocaine. The medical experts who joined the brief noted that they were not suggesting that prenatal exposure to criminalized drugs is benign. They also stressed that current scientific evidence simply does not support judicially re-writing state law to allow for a finding of child abuse based solely on evidence of a woman's use of cocaine during pregnancy.
Significantly, there is no research to support the idea that a positive drug test demonstrates harm, risk of harm, or a likelihood of neglect or abuse. There is research, however, finding that threats of punishment including loss of child custody deter pregnant women from care, undermining rather than advancing maternal, fetal and child health. As Emma S. Ketteringham, Director of Legal Advocacy for National Advocates for Pregnant Women, and co-counsel in the A.L. case said: "pregnant women and children caught up in the child welfare system, a disproportionate number of whom are low-income and of color should not be deprived of their fundamental rights -- including the right to family relationships -- based on junk science, or no science at all."
The United States has a long and unfortunate history of pseudoscientific claims being used to deprive women of their health and rights. Such claims have been used to limit women's working hours, to exclude them from certain professions, to subject some of them to sterilization, and to deprive many women of access to appropriate reproductive health and maternity care as well as appropriate drug treatment.
We hope that the State of New Jersey will help put an end to this chapter of history. Science matters for everyone--including pregnant women.
-- Lynn M. Paltrow, JD, Executive Director and Farah Diaz-Tello, JD, Staff Attorney National Advocates for Pregnant Women