The “crack baby” scare of the 1980s helped fuel a movement by prosecutors across the country to charge women who used drugs while pregnant or whose newborns tested positive for drugs with child abuse, neglect and even manslaughter [PDF]. But what really happened to those babies who were supposed to “overwhelm every social service delivery system that they come in contact with for the rest of their lives,” according to one newscaster at the time? Were they, in the words of columnist Charles Krauthammer, doomed to “a life of certain suffering, of probably deviance, or permanent inferiority”? In a word — no. A recent New York Times “Retro Report” video revisited the crack baby hysteria and found no evidence that these dire predictions came true. These findings, which were being reported as early as 1992, should remind prosecutors and judges that the causal link between drug use and a specific pregnancy outcome is speculative, at best. While no one condones drug use in pregnancy, punitive measures do nothing to improve maternal, fetal, or child health [PDF]. Instead, they discourage women from seeking prenatal care and drug-treatment for fear of being prosecuted.
The Mississippi state Supreme Court recently heard the case of Nina Buckhalter who tested positive for methamphetamine after suffering a stillbirth and was charged with manslaughter. The prosecutor in the case claims the drugs caused the stillbirth even though the actual cause is unknown and there is no clear evidence that methamphetamine use can cause a stillbirth. As we argued in our amicus brief filed in this case, allowing Nina Buckhalter to be prosecuted under these circumstances would open the door to prosecutions of women who experience a stillbirth after engaging in whole range of activities during pregnancy. This isn’t a theoretical. A pregnant woman in Wyoming was charged with felony child abuse for drinking alcohol and Melissa Ann Rowland was charged with murder for refusing to submit to a cesarean section. A bill was even introduced in Virginia that would have charged women with a Class 1 misdemeanor for failing to report a miscarriage to police, treating all miscarriages as potential crimes.
Not only are these prosecutions wrongheaded and discriminatory, in the case of Nina Buckhalter, they fail even the most basic test of criminal law — causality. There is no evidence that the methamphetamines present in her system led to the stillbirth. The “Crack Babies Epidemic That Was Not” should serve as a cautionary tale of what happens when people rush to judgment before all the information is in. Hopefully, prosecutors will start to listen.