Ferguson v. City of Charleston Redux: Motivated Reasoning and Coercive Interventions in Pregnancy

Between 1989 and 1994, 30 pregnant or postpartum women were arrested when they or their newborns tested positive for cocaine after warrantless searches at the Medical University of South Carolina, a public hospital. These patients “failed” treatment when they tested positive a second time or missed a prenatal visit. Twenty-nine were African American. “Boyfriend is a Negro” was written in the medical record of the patient who was not African American. Punitive measures included incarceration before and/or after childbirth, shackles and handcuffs during transport and hospitalization, and removal of child custody for existing children. In Ferguson v The City of Charleston (1993), arrestees sued the Medical University, the Charleston police department, and the local solicitor. The US Supreme Court (2000) found that the defendants’ actions violated the Fourth Amendment’s proscription of illegal search and seizure. Amicus briefs in support of the plaintiffs were filed, among others, by the AAP, American Medical Association, ACOG, American Public Health Association, American Medical Women’s Association, American Society for Addiction Medicine, National Council on Alcoholism and Drug Dependence, National Association of Social Workers, and the March of Dimes.

Since Ferguson, arrests and other incursions continue to accelerate. Paltrow and Flavin,⁵  in their comprehensive review, document 413 cases of arrests, detentions, and forced interventions in pregnancy in 44 states, the District of Columbia, and federal jurisdictions between 1973 and 2005. This is likely an underestimate because barriers to identifying cases undermine an accurate count.⁵  Coercive interventions include forced cesarean deliveries, bed rest, and arrests and incarceration for behaviors allegedly exposing fetuses to risk, including suicide attempts, use of misoprostol to terminate pregnancy, falling down the stairs, and substance use during pregnancy.^5–8 

Of the 413 cases identified in the review by Paltrow and Flavin,⁵  84% involved substance use. Rates of arrests and detentions for substance use in pregnancy are increasing. US data from Amnesty International reveal that from 2005 to 2016, chemical endangerment, fetal neglect, or fetal assault charges were brought against some 700 women in just 3 states (AL, TN, and SC); all involved substance use.⁷  The phenomenon is more widespread: Twenty-three states and the District of Columbia consider substance use during pregnancy to be child abuse under civil child-welfare statutes; 3 consider it grounds for civil commitment. Twenty-five states and the District of Columbia require health care professionals to report suspected prenatal drug use, and 8 states require testing for prenatal drug exposure if they suspect drug use.⁹ 

Within this narrower category of coercive interventions involving substance use, cases vary significantly.

• ∙ Regina McKnight was convicted of homicide by child abuse when her pregnancy ended in stillbirth. Authorities alleged that her cocaine use caused the stillbirth, although they presented no credible data to support that allegation; it was later shown that infection caused the stillbirth. After serving 8 years of her sentence, an appeals court overturned her conviction on grounds that her counsel failed to present relevant evidence for her defense. However, fearing that she would be retried and returned to prison, she pleaded guilty to manslaughter and was released given time served.^5,10 

• ∙ Casey Shehi tested positive for benzodiazepines during labor; she had taken half a Valium on 2 occasions late in pregnancy to manage acute distress. She believed this would be safe, because doctors had prescribed painkillers earlier in her pregnancy. No drugs were found in her newborn and he was healthy. However, she was arrested and “charged with ‘knowingly, recklessly, or intentionally’ causing her baby to be exposed to controlled substances in the womb—a felony punishable by up to 10 years in prison.” After posting bond she was released from jail but subjected to frequent drug tests while her case was pending trial. After nearly a year, her case was dismissed.⁶ 

Consequences for pregnant or peripartum women who test positive for drugs or alcohol can include arrest and incarceration, involuntary civil commitment for treatment or protective state custody, reporting to child protective services, and removal of child custody. Policies on alcohol use during pregnancy are increasingly retributive and punitive.¹¹ 

Roberts and Pies¹²  note, “Pregnant women who use drugs are over-represented among women who receive late, limited, and no prenatal care.” Substance use is associated with barriers to prenatal care.¹²  Significantly, fears of prosecution for drug or alcohol use during pregnancy, or loss of child custody, may drive pregnant women to avoid prenatal care or hospital delivery.^10,12–14  However, “as with pregnant women in general, women who use drugs and receive adequate prenatal care generally have better pregnancy outcomes than women who use drugs and do not receive adequate care.”¹²  Increasing access to prenatal care in this population reduces risks (eg, of prematurity, low birth weight, and small-for-gestational-age status), although the rates of reduction vary for specific risks across studies.^15–17  Because the threat of coercive interventions deters access to prenatal care among women with SUD, they also increase risks for infants. In fact, the AAP recommends not just obstetric prenatal care but prenatal pediatric visits: “As the medical specialty that is entirely focused on the health and well-being of the child embedded in the family, pediatric care ideally begins before pregnancy, with reproductive life planning of adolescents and young adults, and continues during the pregnancy, with an expectant mother and father of any age.”¹⁸ 

Whether a woman receives prenatal care, the trauma associated with coercive interventions, or fears that they may be imposed, may undermine the well-being of both the woman and her child. Even when coercive intervention is not involved, negative experiences during childbirth, such as blaming and shaming women for behaviors perceived to increase risk during pregnancy, can be experienced as traumatic and strain connection with the child. In a series of in-depth interviews with Swedish women, Forssén¹⁹  found that such experiences were forcefully alienating for many of them. Over decades, they experienced “feelings of failure as mothers, of guilt, and of shame, that influenced their self-esteem and their future childbearing.” Beck,²⁰  in a metaethnography of qualitative studies of traumatic birth, notes that women may experience as traumatic births that clinicians view as routine and normal. She describes similar experiences to those highlighted by Forssén¹⁹ : “Women felt abandoned, stripped of their dignity, and not cared for as an individual who deserved to be treated with respect.”²⁰  Beck²⁰  notes that traumatic birth experiences can negatively affect the women’s relationships with their children as well as maternal-fetal bonding in subsequent pregnancies.

Recent evidence indicates that “early experience in maternal care predicts epigenetic change within the infant oxytocin system, levels of which are in turn reflective of infant temperament.”²¹  This study demonstrates the association between the degree of the woman’s engagement with her child and epigenetic changes in the oxytocin receptor gene. Child well-being is effected because:

These findings raise significant concern about the secondary impact of maternal coercion on the child.

If the woman is incarcerated, while she is pregnant or after giving birth, effects on maternal-child bonding may be more extreme. Owing in part to stiffer drug sentencing, the number of incarcerated women has increased eightfold since 1980.²²  Incarcerated women have described being denied labor support even when plans were in place to allow labor coaching from a friend or relative. Labor support from a person chosen by the woman reduces anxiety and the perception of pain. Incarcerated women may also be shackled during labor²³  despite ACOG guidance against the practice.²⁴  One woman described her experience with restraints: “The handcuffs made me feel inhumane. I don’t want to cry, but it made me feel like an animal. I think at that point, I understood that I was not seen as a human being.”²³  In the absence of a dedicated program to promote a humane birthing experience to support maternal-child bonding, newborns are standardly separated from their mothers soon after birth. One mother declared: “That was the most dramatic thing ever and traumatizing. And oh my God, I was devastated, like there was nothing. No amount of preparation or before knowledge can prepare somebody for that.”²³ 

Although the intended purpose of coercion is to protect infants, in reality it harms both women and their children.

Risks associated with coercive interventions fall disproportionately on particular groups of women. Paltrow and Flavin⁵  document socioeconomic and racial disparities, with 71% of women qualifying for indigent defense and 59% of cases involving women of color, mostly African American women. Studies have also found racial bias in maternal and newborn drug screening.^25,26  These disparities have persisted over time. A 1990 New York Times article lamented: “Charges of ‘prenatal crime’ used to occur about twice a decade: since 1987 there have been more than 50 such prosecutions. The overwhelming majority of the defendants (∼70%) are poor and black…the discriminatory enforcement is a result of a combination of racism and the mother’s poverty.”²⁷  Also in 1990, Chasnoff et al²⁶  reported that although rates of substance use in pregnancy are similar in White (15.4%) and African American (14.1%) women, the latter were 10 times more likely to be reported to authorities. Subsequent studies have demonstrated the sequelae of persistent racism, discrimination, power differentials, and stereotyping on pregnant women.^28–36 

In their review, Paltrow and Flavin⁵  document that coercive interventions often lack grounding in evidence:

In a recent study of legislators in Maryland, Virginia, and North Carolina, researchers found that personal experience, anecdotes, and known contacts rather than evidence influenced policy development that prioritized interventions that targeted opioids over those targeting alcohol use in pregnancy.³⁷  Legislators made the following observations:

These policies occasion incursions against women’s liberty and bodily integrity, and the potential for harmful consequences for them and their children. Morality requires their grounding in evidence.

Why do some clinicians persist in violating their fiduciary relationships by acceding to chemical endangerment laws, pursuing judicial authorizations for forced treatment, and threatening to or notifying child protective services (with the attendant specter or reality of removal of child custody)? Why do they, with impunity, flaunt practice and ethics norms from their professional associations? Why do trial courts ignore established legal precedent? And why do legislators pass laws that flout the collective guidance of professional organizations?

The legislator’s responses above provide two answers: ignorance of the facts and willful ignorance. Their comments exemplify the psychological phenomenon of motivated reasoning, which occurs when someone selectively interprets evidence depending on whether it comports with their preconceived beliefs.³⁸  The standard for evidence that supports these beliefs is “Can I believe this?” The person then selectively embraces data that endorses the belief. “Must I believe this?” is the standard for contradictory evidence, followed by a concomitant search for evidence allowing the offending data to be disregarded.³⁹  Thus, the social intuitionist field of moral psychology (known as moral foundations theory) holds that moral intuitions (moral emotions) occur before moral reasoning (ie, moral justifications are post hoc and are based on intuitive judgments).^40–42  The process is described as “the tail wagged by the intuitive dog,”⁴³  “sleight of mind,”⁴⁴  and “an illusion of objectivity.”⁴⁵ 

The harmful effects of coercive interventions are compounded by a lack of treatment resources for SUD.^46–49  In an article on the unmet needs for SUD treatment among reproductive age women, authors showed that⁵⁰ :

• ∙ nine percent of reproductive-age women needed SUD treatment;

• ∙ most women who needed SUD treatment did so for alcohol use disorder;

• ∙ <10% of them received it;

• ∙ pregnant women were not more likely to receive needed SUD treatment; and

• ∙ Black and Hispanic women were less likely to receive treatment.

In a recent study on motivators and barriers to SUD treatment of pregnant women, researchers found that motivators were readiness to stop using, concern for the infant’s health, concern about custody of the infant or other children, wanting to escape violent environments or homelessness, and seeking structure. Barriers were fear of loss of custody, not wanting to be away from children or partner, concern about stigma or privacy, and lack of child care and transportation.⁵¹  Additional barriers identified by Johnson include unstable financial situations, drug-seeking or functional impairment from drug use, and fear of child protective services.⁵²  White women are more likely to receive treatment, whereas African American women are more likely to be referred to child protective services, even in programs of universal screening for drug use.⁴⁸ 

Current coercive policies directed at women with known (or suspected) substance use during pregnancy create barriers to adequate prenatal care and fail to direct resources toward interventions promoting maternal and child health. The argument that the health of the child warrants coercive approaches fails to recognize adverse consequences on the pregnant woman and her child. In addition to the harms affecting individuals, we must acknowledge the injustices in the disparate application of coercive interventions across race and class. It is especially alarming that the imposition of coercion in particular cases, and the development of policies permitting such interventions, often fail to reflect evidence. We therefore make the following recommendations:

• 1. ACOG’s Code of Professional Ethics allows the organization to withhold or withdraw Fellowship from those who violate it.⁵³  ACOG has not sanctioned members who coerce their patients with involuntary commitment, treatment over refusal, and threatened or actual judicial intervention. Perhaps if ACOG were to begin using this tool to enforce its code of ethics, some progress could be made toward reducing the harms of coercion.

• 2. AAP has embraced a public health approach to substance use during pregnancy as optimal for the health of women and children. Pediatricians must advocate for the cessation of coercive interventions within their institutions and their larger communities as a matter of utmost importance for child and family welfare.

• 3. To combat willful ignorance and motivated reasoning, all health care professionals should collaborate at the local, state, and national level to provide policymakers and legislators with data emphasizing the negative effects of punitive and coercive policies aimed at pregnant women and their children.

AAP

American Academy of Pediatrics

ACOG

American College of Obstetricians and Gynecologists

SUD

substance use disorder