But women who use drugs while pregnant have also been charged under the “fetal harm” and “fetal homicide” laws that are already found in a majority of states. Last year, a chronically depressed and uninsured Wisconsin woman named Tamara Loertscher spent 17 days in jail because clinic discovered methamphetamines and marijuana in her system when she went in for a pregnancy test. Loertscher said that she stopped using drugs as soon as she suspected she was pregnant but it was too late.
Many “fetal homicide” laws were originally intended to punish those who injured or killed pregnant women—now they are being applied to punish and demonize pregnant women themselves.
As ACOG notes, several major medical and public health organizations in the United States have argued that states should try to curtail drug and alcohol use during pregnancy through treatment rather than criminal prosecution. The American Medical Association fought the 2013 Alabama Supreme court ruling and opposes legislation that criminalizes drug use during pregnancy. And the American Psychiatric Association said in a 2001 position statement that “societal resources [should] be directed not to punitive actions but to adequate preventive and treatment services for these woman and children.”