Lawmakers consider criminalizing drug use by pregnant women

UPDATE: The bill passed the House 46-13 with one excused on Tuesday. It’s been referred to the Senate Judiciary Committee.

The Wyoming Legislature is considering a bill that would make certain kinds of drug use while pregnant a felony. House Bill 85 – Child endangering-controlled substance use while pregnant classifies methamphetamine or narcotic drug use by a pregnant person as child endangerment. 

It’s meant to ensure both the safety of the parent and the fetus, according to bill sponsor Rep. Ember Oakley (R-Riverton). Detractors, however, argue that such a punitive approach will cause more harm than good. 

Punishment or treatment?

Oakley said the bill is designed to address “a hole in the law,” during a House Judiciary Committee meeting last week. Oakley, who works as a prosecutor in the Fremont County Attorney’s office, referenced a 2005 case from her jurisdiction in which a district court judge ruled that state child endangerment laws do not apply to a fetus. On those terms, the judge dismissed a case against a woman whose newborn child had tested positive for methamphetamine. 

“In no way is this a stretch or a big change in the law,” said Oakley during the committee meeting. “It’s illegal to possess methamphetamine. It’s illegal to use methamphetamine. It’s illegal to have children in the same room or vehicle or anywhere near methamphetamine. And so … this fits squarely in with behavior that is already prohibited and illegal.” 

Rep. Karlee Provenza (D-Laramie) is concerned additional criminal penalties would discourage pregnant women from seeking prenatal care. Provenza also pointed to evidence that state policies with punitive action against pregnant drug users are associated with higher rates of infants born in withdrawal. 

If they want to solve this problem, Provenza said, lawmakers should treat it as a public health issue and provide support, instead of incarceration. 

Oakley pushed back on that. 

“That is exactly what this is a measure to do. That is very, very often — more often than not — what the criminal justice system is used to do,” Oakley said. “Like it or not, that’s what happens.”

The bill is not strictly punitive, according to Oakley. A substance abuse evaluation following conviction, for example, could provide an opportunity for addicted mothers to access support and rehabilitative services, Oakley said. She considers parole to be among the treatment and recovery options available to convicted felons. 

Testimony 

“I’m actually the woman in the case Ms. Oakley referred to earlier,” said Michele Foust, who spoke in opposition to the bill during public testimony. 

Foust described not seeking prenatal care while pregnant and using drugs “100% out of a fear” of prosecution. At that time, a child endangerment law had just taken effect in Wyoming that prohibited a person from knowingly or willingly causing a child to absorb, inhale or otherwise ingest any meth and it was not yet clear if that would apply to a fetus. 

“I believe that unification and keeping families together and strong and pulling people closer is going to be key to success rather than isolating and sending people to prison,” Foust said. 

Rep. Mike Yin (D-Jackson) asked Foust whether she thought felony prosecution increases the likelihood that a pregnant person would get an abortion if they were using drugs. Foust responded, “absolutely.”

Several mental health professionals also spoke in opposition to the bill, highlighting the fact that the bill does not guarantee treatment following a conviction. 

“We would like to see treatment prioritized,” Lindsay Simineo with Wyoming Counseling Association said. “I believe that is the reason you’re seeing such heartburn about this bill is, for us as providers, the language isn’t there.”

Others are concerned by the current lack of substance abuse treatment resources. Community mental health centers provide the only residential substance abuse treatment in the state, according to Andi Summerville with the Wyoming Association of Mental Health and Substance Abuse Centers. Summerville told the committee the state has 21 parenting women beds — four in Casper, nine in Rock Springs and eight in Sheridan. Those beds are currently full, along with an additional 16 women on an approximately six-month-long waiting list. 

“We’ll probably need a lot more resources to potentially meet the need, and that’s not a bad thing. We want to meet the needs of these women. We want them to come to treatment,” Summerville said. She also highlighted a proposal to add 12 beds in Sheridan that is currently in the works. 

A mother-child unit at the Wyoming Women’s Center in Lusk has remained vacant since it was established in 2014 because of staffing issues. 

Legal status of a fetus 

Steven Melia, a Cheyenne resident, spoke in favor of the bill during public testimony, arguing that a fetus should be recognized by the law. 

Rep. Mark Jennings (R-Sheridan) shared that sentiment when he spoke in favor of the bill on the House floor. 

“I don’t think that we want to lose total sight here … There’s another life that’s involved here,” Jennings said. “That child in the womb, that baby deserves some protection.” 

Family Policy Alliance of Wyoming also sees HB 85 as pro-life legislation.  “This bill would de facto recognize the legal status of the ‘child’ in the womb as a living person entitled to protection under the law,” wrote the alliance in an email blast to its members last week. The group is a “Christ-centered organization,” according to its website, and a partner of Focus on the Family — a fundamentalist Christian organization based in Colorado Springs with national lobbying ties. 

Pro-life arguments have been present, but have not dominated debate on the bill. 

“My motivation for bringing this bill is what I have said when I introduced it on the floor, when I presented it in committee and in debates on the Floor,” Oakley said in an email to WyoFile when asked if establishing legal personhood for fetuses motivated the bill.   

A mirrored version of the bill in the Senate failed in committee. It included mandatory reporting that would have required any person, including medical professionals, to report a pregnant drug user to local law enforcement or child protection services.   

The bill, however, is still in play in the House. It passed second reading Monday morning. The House also adopted an amendment by Oakley to require the court to order probation for those violating this particular offense for the first time. Oakey said she brought the amendment to address concerns that the bill’s only focus is incarceration.