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October 27, 2022 67 mins

Millions of women use drugs when they’re pregnant. Some are punished when their pregnancies end with a miscarriage or stillbirth, or even when they give birth to a healthy baby. No one knows more about this than Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women (NAPW). We discussed the scientific evidence regarding pregnancy and drug use, the media coverage, and the myths that abound – about “crack babies,” “meth babies” and “oxytots.” Not surprisingly, issues of class and race play a pivotal role not just in determining which women are drug tested and sanctioned but also in popular perceptions of who is to blame and what should be done. Lynn and her colleagues have been at the forefront in defending the rights of pregnant women, and hearing about this important work made for a fascinating and at times heartbreaking conversation.

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Speaker 1 (00:00):
Hi, I'm Ethan Nadelman, and this is Psychoactive, a production
of I Heart Radio and Protozoa Pictures. Psychoactive is the
show where we talk about all things drugs. But any
views expressed here do not represent those of my Heart Media,
Protozoa Pictures, or their executives and employees. Indeed, heed, as

(00:23):
an inveterate contrarian, I can tell you they may not
even represent my own and nothing contained in this show
should be used as medical advice or encouragement to use
any type of drugs. Hello, Psychoactive listeners. Today we're gonna

(00:45):
go into the challenging and fascinating and sometimes heartbreaking subject
of pregnancy and criminalization and the law. We're gonna focus
on the US, but since I know about thirty of
our listeners are from outside the United States, We're gonna
make our best effort to make this both fascinating intelligible

(01:07):
to people all around the world to may be interested
in this issue. My guest um is probably one of
the people I most admire in the world's drug policy
reform and really in the world at large. Her name
is Lynn Paltrow. She is a brilliant attorney. She founded
about twenty years ago an organization called National Advocates for

(01:28):
Pregnant Women, and before that had worked at the Center
for Reproductive Rights and at the A. C. L Uth
Project on similar sorts of issues. We have known one
another for probably close to thirty years, and the best
way to describe her role and her leadership is that
she is the really singular figure standing at the intersection

(01:51):
of reproductive rights and drug policy reform. So, Lynn, thank
you so much for joining me and my listeners on Psychoactive.
Thank you for having me. It's really a privilege to
be here and to have had the opportunity to work
across issues which are in fact incredibly similar. The war

(02:13):
on drugs and the war on abortion, in my view,
are essentially the same thing. Well, you know, listen, I
should also tell our listeners that this is one of
the cases where Lynn and I probably agree, not on
but probably about nine of all the issues. So I
am going to make you know, a fair minded effort.
I gave our heads up to play devil's advocate here
because I don't want this just to sound like a

(02:34):
love fest between allies, and I want to really draw
these issues out as best and so Lenn, I just
want to take us back, first of all, back the
late eighties early nineties when you and I were both
getting going on this and crack cocaine was rampant in America,
and one of the major issues in all of this
was the so called crack baby, the crack baby women

(02:57):
smoking crack. New York Times major story front page, you know,
quoting some professor I rich has Not saying that three
thousand crack exposed babies are being born each year and
he's going to show up into schools and it's devastating
their lives. And you know, bring us back to that
time for how it looked from where you were sitting. Well.

(03:18):
In fact, in terms of criminal law response to the
issue of pregnancy and drug use, there were some cases
before the crack baby scare. There was a California case
in which a woman who had been pregnant with twins
was arrested because she had been using opioids. She was
using heroin. So it wasn't the original, but the crack

(03:43):
baby myth, the claim that there were a group of
women and they were portrayed as if they were black
only black women were using a drug, despite the fact
that they knew or should have known, that it would
cause per minent, irreparable damage to their children. And when

(04:03):
I give talks, I often use slides from that period
of time from Time magazine and the New York Times,
and they were quite explicitly racist. Every baby was black,
Every mother who used the drug was black. And the
question I always had is, if somebody had said, there's
a drug white mothers are taking, White pregnant women are taking,

(04:26):
and it harms their babies, it reduces their i Q.
But the white women are taking in any way, I
think the journalists would have said, wait a minute, show
me the research. Tell me how you know that it
is causing this harm and why these women would be
using it. The journalists were extraordinarily willing to repeat information

(04:47):
that had no foundation in evidence based research, didn't ask
for the proof, and exaggerated it even further, to the
extent that years and years later, the New York Times
did an apology. The editorial board had to do an
apology for furthering and defining this so called crack baby myth.

(05:10):
Are there substances that would we love people not to use,
whether they're pregnant or not. Yes. At the same time,
are they ones that caused permanent, irreparable harm. Uh, The
answer is no, and the research never existed to support
the claims being made. So Lynn, I think for most people,
I've encountered the notion that a woman who's doing that

(05:34):
stuff and who's using drugs in that way, UM, it
almost seems beyond imagination. And I think that's not just
true thirty years ago, but probably even true today that
they make that assumption. So I mean, how do you
deal with that? I think we have to meet everyone
where they're at, and in a country that did see
at one point that when women used a little mitter

(05:57):
DS two medications that caused actually caused serious damage in
the children exposed prenatally. It's understandable that people have concerns
about various drugs and other things that pregnant women use
or are exposed to. But what's really interesting is which

(06:18):
ones we tend to focus on, UH and the level
of concern. So, first of all, we had this whole
period and probably maybe ongoing whereas a result of government neglect,
excessive amounts of leads. Poisonous lead was in the water
in Flint, Michigan. Poisonous levels of lead because of government

(06:39):
neglect failure to respond. That is actually a drug, a
substance that does cause permanent damage, and yet most of
our ire is focused on a small number of drugs
that have been criminalized and a small subset of the
people who use those drugs while they're pregnant. We also

(07:02):
have to really understand that there's a distinction, or there
are differences between people who use drugs. Just like most
people know somebody who drinks alcohol and they're not an alcoholic.
Most people, including those who are pregnant, who use drugs,
are using them. They're not dependent. But for those people
who have a terrible dependency problem, we often assume that

(07:24):
pregnant people have like superhuman powers, they should be able
to overcome their addiction instantly, or there perceived as intentionally
trying to do harm. The good news is that, fortunately,
the level of harm that people believe exists by using
any of the criminalized drugs, whether we're talking marijuana, meth amphetamine, cocaine,

(07:45):
or herron, have not been borne out by the research.
The risks that are associated with those substances are similar
to actually cigarettes and poverty and other things that have
to do with low birth weight and smaller head Cristis
circle friends, but fortunately none of the criminalized drugs, for example,

(08:06):
cause miscarriages are still births. Miscarriages are pregnancy losses early
in pregnancy. Still births are later in pregnancy. And if,
in fact, the way I explain it sometimes is if
any of those drugs were good at causing pregnancy loss,
we'd be shipping them to the people, the pregnant people
in the states where abortion in the United States has

(08:28):
now been outlawed. And in fact, I was just preparing
for this talk, and uh, I was just preparing for
the talk that we're having, and I found something posted
by UCSF University of California, San Francisco, a very valued

(08:50):
provider of health care and research, in which they used
they didn't use the term crack baby, but they used
other terms that have absolutely been rejected it by every
leading medical person in the field. For example, if you
use a number of they list a number of drugs,
criminalized drugs and say your baby might will be born addicted. Well,

(09:11):
no child is born addicted. That's a social definition, a
psychological social definition that has to do with drug seeking
behavior and a whole bunch of other things that do
not describe newborns. And even when newborns have a treatable
and transitory withdrawal syndrome which only occurs with opioids, that

(09:32):
is again transitory and treatable. It is not addiction. And
yet they're still using the word. In fact, if the
baby is properly taken care of, just held, held, more swattled,
more treated better, maybe given some withdraw medication, that baby
is going to grow up and be every bit as
healthy as a baby whose mother never used opioids whatsoever. Right, Well, yes,

(09:55):
and and I'd like to be able to tell you
a story about the correct baby myth. But let me
to say, after the crack baby myth became, came the
meth baby myth, and came they you know, exposed to
opioids myth, that there is a framework that was established
primarily on the backs of black mothers, and for people

(10:15):
interested in really understanding that, I recommend Dorothy Robert's book
Killing the Black Body, a myth that then has been
replicated and applied more to more and more people, including
a lot of poor white women, who are the majority
of those who in recent years have been arrested based
on claims of harm or risk of harm by using

(10:38):
meth amphetamine or opioids during pregnancy. One of the earlier
cases I worked on was a challenge to the Medical
University of South Carolina's policy of secretly searching their black
pregnant patients for evidence of cocaine use, and if they
were positive, they didn't offer them any kind of treatment.
They pretended they did, but they actually had no treatment

(11:00):
in their hospital anywhere in the Charleston area where they were.
They would turn that confidential information medical information over to
the police and help coordinate their arrest from their hospital beds,
taking them out in chains and shackles near the oldest
slave market in the United States, while some of them
were still pregnant and others were bleeding, still bleeding from

(11:23):
just having given birth. We brought a bunch of lawsuits.
One of them went to the Supreme Court. We actually
won in having the Supreme Court at the in those days,
the U. S. Supreme Court in those days, saying that
this was a violation of their rights to be free
from illegal searches and seizure since they were being drug
tested was really a secret criminal search. After we while

(11:47):
we were doing these cases, we actually did focused groups
in South Carolina to find out what could we say,
what could we teach, what could we offer to help
people move away from the rampant mythology about the harms
done specifically by the smokable form of cocaine crack and

(12:10):
people's reluctance to think about science and think about evidence
based research, and what was one of the fascinating things
that came out of it. People were willing to support
a tax increase for some kinds of treatment. I worry
that it was about in their minds, forced treatment, But nevertheless,
they were willing to think about treatment versus incarceration. But

(12:33):
when we asked, is there any messenger you would believe
who told you that there is no such thing as
a crack baby? In other words, exposure prenatally to crack
does not cause any unique harm or syndrome or anything
else that anybody can identify. Would you believe it if

(12:54):
it was the governor of South Carolina, if it was
the surgeon General of the United States of American We
practically said that if if God came down and told you,
would you believe it? They all said no, I saw
one on TV, I held one, or they were told
they held one and the people who we hired to
do the focus groups advised us to just not even

(13:14):
talk about it, not even address it. But the problem
is when people are being prosecuted for something that's scientifically impossible,
causing a harm that never occurred, or treating a positive
drug test as if it's harm, we have to talk
about it, and we have to hope that eventually enough
people are willing to listen so that we can focus

(13:35):
on real harms, poverty, lead in the water. Right, Well, listen,
you know, I mean I was looking at you. You
have a whole set of fact sheets on the on
the website for National Advocates for Pregnant Women, one that
just went up a few months ago, and Prenatal drug
and alcohol exposure science refutes media hype and enduring this.
So let's before we leave this issue behind, just for
our listeners, just to be clear, My understanding is that

(13:58):
when it comes to for example, women who while pregnant
are using cocaine or using it as serious, even people
are addicted in smoking crack or using smoking meth amphetamine,
that basically what one finds is that it's not associated
with miscarriage and stillborn. You can't or you can't see
any causal relationship there, that there is a greater likelihood

(14:21):
of the baby being born a few weeks prematurely and
of being born with a smaller head and maybe some
other little you know, conditions of irritability or whatever, but
that as that child grows up, if they're given any
sort of proper care like any other kid, that essentially
the distinction between that baby at birth and other babies

(14:41):
essentially disappears as they grow up. Um, what would you
say about that? What's known about the current evidence? I
think that's a fair summary. What concerns me is that
we tend to focus on the effects of certain drugs
and not others, certain circumstances and not others, and those
tend to match the idea of individual responsibility, that the

(15:06):
health of children in the United States is primarily about
the individual circumstances of the pregnant person's life and not
the larger environmental hazards they face, poverty, lack of nutrition,
lack of access to treatment, including drug treatment if they
want it. So, yes, there are some risks associated with

(15:29):
the use of various substances, including criminalized drugs, but people
often confuse risk with harm, so you if you do
a study that finds that there is a risk of
lower birth weight an increased risk of smaller head circumference,
people then mistake that for your baby will be born prematurely,

(15:53):
your baby will be born with a smaller head circumference.
And yes, it is true that lots of things babies
are born with do not affect their whole lives, as
you explained. At the same time, it's still is so
easy for people to confuse a risk of harm which
means most of the time it doesn't happen, and actually

(16:16):
increasing harm. And there is this expectation that the people
who get pregnant are going to be able to readjust
their lives so that they don't engage in any behavior
that anybody at any time in history has suggested risks harm.
But nobody can guarantee a healthy outcome. Nobody can guarantee

(16:37):
that a birth, a pregnancy will continue to birth. All
pregnancies having nothing to do with prenatal exposure to anything
end in miscarriage or still birth. And it's sort of
tragic that we have a culture uh that focuses on
individual blame and the women, the people who are pregnant

(16:59):
them selves believe that there must have been something they
did wrong or could have done differently that would have
affected the outcome. And psychologically that's understandable. We don't want
to feel that we don't have control over our own lives,
our destiny, our pregnancies. But the fact is there is
relatively little that the people can do, and nor and

(17:21):
healthcare providers can do to ensure that there isn't gonna
be a still birth, miscarriage, or another health problem. So, yes,
that information is true, but it's also true about a
whole bunch of things, including poverty, which we probably have
a lot more control over than uh illicit or criminalized drugs.

(17:45):
We'll be talking more after we hear this ad. Basically,
if you're looking at women who are living in a
situation of poverty, disorderly lies, you know, no access to

(18:08):
prenatal care, um that basically you won't see any difference
between the mother's living in that condition who do use, say, cocaine,
and those who don't. And also that conversely, if you
want to take say a mother who's growing up in
all those conditions of poverty and poor diet and lack
of prenatal care, etcetera, etcetera, and not otherwise using you know,

(18:29):
illicit drugs or even other psychoactive drugs. And then compare
that with a woman who in fact is living a
relatively healthy existence and has access to prenatal care and
has good diet, but happens to be using cocaine on
a regular basis that by and large, the mother who's
otherwise leading a healthy life but using cocaine or heroin

(18:52):
is gonna have that much better a chance of producing
a healthier baby than is going to be the woman
who's living in poverty and using no drugs whatsoever. It
really is the broader conditions, and that similarly, as the
kids growing up, it has much less to do with
their with whether or not their mother used drugs when
she was pregnant with them, and a lot more to
do with are they growing up in poverty, are they
being exposed to violence and ways that reminds them, to

(19:14):
emotional abuse, to physical abuse, That those things have a
much bigger impact than any drug use does per se.
And it's clear to me that the issue of drug
use and pregnancy is used purposely as a brilliant distraction
that what does trauma do to a pregnant woman's body.

(19:34):
What does increase cordials all levels, and those are stress
hormones that come from unrelenting racism, daily assaults on your
humanity because of the color of your skin. Those have impacts.
And if we focus on drugs, on something we claim
or allege that a pregnant person is doing, we don't

(19:58):
have to address the pervace of weathering impacts of racism.
And weathering is a term that refers to the lifelong
build up a stress before somebody ever becomes pregnant that
makes it less likely that they will have a healthy
pregnancy and that they will survive being pregnant, giving her
The drug war has, in many ways, and particularly here,

(20:22):
been used to keep us from looking at underlying foundational
issues that keep people, particularly in the US where there
is no universal healthcare, there is no government supported childcare,
from focusing on those things because we reinforced not just
the specific things like the crack baby myth, but the

(20:44):
myth that these are things that individuals alone are responsible.
I also noticed it in your materials. There was one
really a point that really caught my attention. You pointed
out at seventy percent of women take a prescription to
rug during pregnancy and in fact take some drug over

(21:05):
the counter, prescription whatever in total, but that only about
a dozen of all drugs that people are taking have
been approved for use by pregnant women, I think in
part because of the difficulties of conducting such studies. So
I mean it is to say that there's you know,
commonly doctors are prescribing things and when women say, if
this is this okay to use during my pregnancy, that

(21:26):
doctor doesn't really have an answer because there's not real
research out there. Yes, that that's absolutely true, and you know,
part of it is that it's not just the difficulty
of doing the research. It's that there has been very simplistic,
if you will, or also sexist views of uh, people

(21:49):
who become pregnant, women who become pregnant as not being
able to make judgments about participating in research. There's been
a real effort to change the rules for research on
human subjects so that more pregnant people are included in
that research so that we have better information, and we've
seen some real harm we uh it seems, from excluding

(22:12):
pregnant women from the COVID studies. But the point though
is we don't know. People do the best that they can,
and we have to also understand that people make decisions
based on experience. Women, pregnant women have been using heroin
opium morphine for hundreds of years. If babies would be

(22:37):
in the thousands, if babies were born with two heads
or kidneys on outside of their body, or any of
the exaggerated terrifying claims made by some people about pregnant
women and druggist, we would know that research about cocaine
was actually used more in the seventies by wealthy why people.

(23:01):
Then crack was used. Smokable cocaine was used in black
neighborhoods during the eighties and nineties, where the cocaine babies
from the seventies. We have an attention to potential harms
for certain groups of people and an unwillingness to just
sort of take a deep breath and say, hmm, what

(23:24):
have I seen in my own community? You know? Did
I have a drink while I was pregnant? One drink?
Did that make my baby have fetal alcohol syndrome? No?
And that doesn't mean we replace the experience with good,
ongoing scientific research, but it is to say to take
that step back and start from a place of wait

(23:49):
a minute, not everybody has these effects. My mother smoked
through her whole pregnancy. The sides of cigarette packages now
say it can contribute to significantly less healthy babies. Well,
I'm a nicotine baby. I didn't have those impacts. It's
an example of yes, there is research that has a

(24:11):
risk factor associated with smoking cigarettes, but you cannot look
at somebody smoking a cigarette and say that baby is
going to be damaged, that baby is going to be smaller,
and their life is going to be affected. What would
be the best thing is to find out from the
pregnant woman herself, what is it you need? What is
it that would help you have a healthier pregnancy. And

(24:33):
it may not be stopping whatever she's dependent on, if
she has a drug dependency on, but it might be
get me housing so I'm not totally stressed out living
in a stairwell. Then I came across a line you
wrote someplace. You said, since most states criminalized drug possession,
not drug use, it's the pregnancy. It turns drug use

(24:55):
into a crime, and those pregnancy is an independent element
of the crime is imagined by unethical rogue prosecutors, even
before the Dobb's decision that overturned Row. And we've been
talking about this in one way or another, but just
elaborate upon that basic point right there. People often assume
that there is a crime of drug use, and while

(25:18):
it sort of ends up working out that way, it
is possession having it in your pocket, not in your body.
I think there's a few states which criminalized quote unquote
internal possession. I think South Dakota, UM, maybe a few others,
and certainly there are some other countries that do that.
But basically it's got to be in possession right on
your body, not in your body. And I think when people,

(25:40):
because they've gotten so much misinformation when they hear about
pregnant when being arrested in using drugs, they think there's
a crime, that there's an actual crime of pregnancy and
drug use or drug use while pregnant, but there isn't.
All of these arrests that have happened have been based
on general all drug delivery laws, and they made them

(26:02):
about drug delivery to a minor through the umbilical cord
or child criminal child neglect, often with penalties much much
higher than penalties for simple possession, and it is being pregnant,
that pregnancy is itself what triggers the crime. And so
once you understand that, you understand two things. One is

(26:26):
that we have to understand that there's a delineation among
groups of people. So in Oklahoma, for example, or actually
also an in Alabama, U if a couple, heterosexual couple
are both using marijuana, they're using it to relax, or

(26:46):
they're using it to deal with anxiety for whatever reason.
The woman, the minute she becomes pregnant, is carrying a
fertilized egg, she is guilty of child abuse or chemical
endangerment of child, or a number of other laws that
carry potential life sentences. And they are in exactly the

(27:06):
same situation the boyfriend and the girlfriend. They both all
they did was smoked some marijuana or eat some gummies.
But the minute she's carrying a fertilized egg, she's a
criminal at if she's a criminal number one, and he's
not at all. And the crimes for which she is
being prosecuted, for example, in Oklahoma, felony child neglect can

(27:28):
actually come with something like a forty year sentence. Now
in reality, though, and I get the principle here, and
what's so incredibly offensive about that. I mean, if one
hat it was says how many women today are behind
bars for basically for use of a drug during their pregnancy.
I mean, I know you've been trying to build a

(27:49):
database of ODATH is about prosecutions and arrest and convictions,
but is there any sense of how many today are
sitting behind bars in the jail or prison for string pregnancy.
National Advocates for Pregnant Women is collecting that information. We
know that there have been seventeen hundred cases since row.
There were only four hundred and thirteen between nineteen seventy

(28:11):
three and two thousand and five. All of the other
ones have been since two thousand and five. Some of
the cases involved a pregnant woman who fell down a
flight of stairs, a pregnant women to drank alcohol, pregnant
women who tend to suicide. Most of them, though, include
an allegation of drug use, and again sometimes legal medical
marijuana use or legal marijuana use. Um. But I would

(28:33):
say even as we when we look at some place
like Alabama, there are probably hundreds of women in jail
or prison because they were pregnant and used any amount
of any criminalized drug. Wow. So I mean, even though,
on the one hand, off your databases seventeen hundred over
fifty years, that's only adding up to about three dozen

(28:54):
a year. But you think in a state like Alabama,
it actually might be dramatically dramatically higher. In it as
a result of a Supreme State Supreme Court legal interpretation
of a law that was called chemical Endangerment of a Child.
It was explicitly passed to reach people who took children
to dangerous places such as meth labs. And there's even

(29:18):
legislative history, which means legislators voting on this talked about it.
They raised the issue of is this trying to reach
pregnant women? And the answer is absolutely not. The minute
the law was passed, however, prosecutors in particular states started
using it to arrest pregnant women who used any amount
of a controlled substance. We helped challenge it. It went.

(29:40):
It was one of the few states where we ultimately lost.
It goes to the highest court, and it's an opinion
that actually uh forecasts row being overturned. It says, oh no,
this is Alabama and Alabama, the unborn from the moment
of conception are viewed as separate legal persons, so we

(30:00):
can use the chemical endangerment of a child law to
panelize lock up a woman who uses any amount of
controlled substance from the moment she becomes pregnant. And that
law was not interpreted into something like two thousand and six,
and since then, Oklahoma, Alabama, and a few other states

(30:20):
have really made this a very big part of their
criminal law system. Now you mentioned briefly before, um, you know,
how do we know these women are using drugs? I mean,
these are mostly not involving cases of people being seen
in public using drugs. A lot of this is drug
testing in a hospital, drug testing when a woman is

(30:40):
going for prenatal care, and they're good, Let's let us
be clear. They're good reasons for drug testing, oftentimes to
see what medications somebody is on, to test for certain
conditions where it might be diabetes or dehydration or things
like that. But obviously this drug testing has been used
in ways that are not appropriate. Oh at salutely, Well,
let me let me go back and just respond to

(31:02):
something else and then I'll answer your question. The research
all along said the best thing you can do for
the baby is what's called rooming in, keep the baby
with the mother, give the baby breast milk so that
there's the same weaning through the breast milk cat can happen,
and weaning from the prenatal exposure, the skin to skin contact.

(31:24):
And yet there is so much anger and judgment and
misinformation that the primary thing that was happening in hospitals
and still does is instantly removing the newborn if there's
a positive for opioids, calling in if not, the police,
more much more often, the punitive, counterproductive so called child

(31:45):
welfare system and preventing mothers and babies from bonding. And
that's it's just the most counterproductive thing that can happen.
And it is very much about uh, rushing to judgment
and knowing only how to punish. UM. Now I forgot

(32:07):
what the question was. Well, I know you're My next
question was gonna be so yes, the question was really
about the drug testing, because I think you're then jumping
to what happens with the drug testing, But just talk
about that process and why hospitals do that and how
you know they oftentimes break a confidence with women when
they're doing that drug testing for otherwise appropriate reasons. What's

(32:28):
interesting is in other countries there isn't this dependence on
drug testing for information from their patients. But because we
have a now have a billion dollar drug testing industry.
I once got a call from a drug testing representative
on his way to a hospital. I don't know how
he got my number, but he did, and he said,

(32:50):
I'm going up to talk to this hospital and I
want to convince them to use our drug test because
it will help them treat pregnant women. I was like, no,
it won't. It will be used to turn those women
over to police or punitive civil child welfare folks and
used against them. The thing about drug testing, too, is
it's done without informed consent. People come into the hospital

(33:13):
sign these general consents, but it's not informed consent. Nobody
says if we do a drug test and it's positive,
here all the ways in which it can be used
against you, and that information actually really there. If if
you find out newborn was prenatally exposed, or a woman
used cocaine while she was pregnant, there's no particular treatment.
It's not like, oh, we're going to get this information

(33:34):
and then we can give this baby this drug and
it's going to cure it. It is only used to
take control over the pregnant woman and the newborns. Now,
are there state laws requiring that hospitals report results of
drug testing it shows illicit drug use. It's complicated. They're
different laws in many different states. In the United States.

(33:56):
Some say, if you discover that they've used sir and drugs,
you must report to certain authorities. A very few states
do mandate testing in certain circumstances. Nobody requires universal testing.
And one of the ways I point out that there
are two things. One is the baby made have been
harmed and there and there's this illusion that you can

(34:18):
do something medical about it, which you can't except for
babies prenatally exposed to opioids, and the women can tell
you if they use them. You don't have to secretly
search them for evidence of drug use. And we know
what to do with those babies if they happen to
show some signs of neonatal abstinence, syndrome withdrawal. And then
other people say, well, we need to know because people

(34:39):
who are using any of the illicit drugs aren't going
to be good parents. We have to protect these newborns,
these children from those parents. But if we really believed
that evidence of drug use made people bad parents, then
we would require every parent who drops their kid off
at public or private school to have a DRU test.

(35:00):
But we don't really believe that we're using this as
a mechanism of social control. Just like the drug war
in general, when it's criminalized, not everybody's arrested. Those who
arrested are targeted, are particularly black and brown people. Uh,
we use it to control those populations. That's why Nixon
put these laws into place in the first place. And similarly,

(35:24):
the idea that we need drug testing to provide good
health care for pregnant women, newborns, and children really does
not have uh evidence based research to support it. One
of the things I often do when I'm giving speeches
is I bring a urine sample cup and I put
my own urine in it, and I take it out

(35:44):
and I hold it up and I say, look at this,
this is what is being What this can tell you
if you test my urine is whether or not I've
used a drug within a certain period of time. It
can't tell you if I'm addicted or dependent. It cannot
tell you if I love my children. It cannot tell
you if I have made them a priority, and I

(36:05):
make them dinner, and I helped them with their homework,
and they are the most important people in my life.
But it is used all over the United States, and
particularly in the punitive family separation system as a parenting test,
and that is not what it's for. M You know, Lynn,
we keep coming back to the issues of race, and

(36:27):
I mean this is especially true, you know, in the
late eighties early nineties around crack cocaine, because it was
so powerfully associated with black people in America. But you know,
we also know that I I remember even in New
York City and not right now, but certainly just not
so long ago. You know, basically, women who are pregnant
and we're testing positive for marijuana, we're having child health

(36:48):
services called in on them and being and getting in
trouble for that sort of stuff. So we're not just
talking about cocaine. We're also talking about about even drugs
like marijuana, where the harms associated with marijuana appear to
be pretty close to infinitesimal in terms of the health
of the baby. Um. But you know, it's also the case,
and I think you've also pointed this out that who
gets tested, right, it tends to be poor woman women

(37:12):
of color, whereas middle class up middle class people aren't
gonna be drug tested in the same way. And when
they are, they're really angry. So uh. There are a
couple of women who were reported to child welfare based
on positive opiate tests and New York hospitals and they
have not used opioids, but they had eaten poppy seeds

(37:33):
within a certain number of hours before giving birth, and
poppy seeds can test as positive for opioids, and they've
been tested for drugs. They don't know it, and suddenly
they've just given birth and the baby's whipped away, and
there's a child welfare worker in their room accusing them
of being drug users. And because many people who work

(37:53):
in that system are not very well trained, if the
woman says no, I'm not a drug user, they go denial. See,
you must be really a drug addict. And they're devastated.
They've just had a baby should be the most joyful
part of their life. And a PW and and particularly
our senior staff attorney M. A. Roth, is working on

(38:15):
several cases in New York in which women who falsely
tested positive for opioids have had their babies taken away,
whether positive or not, the response should not be punitive.
We need to keep families together. That's the best thing
we can do for children. There are women in Oklahoma

(38:37):
who are being arrested for felony child neglect for having
being licensed medical marijuana users, and women in Arizona who
have been put on the child abuse Registry, which will
prevent them from ever getting a job and feels that
they the only fields that they've been able to work
in childcare, social work, child welfare because there was a

(39:00):
positive marijuana test for their legal medical use. And I
want to explain that these women in particular suffered from
something called hyper emesis gravidarum, which is a kind of
mourning sickness that is constant throughout pregnancy. If you want
to see how horrible hyper emesis gravidarum is, you can

(39:23):
watch Amy Schumer's special called Expecting Amy, because she experienced it.
Now in that fabulous documentary of her pregnancy, there's no
point at which you she talks about marijuana or ever
uses it. But I will thank her for signing onto
an amicus brief with forty five other organizations and UH

(39:44):
experts in the Arizona case in which the mother was
put on the child abuse Registry for having used some
medical marijuana to deal with her extreme mourning sickness. You
know you're reminding that. Recently The New York Times ran
a story talking about the harms of marijuana use during pregnancy,

(40:04):
and it seems it almost seems like they felt obliged,
you know, as part of their trying to be balanced,
you know, in their presentation, to say, well, there really
are harms here. But I think the actual evidence on
marijuana and pregnancy, I mean, what is it. Let me
just do two things. One first, I just want to
explain that UM National Advocates for Pregnant Women and Psychoactive

(40:24):
recognize that there are trans men and non binary people
who get pregnant, and so we use the terms pregnant
people as well as pregnant women. Most of the research
we have available to us has been on pregnant women
or as far as we know, women who identify as
cis gender people. So we use all of those terms. Yes,

(40:46):
in terms of you, no, I agree with that, So
you know, I'm not trying to if I mostly use women,
it's not to make any statement. It's just a sense
of fimiliarity. But I agree with exactly what you said
there Land. But yeah, so just go back to New
York Times put that story about are wanted pregnancy? You
know anything there? I mean, if there was, that doesn't
justify any stuff we're talking about. But still for people

(41:07):
are curious, what's the story? Two? Thanks, Let's start with
the fact again that pregnant people have been using marijuana
for thousands and thousands of years. If there was a specific,
unique harm, we would surely have seen it by now.
I think the study you're mentioning in particular involved the

(41:31):
claim that they were able to show a connection between
women who use marijuana with during pregnancy and more anxiety
in the children that they had, and it it gets
the person who wrote The authors of that research were
pretty careful about saying, don't use this for anything punitive.
But the research was really weak. And we have to

(41:55):
understand that most funding for research about the impact of
drugs comes from the National Institute on Drug Abuse. That
if you don't offer to show some harmful impact, you're
not going to get funded. Number one and number two,
as uh Sierra Torres and Carl Hart's research, their systematic

(42:15):
research looking at the studies on i Q and marijuana.
They looked at them very carefully, and there will be
studies that will pull out something that's a cee, there's harm,
But what they found is to the extent, there were
studies that purported to show some statistically significant difference between
children prenatily exposed and those not. They didn't bother to

(42:37):
tell you that those children were all still within the
range of normal. So we get these studies the and
the study that purported to show increased anxiety was based
on surveys. It was not a diagnosis of anxiety for
these children. It was a bare association with the possibility

(42:58):
that maybe it will do this. And if you read
the study carefully, it seems like most of what it
is is a plea for more money to do more
research on this subject. Let's take a break here and
go to an ad by the time when are in

(43:25):
their forties, will become pregnant and have at least one birth,
and thirty three percent will experience a pregnancy. Laws right,
And I think you said ten to of all pregnancies
actually do end in miscarriage. And when it comes to
still births, I think the estimate out there is six
and every one thousand, and that means that there's roughly

(43:46):
a million miscarriages per year. It seems to be overwhelmingly
associated with chromosom o abnormalities and somewhat similar explanations when
it comes to still births, and it's basically there's no
evidence to establish a clear causal relationship between any type
of drug use, legal or illegal, and miscarriage or still birth. Right,

(44:11):
that's the bottom line. That is the bottom line, and
just again just step outside of the typical ways of
thinking about it. If any of those drugs were good
at causing still birth, women wouldn't need to go into
a clinic to have an abortion. They wouldn't need to
be trying to access the drugs that are safe and

(44:33):
effective for ending a pregnancy mysa postal and methopriston. They
could just go to their local meth dealer and in
their pregnancy or the marijuana or the opioid dealing. But
they don't cause pregnancy losses. But if you have prosecutors
perpetuating the myth that these drugs cause pregnancy losses by

(44:54):
virtue of arrests of people who have a coincidental still
birth with their a asianal or dependent drug use. Then
women might actually try to use those drugs. And we've
had a few cases where women try to use those
drugs well pregnant to kill themselves, and then we're arrested
for trying to harm the fetus where they were trying

(45:16):
to end a pregnancy with those drugs. Very few, but
the misinformation. If prosecutors are going to arrest women on
the basis of the myth that certain drugs cause still births,
actually they're encouraging women to use those drugs. And basically
there's no way that any prosecutor should be able to

(45:37):
establish probable cause. So it's really all about, you know,
locking up women until a court throws it out or
else finding a court that's going to go along with that. Now,
I guess most of this right has been happening in
the South in the US, and maybe some parts of
the middle part of the country, although you did mention
I think one or two cases that happened in a
fairly conservative county in California. Yes, they actually happened everywhere.

(45:59):
I mean, there is more in some states. The worst
right now is Alabama, where in fact they were locking
women up who tested positive for drug use, keeping them
in filthy jail cells, not enabling them to get out
on bail, saying that they had to go to impatient
treatment without even having a drug assessment. Uh and National

(46:21):
Advocates for Pregnant Women work to get them out just
on violations of of the bond and bail laws in
the state of Alabama. But people think that if you
bring in the state and either punish pregnant women for
using drugs or use the force of the state as
in Wisconsin, to make them go to some kind of
drug treatment, everything will be okay. Absolutely not all of

(46:45):
the research, and it is why every leading medical group
in the country, from the American Academy of Pediatrics to
the American Medical Association to the American College of Obstetricians
and kind of coolleges says, do not use punitive measures
to spawn to the issue of pregnancy and drug use.
It does not work. In fact, what it does is
deter women from coming for help. It deters them from

(47:08):
speaking honestly, which is why then you arguing that you
need secret drug testing of these women because they don't
trust their doctors, and it does not put into place
any services, whether they're treatment, abstinence only treatment or harm
reduction services that might actually help them, because there are
women who are drug dependent during pregnancy who are desperate

(47:32):
for help. All sorts of studies saying women are particularly
motivated to get help that doesn't help doesn't exist. Then
you're making me think too, because I mean, if you're
pregnant and you want to have the child, or you're
ambivalent about whether you want to have the child, and
you're using drugs and you fear you're going to be
drug tested and punished, it actually increases the likelihood that

(47:56):
the woman will seek an abortion. Absolutely, And we do
have at least one case where it's absolutely clear that
a woman in North Dakota who had been arrested she'd
been pregnant at huffing paint fumes, which you know, I
don't know how down and out you have to be
for that to be the drug you can access. She

(48:16):
gets locked up on a charge I think of a
criminal child neglect or child abuse, and somehow manages to
get out long enough to have an abortion, and low
and behold, the prosecutor drops the charge because there's no
longer a threat to the fetus. Absolutely, it will encourage

(48:36):
some women who would love to have their baby to
have unwanted coerced abortions. And another issue I wanted to
ask you about. I saw on your website that you
put out a report called harming fathers, how the family
court system forces men to regulate pregnancy. Say more about that. Well,
these are cases in which, in fact what's happening is

(48:57):
that fathers are being told that they have to control
the person who is pregnant, the woman with whom they
were going to have a baby. That it is an
example of a reversion to a kind of patriarchy control
over women that we thought we would never see again.

(49:18):
And the way it happens is that baby is born positive. Uh,
and the new father is charged himself with child neglect
civil child neglect. Why because they say he should have
forced the woman who he got pregnant to go to
drug treatment, and his failure to get her to stop

(49:40):
using drugs or go to treatment makes him ineligible to
parent his own newborn. And some of these fathers have
been represented enough to be able to say, what was
I supposed to do? I don't have custody over the
person who is pregnant, that I am responsible for half
of the genetic material. And yet courts, I think in

(50:02):
sixteen states and many cases in the state of New York,
have claimed that fathers are ineligible to have custody of
their own children because they didn't control their pregnant partners,
the women that they impregnated. The fact that there are
decisions saying that father should control somebody who was pregnant

(50:26):
because they were using drugs, it's just going back to
the earlier version of evidence of drug use during pregnancy
means you shouldn't be able to parent your child. They're
just expanding it to include the dads. Now, you know,
I'm curious, lit, I mean, we you know, we talked
about the key racial piece of this thing, and you know,

(50:47):
oftimes people talk about how in recent years, last five
ten years, that with the opioid crisis and it becoming
so you know, on the present um in kind of
white working class and depressed community ease, that there was
a kind of softening of the whole drug war mentality
and more support for a health approach, a medical approach,
to harm reduction approach. But in between all that was

(51:11):
the myth issue. Right If crack cocaine was the thing
of the late eighties and into the nineties. Meth Amphetamine
was the big drugs thing about the early part of
the two thousands, before the opiate thing really started going,
and that was overwhelmingly associated with white people. Did you
see a difference? I mean, was it just that class
replaced race. Was there a sense that because these were

(51:32):
now white mothers that there was a little more sympathy
or toleration, or was it that same mentality that, Yeah,
race was going to make it that much more vicious,
but in the end, the kind of drug war craziness
was just going to carry over to that. Well, one
of the things that I heard often was, oh, you know,

(51:55):
it's math that's associated with white people, and then opioids
is associated with white people and it's much less punitive.
Everybody's focusing on treatment. That was largely true except for
pregnant people. And uh, what key are Bridges? Professor Key
Are Bridges at Berkeley Law School beautiful brilliant Harvard Law

(52:16):
Review article looked specifically, what does it mean that now
the majority of women who are being arrested, criminalized for
being pregnant and using drugs are poor white women? What
does that say about races? In the United States. And
what she said is, look, the whole idea that it
was appropriate to apply the punitive criminal law system, and

(52:40):
it would be true for the civil child welfare system
as well, was built on the backs of black mothers.
And once it was established that this was an appropriate response,
it's in place, and everybody else gets caught up into it.
And so it appears that um, while still significant number

(53:01):
of black, Indigenous and brown women are still captured in
the criminalization, many many more rural, poor white women are
being arrested. Wendy Bach has a book coming out about
what happened in Tennessee. Uh, and we have to remember
that racism it is as you said, it's also an

(53:24):
issue of class, but racism plays out and also deciding
that there are certain white people, so called white trash,
who shouldn't be procreating, who shouldn't be undermining the supreme
white race, Those white women shouldn't be having babies, and
they get caught up into the same punitive, counterproductive systems.

(53:47):
As support for drug policy reform has grown and expanded
and even become, you know, creepingly more and more bipartisans,
have you noticed more openness to basically an ep double
use mission among progressive organizations. I think the best way
I can answer that question is to say, there are
some groups that have become even more supportive and taken leadership,

(54:10):
And in fact it happens to be your old organization.
The Drug Policy Alliance, now led by Cassandra Frederic has
really been very thoughtful UH and intentional about recognizing the
ways in which drug policy can play out differently for
pregnant women. So when your organization and the coalition that

(54:34):
finally got marijuana legalization in New York, when that law
was passed, it included thoughtfully UH provisions that prohibit criminalization
and punitive civil child welfare actions based on the use
of marijuana. When Colorado legalized marijuana, they didn't anticipate that

(54:57):
they legalize the marijuana and pregnant and you is it
and they get to arrested and they say, but it's legal,
but they didn't account for the pregnant people in their state.
I have to say that I've been disappointed for many
years that leading groups advocating for the right to abortion
often feel so vulnerable, so under attack, that they are

(55:20):
afraid to associate with any other issue will make it
even harder for them to preserve the very important right
to be able to access abortion health care. But I
think the bigger missed opportunity is that when there are
attacks on personal autonomy, on the right to bodily integrity,

(55:41):
and they can take many forms of the war on drugs,
attacks on trans people, we actually are stronger when we
work together when we call it out not just as
an attack on abortion rights, not just as uh an
interference with the right to use drug but as an
attack on the very fundamental principles of autonomy and bodily

(56:06):
integrity and liberty, a word that is explicitly in the
Constitution that should exist for everybody, including the people who
have the capacity for pregnancy. Yeah, although sometimes there's appears
to be an allergic reaction to the words liberty and
freedom among many progressive groups, which I think has been
a great failing on their part. So the let's just

(56:27):
turned now to DODS. I mean, I know, you know,
for you obviously, I mean for all of us, but
especially for you who have spent decades, you know, fighting
for reproductive rights, and you know how heartbreaking the DODS
decision and the overturning of ROW after fifty years you
know must be. But basically DoD right was about women
who want to have an abortion and preventing them from

(56:51):
doing so, whereas the issues you're mostly been working on
or about women who mostly want to be pregnant. So
the question is how will Dodds affect the issues around
the criminalization of pregnancy. Are there are there direct ways
or is it bc basically in creating a broader atmosphere
that becomes ever more oppressive in terms of women and

(57:13):
their pregnancy. I would have to say the answer to
that question is both. And I just want to clarify
that although the majority of cases National Advocates for Pregnant
Women and I have worked on over these many years
involved pregnancy and an allegation of drug is, I've also
helped advocate for women were arrested even before Dobbs for

(57:33):
having an abortion or being perceived as trying to end
their pregnancies through one means or another. What Dobbs says
is that laws that are passed under the guise of
protecting so called on born lives should be judged in
a very deferential way. So if the claim is we're

(57:53):
going to arrest pregnant people who do anything that risks
harm to the unborn life. The instruction essentially from the
majority in Dobbs is you should defer to the state.
They don't have to show that it serves any compelling interest.
They don't have to show that they've done whatever law

(58:14):
they've done in a narrowly tailored way that will actually
protect onborn lives. They can just say that's the purpose,
and basically they've been given the green light. Courts have
been told to give the green light to going ahead
and doing it. So it has been absolutely predictable that
the result of the decision will be much more criminalization,

(58:37):
if not mass criminalization and incarceration. Now with the four
million people who get pregnant every year eligible for being
locked up. Mm hmm. Now, just to make a distinction here,
there's there's obviously the majority decision by Justice Alito um,
and then there is a kind of separate opinion by

(58:59):
Clarence Thomas. And it does seem I mean, you know,
sometimes I don't want to make this sound too horrible,
but having watched Handmaid's Tale, you know on TV, you
know that this nightmarish enslavement essentially of women and the
use of their bodies, you know, to produce, to produce
babies for for the elite, essentially. I mean, I'm not

(59:21):
accusing Clarence Thomas of that, but say something about Clarence
tom because there's been times in the past when he's
written a little, you know, opinion agreeing with the majority's
own separate thing that then ultimately becomes the majority opinion.
Tell us about Clarence Thomas, is you on this. He's
now the senior majority of judge on that court, and

(59:42):
he has an incredible amount of influence. I do want
to say that, you know, we think about the Handmaid's Tale,
but if you think about black women who were enslaved,
that was the epitome of the Handmaid's Tale. They were
used to reproduce more slaves, and that became even clearer
when the slave trade itself was stopped. So they were raped,

(01:00:04):
they were put into situations where they were forced to
become pregnant so there would be more slaves. This is
nothing new in the United States of America. What's interesting
is that nothing that we're starting to see states talking
about arresting women for murder, for having abortions, states talking
about keeping them from leaving the state to have an abortion.

(01:00:27):
All of that was completely predictable, particularly from the cases
involving pregnancy and allegations of drug use. But during the
oral argument in Dobbs, Justice Thomas actually did not ask
any questions about outlawing abortion or the consequences of abortion. Rather,
he actually asked the lawyers challenging the Mississippi law limiting

(01:00:50):
abortion questions about the state's power to arrest drug using women. Uh.
He said that he claimed that in some cases that
the Supreme Court had addressed women, pregnant women were being
arrested in South Carolina, and he's only concerned was could
they be arrested earlier in pregnancy before field viability, assuming

(01:01:14):
which was wrong, that it was perfectly legal to have
them arrested after viability. And so he's made very clear
his position that the criminal law is an appropriate use
and appropriate response two issues relating to pregnancy, not limited
to drug use, and certainly extending to abortion. So, Lynn,

(01:01:36):
how are you feeling about the future. I mean, are
you hopeful that there will be a reaction of political
reaction in the states? Uh, you know, to what the
Supreme Court has done. Do you feel that the arguments
around criminalization of pregnancy outcomes and pregnant drugs used during pregnancy.
Is is you know that people are becoming more enlightened. Um,

(01:02:00):
what's your what's your feeling here? You've been working on
this for three decades or something, Well, a couple of things.
My reaction is, of course, I think I've been in
some kind of deep mourning and grief about Dobbs. At
the same time, I have gone back and read and

(01:02:20):
reread Frederick Douglas's speech in the aftermath of the dread
Scott decision, and that was the Supreme Court's decision purporting
to uphold once and for all slavery in the United
States of America, and Frederick Douglas gave this incredible speech
about how we do not have to look at that

(01:02:41):
decision as the end, that the Supreme Court is not
the last word on the freedom and humanity of black
people in the United States. And that is true. It
is not the last decision, the last word on the
humanity and status of the people you can get pregnant.
And I think that's part of the channel lenge post Obs,

(01:03:01):
is that much of the response the decision itself and
the response to it is as if it's only about
abortion rights. No, it is about the personhood status of
the people who get pregnant, whose person who has not
even yet been fully recognized by the Supreme Court. As
people have more personal experience, I've had the privilege of

(01:03:23):
being the lawyer on a lot of cases where horrendous, dehumanizing,
counterproductive things have been done two pregnant women. I haven't
had to experience that myself, but I've been close to it. Now,
so many other people will be too, and that will
motivate them to take action. We know that before Roe v. Wade,

(01:03:44):
it was estimated that from two hundred thousand to a
million women each year had illegal abortions, and that a
million a year is about what it is today. A
quarter of the women who get pregnant approximately each year
seek to end their pregnant sees. All of them, All
the women who suffer miscarriages and still births, All of

(01:04:05):
the people who find that when they go to give
birth they can be threatened with force surgery or child
removal based on something they did or didn't do during pregnancy.
All of those people are going to have to think
very differently today about what they have to do to
ensure their rights and the rights of their children and

(01:04:26):
loved ones. And I know that as hard a period
of time as this is, it is also a time
in which the fight for equality, equity for the women
and the people who become pregnant will be re energized
and resurgent. M hm. Well, Lynn, I there, I so

(01:04:47):
much you know value you know, not just our friendship,
of course, but also your incredible work over all these decades.
And I very much hope and believe that you're right
to in your concluding words. So thank you ever so
much for joining me and my listeners on Psychoactive, and
thank you for your leadership and support for all these years.
My pleasure. If you're enjoying Psychoactive, please tell your friends

(01:05:17):
about it, or you can write us a review at
Apple Podcasts or wherever you get your podcasts. We love
to hear from our listeners. If you'd like to share
your own stories, comments and ideas, then leave us a
message at one eight three three seven seven nine sixty
that's eight three three psycho zero, or you can email

(01:05:38):
us at Psychoactive at protozoa dot com, or find me
on Twitter at Ethan natal Man. You can also find
contact information in our show notes. Psychoactive is a production
of I Heart Radio and Protozoa Pictures. It's hosted by
me Ethan Nadelman. It's produced by noha'm osband and Josh Stain.
The executive producers are Dylan gold Then, Ari Handel, Elizabeth

(01:06:01):
Geesus and Darren Aronofsky from Protozolla Pictures, Alex Williams and
Matt Frederick from My Heart Radio and me Ethan Nadelman.
Our music is by Ari Blusien and his special thanks
to a Bio Sef Bianca Grimshaw and Robert Deep. Next week,

(01:06:27):
perhaps my most famous guest to date Chelsea Handler, the
famous comedian, actress, author and talk show host. We'll be
talking all about her and drugs. So I just kind
of got my whole family on board with edibles. We
go to Whistler, Canada each year to ski for Christmas,
and they started baking us cannabis infused cookies up there

(01:06:50):
about ten or eleven years ago, and we just started
handing them out before we went to dinner, and it
made our family vacations just not much more fun. We
all just seemed to get along great, have great times.
And then We just developed this great affinity for cannabis.
So yeah, I serve it up every every Christmas. Now
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The Nikki Glaser Podcast

Every week comedian and infamous roaster Nikki Glaser provides a fun, fast-paced, and brutally honest look into current pop-culture and her own personal life.

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