Alcohol and Pregnancy: CDC's Health Advice and the Legal Rights of Pregnant Women

The Centers for Disease Control and Prevention (CDC) recommended in February 2016 that women of reproductive age avoid alcohol entirely when they are pregnant, are attempting to become pregnant, or could become pregnant.¹ The agency's recommendations are tied to public health concerns about the detrimental effects of fetal alcohol spectrum disorders (FASDs),² but the announcement has generated controversy. Some critics of the recommendations assert that the recommendations overstate the impact of alcohol consumption during pregnancy.³ What has not entered into the public debate are the recommendations' implications for the legal system's treatment of women during pregnancy.

This installment of Law and the Public's Health examines the relationship between the CDC recommendations and law. Of particular note are states whose reporting laws, some of which mandate reporting, entail the provision of information to public health or law enforcement agencies on women's behavior during pregnancy, including the use of alcohol or drugs. Under these laws or other general state authorities, women have been arrested, civilly committed, subjected to forced interventions, or faced losing custody of their children. These attempts by the state to manage women's behavior have frequently occurred even in the absence of any negative birth outcome and are often rooted in nonscientific perceptions of women's behavior and fetal wellbeing. Evidence also suggests that sanctions disproportionately affect black women.

This article begins with background on FASDs, recommendations about FASDs, and CDC's newest guidelines. It then reviews state laws on alcohol use in pregnancy, describes the penalties that have been imposed on pregnant women in relation to these and other general state authorities, and discusses the tension between the public health underpinnings of such laws and their impact on women. It concludes with a discussion of the implications of reporting laws and the legal system's past treatment of pregnant women, particularly black and low-income women, for public health and clinical policy and practice.

FASDs AND MEDICAL ADVICE TO WOMEN

In 1973, experts coined the term fetal alcohol syndrome (FAS) to describe a characteristic set of facial anomalies, developmental delays, and neurological problems linked to alcohol consumption during pregnancy.⁴ The term fetal alcohol spectrum disorders (FASDs) was subsequently adopted to describe a range of potential outcomes, including FAS and anomalies or delays of less severity.⁵ The prevalence of FAS among 7- to 9-year-old children was found to be 0.03% in a 2010 study that examined children in three U.S. sites;⁶ the prevalence of FASDs is unknown.²

Evidence suggests a relationship between FASDs and binge drinking (defined by CDC for women as $4 drinks on one occasion, generally within two hours) or heavy drinking (≥8 drinks per week) during pregnancy.⁷ Public health guidelines issued by the National Institutes of Health in 1977 suggested a two-drink-per-day limit for pregnant women, with a stipulation that ≥6 drinks per day posed a clear risk for harm to the fetus.⁵ In 1981, Acting U.S. Surgeon General Edward Brandt advised women who were pregnant “or considering pregnancy” not to drink alcohol at all,⁸ a recommendation that was reiterated by Surgeon General Richard Carmona in 2005.⁹ Similar recommendations have been made by professional societies.^10–12

In February 2016, CDC released new estimates of the number of alcohol-exposed pregnancies in the United States: 3.3 million women reported both prior-month sex with a male without using contraception and prior-month alcohol use of any level.¹³ Based on these findings, CDC urged women of reproductive age to avoid alcohol entirely during pregnancy, when trying to become pregnant, or if sexually active with a male partner and not using birth control. Although CDC had made the same recommendations in the past,¹⁴ the new data on “alcohol-exposed pregnancies” were released with new educational materials for providers and women as well as media outreach.

Yet, despite echoing earlier recommendations, CDC's announcement raised controversy. Critics argued that the guidelines focus entirely on the wellbeing of the developing fetus while disregarding women's rights as autonomous beings, minimizing men's role in unintended pregnancy, and ignoring structural factors that contribute to fetal exposure to alcohol (e.g., that contribute to socioeconomic factors that affect access to reproductive services, including contraception).^15–17 Some experts applauded the recommendation, suggesting that it would help women make healthy choices.¹⁵

STATE LAWS REGARDING BEHAVIOR DURING PREGNANCY

In making the new recommendation, helping women make healthy choices was clearly CDC's goal. But such advice about behavior takes place within a broader context, and public health stakeholders should consider the fuller implications of the advice. Legal ramifications, for example, can change the way recommendations play out in the field, and sometimes in unanticipated ways. Rather than empowering women, some public health messaging could, depending on the legal environment in which it is conveyed, encourage law enforcement actions that go well beyond influencing individual decision making to affect personal liberty and parental rights.

State laws reflect a range of attitudes toward alcohol consumption during pregnancy. One analysis of state laws related to alcohol consumption during pregnancy found a general increase between 2003 and 2012 in the number of such laws.¹⁸ Some laws, such as requirements for warning signs in public establishments, are purely informational and are designed to amplify the effects of public health messaging: as of 2015, 24 states required such signs.¹⁹ Other state laws give treatment priority to women who need alcohol and/or substance use treatment during pregnancy.²⁰

However, many state laws are arguably punitive, potentially threatening women with civil or criminal sanctions, such as civil commitment (i.e., involuntary treatment or protective custody), during pregnancy, or with the temporary or permanent removal of children by child protective services agencies after birth. As of 2015, 36 states had laws related to reporting of alcohol consumption during pregnancy. Of these states, 32 have mandatory reporting requirements (almost all applicable to health-care workers) for a range of purposes; in 20 of these 32 states, the mandates were linked to referrals to child welfare agencies.²¹ The timing of reporting requirements varies by state (e.g., during pregnancy or after birth), and the level of alcohol use triggering the reporting requirement also varies. For example, in Arizona and Pennsylvania, health-care providers who believe that a newborn “may be affected by the presence of alcohol” (Arizona) or identify an infant as “affected by FASD” (Pennsylvania) must immediately make a report to child services.^22,23 In Louisiana, providers must report “[i]f there are symptoms of withdrawal in the newborn or other observable and harmful effects in his physical appearance or functioning that a physician has cause to believe are due to the chronic or severe use of alcohol by the mother during pregnancy.”²⁴ A Minnesota law requires health-care and social services providers to report to the local welfare agency “if the [reporter] knows or has reason to believe” that a woman is pregnant and “has consumed alcoholic beverages during the pregnancy in any way that is habitual or excessive.”²⁵ The health-care professional providing the woman's prenatal care or other health services is exempt from the mandatory requirement, but under the law, “any person” may make a voluntary report.²⁶

Five states have civil commitment laws allowing involuntary treatment or protective custody for women found to have used or abused alcohol during pregnancy.²⁷ Grounds for commitment include a pregnant woman having “engaged in habitual or excessive use” of alcohol²⁸ and a woman's being “an alcoholic … who habitually lacks self-control as to the use of alcoholic beverages” and is “pregnant and abusing alcohol.”²⁹ Although seven states prohibit the use of medical test results in criminal prosecutions of pregnant women for alcohol use, they do not prohibit the prosecutions.³⁰ As the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics have noted,^31,32 punitive laws could reduce women's willingness to seek pregnancy care for fear of penalties.³³ In theory, the laws could affect a woman's willingness to proceed with a pregnancy at all.

All of these laws may be grounded in concepts of health protection, and one might presume that the focus on reporting infant outcomes reflects a nonpunitive approach to mothers. Yet, a history of punitive actions taken against women who use alcohol or other substances during pregnancy has been documented. The National Association for Pregnant Women (NAPW) identified 413 cases between 1973 and 2005 in which women were subjected to arrest, detention, or forced medical interventions because of behavior during pregnancy; this figure likely represents a substantial undercount because many cases are not made public. Allegations of illegal drug use occurred in 84% of identified cases, with 12% also including reports of alcohol use. In another 16% of the cases, no illegal drug use was alleged, but women faced deprivation of liberty based on factors such as using alcohol, not obtaining prenatal care, or refusing a recommended caesarean section. In two-thirds of cases, no actual negative pregnancy outcome was identified; in the cases where harm was reported, causal evidence linking the woman's behavior to the outcome was often weak or nonexistent. The study also found numerous examples of judicial and law enforcement agency determinations where unscientific notions of risk were applied. Overall, 86% of women in the sample were charged with a crime, and 51% were charged with child abuse or neglect.³⁴

These punitive actions disproportionately affect black women. Overall rates of illegal drug use in the United States are generally similar for white and black people.³⁵ However, in the NAPW study, of the cases for which information on race was available, 52% involved black women³⁴ (although black people comprise only 13% of the overall population³⁶). Furthermore, black women were more likely than white women in the sample to be charged with a felony (85% vs. 71%).³⁴

These findings echo the findings of other studies showing substantial racial disparities in the reporting of women's behaviors during pregnancy. A 1990 study of clinics in Pinellas County, Florida, found that, despite equivalent rates of illegal drug use, black women were 10 times more likely than white women to be reported to child protective services at delivery for drug use.³⁷ A 2012 study of one California county found that even with “universal screening” policies (i.e., those that required screening) for drug and alcohol use by all pregnant women, as well as similar rates of entry into treatment, black women were more likely than white women to be reported to child protective services after delivery.³⁸

These disparities may be explained in part by uniquely punitive attitudes toward crack cocaine, which is used more often by black women than by white women. However, a consensus has emerged that the health risks to fetuses of cocaine-addicted mothers are less severe than previously described; poverty itself has a stronger negative impact on child development.³⁹ The history of concern about “crack babies” (i.e., children born to mothers who used crack cocaine during pregnancy) and vilification of their mothers does not justify the worse treatment of black women; rather, it reflects and perpetuates racial biases. These biases may continue to affect perception and response to black women's behavior during pregnancy, including the use of alcohol.

THE GAP BETWEEN HEALTH AND LAW

Two key gaps exist between the ostensibly value-neutral medical advice offered by CDC and the punitive, and often non-evidence-based, ways in which criminal and civil penalties have been applied to pregnant women. First, the standards and language of scientific evidence are not the same as those of the law. When CDC states that there is no known safe level of alcohol use during pregnancy, the scientific meaning is that studies have not conclusively identified a safety threshold. However, from the perspective of a zealous law enforcement officer or prosecutor, “no known safe level” could translate into a conclusion that any use of alcohol warrants punishment.

Second, mandatory reporting requirements can effectively bootstrap providers into the machinery of legal enforcement, a fact not conveyed by the CDC patient brochure, which encourages women to seek care if they drank alcohol before knowing they were pregnant and urges them to seek help if they believe they have a drinking problem.¹³ The CDC materials do not warn women of underlying state reporting and enforcement laws. Although a recommendation to seek care is appropriate, the CDC brochure does not fully disclose the potential effects of women's decision to disclose their use of alcohol or their need for treatment. This omission is understandable given the nature of CDC's role but points to a tension between the public health and legal approaches to the problem.

IMPLICATIONS FOR PUBLIC HEALTH POLICY AND PRACTICE

It is crucial that the public health community be aware of this paradox inherent in health promotion: information designed to achieve desired health behaviors also can have serious legal consequences depending on how law enforcement authorities use such information to shape their own practices. For example, the important public health recommendation that people living with human immunodeficiency virus (HIV) disclose their status to potential partners contributed in many states to laws criminalizing nondisclosure of HIV status. Experts now argue that such laws contribute to stigma and may create an incentive to defer HIV testing.⁴⁰ Currently, no states criminalize alcohol use during pregnancy per se, nor do the CDC recommendations suggest that states do so. Yet, the CDC recommendations could potentially encourage an expansion of problematic law enforcement activities. Most pregnant women who have an occasional glass of wine are unlikely to be arrested or lose custody of their babies, but those women who are most vulnerable to punitive approaches, namely low-income and black women, could face further pressures. For this reason, careful education of agencies with civil and criminal jurisdiction over pregnancy-related behavior is warranted.

The value of conveying appropriate health behavior information is indisputable, as is a strong public health commitment to ensuring access to treatment and services for alcohol use that could harm a woman, her fetus, or her family. The challenge is to ensure that health promotion does not get unwittingly transitioned into the types of enforcement activities that could in turn drive pregnant women away from the medical services they need.