“According to a new investigation from The Marshall Project, hospitals are giving women drugs during labor and then reporting them to child welfare services when they later test positive for those same drugs. These cases are one of the more maddening side effects of an out-of-control drug war combined with strict mandatory reporting laws.”
“Since June 27, 2022 (three days after the Supreme Court overturned Roe v. Wade), Mississippi has prohibited nearly all abortions. According to the 2007 bill that resulted in that ban, “every human being, including those in utero, possesses a natural intrinsic right to live.” It is therefore hard to understand why Brandy Moore, a mother of four who lives in Leake County, Mississippi, was recently arrested for a felony because she decided not to have an abortion back in 2019, when the procedure was still legal in her state.
The explanation for that puzzling situation lies at the confluence between the war on drugs and a child protection system that often breaks up families without solid evidence of neglect or abuse. In this case, that dangerous combination was compounded by a local prosecutor, District Attorney Steven Kilgore, who for years deployed patently frivolous criminal charges in an attempt to get drug-using mothers the help he thought they needed, whether they wanted it or not.
Moore’s legal ordeal, which stemmed from surreptitious drug tests at the hospital where she gave birth to her daughter Remi in 2019, is detailed in a Mississippi Today story, produced in collaboration with The Marshall Project, that shows her situation is far from unique. Across Mississippi and across the country, postnatal drug tests can trigger grueling investigations by state-appointed social workers, separation of mothers from their newborn children, and even criminal charges. These interventions are all based on the faulty presumption that women who use illegal drugs during pregnancy—or are mistakenly suspected of doing so based on erroneous test results—are manifestly unfit parents.
Moore’s experience is nevertheless striking in several ways. She stopped using methamphetamine around the middle of her pregnancy after a religious epiphany inspired her to reject abortion and turn her life around. For reasons that remain unclear, she was secretly indicted in 2020 but was not arrested until last May, at which point Remi was 4. And most remarkable of all, Kilgore, who seems to have previously overlooked the human consequences of treating mothers as criminals based on hospital drug tests, had an awakening of his own as a result of Mississippi Today’s investigation.
“I’ve reevaluated our stance on the topic and have decided not to handle these cases anymore,” Kilgore told Mississippi Today reporter Anna Wolfe after learning how his decisions had harmed Moore and other women, several of whom received stiff prison sentences because they failed to fully comply with the 8th Judicial District’s drug court program. “It was eye-opening to learn of the fate of these women. I believe we can all do better.”
As Kilgore tells it, he never thought these women belonged in prison. He just wanted to scare them straight. Toward that end, he charged them with “aggravated domestic violence,” a felony punishable by up to 20 years behind bars.
Under Mississippi law, “a person is guilty of aggravated domestic violence” when he “attempts to cause serious bodily injury to another, or causes such an injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” Contrary to the way Kilgore read that statute, simply using an illegal drug during pregnancy does not meet the elements of that offense.
Moore, for example, says she used meth early in her pregnancy to help her deal with stress at a difficult time. “The father wanted no involvement and encouraged her to get an abortion,” Wolfe writes. “As Moore plotted where and when to get the procedure, which was still legal in Mississippi at the time, she was using crystal meth to cope.” Once she decided to keep the baby, “it wasn’t hard to stop getting high.””
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“Mississippi Today and The Marshall Project “found 44 women across Mississippi who were arrested between 2015 and 2023 for felony child abuse or child endangerment after their newborns tested positive for drugs.” Such cases lead to family separation, intrusive surveillance, and criminal punishment—outcomes that reflect the arbitrary distinctions drawn by U.S. drug laws. Although alcohol consumption during pregnancy can harm a fetus, caseworkers and prosecutors do not target new mothers simply because they are drinkers. Yet any detectable use of an illegal drug is enough to trigger life-disrupting and liberty-threatening interventions.
Beyond the individual injustices, these policies may deter drug-using women from seeking medical care, which surely is not in the interest of the children whom officials claim to be protecting or the mothers they claim to be helping. The threat of criminal penalties might even tip the scale in favor of abortion, the option that Moore rejected years before she discovered that decision could send her to prison.
Gilliam thinks the demise of Roe v. Wade has encouraged prosecutors to pursue such cases. “Some local prosecutors across the nation have been charging women in these scenarios for years,” Wolfe notes. “But no year saw more of these criminal charges than the year following the U.S. Supreme Court opinion overturning Roe.”
After Kilgore saw the error of his ways, he dropped the case against Moore, who has mixed feelings about that result. “When she learned of the dismissal, Moore broke down in tears of relief,” Wolfe writes. “But she said she was also almost sad about the conclusion—that she would have no public trial to challenge how the [district attorney] is criminalizing pregnant women in her community. Maybe a trial would have helped others, possibly changed some laws, she thought. That’s what she hopes telling her story might do, especially for the mothers currently incarcerated.””
“According to preliminary data from the Centers for Disease Control and Prevention (CDC), the death toll from illegal drugs during the year ending in April 2024 was 10 percent lower than the number during the previous year. This would be the largest such drop ever recorded—a striking contrast to the general trend during the previous two decades, when the number of drug deaths rose nearly every year.”
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“Does this apparent turnaround show the war on drugs is finally succeeding? Dasgupta et al. deemed it “unlikely” that antidrug operations along the U.S.-Mexico border had helped reduce overdoses. They noted that recent border seizures had mainly involved marijuana and methamphetamine rather than illicit fentanyl, the primary culprit in overdoses, and that retail drug prices have been falling in recent years—the opposite of what you would expect if interdiction were effective.
While replacing street drugs with methadone or buprenorphine reduces overdose risk, the researchers said, it did not look like expanded access to such “medication-assisted treatment” could account for the recent drop in deaths. But they thought it was “plausible” that broader distribution of the opioid antagonist naloxone (commonly known as the brand Narcan), which quickly reverses fentanyl and heroin overdoses, had played a role.
In contrast with naloxone programs, which help reduce drug-related harm, prohibition magnifies it by birthing a black market in which quality and purity are highly variable and unpredictable. Efforts to enforce prohibition increase those hazards. The crackdown on pain pills, for example, pushed nonmedical users toward black market substitutes, replacing legally produced, reliably dosed pharmaceuticals with iffy street drugs, which became even iffier thanks to the prohibition-driven proliferation of illicit fentanyl.
That crackdown succeeded in reducing opioid prescriptions, which fell by more than half from 2010 to 2022. Meanwhile, the opioid-related death rate more than tripled, while the annual number of opioid-related deaths nearly quadrupled.
Drug warriors, in short, should not get credit for reducing overdoses. But they do deserve a large share of the blame for creating a situation in which an annual toll of more than 100,000 deaths looks like an improvement.”
“The annual U.S. death toll from illegal drugs, which has risen nearly every year since the turn of the century, is expected to fall substantially this year. The timing of that turnaround poses a problem for politicians who aim to prevent substance abuse by disrupting the drug supply.
Those politicians include Republican presidential nominee Donald Trump, who promises to deploy the military against drug traffickers, and his Democratic opponent, Vice President Kamala Harris, whose platform is also heavy on supply-side tactics. Neither candidate seems to have absorbed the lessons of the “opioid epidemic,” which showed that drug law enforcement is not just ineffective but counterproductive, magnifying the harms it is supposed to alleviate.”
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“While replacing street drugs with methadone or buprenorphine reduces overdose risk, Dasgupta et al. say, it does not look like expanded access to such “medication-assisted treatment” can account for the recent drop in deaths. But they think it is “plausible” that broader distribution of the opioid antagonist naloxone, which quickly reverses fentanyl and heroin overdoses, has played a role.
By contrast, Dasgupta et al. say it is “unlikely” that anti-drug operations along the U.S.-Mexico border have helped reduce overdoses. They note that recent border seizures have mainly involved marijuana and methamphetamine rather than fentanyl, the primary culprit in overdoses, and that retail drug prices have been falling in recent years—the opposite of what you would expect if interdiction were effective.
Supply-side measures, which are doomed by the economics of prohibition, not only have failed to reduce drug-related deaths. They have had the opposite effect.
Prohibition makes drug use much more dangerous by creating a black market in which quality and purity are highly variable and unpredictable, and efforts to enforce prohibition increase those hazards. The crackdown on pain pills, for example, drove nonmedical users toward black-market substitutes, replacing legally produced, reliably dosed pharmaceuticals with iffy street drugs, which became even iffier thanks to the prohibition-driven proliferation of illicit fentanyl.
That crackdown succeeded in reducing opioid prescriptions, which fell by more than half from 2010 to 2022. Meanwhile, the opioid-related death rate more than tripled, while the annual number of opioid-related deaths nearly quadrupled.
Trump and Harris seem unfazed by that debacle. Trump imagines “a full naval embargo on the drug cartels,” while Harris aspires to “disrupt the flow of illicit drugs.” They promise to achieve the impossible while glossing over the costs of persisting in a strategy that has failed for more than a century.”
“Those laws create a black market in which the composition and potency of drugs is uncertain and highly variable. They also push traffickers toward highly potent drugs such as fentanyl, which are easier to conceal and smuggle. As a result, drug users like Gentili typically don’t know exactly what they are consuming, which magnifies the risk of a fatal mistake. The “poisoning” that Peace and Caban decried therefore is a consequence of the policies they were proudly enforcing in this very case.”
“Joe Biden “was a key figure in passing the 1994 Crime Bill, which disproportionately harmed Black communities through harsh sentencing laws and increased incarceration rates,” Donald Trump’s campaign reminded voters last week. If elected, Trump promised in a speech at the Libertarian National Convention two days later, he will free Ross Ulbricht, who is serving a life sentence for running Silk Road, an online marketplace used by illegal drug vendors.
Trump’s criticism of disproportionate drug penalties contradicts his own platform, which threatens defendants like Ulbricht with death. The former and possibly future president wants to have it both ways, slamming Biden for his long history as a zealous drug warrior while portraying himself as even tougher.”
“The main idea behind Measure 110 was that consuming politically disfavored intoxicants should not be treated as a crime. Since drug use itself violates no one’s rights, it is hard to argue with that premise.
Eliminating criminal penalties for drug possession, however, does not require tolerating conduct that offends, incommodes, or alarms people who have an equal right to use sidewalks, parks, and other taxpayer-funded facilities. That problem—which many major cities face, regardless of whether they routinely arrest people for drug possession—is distinct from drug use per se, just as disorderly alcohol-related conduct is distinct from drinking per se.”
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“According to a 2016 systematic review, “evidence does not, on the whole, suggest improved outcomes related to compulsory treatment approaches, with some studies suggesting potential harms.” The authors conclude that “given the potential for human rights abuses within compulsory treatment settings, non-compulsory treatment modalities should be prioritized by policymakers seeking to reduce drug-related harms.”
One danger of jailing noncompliant drug users is that incarceration raises the risk of a fatal overdose because forced abstinence reduces tolerance. According to a 2023 study, that risk is “markedly elevated” among people recently freed from prison, especially during the first two weeks after release.”
“It is important to keep in mind that Oregon’s Measure 110 did nothing to address the supply of illegal drugs, which remain just as iffy and potentially deadly as they were before the initiative was approved. Decriminalization was limited to drug users, and it was based on the premise that people should not be arrested merely for consuming forbidden intoxicants. This distinction between drug users and drug suppliers is similar to the policy enacted during Prohibition, when bootleggers were treated as criminals but drinkers were not.
Measure 110 changed low-level drug possession from a Class A misdemeanor, punishable by up to a year in jail and a maximum fine of $6,250, to a Class E violation, punishable by a $100 fine. Drug users who receive citations can avoid the fine by agreeing to undergo a “health assessment” that is supposed to “prioritize the self-identified needs of the client.” That assessment might result in a treatment referral, but participation is voluntary.
Despite the limited nature of Oregon’s reform, which was not designed to reduce the hazards posed by the highly variable and unpredictable composition of black-market drugs, Stephens thinks the fact that drug-related deaths continued to rise in Oregon shows that decriminalization has failed. “In 2019 there were 280 unintentional opioid overdose deaths in Oregon,” he writes. “In 2021 there were 745.”
Stephens neglects to mention that drug-related deaths rose nationwide during that period, from about 71,000 in 2019 to more than 107,000 in 2021. The number of deaths involving opioids rose from about 50,000 to about 81,000—a 62 percent increase.
To be sure, the increase in Oregon that Stephens notes was much larger. But how does it compare to trends in other jurisdictions that did not decriminalize drug use?
Between 2019 and 2021, Oregon’s age-adjusted opioid overdose death rate rose from 7.6 to 18.1 per 100,000 residents. California saw a similar increase: from 7.9 to 17.8. In Washington, the rate likewise nearly doubled, from 10.5 to 20.5. And even in 2021, Oregon’s rate was lower than the national rate (24.7) and much lower than the rates in states such as Connecticut (38.3), Delaware (48.1), Kentucky (44.8), Maine (42.4), Maryland (38.5), Tennessee (45.5), Vermont (37.4), and West Virginia (77.2). On its face, this does not look like evidence that decriminalization is responsible for Oregon’s continuing rise in opioid-related deaths.*
While Measure 110 does not seem to have caused an increase in drug-related deaths, it manifestly did not prevent that increase.”
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“a heavy drug user who steals to support his habit is not immune from criminal penalties. It also means the government can justifiably regulate what drug users do in public, where their actions might offend, incommode, or alarm people who have an equal right to use sidewalks, parks, and other taxpayer-funded facilities. Although Stephens implies otherwise, eliminating criminal penalties for drug possession does not require tolerating public drug use, defecation, or blowjobs.”