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 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 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 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 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 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 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 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 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. 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 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 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, 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 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. 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 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 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 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 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 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 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, 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, 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 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 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, 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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, 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 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 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 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 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. 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 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, 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 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 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. 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 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, 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 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 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 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 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 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 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. 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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. 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 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 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 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 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. 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 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 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 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, 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 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 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. 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 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 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. 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, 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 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 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 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 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 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 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 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 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 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 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 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 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, 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 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, 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 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 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 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 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 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 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 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 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, 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 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 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 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 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. 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 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 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 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 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 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 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 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 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. 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 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 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 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, 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 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 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, 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 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 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 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 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. 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, 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 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 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 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, 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 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 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 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 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 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 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 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, 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 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 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 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, 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. 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 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 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, 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, 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 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 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, 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 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, 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 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 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 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 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 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 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, 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 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 subscribe to Cycleactive Now see it, don't miss it.