In April 2004, Theresa Hernandez suffered a loss that affects 25,000 women annually in the United States: She delivered a stillborn infant. But because her baby tested positive for methamphetamine, Hernandez was subject to an unprecedented charge of first-degree murder by the Oklahoma City district attorney.

After three years in prison without bail or contact visits with her family and with the possibility of life in prison hanging over her head, she filed a guilty plea in September to the lesser charge of second-degree murder. Her mitigation/sentencing hearing will be Friday.

As a physician, I am not familiar with legal arguments. But I do look to scientific information to help me understand medical outcomes -- and the data do not support the assumptions made in this case.

We assume that Hernandez’s methamphetamine use must have led to the baby’s death. We assume she could have quit using drugs during her pregnancy, and that drug treatment is readily available. We assume that making an example of Hernandez will deter other women from using drugs during pregnancy. But none of these assumptions stands up to the evidence.

The American College of Obstetricians and Gynecologists, after a thorough review of the medical literature, states that methamphetamine use has not been linked to any specific adverse pregnancy outcome, including stillbirth. And the more we learn about brain function, the more likely it appears that drug addiction is a brain disorder that requires specific treatment and isn’t merely a moral failing.

Unfortunately, treatment is not readily available to pregnant women in Oklahoma. Though 3,000 pregnant Oklahoma women are in need of substance abuse treatment, available facilities are limited to fewer than 250 beds. 

Studies have shown that pregnant women who face arrest for drug problems avoid contact with the health care system, and that means worse outcomes for mothers and babies alike. South Carolina had an associated increase in the infant mortality rate when the state began prosecuting pregnant women for any endangerment of the fetus.

This type of prosecution could even encourage women to have an abortion rather than risk arrest for a bad outcome during pregnancy. This in fact occurred in at least one highly publicized case.Contrary to our assumptions about Hernandez’s case, there is no medical evidence that links methamphetamine use to her baby’s death.

The reason for her stillbirth will remain unknown -- as is the case for 50 percent of these losses. The evidence indicates that instead of using our resources to prosecute women for drug use during pregnancy, we should establish treatment options that enable women to stay healthy and have the best chance of delivering a healthy baby.

Neither health care nor justice is promoted if women who suffer stillbirths are treated as murderers.

Dr. Stone is an OB/GYN in Oklahoma City and is state chairman for the American College of Obstetricians and Gynecologists.

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