Brittney Poolaw wiped away tears as the paramedic on the witness stand raised his hand to draw the jury’s attention to her in the courtroom. She shook her head as he recounted the night she miscarried in a Lawton apartment complex and was rushed into emergency surgery.

Prosecutors contended that Poolaw’s miscarriage occurred between 15 and 17 weeks gestation as a result of methamphetamine use. However, during the one-day trial in October, a state medical examiner testified for the prosecution that there was a placental issue and the foetus had a congenital defect. He was unable to determine definitively whether drug use contributed to the pregnancy loss.

Prosecutors told the jury that just because witnesses could not conclusively state that drug usage caused the pregnancy loss did not imply they did not have an idea.

“We have a situation where the defendant prioritised her own desires over the welfare of the child. “She made a choice between drugs and his life,” Assistant District Attorney Christine Galbraith stated.

After less than three hours of deliberation, the jury returned with the decision – convicted of first-degree manslaughter. Poolaw, who was 19 at the time, received a four-year prison sentence.

In Oklahoma, an increasing number of women are facing criminal charges for substance use during pregnancy, while more kids are being born exposed to drugs, according to a Frontier investigation. Prosecutors were bolstered by a 2020 Oklahoma Court of Criminal Appeals decision holding that women can be punished with child neglect for using narcotics during pregnancy, a crime punishable by up to life in prison. Alabama and South Carolina courts have rendered similar findings.

Women can face criminal charges even if their infants are born healthy.

The Frontier examined the instances of 45 women charged with felony child abuse, child neglect, or manslaughter in connection with substance use during pregnancy between 2017 and 2018.

While the majority of women were punished with child neglect after their newborns tested positive for methamphetamine, women in one county faced felony prosecution for consuming marijuana during pregnancy, even if they held medicinal marijuana licences.

According to state data, the number of infants exposed to drugs prior to birth nearly doubled between 2015 and 2021. The majority of that increase was due to marijuana, which accounted for more than 75% of cases in 2021. Eleven percent of the reports came from infants who had been exposed to methamphetamine while still in the womb.

Fear of criminal prosecution, according to nine health care providers and policy experts, can result in poor health outcomes for women and kids by discouraging mothers from seeking prenatal care or drug abuse treatment. Numerous influential organisations, including the March of Dimes, the American Medical Association, and the American College of Obstetricians and Gynecologists, are likewise opposed to prosecuting pregnant women for drug use. 37 Oklahoma physicians signed a statement criticising the practise in late December.

Dr. Kate Arnold, vice chair of the American College of Obstetricians and Gynecologists’ Oklahoma section, feels that expanding access to therapy and other support services would be less expensive and result in better outcomes than criminal prosecution of mothers.

Criminal prosecution can hurt women even if their charges are eventually dismissed or they are sentenced to treatment, according to Dana Sussman, deputy executive director of National Advocates for Pregnant Women. The organisation defends those charged with pregnancy.

“Even if we are successful in getting these prosecutions dropped or on appeal, victims retain the stigma of having been accused of harming their kids or pregnancies,” Sussman added.

According to some prosecutors, criminal justice participation protects children and can coerce women into seeking treatment.

According to a review of court documents, only 18 of the 45 women received drug treatment as part of a pre-trial programme or were required to attend treatment or complete an alcohol and drug evaluation as part of their punishment. Five of the women who entered any type of rehabilitation programme did so through unregistered recovery facilities. Several of the programmes are faith-based and require participants to labour in low-wage or no-wage employment.

Several of the women’s charges were ultimately dropped, while others awaited punishment or had their cases ongoing.

According to the data, at least 15 of the women spent time in jail before to their trials or were sentenced to prison. According to police and court records, at least ten women who were eventually prosecuted received inadequate or no prenatal care during their pregnancies.

State mental health experts report that while there are publicly supported treatment alternatives for mothers and pregnant women, connecting them to providers might be difficult.

While pregnant women may face jail or prison time for prenatal drug use, the state Department of Human Aid is powerless to intervene or give services in such circumstances. Child welfare officials assert that state law permits them to intervene only after a child is born.

Between 2006 and 2020, Oklahoma ranked fourth in the country for punitive or coercive interventions against pregnant women, including arrests and involuntary commitment to treatment, according to National Advocates for Pregnant Women.

During that time span, Oklahoma prosecutors filed at least 73 cases. The organisation stated that its case count is most likely an underestimate.

Exceptional discretion

District prosecutors have extensive discretion over whether or not to charge women with drug use during pregnancy, and the legislation has been inconsistently implemented.

In response to a surge in drug-exposed babies, some prosecutors have increased felony charges, while others have chosen to handle the majority of cases through alternative courts.

Prosecutors in Tulsa County have handled the overwhelming majority of cases in juvenile court, where families might be referred to DHS services or substance abuse treatment. Over the previous two years, at least three women in the county have been charged with child neglect for consuming drugs while pregnant.

District Attorney Steve Kunzweiler of Tulsa County stated that while he want to keep the mother and infant together, his office must protect the child’s safety.

Brian Hermanson, district attorney for Kay and Noble counties, believes that during the previous five years, he has prosecuted as many as 20 to 30 women per year for drug use during pregnancy. In 2020, he accused at least seven women with criminal child neglect for marijuana use during pregnancy. At least three of the ladies charged were in possession of valid medical marijuana cards.

According to DHS data, the number of drug-exposed babies reported in Kay and Noble counties increased from five in 2015 to 43 in 2021. The majority of the rise was due to prenatal exposure to marijuana — there were 31 such occurrences in those counties in 2021.

Hermanson said he normally obtains a three- to five-year deferred sentence, probation, and community service for women he prosecutes. Certain individuals are required to attend parenting programmes, recovery meetings, or to undergo a drug and alcohol evaluation. He stated that he believes he is obeying the law by charging women following a 2020 judgement by the state Court of Criminal Appeals.

According to an affidavit, a Ponca City woman Hermanson charged with felony child abuse in Kay County told police investigators that her doctor advised her to take marijuana during her pregnancy. The woman possessed a valid licence for the lawful usage of marijuana. In 2019, her baby tested positive for THC at delivery.

Police conducted a search of the woman’s home but discovered nothing alarming. According to an officer, she kept the marijuana out of reach of her children. A criminal charge is pending.

The research on the effects of marijuana usage during pregnancy on birth and developmental outcomes is inconsistent.

While some studies have established a link between marijuana use and low birth weights and attention issues, others have not. External influences can have an effect on the findings of investigations.

The American College of Obstetricians and Gynecologists and the Centers for Disease Control and Prevention advise pregnant women to abstain using marijuana.

The district attorneys’ offices in Adair, Sequoyah, Wagoner, and Cherokee counties have not taken any steps to prosecute mothers criminally. According to Kim Hall, first assistant district attorney, similar matters are handled in juvenile court.

The Frontier discovered ten women charged with felony child neglect or abuse in Comanche County, where Poolaw was prosecuted, since 2018 for drug usage during pregnancy. Three individuals have been charged with manslaughter.

Kyle Cabelka, Comanche and Cotton county district attorney, refused an interview request. In August 2020, the Lawton television station KSWO 7 News reported that Cabelka’s office intended to seek prison time in every incidence of maternal drug usage.

Four women received prison or jail time in the five Comanche County incidents studied by The Frontier. Two women guilty of child negligence were sentenced to ten years in prison, with the possibility of early release if they successfully complete a drug rehabilitation programme.

Oklahoma Department of Corrections drug treatment programmes for women last between four and twelve months and have a 71 percent graduation rate. There is a waiting list for admission, according to agency spokesman Josh Ward.

Instead of treatment, prison

Women who use drugs during pregnancy frequently have a history of trauma and domestic abuse, according to Paula Griffith, director of women and children’s services at Comanche County Memorial Hospital in Lawton, where Poolaw was treated.

More support services for women prior to and during pregnancy, she believes, would be beneficial.

“The majority of these ladies genuinely want their infants and want to be able to care for them,” she explained.

Poolaw is a Wichita and Affiliated Tribes member. According to court records, she spent time in foster care as a kid and struggled after ageing out of the system.

Poolaw stated in a police interview that she was unemployed and lacked valid identity to obtain health services through her tribe.

Prior to her miscarriage, she received no prenatal treatment. Poolaw said officers she used methamphetamine to forget about her problems and feel numb.

Poolaw stated that she was terrified and refused to believe she was pregnant. She was taken aback when police began an investigation into her miscarriage.

Poolaw was held at the Comanche County Detention Center for a year and a half before to her trial due to her inability to raise the $20,000 bond.

Poolaw’s court-appointed public attorney Larry Corrales said the Comanche County District Attorney’s office refused to agree to a plea deal that would allow her to enter drug treatment and instead gave her a 15-year jail sentence if she pleaded guilty.

She retained attorney John Coyle III after her conviction garnered extensive national news in October. She intends to appeal.

Manslaughter by miscarriage

After miscarriages in 2020, the Comanche County District Attorney’s office charged at least two additional women with manslaughter. The state medical examiner was unable to conclusively determine that drug usage was the cause of the miscarriages, but did identify it as a significant factor.

Ashley Traister, 33, entered a plea agreement in December and is currently awaiting sentencing.

In 2015, state legislators passed a bill changing the definition of stillbirth from 20 to 12 weeks gestation. In certain circumstances, the move has prompted the state medical examiner’s office to conduct autopsy on miscarriages as early as 12 weeks gestation. According to the US Centers for Disease Control and Prevention, stillbirths are commonly defined as the loss of pregnancy at 20 weeks or more gestation.

Emily Akers, 22, was charged with first-degree manslaughter in March 2020, ten months after having a miscarriage at a Lawton hospital.

The state medical examiner’s office conducted an autopsy and determined that the pregnancy was terminated due to infection and a placental problem, but also identified drug and tobacco usage as contributory causes. Methamphetamine was detected in the foetus.

Prosecutors suspect that Akers was under the influence of meth when she presented herself to the hospital’s labour and delivery department at the age of 20 weeks pregnant. However, attorney David Butler asserts that the Comanche County District Attorney’s office has failed to offer evidence that Akers was impaired.

A retired Lawton cop who works security at the hospital informed police about Akers and the case was examined.

A magistrate eventually dropped Aker’s manslaughter allegation, concluding that the state failed to show sufficient proof that drugs were to blame for the pregnancy loss, but Comanche County prosecutors appealed.

Galbraith, the same Assistant Prosecutor in Comanche County who prosecuted Poolaw’s case, spoke for the state in December in a court of criminal appeals hearing. Although Akers’ miscarriage occurred too early in her pregnancy to be charged with child neglect under Oklahoma law, prosecutors believed they could still prosecute her with manslaughter. A decision is awaited.

Child welfare is not permitted to intervene.

Oklahoma’s Department of Human Services has no authority over pregnant women, and state law prohibits child welfare professionals from conducting investigations until after the birth of a child.

However, health care personnel are supposed to notify the Department of Homeland Security when a newborn tests positive for narcotics. The agency may then initiate a child welfare investigation.

The state does not necessarily have to take custody of an infant exposed to drugs in the womb, officials with the Department of Human Services said.

While the number of infants exposed to drugs grew from 2015 to 2021, the number of cases in which caseworkers advocated child removal decreased from 112 to 88 during the same period, according to agency data.

Workers assess how substance use impacts caregivers’ parenting and whether the child is capable of self-protection, according to Debra Knecht, deputy director of DHS child welfare services.

Although DHS protocol compels employees to alert law police if they feel a crime has occurred, Knecht said it is not the customary course of action. Several district attorneys have requested that DHS notify law police of all newborns who have been exposed to substances.

In 13 of the 45 incidents investigated by The Frontier, police reports and court documents identified Department of Human Services caseworkers as the reporting party.

Additional treatment alternatives are required.

Many women avoid treatment out of fear of criminal or child welfare involvement, according to Teresa Stephenson, a senior director of the Oklahoma State Department of Mental Health and Substance Abuse Services who works with substance use concerns.

Courts for family treatment are one method of connecting families to assistance. The courts assist parents with DHS involvement and substance abuse difficulties in receiving treatment. According to Stephenson, women who participated in the programme were more likely to keep their infants with them following birth.

However, there are only five of these courts, and she stated there is not funds to extend the programme.

Stephenson has observed a surge in criminal cases involving drug use during pregnancy in recent years.

The Department of Mental Health is collaborating with numerous state agencies to increase access to services for families. This includes identifying pregnant women who use drugs and newborns who are exposed to chemicals.

That alliance is attempting to amend the Department of Human Services’ definition of a substance-affected infant, which currently excludes infants with neonatal abstinence syndrome and foetal alcohol spectrum disorders from family care programmes.

According to data from the state Department of Mental Health and Substance Abuse Assistance, hundreds of infants exposed to substances during pregnancy and their families are not obtaining family care plans, which serve as road maps for ongoing services.

According to state data, at least 1,602 infants exposed to prenatal substances were referred to services in 2020 but did not receive a family care plan.

Additional initiatives addressing substance use during pregnancy are gaining traction.

Dr. Stephanie Pierce is the medical director of the University of Oklahoma Health Sciences Center’s Substance Use Treatment and Recovery Prenatal Clinic. She assisted in the program’s launch in Oklahoma City in 2019.

The clinic is open one day a week and offers prenatal care to persons who struggle with substance use problems. The most often encountered narcotics by Pierce are opiates and methamphetamine. There is a need for more of this type of care, but some clinicians are unsure of their ability to handle pregnant patients with substance use disorders, Pierce explained.

She is collaborating with the Oklahoma State Department of Health to develop video lectures for health care providers on the subject.

The majority of patients and infants at the clinic have had favourable health outcomes, Pierce explained.

According to data supplied by the Oklahoma State Department of Mental Health and Substance Abuse Services, 91 percent of newborns served at the clinic were discharged to their parents’ care between October 2019 and July 2021. Two of the moms who were unable to take their infants home were imprisoned.

Clinic staff members strive to establish an environment that is inviting and judgment-free, Pierce explained. Many of their patients have been through traumatic situations or have had unpleasant interactions with the medical establishment. A social worker assists families in locating available assistance.