Why the Supreme Court Should Rule Against Mandatory Treatment: FIVE GOOD REASONS

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For many of us, knowing that an expectant woman is using substances that could harm her fetus is very upsetting, maybe even enraging. It's hard not to focus on the defenceless fetus whose life may be affected by actions she or he has no control over.

From this perspective, it might seem like a good idea to use the law to pressure women who persist in using alcohol, drugs or solvents throughout their pregnancies into treatment. After all, it's for their own good -- and the good of their unborn children -- and the good of the rest of society, isn't it?

But is it really?

"It is easier to punish one pregnant woman than to alleviate the lethal conditions of many," notes Dr. Michelle Harrison. In her view, society's frustration with the problem of drug addiction and pregnancy, and our urge to protect the fetus from harm, drives us toward solutions that identify the pregnant woman as the cause.

"In our haste," she notes, "we may find ourselves responding to the need to 'do something,' relying on questionable data, and turning to solutions that defeat the ultimate purpose of caring for the woman and protecting the fetus."

Taking drastic action against individual women only deludes us into believing that we are dealing with the problem, and allows us to continue to do nothing about the root causes of substance use for women.

Aboriginal Women of Montreal is one of the many women's groups in Canada that advocate a more holistic understanding of the problem. They say: "Too much emphasis has been placed on the behaviour of "G" and not enough on other factors such as poverty, isolation, and an overtaxed social welfare system. "G"'s situation represents a much larger problem that cannot be solved by granting government agencies the ability to incarcerate these women. It would represent yet another failure of the social system to effectively deal with complex "human" problems which, in this case, requires valuing not only the unborn, but also valuing the pregnant woman who society has failed at every turn."

So before adopting a punitive position, we owe it to ourselves to take a closer look at the dangers of such a simplistic and individualistic approach -- if we truly care about the health of women and children. Here are five good reasons why the Supreme Court should rule against mandatory addictions treatment for pregnant women. (For articles that provide more in-depth information on the following points, please refer to the reading list).

1. Forced treatment just doesn't work

If the ultimate purpose of forced-treatment laws is to help pregnant women overcome their addictions and protect their unborn children from damage, they are a dismal failure. In fact, evidence from Britain and the United States shows they actually do more harm than good.

Rather than helping the pregnant women most at risk to get the services and support they desperately need, these laws just drive them underground. In the American states that have these laws, many women steer clear of health and social services for fear that they will be locked up or have their babies taken away. Obviously, this does nothing to improve the health and security of women and their future children.

2. Laws like this probably won't be applied equally to all women

As with child welfare laws, forced-treatment laws have the potential to be applied very unfairly. Studies from other countries show that the majority of women confined against their will are poor or members of racial minorities. The fact that "G" is Aboriginal and on social assistance suggests that such a pattern may occur in Canada as well.

3. A law and order response is a quick fix -- it doesn't deal with the systemic and social causes of substance use

Violence, sexual abuse, poverty, poor self esteem and lack of control over their lives are the reasons many women start down the path of addictions. Racism and other forms of discrimination only worsen this situation for women from marginalized groups, such as Aboriginal women.

Orphaned as a little girl, "G" went through a series of foster homes and ended up on the street at 16. Solvent-sniffing provided a cheap way out of a desperate and painful reality. "G" tried three times to get treatment for her addiction, each time when she was pregnant. But there were no spaces, or she didn't qualify, or she was put on a waiting list.

For example, "G" was admitted into hospital through emergency, where she went through withdrawal and made a voluntary application to receive treatment. Instead of being given help, she was placed on a waiting list and discharged. Due to a bureaucratic bungle, her application failed to mention that she was receiving CFS services, which would have given her priority. She was left alone over a weekend. When the CFS worker visited her at home a few days later, she was sniffing glue once again. It was at this point that the agency sought a mandatory treatment order.

Those who work in the area of women and addictions have repeatedly called for more treatment programs for women who use substances and more resources to address the underlying causes. Yet few such programs are available, and government cutbacks continue to threaten these and other attempts to combat violence and poverty.

As the Women's Health Rights Coalition said in their presentation before the Supreme Court, resorting to "legal orders of confinement against women is totally unacceptable when innovative and voluntary treatment approaches have barely been tried, let alone exhausted."

4. This could be the start of a "slippery slope" for pregnant women or all women of childbearing age

Enshrining such a coercive regime in law would endanger, not just the most vulnerable, but all women in Canada today. If we grant fetuses the legal right to care, where would the line be drawn? There are many substances and activities that can affect the well-being of mother and child. Do we want the court to have the power to order interventions against women who smoke, who don't eat well, who work in dangerous or high-stress environments or who engage in risky sports?

And how would we deal with the fact that many substances are most harmful in the very first days and weeks of pregnancy, often before a woman knows she is pregnant? Are we prepared to institute controls over the behaviour of all women of child-bearing age?

Mandatory treatment isn't the only threat facing substance-using expectant women. Dr. Gideon Koren of the Toronto Hospital for Sick Children advocates strong measures to keep them from getting pregnant in the first place. He goes as far as to suggest using food vouchers as incentives to get women to accept Norplant, a long-acting contraceptive implant.

5. Child welfare agencies should not be given this power

The child and family service system has been criticized by many over the years. Professionals and families have expressed concern about the conflicting mandates of these agencies. Having legal responsibility for supervising and apprehending children at risk as well as trying to do prevention work with families can create competing priorities.

All too frequently, women involved with the child welfare system try to hide their pregnancies because they fear their babies will be apprehended at birth. This is particularly problematic for Aboriginal peoples, says Kathy Mallet of the Original Women's Network.

According to her, the child welfare system has been detrimental to Aboriginal families for a long time. "They've been apprehending our children for years," she says. "They haven't been that friendly to our communities. Child welfare has always been our enemy, not our friend -- this will just give them more power. Now the agency will be seen, not as a place to get help, but as a place that will put women into treatment and take away their kids. It will just make things worse, not better."

The brutal funding cutbacks faced by child welfare agencies today compound the problem. Exhausted and burned-out staff struggle to meet the ever-increasing needs of communities, with ever-diminishing resources. High levels of unemployment are taking a profound toll on individuals and families, creating and intensifying problems with violence and addictions. The ultimate solution lies, not in punishing society's victims further, but in redressing societal inequities and strengthening our system of social supports.

This article is adapted with permission from "Considering the 'G' Case: Second Thoughts on Compulsory Treatment Orders for Women, their Families and Society," which appeared in the Spring 1997 issue of Womanly Times, the newsletter of Women's Health Clinic in Winnipeg. Network/Le Réseau gratefully acknowledges the thinking of the authors, Claudia Engel Boyce, Kemlin Nembhard, Yvonne Peters, Petra Roberts and Mary Scott.