Expressing a growing concern for fetal well being, the 2006 Idaho Senate passed legislation that permits criminal charges to be brought against women who abuse illegal drugs while pregnant. This bill allows for the potential incarceration of violators for up to five years, as well as a possible $50,000 fine. In some locations, women have the option of choosing to go to drug court instead of serving time in jail or prison. These drug courts provide drug treatment, case management, drug testing, and supervision, while requiring women who abuse illegal drugs to regularly report to scheduled status hearings before a judge. Legislators, such as Idaho Senator Kate Kelly, have criticized these laws for being punitive. Such critics believe that addiction to methamphetamine is an illness and not a crime. Some critics are also concerned about the law's effects on families. Senator Kelly also said, "[c]riminalization of substance abuse, [and] the separation of infants from their mother, is not in the best interest of Idaho families." In other words, punitive measures are not necessarily the best policies; other options should be considered first. Also, Senator Denton Darrington stated "[t]he goal of this legislation is to avoid the birth of meth babies." . . . While the current legal actions taken against prenatal substance abusers are intended to produce positive outcomes, such as healthier fetuses and mothers, negative results are possible. Avoidance of prenatal care, constitutional infringements, and discrimination are just a few of the possible negative effects. For example, while legislatures hope the new Idaho law will prevent prenatal drug abuse, experts fear that pregnant drug users will not seek prenatal care for fear of being prosecuted.
Elizabeth E. Coleman and Monica K. Miller, Assessing Legal Responses to Prenatal Drug Use: Can Therapeutic Responses Produce More Positive Outcomes than Punitive Responses, 20 J.L. & Health 35 (2006-2007)