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Big Horn courthouse

Big Horn County Courthouse in Hardin April 19, 2017.

The Big Horn County Attorney has announced a "crackdown policy" on expectant mothers who continue to use drugs and alcohol during their pregnancies. He vows to increase prosecutions of what he termed a "long-standing issue that hasn't been adequately addressed."

Jay Harris on Thursday said his office will begin issuing restraining orders against pregnant women found to be using alcohol or drugs, aside from prescriptions.

If they violate the restraining order, he said his office will "prosecute on a contempt basis and seek incarceration in order to incapacitate the drug or alcohol-addicted expecting mother."

The policy of stepping up civil prosecutions against pregnant addicts was spurred by the increasing rates of youth-in-need-of-care cases, Harris told The Billings Gazette, referring to assessments that juveniles have been abused, neglected or abandoned under Montana law.

In addition to the well-documented effects of fetal alcohol syndrome, studies have shown an increased risk of developmental disorders in children whose mothers abused drugs while pregnant, including opioids. From 2008 to 2015, the Montana Department of Public Health and Human Services documented a more-than-threefold increase in the rate of newborns showing physical symptoms of drug withdrawal in the state.

“I regret that I have not pronounced this policy years ago,” Harris said, noting that the issue was brought to his attention by the Crow Tribe’s Legislative Branch in 2015. “I don’t have any statistics that I can provide at this time, but we do know the trends based on what comes across our desks.”

Harris' new policy is reminiscent of a 2014 case in Ravalli County, in which a woman was charged with criminal child endangerment for allegedly putting her unborn child at risk by using illegal drugs. The case was thrown out by a district court judge, and Harris said his office had been advised against pursuing the same legal strategy.

But the difference between Ravalli’s approach and Big Horn County’s, he added, is that he will only pursue civil prosecutions against those expectant mothers, rather than criminal charges.

“I think that’s a distinction without a difference,” Caitlin Borgmann, executive director of the American Civil Liberties Union of Montana, said Thursday. “He’s basically trying to criminalize pregnancy when what these women need is better access to health care, and not jail time.”

Harris said he believes his policy will encourage more addicts to take advantage of treatment services, adding, "I just can't imagine any of these folks or any others turning away a pregnant mother," due to limited space.

But that's exactly what happens, said Malcolm Horn, director of the Rimrock Foundation in Billings.

Although addiction treatment programs are available in Big Horn County, including the federally run health care centers on the Crow and Northern Cheyenne reservations, Horn said they suffer from the same resource and workforce shortages seen in treatment centers throughout the state.

Rimrock, the region's largest addiction treatment center, on Monday opened a new, eight-bed treatment center specifically for pregnant women struggling with addiction. But that’s still not nearly enough to satisfy the treatment demand among expecting addicts, which Horn noted is a critical population among those struggling with drug and alcohol abuse.

“You might go to the top of the list, but there’s still 10 women in front of you," she said. "There’s not a lot of space.”

And aside from those with the means to drive more than an hour to Billings for treatment, pregnant women in outlying, sparsely populated areas like Big Horn County already face social barriers to getting clean.

“You don’t want to go seek treatment there because, good grief, you know the people there. It’s not confidential. It’s not anonymous,” she said.

The prospect of losing the child to state protective services once it’s born creates another obstacle that already prevents expecting mothers from obtaining professional addiction treatment, Rimrock's Horn added.

Both the American Medical Association and the American Academy of Pediatrics oppose punitive measures against pregnant addicts, Borgmann said, based on evidence that they actually discourage that population from seeking help.

“If a woman is concerned that she will be prosecuted when it is discovered that she is both pregnant and struggling with chemical dependencies ... she’s not going to get treatment,” Borgmann said.

And if a pregnant woman lands in jail, she's unlikely to get the addiction treatment and prenatal care she needs, as the Missoulian reported last month in a series produced in partnership with the University of Montana School of Journalism. Withdrawals can ultimately cause more damage to the developing fetus, and medical professionals frequently prescribe drugs like buprenorphine for pregnant addicts rather than risking the effects of going cold-turkey.

Still, Harris defended his policy as an effort by the criminal justice system to intervene on behalf of the child when other services available to addicted populations are falling short.

“Incarcerating a pregnant, alcoholic mother is a last resort, but that’s the ultimate protection that can be afforded under law to make sure the fetus is not exposed to drugs or alcohol,” Harris said. “A person born into the world, facing a potential lifetime of disability, I believe there is inherent to their humanity a protection against that.”

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Morning Reporter

General assignment reporter for the Billings Gazette.