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Attorney General: Big Horn County Crackdown On Pregnant Addicts 'Counterproductive'

Montana Attorney General Tim Fox.
Montana DOJ
Tim Fox is Montana's attorney general.

Montana Attorney General Tim Fox says the Montana County attorney who has implemented an immediate ‘crackdown’ on pregnant women found to be using drugs or alcohol never consulted with him.

Tim Fox, Montana’s chief law enforcement officer, says he didn’t hear from Big Horn County Attorney Jay Harris.

“[He] Didn’t consult with my office about his approach in pushing for prosecution of mothers and pregnant women that might be abusing some substance. Frankly I think that kind of a blanket approach — using threats — is counterproductive,” Fox said.

Big Horn County Attorney Jay Harris says he will now seek restraining orders to prevent pregnant women from consuming alcohol or illegal drugs; particularly methamphetamine and opioids. If those orders are violated, his office would then seek to jail the women.

That caught the attention and condemnation of several statewide organizations including Planned Parenthood of Montana and the American Civil Liberties Union of Montana.

Caitlin Borgmann is ACLU’s Executive Director.

“It’s discriminatory to treat pregnant women differently from other people who are suffering from substance addiction. The more important point is that it is not only legally questionable, it’s wrong as a matter of public policy,” she said.

If Bighorn County Attorney Jay Harris attempts to enforce the policy, Borgmann says ACLU will immediately file a court challenge.

Harris declined Montana Public Radio’s request for a taped interview.

However, in emailed comments, he noted treatment should always be the preferred alternative to help expecting mothers overcome their addictions. But he adds a pregnant woman who persistently abuses drugs and/or alcohol is harming – potentially for a lifetime – a separate and innocent human being.

Referring to the treatment versus "crackdown" approaches, Harris' email to MTPR reads: “Carrots and sticks are both needed — otherwise we are relying entirely on the good conscience of an individual stuck in the grip of chemical dependency. The integrity and value of human life cannot rest entirely upon such reliance.”

ACLU of Montana’s Caitlin Borgmann says pregnant women with addiction problems need more carrots in their lives and fewer sticks.

“It’s already very difficult for women to find treatment programs that will accept pregnant women. The last thing we want to do is make women afraid that they will be thrown in jail, that they might lose their existing children if they go and seek care because someone will then discover that they have been using drugs or alcohol,” Borgmann said.

Fourteen children in state protective custody died in 2017. Drug or alcohol use was a factor in most of those reports.

A Justice Department review of those deaths says the state could prevent many future deaths by offering more drug and alcohol treatment services for pregnant women.

It’s a concept that has the backing of Montana Attorney General Tim Fox.

“Individuals in crisis, particularly new mothers and pregnant women, aren’t looking to become criminals. More often than not, I would suspect that if we engage them and create an atmosphere where they will self-report and seek help we’ll probably get better outcomes,” Fox said.

In 2014, a Ravalli County prosecutor charged a woman who tested positive for drugs with criminal endangerment. A court later threw out those charges.

Big Horn County Attorney Jay Harris says he would initially seek civil, not criminal, interventions to protect unborn children.

Harris also encourages the public to report any known instances of pregnant women who are using drugs or alcohol to the local sheriff’s office.

ACLU’s Caitlin Borgmann describes that addition as particularly disturbing.

“This idea that we should be policing pregnant women is a frightening specter. We don’t want women to feel like everyone is out to get them rather than to help them,” she said.

Big Horn County Attorney Jay Harris says he will respond to any legal challenge to the new policy, as appropriate, in court. He adds he thinks most Big Horn County residents — and most Montanans — will agree with his new policy approach.

Edward O’Brien first landed at Montana Public Radio three decades ago as a news intern while attending the UM School of Journalism. He covers a wide range of stories from around the state.  
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