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Child Welfare Interventions for Drug-Dependent Pregnant Women: Limitations of a Non-Public Health Response

National drug policy, medical practice and the child welfare system have not kept pace with scientific research that points to effective health interventions to address alcoholism and drug dependence among pregnant women. In its 2003 amendments to the Child Abuse Prevention and Treatment Act, Congress adopted a policy requiring physicians to report to child protective services all patients who give birth to an infant affected by illicit drug use. Drawing on epidemiological, medical and social science research, this Article critiques Congress's decision to require health professionals to engage in a surveillance role instead of a therapeutic intervention. In seeking to craft an effective child protection strategy, this Article explores two fundamental issues that weigh against the adoption of a nationwide physician reporting requirement. The first is the child welfare system's limited capacity - as an institution that carries out both child protection and rehabilitation functions simultaneously - to help drug-dependent pregnant women change their behavior. The second is the adverse effect of coerced treatment on both a physician's ability to deliver effective prenatal care and a drug-dependent woman's willingness to access health care that will mitigate the harm associated with drug use. This Article proposes that states adopt an alternative child protection model that restores physicians to their role of healer and requires them to carry out their ethical and therapeutic obligation to diagnose this serious medical problem during prenatal care.