​​​Prosecuting Drug-Dependent, Pregnant Women Hurts Families​​

Emily Eckert.jpg
By Emily Eckert

Program Associate, Health Reform Implementation; AMCHP

The concept of stigmatizing and punishing pregnant women and new mothers for having drug dependency problems is not new in the United States. ProPublica reports that since 1973, women have been prosecuted for illicit drug use during pregnancy in at least 45 states. According to the National Advocates for Pregnant Women, a group working to protect the rights and dignity of pregnant and parenting women, more than 800 women have been jailed for drug dependency issues in the last decade alone. 
These indictments are part of a broader national initiative to curb opioid use and reduce the rate of infants born with neonatal abstinence syndrome (NAS). NAS is a drug withdrawal syndrome that most commonly occurs after in-utero exposure to opioids. The number of babies born with NAS in the United States has risen in recent years, with one study reporting that the rate of neonatal intensive care unit admissions for newborns with NAS increased from seven cases per 1,000 admissions in 2004 to 27 cases per 1,000 admissions in 2013 (see figure 1). Prenatal care is proven to greatly reduce the negative effects of substance use during pregnancy for both mother and baby; however, pregnant women with substance use disorders may be dissuaded from seeking care for fear of the potential legal consequences. 
There are serious legal consequences for the use of illicit substances during pregnancy. As of March 2016, substance abuse during pregnancy is specifically considered a criminal act in one state, and it is considered an act of child abuse in 18 states. In three states, drug use during pregnancy is grounds for involuntary civil commitment to a treatment center. Eighteen states have laws requiring health care workers to report suspected drug use by a pregnant woman to local authorities, and four states require hospitals to perform a drug test if drug use during pregnancy is suspected. 
This breadth of state laws, though ostensibly designed to curb addiction and produce optimally healthy infants, actually results in poorer health outcomes. According to the American College of Obstetricians and Gynecologists (ACOG):
“Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse. Legally mandated testing and reporting puts the therapeutic relationship between the obstetrician-gynecologist and the patient at risk, potentially placing the physician in an adversarial relationship with the patient.” 
ACOG further concludes that “drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus.” 
The criminalization of pregnant women with substance use disorders is a social justice issue that disproportionately impacts low-income women and women of color. Though no research indicates higher rates of substance use during pregnancy for black women versus non-black women, black women and their babies are more than 1.5 times more likely to be drug tested in a hospital setting than are non-black women, and 10 times more likely to be reported to public health officials. One study found that other factors besides race can also contribute to the likelihood that a pregnant woman or new mom be tested for illicit drug use. These factors include lower socioeconomic status, being unmarried, having less than a high school education, being unemployed and having Medicaid or no insurance coverage at all. 
Serving nearly 1.5 million pregnant women and more than three million infants under age 1 annually, the Title V Maternal and Child Health Services Block Grant has an important role to play in addressing illicit drug use during pregnancy. One way Title V can make a difference is by promoting the well-woman visit (National Performance Measure No. 1). The well-woman visit provides a unique opportunity for physicians to talk with their patients about reproductive life planning, mental health, diet, intimate partner violence and substance use. Having these conversations with women before and between pregnancies can increase the chances of healthy birth outcomes. Fifty states and jurisdictions selected NPM No. 1 as a focus area in their 2016 Block Grant applications. 
All states should work to ensure that the proper services and supports are available to all women with substance use disorders. This can be accomplished in part by removing the stigma of substance use during pregnancy and reducing explicit and implicit bias in the health care system.