Two States Just Made It Easier to Take Babies Away From Mothers Who Use Drugs During Pregnancy

M. thought she was doing the right thing. She had become dependent on opioids, but when she learned she was pregnant, she immediately tried to enroll in a medication assisted treatment (MAT) program. MAT is the standard of care for treating people with opioid use disorder — especially pregnant women, as quitting opioids too suddenly during pregnancy can result in complications.

Despite several phone calls to treatment providers in her county and surrounding counties, M. could not find a provider who was willing to accept her. Many substance use treatment services don’t accept pregnant women, or are otherwise inaccessible to them, despite federal and state regulations that require prioritizing them for treatment. In order to to avoid the risk of withdrawal and possibly harming her fetus, M. did what many pregnant women in her situation do — she continued to use illicit opioids.

As her due date approached, M. found a hospital that claimed to specialize in the care of babies who were exposed to opioids in utero and traveled a far distance to give birth there. She told her treating physician about her opioid use during pregnancy, not realizing this could precipitate call to Child Protective Services (CPS). CPS immediately removed her newborn from her care, largely based on evidence of her opioid use. In the subsequent months, M. saw her son once a week at best. When she visited him, she was distressed to find he often had seemingly untreated rashes. She struggled every day with the unimaginable pain and grief of separation from her newborn. As of last year, they were still apart, and M. has since lost touch with her lawyer.

More mothers may soon know M.’s pain. At least two states, Arizona and Kentucky, have just made it easier to terminate the rights of mothers who use controlled substances while pregnant. Arizona’s legislation, which became law in April, permits termination of a mother’s parental rights, either immediately when her newborn is born or within one year of her newborn’s birth, depending on how chronic the illicit drug use appears to the court. Kentucky’s legislation, which also became law last month, permits termination of a mother’s parental rights if her newborn exhibits signs of withdrawal, known as neonatal abstinence syndrome, as the result of illicit opioid use, unless the mother is in substantial compliance with both a drug treatment program and a regimen of postnatal care within 90 days of giving birth.

Terminating a mother’s rights to her newborn is an especially brutal drug war tactic that research and experience show will inflict far more harm than good on the children and families it allegedly aims to protect. Such policies are rooted in stigma and gross indifference to what the best available science tells us about how to compassionately and effectively serve pregnant women struggling with drug use disorders and their families.

“The legislators behind these laws are essentially creating a capital offense for women who give birth despite having used an illegal drug,” said Erin Miles Cloud, a senior attorney at the Bronx Defenders Family Defense Practice, who has represented numerous parents facing termination of parental rights proceedings. “Termination of parental rights is a mechanism by which families are turned into strangers, all contact and personal identity is erased, and families are destroyed forever. In that way, this legislation’s attempt to punish mothers and fathers acts as a civil death penalty for families, for which children will pay the ultimate price.”

Supporters of these laws justify the surveillance, policing, and punishment of drug-using mothers by referencing two assumptions that were touted and then discredited during and after the “crack baby” scare. First, they say the developing fetus and newborn will be harmed by prenatal exposure to illicit substances. Second, they claim that drug use during pregnancy is a reliable indicator of parental unfitness.

While a robust body of literature supports a causal connection between prenatal exposure to alcohol or tobacco (or lead or poverty for that matter) and negative postnatal health outcomes, the scientific literature has not conclusively demonstrated any long-term negative effect of prenatal exposure to opioids. Neonatal abstinence syndrome (NAS) is itself a treatable and transient condition, and a growing body of literature confirms that one of the most effective treatments for NAS is keeping the newborn and mother together in a soothing environment while encouraging skin-to-skin contact and breastfeeding. So the very condition that Kentucky believes should trigger fast-tracked termination of parental rights is in fact often most effectively treated by close, consistent contact between the mother and newborn.

The research is also clear that the results of a drug test alone are not an appropriate proxy for determining parental fitness. Millions of parents who use drugs or have substance use disorders parent their children well. Studies have found that babies exposed to cocaine in utero are not at greater risk of maltreatment as young children than similarly situated babies. Other studies have found that babies exposed to cocaine in utero perform better on several developmental measures when left with their mothers than do those removed to foster care.

The research that does claim to link substance use to maltreatment of children is not authoritative. It often relies on caseworker-confirmed reports of child maltreatment, despite the well-documented propensity of caseworkers and family courts to base findings of child neglect on evidence of drug use alone. And the scientific literature that suggests that substance use produces social cognitive deficits in parenting is in its infancy and rather underwhelming. For example, one study found that parents who use opiates find babies less cute — while conceivably notable, this finding does not meet the legal standard for terminating a parent’s rights.

Medical and public health authorities warn that women who fear losing their babies upon seeking medical care will be deterred from seeking the care they need. Community after community has seen this in the aftermath of local crackdowns on drug-using pregnant women — fewer women seek prenatal care and substance use treatment, even after the local authorities decide to change course. Experts recognize that pregnancy and childbirth present an especially opportune moment to connect a woman with services, including substance use disorder treatment — yet threats of punishment only isolate pregnant women.

Supporters of these laws blame the mothers for the dissolution of their families, arguing that the mothers need only enroll in a drug treatment program to retain custody of their children. This claim disregards the fact that drug addiction is a health issue with biological, behavioral, and genetic dimensions, and similar to other health conditions, it does not respond wellto artificially imposed treatment timelines or mandated treatment. These same legislators would be hard-pressed to take babies away from mothers who were struggling with medical treatment for hypertension or diabetes. This claim also disregards the serious gaps in access to treatment for substance use disorders, especially for poor people, and the absence of a social safety net to even support struggling families in the first place.

“Instead of punishing women for the chronic condition of addiction, something that is unethical, ineffective and inhumane, we should invest instead in the expansion of women- and family-friendly treatment resources,” said Dr. Mishka Terplan, a professor in obstetrics and gynecology and psychiatry and associate director in addiction medicine at Virginia Commonwealth University.

While medication assisted treatment (MAT) is covered under Arizona’s newly expanded Medicaid programs, Arizonans still struggle with access to MAT treatment. As is true across the nation, rural areas have limited, if any, access to MAT. Many substance use treatment centers do not offer MAT due to the stigma associated with it, and those centers that do provide MAT have not necessarily fulfilled their responsibility to prioritize pregnant women. Meanwhile, private insurance companies have found ways to circumvent Obamacare requirements on MAT coverage.

This is all exacerbated by a series of measures Arizona has undertaken to constrict its social safety net, leaving families struggling with inadequate access to cash, food, housing, child care, and transportation. The vast majority of Temporary Assistance for Needy Families (TANF) funding, or federal welfare dollars meant to help the poor, is not spent on assistance to poor families, but rather on placing and keeping children in the foster care system. Arizona also has the strictest TANF timeline in the nation, kicking families off welfare after one year. Not coincidentally, in the aftermath of the 2008 financial crisis, as Arizona’s social safety net shrank, its foster care numbers soared. Arizona now has one of the highest foster care placement rates in the nation.

Kentucky similarly struggles with poverty, poor access to substance use treatment services, and a child protective system that spends more resources on placing children in foster care than keeping them with their families. Kentucky ranks amongst the last in the nation in rates of childhood poverty. The federal Department of Health and Human Services recently released a report reviewing Kentucky’s child welfare system. It found that parents face long wait lists when accessing substance use treatment services and often don’t have the means to pay. The report also found that Kentucky’s child protection agency was not making enough efforts to prevent removal or re-entry to foster care. Indeed, Kentucky has one of the highest rates of child removal in the country.

Such inhumane responses to drug use can only exist because they are almost exclusively reserved for poor people and people of color. The overwhelming majority of parents prosecuted by the child welfare system are poor, and parents of color are overrepresented. Several studiesdocument that hospital staff disproportionately drug test and report to child protective services low-income women and women of color. Indeed, few, if any, middle- or upper-class women who use drugs during pregnancy will ever experience a child abuse and neglect proceeding, let alone a termination of parental rights — though drug use is common among people of all socioeconomic levels. Many advocates I interviewed in the course of my own research on this subject described the surveillance of pregnancies and non-consensual drug testing performed on pregnant women and their newborns as comparable to stop-and-frisks for young men of color.

Despite progress in the criminal legal system, the drug war remains almost unchallenged in the child protection system, and it is wreaking havoc on families. Before losing contact with her lawyer, M. told me her story via email. “In the family court systems, there is no … respect for medicine or science,” she wrote. “This is all done under the cloak of what is in the ‘best interest’ of the child — but that is ironic, because they are hurting my son.”