Jay Wolfson, DrPH, JD,

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Every 15 minutes a baby is born with neonatal abstinence syndrome (NAS), a condition whose incidence has increased 5-fold since 2004.

 There are also increasing reports of opioid overdoses in breastfed babies whose mothers are ultrarapid metabolizers of codeine and tramadol.

 The opioid epidemic clearly has hit obstetricians and pediatricians full bore. However, lost in discussions about how to mitigate the problem has been a growing state policy divide that pits protecting infant health against preserving maternal autonomy. There is now an increasingly bright line in state policies between states that have enacted punitive laws treating drug use during pregnancy as child abuse, and a possible crime, and states that have laws emphasizing supportive or preventive policies and practices.

Advocates of criminalization note that failure to impose strict and clear expectations and consequences for illicit use of opioids has had the dual social impact of enabling bad behaviors and recklessly endangering the health of innocent newborns, thereby warranting a punitive policy response. Moreover, they note, care for these infants consumes $1.5 billion per year in health care costs that are frequently borne by state Medicaid coffers.

 In contrast, critics of punitive policies argue that criminalizing prenatal opioid use deters mothers from seeking appropriate care; brands women with a criminal stigma; and in some cases, destroys families by removing the newborn from the custody of the mother. They also argue that racial and economic profiling targets poorer women and that criminalizing a pregnant woman for opioid abuse is another step on the slippery slope of restricting or eliminating reproductive choice.

As is the case with many hot-button issues, our nation is sharply divided as to how the government, particularly states, should best protect the interests of pregnant mothers, their fetuses, and newborn children in the face of the opioid crisis. We offer here what we hope is a balanced, reasoned perspective on this subject. 

Opioid use disorder (OUD) in pregnancy is associated with all the same risks to the mother as in non-pregnant women: overdose death, serious infections from intravenous injections and needle sharing, domestic violence, criminal behavior, and sexually transmitted diseases. Indeed, substance abuse is now a major risk factor for pregnancy-associated deaths.

 Obstetrical risks of untreated OUD include fetal growth restriction, abruption, stillbirth, and preterm labor.

 Depression is present during the antenatal period in 30% of affected women and 40% of such postpartum women.

 The major newborn risk is NAS, which is present in up to 80% of newborns whose mothers have OUD.

 Affected newborns display irritability, feeding difficulties, and sleep abnormalities. The severity of these complications has led the American College of Obstetricians and Gynecologists (ACOG) to recommend universal screening for OUD using validated tools such as questionnaires. Identification of addicted mothers would allow for prompt referral for medication-assisted treatment (MAT) with opioid agonist pharmacotherapy and appropriate behavioral and social counseling and support to optimize both obstetrical and neonatal outcomes. 

The Federal Child Abuse Protection and Treatment Act of 1988 (P.L. 93-247), amended as part of the Comprehensive Addiction and Recovery Act of 2016 (P.L. 114-22 and P.L. 114-198) requires that states receiving certain federal funds develop reporting systems and notification protocols to child protective services along with guidelines for determining if and how drug use during pregnancy should be classified by state law as child abuse. In response, three states (Tennessee, Alabama and South Carolina) enacted “fetal assault” laws criminalizing opioid use during pregnancy under chemical endangerment laws. Tennessee’s law allowed a woman to be prosecuted for use of a narcotic while pregnant if her infant was born addicted to or harmed by the drug and the addiction or harm was a result of her illegal use while pregnant.

 It carried a maximum penalty of 15 years in prison. This law sunset in 2016. Alabama prosecuted 479 women for drug use during pregnancy from 2006 to 2015 before the law was modified in 2016 to exclude prescription drugs.

 The South Carolina statute is the broadest, as it does not mention controlled substances but targets prenatal OUD and other prenatal substance abuse affecting viable fetuses through its child abuse and endangerment laws.

 It should be noted that while many convictions in these states have been upheld, others have been overturned on appeal.

 Of note, in Alabama and South Carolina, the majority of state supreme court judges determined that the word “child” includes a fetus, a finding with implications for abortion access, should Roe v. Wade be further modified or overturned. 

Wisconsin, Minnesota, Oklahoma, and both North and South Dakota have child protection laws permitting detention of ostensibly abusing pregnant women, with some states assigning a guardian ad litem to represent the fetus with provisions for removing the child from the mother once born.

 Wisconsin investigated 389 women in 2017 and removed 33 babies from maternal custody after birth.

 However, states cannot routinely and easily identify a woman while pregnant as a potential opioid abuser unless she consents to a screening test. Non-consensual diagnostic tests of mothers have been deemed unconstitutional by the U.S. Supreme Court,

 but of course newborn infants may be tested. 

Anything that an adult may do that is likely to cause death or serious bodily injury to a child can be deemed a crime of reckless endangerment. This is long-established common law that has, in many jurisdictions, been translated into statute. “Reckless indifference,” a leap above simple negligence, is the general standard for criminalizing adult acts against children. Twenty-three states and the District of Columbia consider substance use during pregnancy to be child abuse under civil child-welfare statutes, and three states consider it grounds for civil commitment.

 Moreover, 24 states and the District of Columbia require health care professionals to report suspected prenatal drug use, and eight states require providers to test for prenatal drug exposure if they suspect drug use. 

These jurisdictions ground their laws in a “compelling state interest” that places the health and welfare of the unborn and delivered child above the decisions and behaviors of the pregnant woman. Laws that criminalize opioid use during pregnancy presume the reckless endangerment of the child and posit that prevention of “bad acts” requires powerful, punitive deterrents. Protection of the child is a powerful and well-tested Constitutional basis for government policies; that of the fetus is more controversial and unsettled. 

The policy alternative to criminalization has been more aggressive treatment and prevention programs, pursued by 21 states with 19 states having either created or funded drug treatment programs for pregnant women, and 17 states and the District of Columbia providing pregnant women with priority access to state-funded drug treatment programs.

 Ten states also prohibit publicly funded drug treatment programs from discriminating against pregnant women. The social and legal presumptions driving this class of state initiatives are far more consistent with ACOG recommendations,

 including the premise that early and well-coordinated identification and treatment will result in “the best chance of helping infants and families.” Criminal sanctions are viewed as detrimental to the long-term solution to OUD because such laws might discourage affected women from seeking prenatal care altogether.

Unanswered is whether either punitive or permissive state laws have made a difference. We suspect not because even though most states have enacted legislation to deter prenatal opioid abuse, with about half enacting principally punitive laws and the other half principally prevention/treatment laws, maternal opioid use and the prevalence of NAS continue to rise.

We concur that there is a recognized, compelling state interest in protecting pregnant women and children, but what should be the pragmatic guiding policy principle(s) of government: Criminalization? Punitive sanctions? Stigma reduction? Prevention? Mitigation of adverse sequelae? We would contend that punitive laws will discourage some pregnant women from seeking any prenatal care, potentially exposing mothers, fetuses and newborns to greater harm than isolated in utero opioid exposure.

Because obstetricians are on the front line of promoting maternal, fetal, and newborn health, what meaningful expanded role should we play, and will we be expected to participate in policing women to impose criminal penalties that can include removal of children from their patients? We posit that ob/gyns should follow current ACOG recommendations, which include: early universal screening, a brief counseling intervention, and referral for MAT. Obstetricians should never be placed in the position of directly policing their patients, a practice which violates our Hippocratic oath. 

Breaching the current chasm in practice and policy concerning opioid use during pregnancy requires a combination of reasoned, informed discussion plus higher-quality evidence on optimal clinical management strategies and sound, tested public policies that decrease occurrence. Ultimately, good medicine and good law demand better data.

National Institute on Drug Abuse. Dramatic increases in maternal opioid use and neonatal abstinence syndrome. Available at: 

https://www.drugabuse.gov/related-topics/trends-statistics/infographics/dramatic-increases-in-maternal-opioid-use-neonatal-abstinence-syndrome

US Food and Drug Administration. Use of codeine and tramadol products in breastfeeding women – questions and answers. Available at: 

https://www.fda.gov/Drugs/DrugSafety/ucm118113.htm

Thomas S, Treffers R, Berglas NF, et al. Drug use during pregnancy policies in the United States from 1970 to 2016. Contem Drug Probl. 2018;45(4): 441-459

Krans EE, Patrick SW. Opioid use disorder in pregnancy: health policy and practice in the midst of an epidemic. Obstet Gynecol. 2016;128(1):4-10.

Amnesty International. Criminalizing pregnancy: policing pregnant women who use drugs in the USA, AMR 51/6203/2017 Code of Ala. Section, 26-15-3.2 Available at: https://www.amnesty.org/download/Documents/AMR5162032017ENGLISH.pdf Accessed January 31, 2019.

Stone R. Pregnant women and substance use: fear, stigma, and barriers to care. Health Justice. 2015; 3:2. 12. doi:10.1186/s40352-015-0015-5

Committee on Obstetric Practice. Committee Opinion No. 711: Opioid Use and Opioid Use Disorder in Pregnancy. Obstet Gynecol. 2017 Aug;130(2):e81-e94.

Holbrook A, Kaltenbach K. Co-occurring psychiatric symptoms in opioid-dependent women: the prevalence of antenatal and postnatal depression. Am J Drug Alcohol Abuse. 2012 Nov;38(6):575-9.

Legislative Tennessee fetal assault law (HB 1205). Available at:

 https://rewire.news/legislative-tracker/law/tennessee-pregnancy-criminalization-law-hb-1295/

Seung-Bicklery R, Marshall R. New report shows Alabama’s pregnancy law hurts, not helps. ACLU of Alabama. Available at: 

https://www.aclualabama.org/en/news/new-report-shows-alabamas-pregnancy-laws-hurts-not-helps

Lewis MS. Criminalizing substance abuse and undermining Roe v. Wade: The tension between abortion doctrine and the criminalization of prenatal substance abuse. Wm Mary Jf Women & Law. 2017; 23(2):184-217.

Angelotta C, Appelbaum PS. Criminal charges for child harm from substance use in pregnancy. J Am Acad Psychiatry Law. 2017;45(2):193-203.

Soohoo C, Kaufman RE. The Detention and Forced Medical Treatment of Pregnant Women: A Human Rights Perspective. American Constitution Society for Law and Policy. Issue Brief. Available at: 

https://www.acslaw.org/wp-content/uploads/2018/04/The_Detention_and_Forced_Medical_Treatment_of_Pregnant_Women_1.pd

Wisconsin Department of Children and Families. Wisconsin Child Abuse and Neglect Report. Annual Report for Calendar Year 2017 to the Governor and Legislature s. 48.47(8), Wis. Stats. Appendix B. Available at: 

https://dcf.wisconsin.gov/files/cwportal/reports/pdf/can.pdf

Tantibanchachai C. Ferguson v. City of Charleston, 532 U.S. 67 (2001). The Embryo Project Encyclopedia. Available at: 

https://embryo.asu.edu/pages/ferguson-v-city-charleston-2001

Guttmacher Institute. Substance abuse during pregnancy. January 1, 2019. Available at: 

https://www.guttmacher.org/state-policy/explore/substance-use-during-pregnancy#

Centers for Disease Control and Prevention. The US opioid crisis: addressing maternal and infant health. Available at: 

https://www.cdc.gov/reproductivehealth/opioid-use-disorder-pregnancy/index.html

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As more states turn to punitive policies to discourage OUD among pregnant women, Dr. Lockwood and Dr. Wolfson examine what the ob/gyn's role in the debate should be. 

Author | Jay Wolfson, DrPH, JD,

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