We are entering a period of heightened surveillance of pregnant people in the United States. Since the Supreme Court overturned Roe v. Wade, 21 states completely or significantly ban access to abortion. In this hostile environment, authorities cast suspicion on any pregnancy loss or adverse pregnancy outcome. The continuing push to control pregnant people will likely intensify a problem that existed well before the end of Roe—people of color, people with low incomes, and others likely to be targeted by the criminal legal system criminalized for their pregnancy outcomes. Pregnancy Justice reports that between 2006 and the Dobbs decision, there were 1,396 arrests in the US related to pregnancy outcomes. Ninety-two percent of those cases involved allegations of pregnancy and substance use, often charging people with child abuse, neglect or endangerment. Nearly 4 in 5 arrests took place in just five southern states: Alabama, South Carolina, Tennessee, Oklahoma, and Mississippi. Underlying these prosecutions is the rise in the concept of “fetal personhood,” in which a fetus is deemed to have rights separate from the pregnant person. This allows for anti-abortion rhetoric and punitive laws that infuse harmful narratives on pregnancy and substance use.

The racist “crack baby” narrative that swept the nation in the 1980s provides a dire warning of the consequences of getting this wrong. The media demonized Black women and dehumanized their children based on junk science and ingrained racism. The children who were pathologized by the media largely turned out to be fine, with any issues attributed to alcohol, other drugs, or factors associated with poverty. On the other hand, children removed from their families and placed in foster care were exposed to harm, including psychological trauma and exposure to physical violence, with long-lasting impacts. Women who faced criminal charges and civil family policing investigations spent decades trying to heal from the devastation of these “interventions.”

The societal damage of these racist attacks was immense. The narrative helped the idea of a fetus with rights prioritized above the pregnant person’s become firmly entrenched.  It fed into dog-whistle politics that led to greater disinvestment in the social safety net. As the New York Times notes in their mea culpa on covering the so-called epidemic, “legislative initiatives with roots in crack hysteria continued to resonate across the country.” Unwinding those entrenched policies and narratives is a herculean task. Perpetuating similar narratives today endangers people in this age of increased scrutiny of pregnant people’s actions.

These stigmatizing and inaccurate narratives contribute to criminalization and policing families. They often imply that people are choosing to harm their unborn baby and can inspire pity, fear, and even anger and disgust in the audience. They have ripple effects, influencing how health care providers, social workers, and other professionals respond to pregnant and birthing people who use drugs, as well as how pregnant people see themselves. Among healthcare providers, stigma results in distrust of patients, providing fear-based counseling and care, reflexive rather than thoughtful referrals to child welfare, discrimination, and even maltreatment, which lead to patients’ traumatic healthcare experiences. Patients, in turn, internalize stigma and feel deep shame and guilt. They delay going in to care because of fear of criminalization, child protective services involvement, or child removal. 

We urgently need a better approach to support wellbeing for pregnant people with substance use disorders and their families.

Substance use must be understood in the context of individual experiences and structural causes. People with substance use disorders are disproportionately affected by childhood trauma, growing up in the foster care system, and being cared for by parents or family members with significant mental illness or substance use. Individuals frequently have untreated mental health conditions, and have experienced intimate partner violence.  Black, brown, and low-income people who use substances are disproportionately surveilled and policed, and their communities are often under-funded and under-resourced. Black and low-income people are overrepresented in both the 2013 and 2023 reports of pregnancy criminalization.

Substance use is also influenced by structural issues such as:

• Inadequate and inequitable access to mental health services
• Inadequate and inequitable access to substance use treatment
• Inadequate intimate partner violence resources
• Housing instability
• Income inequality
• Unequal access to education and employment
• Mass incarceration
• The COVID-19 pandemic
• Immigration policies
• Community violence and war
• Mandatory reporting laws and overreporting by health care workers
• Family separation
• Discrimination including racism, sexism, homophobia, transphobia, ableism

Getting treatment for a substance use disorder when you are pregnant or parenting means overcoming stigmatization, finding child care, getting time off of work, finding a treatment program that accepts pregnant people, and a host of other hurdles. Reporting can help tell a holistic story about peoples’ experience.

Responsible reporting must focus on these root causes and barriers to care, rather than individuals or groups as the source of a problem.

What we know about pregnancy and substance use

• Not all substance use is a disorder. Some people use drugs and do not have a disorder. Addiction involves using substances despite negative consequences and being unable to stop. A diagnosis of a substance use disorder (SUD) can only be made by a licensed medical professional, who will also determine the severity of the disorder and treatment needs depending on the criteria that they meet.
• Toxicology testing cannot diagnose a substance use disorder. Toxicology tells the presence or absence of a substance in someone’s body, and may be prone to false positives. A use disorder is defined by behaviors that cannot be identified by a biological test.
• Pregnant people with substance use disorders can face many barriers to care, including programs that decline to care for pregnant people, a lack of integrated substance use treatment and pregnancy care, stigmatization, discrimination, lack of transportation and child care, intimate partner violence, family separation, and incarceration.
• Drinking alcohol during pregnancy may increase the chance of miscarriage or stillbirth. Pregnant people who drink more alcohol are at a higher risk of having babies with Fetal Alcohol Spectrum Disorder.
• There is no scientific evidence of unique, certain or irreparable harm for fetuses exposed to cocaine, methamphetamine, opioids or cannabis.
• Treatment of opioid use disorder is safe and effective with both methadone and buprenorphine in pregnancy. Earlier initiation of treatment increases the likelihood of staying in treatment and decreases the risk of overdose and death.
• Babies exposed to opioids, including methadone and buprenorphine, are at increased risk of the completely treatable condition of neonatal opioid withdrawal syndrome (NOWS, formerly NAS). This condition is temporary, is not a sign of maltreatment, is not evidence of an “addicted baby,” and does not have long-term effects on the child.

What doesn’t work

• Stigma and fear of punishment and criminalization make it less likely that pregnant people will seek prenatal care and substance use treatment, putting parent and child at risk for negative health outcomes.
• Black and brown patients and their infants are disproportionately tested for drugs while seeking health care, often without their informed consent. These tests have unclear or limited clinical benefit, and can lead to dire consequences for pregnant people and their families.
• Mandated reporting laws and overzealous interpretation of requirements put pregnant people at risk of investigation by child protective agencies and criminalization. These policies created “a vast family surveillance apparatus, turning educators, health care workers, therapists and social services providers into the eyes and ears of a system that has the power to take children from their parents.” Between 2010 and 2019, rates of investigations from medical professionals’ reporting doubled, with more than two times as many Black as white infants’ families investigated. Black and Indigenous children are disproportionately likely to be removed from their families and placed in foster care.
• Drug and/or alcohol use was a factor in the vast majority of arrests and prosecutions for pregnancy outcomes since 2006.
• Most US states have policies targeting alcohol, cannabis, or drug use during pregnancy. ANSIRH research shows that most policies do not affect substance use during pregnancy. Instead, these policies lead to increases in low birthweight and preterm birth, decreases in prenatal care, and increases in infant maltreatment and adverse infant or maternal health outcomes.

What works

• Treatment for substance use disorder (SUD) in pregnancy requires a multidisciplinary approach. There are effective and safe medical and behavioral health options for treating SUD in pregnancy. Pregnant people with SUD also need support to address root causes like housing instability, food insecurity, mental health conditions, and income disparity.
• Perinatal harm reduction is grounded in compassion and respect for people who use substances, equitable treatment, and aims to prevent negative consequences of substance use. Harm reduction can include goals of abstinence, decreased use, safer use, or other goals like gaining housing or employment.
• There are medicines to treat substance use disorders that are safe and effective during pregnancy. Medications for opioid use disorder during pregnancy can help avoid cycles in which a person returns to use or suffers from unsupervised withdrawal, and are associated with longer gestation and higher infant birth weight as well as decreased overdose risk.
• Neonatal opioid withdrawal syndrome is best prevented and treated by keeping birthing people and babies together in the immediate postpartum period. Rooming in (having babies staying in the same room as their parent(s)), doing skin-to-skin time, and breastfeeding are all evidence-based interventions to decrease the length of NOWS.
• As with any chronic condition, setbacks are possible. For those in their recovery journey, returns to use must be met with support rather than blame or treating it as a failure.
• The most effective treatment for SUD is voluntary and non-coercive.
• Medical decisions must be uncoupled from reporting to child welfare agencies.
• Pregnant people with substance use disorders can recover and live healthy lives.

SisterSong defines reproductive justice as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” That means honoring people’s decisions about their pregnancies, including their desire to parent, and providing them with the support to achieve their goals. Instead of a narrow and sensationalized focus on a theoretical harm to babies, we need to take an evidence-based and holistic approach to supporting health and wellbeing for the parent, infant, and family.

Communities must be supported with concrete resources for their families instead of punishment. The approach must be trauma-informed, recognizing the constellation of personal and structural issues that influence substance use and one’s recovery journey. This framework recognizes the inherent dignity of people who use substances, understands that people who use drugs care deeply about their children and families, and approaches them with empathy and respect. It embodies hope that people can achieve their goals when met with compassion and the resources to match, and elevates those stories to inspire others and shift public narratives.

Our experts suggest these areas for more media focus.

• Show success stories of pregnant and birthing people and their families in recovery. Highlight effective solutions.
• Tell stories that demonstrate how substance use disorders are a chronic condition and return to use is extremely common and often essential to one’s recovery journey.
• Portray the realities of the challenges and barriers people face during pregnancy, including the ways ineffective policies contribute to these barriers.
• Expose the racism behind narratives about who can parent safely and use substances and who cannot.
• Bust myths about substance use during pregnancy and show that parents who use substances can have healthy, thriving children.
• Highlight the harms of the child welfare system and its disproportionate policing and separation of BIPOC families. Show the negative impacts of criminalization.
• Demonstrate that problematic, punitive policies don’t work to support or improve outcomes of pregnant people who use substances.
• Highlight the connection between trauma and perinatal substance use.
• Examine root causes like housing instability and economic inequality.
• Show how limited treatment options, and decreased funding for the duration of residential treatment, hurts pregnant people with SUD and families. For example, the vast majority of treatment programs exclude partners. There are very few dual diagnosis programs (for mental illness and substance use) despite the high prevalence of comorbidity. Many programs exclude older children. In many states, there is only one—or zero— residential treatment programs in the entire state.

Organizations

• Academy of Perinatal Harm Reduction
• Changing the Narrative
• Drug Policy Alliance
• If/When/How: Lawyering for Reproductive Justice
• JMAC for Families
• Mandatory Reporting is not Neutral
• Movement for Family Power
• Pregnancy Justice
• Reporting on Addiction
• Rise

Books, reports and toolkits

• Beyond labels: Do your part to reduce stigma around substance use disorder and pregnancy (March of Dimes)
• Criminalizing pregnancy: Policing pregnant women who use drugs in the USA (Amnesty International)
• Doing Right at Birth (Innovating Education in Reproductive Health)
• Pregnancy and Substance Use: A Harm Reduction Toolkit (Academy of Perinatal Harm Reduction)
• Slandering the Unborn (New York Times)
• Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World (Dorothy Roberts)
• Words Matter: Preferred Language for Talking About Addiction (National Institute on Drug Abuse)
• Your Words Matter—Language Showing Compassion and Care for Women, Infants, Families, and Communities Impacted by Substance Use Disorder (National Institute on Drug Abuse)
• Parenting and Drug Use (Pregnancy Justice)
• Confronting Pregnancy Criminalization: A Practical Guide for Healthcare Providers, Lawyers, Medical Examiners, Child Welfare Workers, and Policymakers (Pregnancy Justice)

Research

• Drug and Alcohol Policies and Pregnancy (Advancing New Standards in Reproductive Health)
• Special Issue: Public Health Approaches to Perinatal Substance Use (Maternal and Child Health Journal, December 2023)
• State-Created Fetal Harm by Meghan Boone & Benjamin J. McMichael (Georgetown Law)
• Prosecuting Poverty, Criminalizing Care by Wendy A. Bach (William & Mary Law School)

• Heather Briscoe, MD, UCSF Department of Pediatrics
• Elise Buchheit, MSN, RNC-OB, SSM Health-St. Louis
• Alena Chavez, Training in Early Abortion for Comprehensive Healthcare
• Rebecca Griffin, UCSF Bixby Center for Global Reproductive Health
• Cynthia Gutierrez, UCSF Department of Obstetrics, Gynecology, & Reproductive Sciences
• Theresa James, MSW, LGSW, Mille Lacs Band Family Healing to Wellness Court
• Joyce McMillan, JMAC for Families
• Virali Modi-Parekh, Advancing New Standards in Reproductive Health
• Lauren D. Oshman, MD, MPH, FAAFP, University of Michigan Family Medicine
• Sarah Roberts, DrPH, Advancing New Standards in Reproductive Health, UCSF Department of Obstetrics, Gynecology, & Reproductive Sciences
• Dominika Seidman, MD, MAS, UCSF Department of Obstetrics, Gynecology, & Reproductive Sciences
• Mishka Terplan, MD, MPH, FACOG, DFASAM, Friends Research Institute
• Erinma Ukoha, MD, MPH, FACOG, Columbia University Department of Obstetrics & Gynecology
• Jeanette Vega, Rise Magazine
• Lauren Wranosky, MSW, Pregnancy Justice
• Tricia Wright, MD, MS, FACOG, DFASAM, UCSF Department of Obstetrics, Gynecology & Reproductive Sciences