The third in our National Minority Health Month blog series.

In 2014, Tennessee became the first state in the country to pass a law making it a criminal offense to use drugs while pregnant. Now, two years later, the state is reversing its position by allowing the law to sunset. We applaud the closing of this chapter – allowing the law to sunset, particularly at the height of an opioid epidemic, sends a clear message of the flawed logic leading to the passage of the law in the first place.

While this is good news, Tennessee is not the only state in the nation to impose punitive action on pregnant women with a substance use disorder. Since 2005, 800 women have been jailed nationwide for drug use during pregnancy. Based on their respective state Supreme Court rulings, both South Carolina and Alabama have been able to prosecute women under similar statutes. In three other states, substance use during pregnancy is considered grounds for civil commitment – either involuntary commitment of a pregnant person to treatment or involuntary placement of a pregnant person in protective custody of the State. Civil commitment looks different in each of these states, but in Wisconsin, for instance, a woman can be detained against her will for the duration of her pregnancy. And in 18 states, substance use during pregnancy is considered child abuse, which sets as-yet unborn children on a course to be separated from their parent(s).

It is well documented that punitive approaches to substance use during pregnancy are harmful to both parents and their children. The threat of punishment discourages pregnant people from seeking vital prenatal care and – of equal importance to the growing baby – treatment for their substance use disorders. People across the country have gone without care altogether throughout their pregnancies, out of fear of possible consequences related to their substance use. After babies are born, we know that best practice, including for those with neonatal abstinence syndrome, is to keep them with their mothers and provide robust care for the pair.

Rules that guide the care of mother and child during pregnancy when there is a substance use involved, such as the laws mentioned above, can disproportionately impact moms of color. Despite the fact that multiple studies have found no significant differences in maternal substance use by race, black women and their babies are more than 1.5 times more likely to be drug tested in a hospital setting than non-black women, and ten times more likely to be reported to public health officials.

What can we do to protect pregnant people and their children, and ensure the best outcomes for both? Halting the criminalization and disproportionate action against women of color can be addressed on multiple fronts, including:

  • Changing harmful state laws. ProPublica has compiled an interactive map of how states handle drug use during pregnancy; learn more here. Advocates, public health and medical associations from across the country have unanimously agreed – we should dismantle laws that punish pregnant people for their substance use disorder.
  • Reducing explicit and implicit bias in the health care system. Implicit bias training for health care providers has been shown to help reduce racial disparities in provision of care.
  • Clarifying screening and reporting rules. Providers need more clarity and transparency from state government about mandatory reporting rules to ensure that pregnant people are screened and referred to appropriate services, based on best practices for patients.
  • Expanding access to prevention and treatment. It is critical that we expand use of preventive screenings, like SBIRT (Screening, Brief Intervention, and Referral to Treatment), for all consumers, and especially for pregnant people, as a public health measure.
  • Intensive case management. Case management can help ensure mothers get access to treatment and other supportive services, and has been shown to be an effective strategy for reducing future substance exposure during pregnancy.