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Pregnant and Parenting Women with a Substance Use Disorder: Actions and Policy for Enduring Therapeutic Practice

      Executive Summary

      The American Academy of Nursing (Academy) calls for an end to criminal prosecution and punitive civil actions against pregnant and parenting women based solely on their substance use or substance use disorder (SUD). The Academy supports a public health response to the needs of women and their children and families affected by SUDs that incorporates multi-disciplinary culturally- and trauma-responsive models of health care, child welfare, treatment and recovery supports and clinician practices that are in line with the accumulated scientific evidence.

      Background

      Since the 1970s, many law enforcement agencies, state legislatures, courts, and medical personnel in the United States have used punitive legal sanctions against pregnant women with the purported intent of protecting the fetus from maternal use of alcohol, tobacco, and other drugs (
      Guttmacher Foundation
      State Laws and Policies: Substance Use During Pregnancy.
      ,
      • Jos P.H.
      • Marshall M.F.
      • Perlmutter M.
      The Charleston policy on cocaine use during pregnancy: A cautionary tale.
      ,
      Reyes v. Superior Court
      75 Cal. App. 3d.
      ). Women of color and those who are financially disenfranchised have been disproportionately targeted for drug screening and drug related charges and as a result have experienced disparities in access to needed health and social services (
      Amnesty International
      Criminalizing pregnancy: Policing women who use drugs in the U.S.A.
      ,
      • Kunins H.V.
      • Bellin E.
      • Chazotte C.
      • Du E.
      • Arnsten J.H.
      The Effect of Race on Provider Decisions to Test for Illicit Drug Use in The Peripartum Setting.
      ,
      • Roberts D.E.
      Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy.
      ). The net impact of these actions on women who are using substances and on their families has been to incite fear, suppress women's disclosure of substance use, and create barriers to essential health and social services, with resulting poor outcomes (
      • Angelotta C.
      • Weiss C.J.
      • Angelotta J.W.
      • Friedman R.A.
      A moral or medical problem? The relationship between legal penalties and treatment Practices for opioid use disorders in pregnant women.
      ,
      • Stone R.
      Pregnant women and substance abuse: fear, stigma and barriers to care.
      ). After more than four decades of criminal and civil actions against women who are pregnant and parenting and their families, the accumulating evidence of inherent harm and threats to maternal and child health and to women's constitutional and civil rights is undeniable (
      Amnesty International
      Criminalizing pregnancy: Policing women who use drugs in the U.S.A.
      , ,
      • Paltrow L
      • Flavin J
      Arrests of and forced interventions on pregnant women in the United States (1973-2005): The implications for women's legal status and public health.
      ). Recovery-oriented public health responses are urgently needed to institutionalize evidence-driven practice, and to permanently shift the culture of punishment to one of enduring therapeutic intent in line with a health justice framework (
      • Benfer E.M.
      Health justice: A framework (and call to action) for the elimination of health inequity and social injustice.
      ).
      Scientific evidence and cost-benefit analyses strongly support the use of therapeutic treatment interventions to ensure optimal health and social outcomes for women and their children (
      • French M.T.
      • McCollister K.E.
      • Cacciola J.
      • Durell J.
      • Stephens R.L.
      Benefit‐cost analysis of addiction treatment in Arkansas: Specialty and standard residential programs for pregnant and parenting women.
      ,
      National Institute on Drug Abuse
      Principles of drug addiction treatment: A research-based guide (Third Edition).
      , ). Clinical protocols for healthcare practitioners and best practice model programs for state agency responses also provide guidance to significantly improve the health and wellness of women and their children and families, and to direct therapeutic and humanitarian public policy actions in the U.S. (
      • Klaman S.L.
      • Isaacs K.
      • Leopold A.
      • Perpich J.
      • Hayashi S.
      • Vender J.
      • Jones H.E.
      Treating Women Who Are Pregnant and Parenting for Opioid Use Disorder and the Concurrent Care of Their Infants and Children.
      ,
      • Maguire D.
      Drug addiction in pregnancy: Disease not moral failure.
      ,
      Substance Abuse and Mental Health Services Administration
      Mental and Substance Use Disorders.
      ,
      Substance Abuse and Mental Health Services Administration
      A Collaborative Approach to the Treatment of Pregnant Women with Opioid Use Disorders. HHS Publication No. (SMA) 16-4978.
      , , 2018).

      Criminal and civil sanctions

      The available data sources indicate that since the 1970’s, more than 1000 women in the U.S. have been prosecuted for substance use during pregnancy
      There is no national data bank monitoring the number of prosecutions of women for substance use during pregnancy. The number of cases referenced above is derived from existing analyses of known cases in several states and is believed to be an undercount of the actual number of cases (see
      Amnesty International
      Criminalizing pregnancy: Policing women who use drugs in the U.S.A.
      , p. 8;
      • Paltrow L
      • Flavin J
      Arrests of and forced interventions on pregnant women in the United States (1973-2005): The implications for women's legal status and public health.
      , pgs. 304–305).
      with the majority of those cases occurring since 2005 (
      Amnesty International
      Criminalizing pregnancy: Policing women who use drugs in the U.S.A.
      ,
      • Paltrow L
      • Flavin J
      Arrests of and forced interventions on pregnant women in the United States (1973-2005): The implications for women's legal status and public health.
      ). Some states and jurisdictions have created “fetal assault” laws to prosecute women with SUDs. In Alabama and Tennessee alone, several hundred women have been charged under similar statutes (
      Amnesty International
      Criminalizing pregnancy: Policing women who use drugs in the U.S.A.
      ,
      • Paltrow L
      • Flavin J
      Arrests of and forced interventions on pregnant women in the United States (1973-2005): The implications for women's legal status and public health.
      ). Recent actions by state legislatures and county prosecutors have led to criminal charges, arrests, and incarceration (
      Code of Alabama.Title 26-Infants and Incompetents
      Chapter 15-Child Abuse Generally. §26-15-3.2. Chemical endangerment of exposing a child to an environment in which controlled substances are produced or distributed.
      ,
      Tennessee Fetal Assault Law
      SB 1391. Public Chapter 820. Title: As enacted, provides that a woman may be prosecuted for assault for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug.
      ;
      The Tennessee Nurses Association in collaboration with other public health organizations played a central role in the sunset of Public Chapter 820 on July 1, 2016 through legislative testimony, alerts to Tennessee nurses, and by maintaining a continued public presence in support of treatment for Tennessee women with SUDs.
      • Terplan M.
      • Minkoff H.
      Neonatal abstinence syndrome and ethical approaches to the identification of pregnant women who use drugs.
      ). There has also been a call for the public to specifically report pregnant women who are “using drugs or alcohol” so they may be identified and arrested ().
      Currently, 24 states and the District of Columbia have laws enforcing the position that substance use during pregnancy constitutes child abuse under civil child welfare statutes, and three states enforce civil commitment as a means of deterrence for drug use (
      Guttmacher Foundation
      State Laws and Policies: Substance Use During Pregnancy.
      ). Although model protocols for risk evaluation exist (
      Centers for Disease Control and Prevention
      CHOICES A Program for Women about Choosing Healthy Behaviors: A Facilitator Guide.
      ,
      Substance Abuse and Mental Health Services Administration
      A Collaborative Approach to the Treatment of Pregnant Women with Opioid Use Disorders. HHS Publication No. (SMA) 16-4978.
      ,
      Washington State Department of Health
      Substance abuse during pregnancy: Guidelines for screening.
      ), no requirements for in-depth clinical evaluation of parenting capacity prior to filing a report were identified in any of the child welfare statutes for the 24 states and the District of Columbia. Law enforcement, probation officers, and courts have been known to order women to discontinue medication approved by the Food and Drug Administration for treatment (
      Legal Action Center
      Department of Justice addresses MAT discrimination.
      ,
      Legal Action Center
      Advocating for your recovery when ordered off addiction medication.
      ), potentially placing them at risk for relapse and/or overdose death.

      The impact of substance use on women, infants, children and families

      Substance use during pregnancy places women at increased risk for inadequate prenatal care, infectious diseases, obstetric complications, needle-related morbidity, overdose, and death. In surveys of women who were pregnant, 5.9% report use of illicit drugs, 8.5 % report alcohol use, and 15.9% report smoking (

      Substance Abuse Mental Health Services Administration. (2012a). Center for Behavioral Health S Quality: National Survey on Drug Use and Health. Inter-university Consortium for Political and Social Research (ICPSR). United States Department of H, Human Services.

      ). Among women using substances, between 55% and 90% have histories of trauma (
      • Najavits L.M.
      • Weiss R.D.
      • Shaw S.R.
      The link between substance abuse and posttraumatic stress disorder in women.
      ) and are three times more likely to experience intimate partner violence (
      • El Bassel N.
      • Gilbert L.
      • Wu E.
      • Go H.
      • Hill J.
      Relationship between drug abuse and intimate partner violence: a longitudinal study among women receiving methadone.
      ). Additionally, these women are more likely to have a co-occurring mental illness (
      Substance Abuse and Mental Health Services Administration
      Mental and Substance Use Disorders.
      ). State reviews of pregnancy-related deaths conducted in 2015-2016 cite opioid overdose as a significant contributor to maternal deaths, ranging from 11-20% of all deaths during pregnancy (
      Maryland Department of Health and Mental Hygiene
      Prevention and Health Promotion Administration. Maryland maternal mortality review: 2016 annual report. Annapolis (MD): Department of Health and Mental Hygiene.
      ;
      • Metz T.D.
      • Rovner P.
      • Hoffman M.C.
      • Allshouse A.A.
      • Beckwith K.M.
      • Binswanger I.A.
      Maternal deaths from suicide and overdose in Colorado, 2004-2012.
      ; ).
      Among women who gave birth between 2000 and 2009, opioid use increased from 1.19 to 5.63 per 1,000 hospital births annually (

      Smith, K. and Lipari, R.N. (2017). Women of childbearing age and opioids. The CBHSQ Report: January 17, 2017. Center for Behavioral Health Statistics and Quality, Substance Abuse and Mental Health Services Administration, Rockville, MD.

      ). Neonatal abstinence syndrome (NAS) has increased 300% in 28 states in the past two decades (
      • Ko J.Y.
      • Patrick S.W.
      • Tong V.T.
      • Patel R.
      • Lind J.N.
      • Barfield W.D.
      Incidence of Neonatal Abstinence Syndrome — 28 States, 1999–2013.
      ,
      • Patrick S.W.
      • Davis M.M.
      • Lehmann C.U.
      • Cooper W.O.
      Increasing incidence and geographic distribution of neonatal abstinence syndrome: United States 2009 to 2012.
      ,
      • Patrick S.W.
      • Schumacher R.E.
      • Benneyworth B.D.
      • Krans E.E.
      • Mcallister J.M.
      • Davis M.M.
      Neonatal Abstinence Syndrome and Associated Health Care Expenditures.
      ) with one NAS-affected infant born every 25 minutes in the U.S. (
      • Ebell M.
      AHRQ White Paper: Use of clinical decision rules for point-of-care decision support.
      ). NAS appears within 48–72hours of birth and includes central nervous system irritability, respiratory and feeding difficulties, low birth weight, and temperature instability (
      • Hudak M.L.
      • Tan R.C.
      Committee on Drugs; Committee on Fetus and Newborn; American Academy of Pediatrics. Neonatal drug withdrawal.
      ). A 2012 cost estimate of NAS-associated hospital charges noted an economic burden of $1.5 billion with 80% of costs financed by Medicaid programs (
      • Patrick S.W.
      • Davis M.M.
      • Lehmann C.U.
      • Cooper W.O.
      Increasing incidence and geographic distribution of neonatal abstinence syndrome: United States 2009 to 2012.
      ). In addition to opioid-induced symptoms, prenatal exposure to alcohol, tobacco and other licit and illicit substances can also contribute to low and extremely low birth weight, prematurity, cognitive, neurological, and developmental problems, and fetal alcohol spectrum disorders.
      Women with SUDs and their families face multiple challenges including potential loss of child custody, mother-child separation due to incarceration, homelessness, exposure to violence, limited parenting opportunities and abilities, and trauma-related mental health conditions. Early therapeutic intervention can lead to lifelong benefits for these women and their children. Access to quality healthcare plays a vital role in long-term health and social outcomes, birth spacing, prevention of preterm delivery, and low birth weight (
      • Sonfield S.
      Beyond preventing unplanned pregnancy: The broader benefits of publicly funded family planning services.
      ).

      Responses and Policy Options

      There is widespread agreement among public health organizations, as well as scientific evidence, that prosecution in lieu of treatment is ineffective and potentially harmful. Congress has taken legislative actions including the Comprehensive Addiction and Recovery Act of 2016 (CARA), [Public Law 114-198] and the Protecting Our Infants Act of 2015 (POIA), [Public Law 114-91], which emphasize the beneficial outcomes of quality treatment and recovery services during pregnancy and parenting. Government agencies including SAMHSA, and professional organizations have crafted clinical guidelines and both CARA and
      Substance Abuse and Mental Health Services Administration
      Protecting Our Infants Act: Report to Congress. Behavioral Health Coordinating Council Subcommittee on Prescription Drug Abuse.
      call for plans of safe care to address patient needs, with the conspicuous absence of beneficial outcomes arising from the imposition of punitive sanctions.
      Recent proliferation of therapeutic family dependency model drug courts has also demonstrated improvements in SUD treatment initiation and completion and increased rates of reunification among families at risk for child abuse and neglect where substance use is a factor (
      • Marlowe D.B
      • Carey S.M.
      Research update on family drug courts.
      ,
      National Council of Juvenile and Family Court Judges
      Child abuse and neglect model court profiles.
      ,
      Substance Abuse Mental Health Services Administration [SAMHSA]
      National Center on Substance Abuse and Child Welfare. Framework and policy tools for improving linkages between alcohol and drug services, child welfare services and dependency courts.
      ). Among state responses to pregnant and parenting women with SUDs, Texas funded and disseminated the Mommies Program, a fully integrated model of care that included comprehensive treatment services, medication assisted treatment (MAT), recovery support services, housing, and specialty health services (
      Texas Health & Human Services Commission
      Legacy Department of State Health Services, State of Texas. The Mommies toolkit: Improving outcomes for families impacted by neonatal abstinence syndrome.
      ). In May, 2014 Ohio established the M.O.M.S. (Maternal Opiate Medical Support) model program consisting of specialty prenatal care, MAT, and behavioral health services in five care sites statewide. Today, the Ohio Perinatal Quality Collaborative is building upon the M.O.M.S. model with a program titled Maternal Opiate Medical Supports Plus (MOMS+) to optimize the maternity medical home and improve outcomes for pregnant women ().

      The Academy's Position

      The American Academy of Nursing (Academy) calls for an end to criminal prosecution and punitive civil actions against pregnant and parenting women based solely on their substance use or substance use disorder (SUD). The Academy supports a public health response to the needs of women and their children and families affected by SUDs that incorporates multi-disciplinary culturally- and trauma-responsive models of health care, child welfare, treatment and recovery supports and clinician practices that are in line with the accumulated scientific evidence.

      Recommendations

      Federal
      • 1
        Increase funding for SAMHSA State Targeted Response to the Opioid Crisis grants (Opioid STR) and Opioid STR Supplement grants that include SUD services for pregnant and parenting women and that develop community-based partnerships to ensure safe access to health services including prevention, treatment, and recovery supports for women, their children, and families.
      • 2
        SAMHSA should conduct widespread targeted dissemination of Clinical Guidance for Treating Pregnant and Parenting Women with Opioid Use Disorder and their Infants (

        Substance Abuse Mental Health Services Administration. (2012a). Center for Behavioral Health S Quality: National Survey on Drug Use and Health. Inter-university Consortium for Political and Social Research (ICPSR). United States Department of H, Human Services.

        ).
      • 3
        SAMHSA should advance ongoing training and technical assistance for service design to ensure cultural competence and sensitivity in SUD treatment and recovery approaches for women and families and to eliminate disparities based on race in terms of entry to and retention in treatment and recovery supports.
      • 4
        The CDCP and state Offices of Maternal and Child Health should collect comprehensive data on maternal deaths due to opioid and other drug overdose including decedents’ associated behavioral health conditions, SUD and mental health treatment history, and preventability of death. The data should be made available to the public for research and to inform prevention and SUD treatment and recovery support policy approaches.
      States
      • 1
        Increase state funding to ensure accessible community-based treatment, recovery supports, and health and social services for women, their children, and families affected by substance use regardless of immigration status or ability to pay for services.
      • 2
        Pass legislation to improve integrated comprehensive SUD services that include a continuum of gender- and trauma-responsive programming comprised of prenatal care, accessible MAT, individual and group therapy, trauma recovery, case management, psychosocial support, parent skills training, family education, pediatric health care and developmental services, and transition to ongoing women's health and wellness care, preventive health services, and family planning.
      Nurses
      Nurses have a critical role as patient advocates to protect individual health, human and legal rights of patients (
      American Nurses Association
      The Nurse's role in ethics and human rights: Protecting and promoting individual worth, dignity and rights in practice settings.
      ). Whereas law enforcement authorities have historically used a single drug test as grounds for prosecution of pregnant and parenting women with a SUD (
      Amnesty International
      Criminalizing pregnancy: Policing women who use drugs in the U.S.A.
      ), comprehensive assessments are essential to ensure the validity and integrity of clinical findings and must be upheld and protected. Nursing leadership is needed to safeguard accurate and comprehensive assessment and practice consistent with a therapeutic health justice approach.

      Acknowledgments

      The authors thank Mary Foley, PhD, RN, FAAN, Board Secretary and Liaison to the Psychiatric, Mental Health and Substance Use Expert Panel, American Academy of Nursing and David M. Keepnews, PhD, JD, RN, FAAN for their assistance and guidance provided. Thanks also to co-author Betty J. Braxter, PhD, CNM, RN who served as an expert clinical advisor in development of this policy brief. The authors express their appreciation to the members of the Psychiatric, Mental Health and Substance Use Expert Panel, Carol Dawson-Rose, RN, PhD, FAAN, Kathleen Delaney, PhD, PMH-NP, FAAN, Deborah Finnell, DNS, CARN-NP, FAAN, Kris A. McLoughlin, DNP, APRN, PMH CNS-BC, FAAN, Madeline Naegle, PhD, CNS-PMH, BC, FAAN and Frieda Outlaw, PhD, RN, FAAN. We also thank Cindy Greenberg, DNSc, RN, CPNP-PC, FAAN, Co-Chair of the Child, Adolescent, and Family Expert Panel; Deborah Walker, PhD, CNM, WHNP-BC, FACNM, FAAN and Carole Kenner, PhD, RN, FAAN, FNAP, ANEF, Co-Chairs of the Maternal and Infant Expert Panel; Judith Berg, PhD, RN, WHNP-BC, FAAN, FAANP, member of the Women's Health Expert Panel, and Jose Alejandro, PhD, RN, FAAN, Co-Chair of the Cultural Competence and Health Equity Expert Panel.
      The authors express appreciation to Michael Marcotte, MD, Director of Quality and Safety for Women's Services at TriHealth, Cincinnati, Ohio and Lisa Ramirez, Project Director of the Texas Targeted Opioid Response, Behavioral Health Services Section, Texas Department of Health Services. Thanks also to Wilhemina Davis, Manager, Government Affairs, Tennessee Nurses Association, and Matt Tierney ANP, PMHNP, FAAN, Clinical Director, Substance Use Treatment and Education, Office of Population Health, UCSF Health. The authors also thank the National Advocates for Pregnant Women for data on prosecutions of women with substance use disorders.

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        Substance Abuse and Mental Health Services Administration, Rockville, MD2016 (Available at:)
        • Substance Abuse and Mental Health Services Administration
        (National Registry of Evidence-based Programs and Practices. Learning Center Evidence Summary: Substance Use Treatment for Pregnant and Postpartum Women. Retrieved from:)
        • Substance Abuse and Mental Health Services Administration
        Protecting Our Infants Act: Report to Congress. Behavioral Health Coordinating Council Subcommittee on Prescription Drug Abuse.
        (Retrieved from:)
        • Substance Abuse and Mental Health Services Administration
        (Clinical Guidance for Treating Pregnant and parenting Women with Opioid Use Disorder and Their Infants. HHS Publication No. (SMA) 18-5054. Rockville, MD. Retrieved from:)
        • Tennessee Fetal Assault Law
        SB 1391. Public Chapter 820. Title: As enacted, provides that a woman may be prosecuted for assault for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug.
        (Retrieved from:)
        • Terplan M.
        • Minkoff H.
        Neonatal abstinence syndrome and ethical approaches to the identification of pregnant women who use drugs.
        Obstetrics & Gynecology. 2017; 129: 164-167https://doi.org/10.1097/aog.0000000000001781
        • Texas Health & Human Services Commission
        Legacy Department of State Health Services, State of Texas. The Mommies toolkit: Improving outcomes for families impacted by neonatal abstinence syndrome.
        (Retrieved from:)
        • Virginia Department of Health
        (Office of the Chief Medical Examiner. Pregnancy-associated deaths from drug overdose in Virginia, 1999-2007: a report from the Virginia maternal mortality review team. Richmond (VA): Department of Health. Retrieved from:)
        • Washington State Department of Health
        Substance abuse during pregnancy: Guidelines for screening.
        (Retrieved from:)