NAPW and Allies Testify in Support of Maryland Bills Protecting the Rights and Freedoms of Pregnant People

Download PDF of testimony in support of HB 0626, Pregnant Person's Freedom Act

Download PDF of testimony in support of HB 1135, Perinatal Care: Drug and Alcohol Testing and Screening Consent

Testimony of National Advocates for Pregnant Women in Support of HB 0626, Pregnant Person’s Freedom Act

National Advocates for Pregnant Women (NAPW) respectfully submits this written testimony in support of HB 0626, a bill that protects pregnant people from criminalization related to pregnancy and pregnancy outcomes, including miscarriages, stillbirths, and abortions. NAPW is a non-partisan legal advocacy organization dedicated to the welfare of pregnant people and their families. Our testimony draws on over 20 years of experience on cases in which state actors arrested and prosecuted pregnant or postpartum women for experiencing pregnancy losses or engaging in acts or omissions that posed some imagined risk of harm to a fetus. State actors continue to try to bring cases against pregnant women based on the perceived risk of harm to the fetus and/or based on pregnancy outcomes even when it is beyond the scope of the statutory language and clear legislative intent of state criminal and civil laws. Women were criminalized for the outcomes of their pregnancies before Roe v. Wade and are still being criminalized for those outcomes today.

NAPW has documented more than 1,600 instances since 1973 in which women were arrested, prosecuted, convicted, detained, or forced to undergo medical interventions that would not have occurred but for their status as pregnant persons whose rights state actors assumed could be denied in the interest of fetal protection. [1] Women have been charged with crimes like murder, depraved heart homicide, manslaughter, and feticide because they experienced miscarriages and stillbirths, or because they were unable to “guarantee” that babies they gave birth to would survive. These prosecutions are brought despite the fact that pregnancy losses are dishearteningly common, with miscarriages (a loss before 20 weeks gestation) occurring in an estimated 10% to 15% of pregnancies and stillbirths (a loss after 20 weeks gestation) occurring in an estimated 0.6% of pregnancies. [2]

Despite the fact that pregnancy losses can rarely—if ever—be attributed to anything that a pregnant woman did or did not do, these prosecutions are brought based on the theory that once a woman becomes pregnant, her otherwise legal acts or omissions may be viewed as crimes. These prosecutions have been brought under laws that were never intended to criminalize women for experiencing pregnancy losses or for any action or failure to act during pregnancy. Moreover, as explained further below, these prosecutions have dangerous implications for maternal and neonatal health.

Maryland is not exempt from these disturbing national trends regarding the criminalization of pregnancy and pregnancy outcomes. In 2006, the Maryland Court of Appeals unanimously reversed the convictions of two mothers, Kelly Lynn Cruz and Regina Kilmon, who were
convicted of reckless endangerment after they and/or their newborns were drug tested without their consent.[3] On appeal, the American Academy of Addiction Psychiatry and fifty-two other medical, public health, and advocacy organizations and experts filed an amicus brief in support of the mothers warning of the dangerous adverse maternal and neonatal health consequences of such prosecutions.

In reversing the convictions, the Maryland Court of Appeals held that the legislature did not intend the reckless endangerment statute to apply to pregnant women in relationship to the fetuses they carry because the legislature chose to treat drug use and pregnancy as a public health matter rather than a criminal matter. The court recognized that the prosecution’s interpretation could lead to judicial scrutiny of every aspect of a pregnant woman’s life—from “smoking, to not maintaining a proper and sufficient diet, to avoiding proper and available prenatal medical care, to failing to wear a seat belt while driving, exercising too much or too little,” or even “skiing or horseback riding.” [4] As the Court noted, “If the State’s position were to prevail, there would seem to be no clear basis for categorically excluding any [allegedly risky] activities from the ambit of the statute; criminal liability would depend almost entirely on how aggressive, inventive, and persuasive any particular prosecutor might be.” [5 ]Although the Kilmon decision provides critical protections for pregnant people against criminal reckless endangerment charges, prosecutors may still try to misapply other criminal statutes to criminalize pregnant people for acts or omissions that create a perceived risk of harm.

For instance, Christy Freeman of Ocean City, MD was prosecuted for first degree murder, second degree murder, and manslaughter after she was admitted to the hospital for experiencing a stillbirth in 2007. Ms. Freeman’s boyfriend had called 911 because she was experiencing excessive vaginal bleeding and severe abdominal pain. Ms. Freeman’s body was covered in bruises and the police acknowledged the possibility of domestic violence. Ms. Freeman told police that her baby was born stillborn, the state’s medical examiners confirmed the baby was born stillborn, and Maryland’s fetal homicide law states that it does not apply “to an act or failure to act of a pregnant woman with regard to her own fetus.” [6] The Worcester County State’s Attorney nonetheless claimed that the prosecution would prevail if it proved that “she did something to cause that baby to be stillborn.” [7] Ms. Freeman was incarcerated without bail despite the fact that she had four children at home and pled with the judge to release her because she was not a flight risk and would show up to clear her name. [8] The prosecution eventually dropped the charges related to the 2007 stillbirth, and filed new first degree murder charges related to a stillbirth that Ms. Freeman had experienced in 2004. [9] Prosecutors later dropped that charge as well, yet the resolution did not undo the trauma inflicted upon Ms. Freeman and her family. In total, Ms. Freeman was incarcerated without bail for roughly six weeks. [10]

Passage of HB 0626 would ensure that no pregnant or postpartum person would be subjected to the same traumatizing and degrading treatment as Ms. Freeman. Although legislators may be tempted to view the existing fetal homicide statute as sufficiently protective of pregnant women, Ms. Freeman’s story makes clear that rogue prosecutors will seek to stretch existing laws beyond recognition, and will incarcerate innocent pregnant and postpartum women and separate them from their families in the process.

Examples from other states also demonstrate the risk that prosecutors will seek to criminalize pregnancy losses, even under seemingly clear criminal statutes that were never intended to authorize the prosecution of pregnant women for their own pregnancy outcomes. This includes so-called “blue” states with legislatures that are overwhelmingly supportive of women’s reproductive health, like Maryland. In California, Adora Perez and Chelsea Becker were prosecuted and incarcerated for murder after they experienced stillbirths that prosecutors blamed—without scientific evidence—on their use of methamphetamine. Like Maryland Criminal Code §2-103, California Penal Code § 187 punishes the “unlawful killing of a human being, or a fetus, with malice aforethought” but states that it cannot be used to prosecute the “mother of the fetus.” Ms. Perez and Ms. Becker were both prosecuted and incarcerated despite the fact that the California legislature has consistently refused to adopt any criminal law that would penalize a woman for experiencing a pregnancy loss or for being pregnant and using drugs. A court dismissed the murder charge against Ms. Becker, but not until she had already spent 16 months locked in a county jail in the midst of the pandemic. Ms. Perez was convicted and is currently serving an 11- year sentence. Even the California Attorney General has expressed opposition to the misuse of the state’s homicide law to respond to pregnancy losses and is supporting post-conviction relief efforts through amicus briefs filed in her case. Her final hope hinges on a writ of habeas corpus that remains pending before the trial court. The cases of Adora Perez and Chelsea Becker—like those of Ms. Freeman—make clear the need to pass HB 0626 to ensure that no prosecutor can investigate or charge a woman for experiencing a pregnancy loss based on any claimed ambiguity in the law.

HB 0626 also represents good public policy, consistent with the recommendations of every leading medical and public health organization. The American Medical Association, [11] American Nurses Association, [12] American Psychological Association, [13] American Psychiatric Association, [14] American Academy of Pediatrics, [15] and every other major public health and medical group unanimously oppose punitive responses to pregnancy, finding that such responses are harmful to the health of women and children, and diminish families’ healthcare access. As the American College of Obstetricians and Gynecologists explains, punitive responses pose “serious threats to people’s health and the health system itself … [by] erod[ing] trust in the medical system, making people less likely to seek help when they need it.” [16]

Facilitating punitive actions against pregnant people and new parents causes real and devastating health consequences by deterring them from seeking healthcare. In particular, the fear that medical authorities will report them to child welfare providers or criminal law enforcement deters pregnant women from seeking prenatal care or drug treatment services. [17] This fear of penalties also deters parents from bringing their children in for medical care, further undermining family health. It creates a disincentive for pregnant women with actual drug dependency problems from having an open and honest relationship with their prenatal healthcare providers out of fear that disclosure will lead to criminal prosecutions or loss of custody of their children. [18] Punitive laws that drive a wedge between patients and their doctors have demonstrable negative impacts on fetal and neonatal health. For example, empirical research found that Tennessee’s “fetal assault” law “resulted in twenty fetal deaths and sixty infant deaths” in 2015 alone. [19] Another empirical study found a higher prevalence of neonatal abstinence syndrome (NAS) in states with punitive policies in effect. [20]

We strongly support HB 0626 and urge the Maryland Legislature to pass it to prevent the insidious prosecution of people for experiencing pregnancy loss. HB 0626 will guard against traumatizing criminal investigations and family separation, and prioritizes maternal and infant health.

Footnotes:
1. NAPW, Arrests and Deprivations of Liberty of Pregnant Women, 1973-2020 (Sept. 2021), Paltrow & Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, 38 J. Health Politics, Pol. & L. 299,323 (2013).
2. Dugas, Carla & Slane, Valori H, Miscarriage, (Jan. 29, 2021), https://www.ncbi.nlm.nih.gov/books/NBK532992/; Hoyert, D. L., Ph.D., & Gregory, E. C., M.P.H, Division of Vital Statistics. Cause of Fetal Death: Data From the Fetal Death Report, 2014, (Oct. 30, 2016),
3. Kilmon v. State, 905 A.2d 306 (Md. 2006).
4. Id. at 311.
5. Id.
6. Md. Code Crim. Law § 2-103.
7. David Dishneau, Legal Experts Confounded By Maryland Fetal Murder Charge, Associated Press (July 31, 2007); CBS, Infants' Bodies Examined; Digging Goes On, CBS News (Aug. 1, 2007), https://www.cbsnews.com/news/infants-bodies-examined-digging-goes-on/.
8. Dispatch Admin, New Charges Filed in Christy Freeman Case, The Dispatch (Aug. 2, 2007), https://mdcoastdispatch.com/2007/08/02/new-charges-filed-in-christy-freeman-case/ (describing how Ms. Freeman pled at her bond hearing, “The purpose of a bond is to make sure I show up for my court appearances, right? I promise I will do that. I need to clear my name in this case. I guarantee I’m going to clear this situation up. All my ties are here. My family, my house, my business—everything I have is here. I’ve lived here 15 years and would
never run away.”)
9. Id.
10. Steven Green, A Timeline of Christy Freeman’s Case, The Dispatch (Sept. 20, 2007), https://mdcoastdispatch.com/2007/09/20/thursday-september-20-a-timeline-of-christy-freemans-case/.
11. Am. Med. Ass’n, Policy Statement H-420.962, Perinatal Addiction - Issues in Care and Prevention (last modified
2019) (“Transplacental drug transfer should not be subject to criminal sanctions or civil liability….”); Am. Med. Ass’n, Policy Statement H-420.969, Legal Interventions During Pregnancy (last modified 2018) (“Criminal sanctions or civil liability for harmful behavior by the pregnant woman toward her fetus are inappropriate. Pregnant substance abusers should be provided with rehabilitative treatment appropriate to their specific physiological and psychological needs.”).
12. Am. Nurses Ass’n, Position Statement, Non-punitive Treatment for Pregnant and Breast-feeding Women with Substance Use Disorders (2017) (“Contrary to claims that prosecution and incarceration will deter pregnant women from substance use, the greater result is that fear of detection and punishment poses a significant barrier to treatment.”).
13. Am. Psych. Ass’n, Pregnant and Postpartum Adolescent Girls and Women with Substance-Related Disorders (updated: 2020) (“Punitive approaches result in women being significantly less likely to seek substance use treatment and prenatal care due to fear of prosecution and fear of the removal of children from their custody. This places both the mother and her children at greater risk of harm.”) (internal citation omitted).
14. Am. Psychiatric Ass’n, Position Statement, Assuring the Appropriate Care of Pregnant and Newly-Delivered Women with Substance Use Disorders (2019) (“A public health response, rather than a punitive legal approach to substance use during pregnancy is critical.”).
15. Am. Acad. of Pediatrics, Comm. on Substance Use and Prevention, Policy Statement, A Public Health Response to Opioid Use in Pregnancy (2017) (“The existing literature supports the position that punitive approaches to substance use in pregnancy are ineffective and may have detrimental effects on both maternal and child health.”).
16. ACOG, Opposition to Criminalization of Individuals During Pregnancy and Postpartum Period (2020), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/oppositioncriminalization-of-individuals-pregnancy-and-postpartum-period. For similar reasons, ACOG has also specifically opposed criminal penalties for people who have abortions outside of approved medical settings. See ACOG, Decriminalization of Self-Induced Abortion (2017), https://www.acog.org/clinical-information/policy-and-positionstatements/position-statements/2017/decriminalization-of-self-induced-abortion.
17. Meghan Boone & Benjamin J. McMichael, State-Created Fetal Harm, 109 Georgetown L. J. 475 (2021); Rebecca L. Haffajee et al., Pregnant Women with Substance Use Disorders—The Harm Associated with Punitive Approaches, 384 N. ENGL. J. MED. 2364 (2021); Laura J. Faherty et. al., Association of Punitive and Reporting State Policies Related to Substance Use in Pregnancy With Rates of Neonatal Abstinence Syndrome, JAMA Open Network (2019), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2755304; Martha A. Jessup, Extrinsic Barriers to Substance Abuse Treatment Among Pregnant Drug Dependent Women, 33 J. Drug Issues 285 (2003) (finding that women identified fear of punitive actions from helping institutions and individuals as a major barrier to prenatal care); Sarah Roberts, “You Have to Stop Using Before You Go to the Doctor”: Barriers to Prenatal Care for Women Who Use Drugs During Pregnancy, Presentation at Am. Public Health Ass’n Annual Meeting (Nov. 6, 2007), available at http://apha.confex.com/apha/135am/techprogram/paper_149351.htm (“For women who want a healthy baby and want to reduce or stop their drug use, fear of being reported to CPS is an additional barrier to care.”);
18. Id.; see also Sarah E. Wakeman et al., When Reimagining Systems of Safety, Take a Closer Look at the Child Welfare System, Health Affairs (Oct. 7, 2020), https://www.healthaffairs.org/do/10.1377/hblog20201002.72121/full/; Sheigla Murphy and Marcia Rosenbaum,
Pregnant Women on Drugs: Combating Stereotypes and Stigma, at 89 (1998) (concluding based on interviews with 120 women who were pregnant and used drugs that “[t]he women most in need of services – those most heavily involved in the drug life – were most alienated from prenatal care. Few felt they could disclose their drug use without risking custody loss or stigma.”)
19. Boone & McMichael, supra note 17 at 501, 514; see also Wendy A. Bach, Prosecuting Poverty, Criminalizing Care, 60 William & Mary L. Rev. 3 (2019); SisterReach et. al., Tennessee’s Fetal Assault Law: Understanding its impact on marginalized women (Dec. 14, 2020), https://www.nationaladvocatesforpregnantwomen.org/tennesseesfetal-assault-law- understanding-its-impact-on-marginalized-women/.
20. Faherty et al.; supra note 17; see also Haffajee et al., supra note 17; Sarah C.M. Roberts & Cheri Pies, Complex Calculations: How Drug Use During Pregnancy Becomes a Barrier to Prenatal Care, 15 Maternal Fetal Health J.33 (2011).

Testimony of National Advocates for Pregnant Women, the Drug Policy Alliance, Movement for Family Power, JMacForFamilies, the Informed Consent Campaign-New York State, and Dr. Mishka Terplan to the Maryland House in Support of HB 1335, Perinatal Care - Drug and Alcohol Testing and Screening - Consent

National Advocates for Pregnant Women (NAPW), the Drug Policy Alliance (DPA), Movement for Family Power (MFP), JMacForFamilies, the Informed Consent Campaign-New York State, and Dr. Mishka Terplan respectfully submit this written testimony in support of HB 1335, a bill that would require prior written informed consent by a pregnant or perinatal person for drug testing of themselves or their newborn. HB 1335 would provide long-overdue protections for pregnant and postpartum patients whose rights, privacy, and wellbeing are far too often discarded by the hospitals in which they give birth. Hospitals routinely drug test pregnant and postpartum patients without their knowledge or informed consent and in the absence of any medical justification for the test. Hospitals proceed to report the results of these tests to child welfare authorities, thereby exposing new families to traumatizing investigations and in some cases, family separation. [1] This practice commonly known as “test and report”—has a negative impact on both maternal and neonatal health.

Drug testing perinatal patients without a specific medical concern and without their informed consent is widely opposed by leading medical organizations. For instance, the American College of Obstetricians and Gynecologists (ACOG) provides that drug testing “should be performed only with the patient’s consent” and that “[p]regnant women should be informed of the potential ramifications of a positive test result, including any mandatory reporting requirements.” [2] ACOG has also stated, “[T]esting and reporting puts the therapeutic relationship between the obstetrician–gynecologist and the patient at risk, potentially placing the physician in an adversarial relationship with the patient.” [3] In addition to eroding patient-provider trust, ACOG recognizes that testing and “reporting during pregnancy may dissuade women from seeking prenatal care and may unjustly single out the most vulnerable, particularly women with low incomes and women of color.” [4] ACOG concludes that “[d]rug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus.” [5]

Similarly, the National Perinatal Association (NPA) warns that treating perinatal substance use “as a deficiency in parenting that warrants child welfare intervention results in pregnant and parenting people avoiding prenatal and obstetric care and putting the health of themselves and their infants at increased risk.” [6] As NPA recognizes, the “threats of discrimination, incarceration, loss
of parental rights, and loss of personal autonomy are powerful deterrents to seeking appropriate prenatal care.” [7] Accordingly, NPA advises: “Perinatal providers promote better practices when they adopt language, attitudes, and behaviors that reduce stigma and promote honest and open communication about perinatal substance use.” [8] 14 Informed consent is a critical component of building trusting relationships between pregnant patients and their medical providers, which in turn is essential to advancing maternal and neonatal health.

The establishment of testing and reporting practices dates back to President Nixon’s declaration of a “war on drugs” in the 1970s as well as media outlets’ perpetuation of racist and scientifically-unsupported myths regarding “crack babies” in the 1980s and 1990s. The New York Times has since recognized that that these sensationalized reports were based on “equal parts bad science and racist stereotypes.” [9] Indeed, scientific evidence has compellingly refuted beliefs that such substances cause fetal harm or pregnancy loss, and establishes that associated risks are no greater or less than those for other non-scheduled substances. [10] Yet the moral panic led to the creation of draconian social welfare policies, criminal laws, and hospital practices that continue to vest pregnant women of basic rights—including the right to informed consent—and tear apart families.

To this day, Black and brown families disproportionately experience the punitive effects of these systems. Studies show that hospitals disproportionately subject women who do not fit the white, middle-class stereotype of the “good” American mother to drug testing and reporting. [11] Indeed, in one study in which urine toxicology tests were collected over a 6-month period, it was found that despite similar rates of substance use among Black patients and white patients in the study, Black women were reported to social services at approximately 10 times the rate for white women. [12] Peer-reviewed research also establishes that Black women disproportionately face
criminal prosecutions and other punitive state actions tied to their pregnancies.[13]

Safeguards on drug testing and reporting are essential in light of the punitive outcomes that pregnant and postpartum patients face as a result of the test and report system. NAPW has documented more than 1,600 instances since 1973 in which women were arrested, prosecuted, convicted, detained, or forced to undergo medical interventions that would not have occurred but for their status as pregnant persons whose rights state actors assumed could be denied in the interest of fetal protection.[14] Those assumptions are wrong and violate pregnant women’s constitutional and civil rights. A significant number of the arrests and prosecutions identified involved allegations of the use of controlled substances, even though the vast majority of state criminal laws do not make using drugs—as opposed to possessing drugs—illegal. Accordingly, these prosecutions sought to transform drug use or dependency by one group of people—pregnant women—into criminal “child abuse,” “chemical endangerment” or “drug distribution.” [15] Moreover, a significant number of these cases originated from reports from health care providers or hospital social workers, indicating that the prosecutions would never have been brought were it not for test and report practices.[16]

Maryland is not exempt from these disturbing national trends regarding the criminalization of pregnancy. The Maryland Court of Appeals unanimously reversed the convictions of two mothers, Kelly Lynn Cruz and Regina Kilmon, whose newborns were drug tested without their
consent. [17] Both mothers were prosecuted for and convicted of reckless endangerment on the basis of positive drug tests. On appeal, the American Academy of Addiction Psychiatry and fifty-two other medical, public health, and advocacy organization and experts filed an amicus brief in support of the mothers warning of the dangerous adverse maternal and neonatal health consequences of such prosecutions. In reversing the convictions, the Maryland Court of Appeals held that the legislature did not intend the reckless endangerment statute to apply to pregnant women in relationship to the fetuses they carry because the legislature chose to treat drug use and pregnancy as a public health matter rather than criminal justice matter. The court recognized that the prosecution’s interpretation could lead to judicial scrutiny of every aspect of a pregnant woman’s life—from “smoking, to not maintaining a proper and sufficient diet, to avoiding proper and available prenatal medical care, to failing to wear a seat belt while driving,” among many other examples.[18] Although the Kilmon decision provides critical protections for Maryland women against criminal charges based on pregnancy and substance use, it does not prevent hospitals from engaging in nonconsensual test and report practices in the first instance or prevent families from facing traumatizing child welfare investigations and potential family separation. HB 1335 would close this gap and clarify that nonconsensual testing of perinatal patients is unlawful.

Test and report practices also fail to account for the fact that a positive toxicology test does not, and cannot, distinguish between a single instance of substance use versus a substance use disorder. The latter is a medical condition that meets diagnostic criteria in the Diagnostic Statistic Manual (DSM), and—like other medical and behavioral health conditions—is best addressed through supportive healthcare approaches rather than punitive responses. Moreover, a positive toxicology test does not provide any indication of parenting ability. [19] As reported by the Substance Abuse and Mental Health Services Administration (SAMHSA), in 2018, 164.8 million Americans
ages 12 and older, or 60.2%, reported using tobacco, alcohol, or an illicit drug in the past month. [20] With substance use so widespread, there is no doubt that over the course of most people’s lifetimes, they will engage in alcohol or drug use. Many of these people are, or will become, parents. Contrary to misleading media coverage, systemic racist practices, and stigma surrounding drug
use, there is no support for the belief that a parent who uses drugs is more likely to abuse or neglect their child than one who does not.

Moreover, nonconsensual testing and reporting practices often violate patients’ constitutional rights. The Supreme Court has held that the nonconsensual testing and reporting of pregnant women to state authorities involves a “substantial” invasion of privacy, as the “reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.” Ferguson v. City of Charleston, 532 U.S. 67, 78, 80 (2001). Despite this holding more than twenty years ago, the nonconsensual testing and reporting of pregnant patients remains commonplace. Many hospitals remain unaware of the Ferguson decision, and in any event, its constitutional holding only applies to public hospitals. State informed consent legislation like HB 1335 thus remains critical for protecting perinatal patients’ rights and safeguarding the wellbeing of new families.

Finally, despite common misconceptions, no federal law requires testing or reporting. Hospital officials often cite the federal Child Abuse Prevention and Treatment Act (CAPTA) as a putative justification for their test and report practices.[21] These hospitals wrongly assume that CAPTA requires them to drug test perinatal patients and/or newborns and to report all substance exposed newborns to child welfare agencies as being abused or neglected. [22] In fact, CAPTA requires no such thing. [23] Only recently have states begun to correct hospitals’ common misunderstanding regarding CAPTA to ensure that families are not needlessly subjected to traumatizing child welfare investigations. For instance, the New York State Department of Health released guidance specifying that CAPTA does not require hospitals to drug test pregnant women or file abuse or neglect reports against parents of drug-exposed newborns.[24] That guidance also emphasized that “[t]oxicology testing should only be performed when medically indicated” and directed each hospital to “develop policies and procedures for obtaining informed consent prior to substance use assessment.” [25]

We urge Maryland to be a national leader in protecting perinatal patient’s right to make informed decisions about their medical care, including the right to written informed consent prior to toxicology testing or screening of themselves or their newborn. We strongly support HB 1335 as a significant step forward in recognizing the rights and wellbeing of pregnant patients and families.

1. Lisa Sangoi, “Whatever they do, I’m her comfort, I’m her protector.” How the Foster System Has Become Ground
Zero for The U.S. Drug War
, Movement for Family Power (June 2020)
2. American College of Obstetricians and Gynecologists, ACOG Committee Opinion: Opioid Use and Opioid Use Disorder in Pregnancy (reaffirmed Oct. 2021), https://www.acog.org/clinical/clinical-guidance/committeeopinion/articles/2017/08/opioid-use-and-opioid-use-disorder-in-pregnancy; American College of Obstetricians and Gynecologists, Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period (Dec.2020) (“Before performing any test on the pregnant individual or neonate, including screening for the presence of illicit substances, informed consent should be obtained from the pregnant person or parent.”), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/oppositioncriminalization-of-individuals-pregnancy-and-postpartum-period.
3. American College of Obstetricians and Gynecologists, ACOG Committee Opinion: Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician–Gynecologist (reaffirmed June, 2019), https://www.acog.org/clinical/clinical-guidance/committeeopinion/articles/2011/01/substance-abuse-reporting-andpregnancy-the-role-of-the-obstetrician-gynecologist.
4. Id.
5. Id.; see also American College of Obstetricians and Gynecologists, Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period (Dec. 2020) (“Criminalization of pregnant people for actions allegedly aimed at harming their fetus poses serious threats to people’s health and the health system itself. Threatening patients with criminal punishment erodes trust in the medical system, making people less likely to seek help when they need it.”), https://www.acog.org/clinical-information/policy-and-position statements/statements-ofpolicy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period.
6. National Perinatal Association, Position Statement, Perinatal Substance Use (2017).
7. Id.
8. Id.
9. New York Times Editorial Board, Slandering the Unborn: How Bad Science and a Moral Panic, Fueled in Part by the News Media, Demonized Mothers and Defamed a Generation, New York Times (Dec. 28, 2018), https://www.nytimes.com/interactive/2018/12/28/opinion/crack-babies-racism.html.
10. See Terplan et al., The Effects of Cocaine and Amphetamine Use During Pregnancy on the Newborn: Myth versus Reality, 30 J. Add. Dis. 1 (2011); see also NAPW, Drug Use and Pregnancy (Sept. 2021), bit.ly/pregnancyandruguse.
11. Max Jordan Nguemeni Tiako & Lena Sweeney, The Government’s Involvement in Prenatal Drug Testing May Be Toxic, Maternal and Child Health Journal (Dec. 7, 2020).
12. Ira J. Chasnoff et al., The Prevalence of Illicit-Drug or Alcohol Use during Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida, NEW ENGLAND JOURNAL OF MEDICINE (Oct. 11, 1990), https://www.nejm.org/doi/full/10.1056/NEJM199004263221706. 13. Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, 38 J. HEALTH POLITICS, POL. & L. 299, 310-11. (2013)
14. NAPW, Arrests and Deprivations of Liberty of Pregnant Women, 1973-2020 (Sept. 2021), bit.ly/arrests1973to2020.
15. Paltrow & Flavin, supra note 19 at 323.
16.Id. at 311.
17. Kilmon v. State, 905 A.2d 306 (Md. 2006).
18. Id. at 311.
19.See Sangoi, supra note 7.
20. Substance Abuse and Mental Health Services Administration, Key Substance Use and Mental Health Indicators in the United States: Results from the 2018 National Survey on Drug Use and Health (2019), https://www.samhsa.gov/data/sites/default/files/cbhsqreports/NSDUHNationalFindingsReport2018/NSDUHNationalFindingsReport2018.pdf.
21.42 U.S.C. § 5106a.
22. Movement for Family Power, Drug Policy Alliance, JMacForFamilies, & The Bronx Defenders, Family Separation in the Medical Setting: The Need for Informed Consent (Nov. 24. 2019), https://bit.ly/39NYnjd (“[S]tudies confirm that that doctors frequently misunderstand their responsibility under [the Child Abuse Prevention and Treatment Act], and States have widely expanded the scope of this law further consecrating a practice of drug testing and reporting in hospital settings that is not legally required, and further that risks the wellbeing of parents and their newborns.”) (citing Lloyd, et al., The Policy to Practice Gap: Factors Associated with Practitioner Knowledge of CAPTA 2010 Mandates for Identifying and Intervening in Cases of Prenatal Alcohol and Drug Exposure, 99(3) J. CONTEMP. SOC. SERVS., 232-243 (2018) https://doi.org/10.1177/1044389418785326).
23. NAPW, Understanding CAPTA and State Obligations (Oct. 2020), https://www.nationaladvocatesforpregnantwomen.org/wpcontent/uploads/2020/11/2020-revision-CAPTArequirements-for-states-10-29-20-1-1.pdf.
24. New York Dep’t of Health, NYS CAPTA CARA Information & Resources, https://health.ny.gov/prevention/captacara/index.htm.
25. Id