Legislation and policy
Many state laws and policies have been established in an attempt to prevent and/or address perinatal substance use. These laws address the testing, reporting, prosecution, and treatment of pregnant women who use drugs.
Testing and reporting
Drug testing of newborn infants, based on a suspicion of maternal drug use, is common practice throughout the U.S., and often leads to reporting a family to child protective services for investigation (U.S. Department of Health and Human Services, 2001b). However, concern has been voiced that some women are tested for drug use largely due to their race and socioeconomic status, leading some researchers to argue for universal testing (Ondersma, Simpson, Brestan, & Ward, 2000; Barth, 2001).
Historically, substance abuse testing and reporting laws have been determined by individual states, resulting in wide variation. As of December 2003, only ten states (AZ, IL, IO, MA, MI, MN, ND, RI, UT, and VA) had laws on the books that specifically require testing and/or reporting women for perinatal substance use (Guttmacher Institute, 2003). However, a recent federal law (Public Law No: 108-36) attempts to create a uniform state response to perinatal substance abuse. The 2003 reauthorization of the federal Child Abuse Prevention and Treatment Act (CAPTA) requires states receiving CAPTA grants to develop a plan for medical workers to notify child protective services (CPS) of infants identified at birth as affected by prenatal drug exposure. The law states that this referral is not alone grounds for a child abuse and/or neglect determination and cannot be used for criminal prosecution. The law also requires that CPS develop a safe plan for infants in this situation (Public Law No: 108-36).
Varying nationwide opinion as to the rights of the fetus versus the rights of the mother have kept the issue of prosecution complicated and heated with different sets of rules and morals affecting the law across the United States (Harris & Paltrow, 2003). Only one state, South Carolina, has criminalized perinatal substance use. Women who are charged criminally for their prenatal behavior have generally been charged with either child endangerment/abuse, illegal drug delivery to a minor, or fetal murder/manslaughter. However, in 2001, the U.S. Supreme Court invalidated an arrangement between hospitals and the police in South Carolina to use positive drug test results for the prosecution of women refusing to participate in drug treatment. The Court ruled that a conviction of a pregnant South Carolina woman based on a positive drug test, which was administered without her consent during prenatal care at a public hospital, violated the woman’s fourth amendment right against unreasonable search and seizure (Gostin, 2001).
Recently, the Ohio Supreme Court ruled that a newborn testing positive for drug exposure is per se an abused child under the state’s civil child abuse law. In addition, three states authorize civil commitment of perinatal drug users and mandate inpatient drug treatment during pregnancy (MN, SD, and WI) (Guttmacher Institute, 2003).
Loss of benefits
Currently, many substance-using women receive welfare. A study profiling pregnant substance abusers reported that 70% of their sample of 240 had received income from the Department of Social Services during the past month (Kissin et al., 2001). Furthermore, Leher, Crittenden, and Norr (2002) analyzed data collected during the final trimester of pregnancy and the subsequent year on 500 minority mothers living in an inner-city neighborhood of Chicago to determine the relationship between illicit drug use and welfare reliance. The authors concluded that illicit drug use in the months before pregnancy is associated with a large increase in the likelihood of welfare reliance one year later.
The issue of whether substance users should receive public aid is hotly debated. Nine states (KS, MN, NV, NY, NC, OH, PA, RI, SC) have mandatory drug testing for Temporary Assistance to Needy Families recipients under certain circumstances, which may disqualify those who need prenatal care and counseling. Most states choose to deny welfare benefits to those with previous drug felonies (Centers for Medicare and Medicaid Services, 2003; SAMHSA, 2003a).
Prevention and treatment
The issue of preventing infant abandonment and placement into out-of-home care, which has been a cornerstone in the policy and practice surrounding perinatal drug use, has led to attempts to prevent or treat substance use during pregnancy (Weibley, 2002). Those who view substance abuse as a medical issue call for policy to reflect treatment and the provision of services to the child of a substance-using mother, rather than the prosecution of pregnant women. Much of the scientific research surrounding prenatal substance use is focused on treatment as an intervention and seeks to explore the effectiveness of various types of drug abuse treatment and how those interventions can be tailored to pregnant women. Currently, 7 states give priority access to treatment for substance using pregnant women (AZ, GA, KS, MO, OK, TX, WI) and 19 states have created or funded treatment programs for pregnant women who use substances (AR, CA, CO, CT, FL, IL, KY, LA, MD, MN, MO, NE, NY, NC, OH, OR, PA, VA, WA) (Guttmacher Institute, 2003). Several models of treatment exist and many overlap in their processes and intended outcomes.