Another story of government overreach.
In 2003, the federal government began requiring states to develop strategies to deal with drug-dependent newborns. This came in response to an increasing number of babies born with opioid dependence. The government’s concern directly reflects the rise in opioid addiction nationwide.
“The number of prescriptions for opioids (hydrocodone and oxycodone products) have escalated from around 76 million in 1991 to nearly 207 million in 2013, with the United States their biggest consumer globally, accounting for almost 100 percent of the world total for hydrocodone (e.g., Vicodin) and 81 percent for oxycodone (e.g., Percocet).” Most recently, tightening availability of prescription opioids has shifted abusers to heroin, an early pharmaceutical derived from the opium poppy and grandfather of the modern ‘codone’ products. Heroin is cheaper and in most cases more available than the pharmaceuticals.
No matter what form, opioids pose a real threat of addiction for many users. According to Wikipedia, “opioid addiction and opioid dependence, sometimes classified together as an opioid use disorder, are medical conditions characterized by the compulsive use of opioids (e.g., morphine, heroin, codeine, oxycodone, hydrocodone, etc.) in spite of consequences of continued use and the withdrawal syndrome that occurs when opioid use stops … The opioid dependence-withdrawal syndrome involves both psychological dependence and marked physical dependence upon opioid compounds. Opioid use disorders resulted in 51,000 deaths in 2013 up from 18,000 deaths in 1990.”
It’s not like opioid-dependent pregnant women don’t know they’re sharing their addiction with their fetus. But like all addicts, these women are severely challenged in overcoming their need for the drug not only because of the nature of the drug but also because whatever led them to abuse drugs in the first place has not been addressed. After all, not everyone legitimately prescribed opiate drugs becomes an addict.
Within one to three days after birth, infants born addicted to opioids suffer neonatal abstinence syndrome (NAS). This withdrawal experience may require doctors to administer slowly decreasing doses of morphine or methadone to ease the process. Providing medical protocols to deal with this condition was the intent of the federal law.
Despite this initial specific focus on opioid withdrawal among newborns, states have begun implementing laws that target mothers who test positive for any illegal drug use. The National Institutes of Health agree that “Alcohol and other drugs used during pregnancy can also cause problems in the baby. Babies of mothers who use other addictive drugs (nicotine, amphetamines, barbiturates, cocaine, marijuana) may have long-term problems. However, there is no clear evidence of a neonatal abstinence syndrome for these drugs.”
Notably, millions of American women have used and continue to use alcohol, marijuana, nicotine, and/or prescription drugs during pregnancy with no known ill effect to their offspring. Yet in many states, zealous, usually conservative lawmakers have seized on the situation as yet another way to attack illegal drug use. Newborns and mothers are profiled and drug tested without consent. Infants are separated from their mothers. Mothers are sent to jail.
The State of Arkansas is one of eighteen states which requires health care professionals to profile mothers and newborns to determine who should be drug tested. In 2014, Tennessee became the first state in the nation to pass a law allowing women to be charged with a crime if their babies are born with symptoms of drug withdrawal. Other states, such as Alabama and South Carolina, use interpretations of existing laws to prosecute pregnant women who use drugs.
The potential penalties under Alabama law are especially stiff: one to 10 years in prison if a baby is exposed but suffers no ill effects; 10 to 20 years if a baby shows signs of exposure or harm; and 10 to 99 years if a baby dies.
There is no known law which requires prosecution of fathers for their use of any substance which might have contributed to a newborn’s impairment.
The American College of Obstetricians and Gynecologists guidelines recommend that in cases where substance abuse is suspected, doctors use a separate form to seek consent for drug testing; women can opt out simply by not signing. These guidelines are widely ignored. In Arkansas, for example, if a health care provider or allied professional such as a social worker believe an infant might have been exposed to illegal substances in utero, a claim of probable cause meets the criteria of child abuse and federal laws protecting privacy don’t apply. Mothers are tested without consent and the case is turned over to authorities.
Such professionals employ a widely varying and undocumented set of criteria to identify newborns and mothers to be tested. Conspicuous symptoms such as premature delivery, low birth weight, seizures, fever, hyperactive reflexes, or rapid breathing are among the more obvious reasons to test the newborn. Yet hospitals also single out mothers who obtained little or no prenatal care even though this unfairly targets the poor or those who live far from medical facilities.
Persons who fit certain cultural stereotypes may also be at risk of greater scrutiny: compare the likelihood for suspicion of drug use in a young woman with dreadlocks and reeking of patchouli compared to that of a well-to-do woman with no counterculture identifiers. Racial profiling is also widespread in these cases as is suspicion of women who have engaged a midwife.
Aside from all the outrages involved in these policies, the fact is that they close the barn door after the horses are out. Once the child is born, whatever fetal harm might have occurred is already done. The rational approach would recognize that a few newborns may need intervention treatment and their mothers need access to counseling. End of story.
Instead, state lawmakers take whatever injury might have occurred to a fetus and explode that into the worst case scenario for the newborn infant by separating it from the mother—no cuddling at the breast for milk (one of NIH’s recommended treatments of NAS is breastfeeding), no mother’s heartbeat, no familiar voices. If we wanted to ensure that an already-challenged newborn suffer the greatest possible harm, we can rest assured that arrest of the mother fits the bill.
[I concede that in a very few cases, the mother’s behavior is so out of control that the infant is better off not in her custody. Very few.]
Legislators eager to punish mothers ignore the fact that the damage is already done. They justify punitive action in the belief that punishment serves as a deterrent. But—point of fact—if threat of punishment served as a deterrent, no one would use illegal drugs.
Marijuana use is not known to result in birth defects or NAS. One study even shows benefits to infants born to marijuana-using mothers.,  But according to a 12/18/15 report in the Arkansas Democrat-Gazette, of the 970 new Arkansas mothers referred to social services in 2014, 65% were for marijuana use.
Lawmakers also skim past the obvious hypocrisy in screening mothers only for illegal drugs when fetal alcohol syndrome has long been identified as a common cause of birth defects. Many of the distress symptoms in newborns can also result from the mother’s use of tobacco.
If punishment for theorized harm to the child is the state’s objective, then why aren’t alcohol and tobacco included in the screening? Why aren’t those mothers arrested and separated from the child?
I’ll tell you why. Because a driving purpose behind such laws is to punish mothers for illegal drug use.
If the real goal is to reduce the number of impaired newborns, a bureaucracy will need to be established which monitors all women of childbearing age with monthly testing for evidence of pregnancy. Once pregnant, women would be placed on 24-hour watch to ensure proper nutrition and adequate exercise. Prospective parents will undergo genetic testing and embryos will be screened for congenital defects and aborted when appropriate. Controlled environments for gestating women will need to eliminate potential stressors such as spousal abuse and financial troubles. Any possibly harmful substances such as alcohol, tobacco, or illegal drugs would not be allowed.
Ah, brave new world with our Alphas and Epsilons.
There’s nothing wrong with states supporting protocols by which medical professionals can more adequately address NAS in compromised newborns. But compromised newborns should not be used to indict the mothers for real or imagined crimes. There’s no proof that illegal substance abuse alone is the cause of a particular newborn’s problems. A majority of distressed and/or premature newborns come from poor mothers and/or mother who use alcohol and nicotine and/or mothers who don’t exercise or eat properly.
Keep in mind there’s no scientific evidence that an addicted newborn suffers subsequent permanent damage., 
The rush to prosecute illegal substance-using mothers of newborns does not assure that their future pregnancies will produce perfect children. Nor, in most cases, does it provide any benefit to the child.
Are women now fetus delivery systems answerable to the state?
Proactive encouragement toward good health and responsible behavior is as far as a free society can go to ensure the best possible outcome in any life pursuit of its citizenry, including parenthood. This approach involves all those abhorrent liberal ideas like sex education in the public schools and easy access to birth control. Access to abortion. Clean air and water. Greater public understanding of proper nutrition. Excellent education. Good job training and job opportunities. Community clinics with affordable, high quality mental and physical health care.
If we want to decrease the American trend toward ever greater substance abuse, we need to take immediate steps to stop commercial advertising of prescription drugs. There is not and never will be a magic pill for most of life’s troubles even if these ads insinuate otherwise.
We need to reorient our medical community toward prevention instead of pharmaceuticals.
We need to devote more resources toward understanding the factors that contribute to substance abuse and addiction and address these problems at their roots: disenfranchisement, poverty, lack of opportunity, low self-worth, racism, mental illness.
Have we done this before rushing to prosecute mothers?
Learn more and offer your help at http://www.advocatesforpregnantwomen.org/