In the United States, some state laws target pregnant women with substance use disorder (SUD) by adopting policies that consider substance use in pregnancy as child abuse, grounds for civil commitment, or a criminal act. In addition, some states require health care providers (HCPs) to report positive drug and/or alcohol screening to law enforcement and child welfare agencies. These laws are contrary to privacy protections afforded to individuals with substance use disorder under 42 CFR Part 2. This regulation provides additional privacy protections for people with SUD who receive diagnosis, treatment, or referral for SUD. Written consent from a patient is required before HCP may disclose information relating to their SUD. According to Section 2.65 of the regulation, HCPs may disclose SUDs to law enforcement under a court order for a crime “which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect.” The regulation also states that “the use of an illegal substance does not in itself constitute an extremely serious crime.”

The issue is that punitive state laws are at odds with protections afforded to pregnant people with SUD. Rather, these laws leave pregnant women with SUD without privacy protections in states that recognize substance use during pregnancy as child abuse, often referred to as fetal endangerment. Thus, 42 CFR Part 2 does not inherently protect pregnant women from incarceration related to SUD — which is evidently problematic — considering the causal relationship between incarceration and mortality. The right to a court order is lost in states which recognize substance use during pregnancy as fetal endangerment or child abuse to an unborn child, even though Section 2.65 of 42 CFR Part 2 does not consider substance use as a crime.

In this Expert Column, I explore both the impact of substance use and the enforcement of criminal penalties on maternal and fetal mortality and morbidity. Evidence shows that criminal penalties result in increased maternal and fetal mortality and morbidity — proving that the privacy rights of pregnant women with SUD must be better protected in order to improve maternal and fetal health outcomes. Improved privacy rights cannot be achieved without amending state laws. Privacy-protected prenatal care is essential in improving maternal and fetal morbidity and mortality rates, especially among pregnant women with SUD who experience increased rates of unplanned pregnancy, infection, and intimate partner violence (IPV).

In the midst of both mental health and addiction crises, the rates of pregnant women who use substances are not decreasing. The U.S. Department of Health and Human Services issued Healthy People 2030 objectives, including the prevention of pregnancy complications and maternal deaths pre-partum and post-partum. The Healthy People 2030 agenda calls for increasing abstinence and reducing use of alcohol and illicit, along with increasing the proportion of women who receive early and adequate prenatal care. In a qualitative meta-analysis exploring the experiences of pregnant women with SUD, fear of authority involvement and lack of privacy protections were found as barriers to seeking health care — resulting in less women with SUD seeking prenatal care and subsequent SUD treatment. Disclosure is essential to receiving treatment and reducing maternal and fetal morbidity and mortality associated with substance use.

As mentioned previously, some states have explicit punitive policies that criminalize pregnant women with SUD. States that enforce these laws increase risk of maternal and fetal mortality and morbidity due to inadequate prenatal care and inadequate postpartum and postnatal care. Notably, 79.4% of these arrests occur in southern states, and nearly 50% of those arrests occur in Alabama. In addition, one third of cases resulting in criminalization are reported by HCPs. Inequities in healthcare access in jails and prisons — such as basic health care, forced detoxification, and lack of infection control measures — increase risk of maternal and fetal morbidity and mortality. Specifically, pregnant women with SUD and infections have increased rates of placental clinicopathologies (e.g., placental abruption). These rates suggest that carrying a pregnancy in environments like jails or prisons, which employs minimal infection control measures, further increases risk of birth complications. Further, policies that criminalize SUD during pregnancy are associated with greater rates of neonatal abstinence syndrome (NAS), revealing that punitive approaches are not effective interventions in decreasing NAS.

Punitive approaches which rule that women must carry a pregnancy to term in jails or prisons often violate the Eighth Amendment by denying them standard of care. Denying access to an abortion also violates the Eighth Amendment, especially when pregnancy termination is medically necessary to save the woman’s life. Refusing to provide standard care for pregnant women with SUD violates the Americans with Disability Act (ADA), especially among women identified as high-risk by HCPs. High risk pregnancies include those with diagnosed placental abruption, placenta previa, infection, miscarriage, and preeclampsia, among others.

Severe maternal morbidity is defined as adverse outcomes that are near misses of maternal death. SUDs that substantially increase such a risk include opioid use disorder, stimulant use disorder, and alcohol use disorder. Cannabis use disorder, independently, is not associated with severe maternal morbidity. Research suggests that among pregnant women with SUD, polysubstance use is common. The most prevalent substance used in pregnancy is tobacco. To reduce maternal mortality and morbidity rates associated with SUD, privacy protections are necessary to connect these women to evidence-based treatment rather than punishment. In addition, addressing social determinants of health, such as stable housing, has been found to substantially decrease the risks of severe maternal morbidity and maternal mortality.

Considering the established co-morbidity of substance use and IPV, privacy protections are imperative to encourage accurate IPV screenings at health care appointments. Pregnant women with SUD or intrauterine infection and those who experience physical violence in the form of abdominal trauma during pregnancy have an independent risk of experiencing stillbirth, maternal mortality, and femicide. Notably, the United Nation’s Office on Drugs and Crime emphasizes the importance of early identification in reducing femicide. One study of data from 33 states showed that drug-related deaths are among the leading causes of mortality during pregnancy and in the first year postpartum. Increased rates of IPV, traumatic brain injury, unplanned pregnancy, reproductive coercion, and lower rates of contraceptive use among women with SUD must be addressed with care and without fear of criminalization.

As drug class, quantity, and frequency of use affect fetal development, early intervention and connecting pregnant women with SUD to comprehensive prenatal care must be the first step in preventing fetal morbidity and mortality. Lack of early intervention is associated with increased risk of stillbirths and neonatal intensive care unit admissions. Non-punitive health care access is essential in reducing maternal and fetal mortality and morbidity rates.

Currently, the Guttmacher Institute is tracking laws in state legislatures that regulate pregnancy. I encourage readers to engage with this resource and use their voice to speak up against laws that cite substance use during pregnancy as a form of child abuse. State laws that force women with SUD to carry a pregnancy to term in jails or prisons result in increased maternal and fetal mortality and morbidity rates. In the spirit of evidence-based laws, state laws should protect the privacy of pregnant women with SUD, which would improve maternal and fetal health outcomes. Amending punitive state laws is the first step in increasing the rates of disclosures, prenatal care retention, substance use treatment retention, infectious disease treatment, IPV screening, and contraceptive use among pregnant women with SUD.

As a health care professional, I am also calling on my colleagues who reside in states which require mandatory reporting of a positive drug screening to law enforcement and/or child welfare agencies. We know the data suggests that alternative interventions, such as privacy protected prenatal care and integrated SUD treatment, would be more appropriate. Considering 42 CFR Part 2 does not protect pregnant women in states with punitive laws, it is time for us HCPs to advocate for our patients’ privacy and challenge state laws that compromise it. We also know from evidence that there is a significant risk of Eighth Amendment and ADA violations when pregnant women with SUD are incarcerated. While there may be mandatory reporting requirements, we should not be inhibited from educating our patients on how to best move forward.

Note: While anyone with a uterus and fertility potential may become pregnant, I do not include articles that specifically address gender identifications of non-binary people and men who are transgender. Due to the lack of scientific research on people who medically transition to another gender and carry pregnancy, the term “woman” is used throughout the piece though the experience of pregnancy is possible among people who do not identify as a “woman.”

Coryn Mayer, BSN, RN is a student of the Addiction Policy and Practice Master’s Program at Georgetown University Graduate School of Arts and Sciences.