“I was given a stack of papers, and I remember on a couple pieces of paper the words were blurry, this is how much copying was going on. They just said, ‘it’s a normal consent form; if something happens to you and the baby, if the baby’s heart stops beating or yours, do you want us to save you?’ Of course I do, so I signed the form, a bunch of forms.”

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Brewington said she was later told those papers included the consent forms that gave her providers permission to drug test her and her child. She said she never saw such consent plainly stated, even when she checked for it after the fact.

Drug testing pregnant and postnatal people and their infants without the patient’s informed consent is a common practice in the United States — but only among certain demographics. Several studies have found that Black women in particular are subjected to prenatal drug testing at higher rates than women in other racial and ethnic demographics, but do not have higher rates of positives. A study published in the February 2004 issue of Child Abuse & Neglect also found several other factors unrelated to drug use that led to higher testing rates, including single motherhood, tobacco use, a history of preterm labor, and a history of child services involvement, among others.

“I provided care in Black and brown communities, so [drug testing pregnant and postnatal patients] was routine, and it wasn’t until I got out and saw the difference in the way care was provided in communities that…were wealthier that it became clear that this is not routine, this is not what everybody does,” said Jamila Perritt, an OB-GYN in Washington, D.C., and the president and CEO of Physicians for Reproductive Health. Perritt also recounted that when she was pregnant, she was not drug tested despite being one of the more commonly-tested demographics (Perritt is a Black woman), which she attributed to her status as a physician.

Now activists are fighting back, saying the practice is rooted in racism and classism, and that it denies patients crucial agency over their care.

“Is our consent truly informed? It can’t be in those reams of paper that people are signing,” said Perritt. “What does it mean if we as physicians say informed consent is one of our core values? …Who would think you’re signing a form that could result in such severe consequences? The truth is that it is a violation of trust to not take the time to name that [drug testing consent is included] and its consequences.”

As Brewington’s case demonstrates, those consequences can be devastating. After her newborn son tested positive for opiates and cocaine, which Brewington admits to using once during the last term of her pregnancy, New York child services placed him into foster care. Although her two older children were out of the state at the time on a vacation with their father, child services ordered her to bring them back and placed them into foster care as well. They are home with their mother now, but Brewington is still fighting to regain custody of her son, who was awarded to his father.

“The medical profession, health profession, that is still one of the top three referrants [to child services],” said Jeyanthi Rajaraman, a parental defense attorney at Legal Services of New Jersey. Rajaraman added: “I’ve asked [at hospitals] when do you drug test and when do you not, and the information that comes out is that ‘if mom shows up and we’ve never seen her and she didn’t do a hospital tour and says she’s had no prenatal care and she’s by herself.’ What I really think they are also saying is Black and poor or no medical insurance because that is the majority of our clients who face and experience drug testing.”

Because child removal data is self-reported by the agencies, which do not track how many removals occur due to hospital drug tests, it is difficult to gauge how often these tests lead to severe consequences on a national level. One report by Movement for Family Power estimates that in 2017, in the Bronx borough of New York City alone, 60 babies under one month of age were removed because of maternal substance use. The United States child services system acknowledges that Black and Indigenous children are markedly overrepresented when it comes to system involvement; between 2000 and 2011, one in nine Black children and one in seven Native American children had been removed from their parents’ care, versus one in 17 white children.

Infants who do experience side effects due to in utero substance exposure, which can occur from both prescribed and non-prescribed substances, fare better when they are able to have close maternal contact. Removing newborns from parents like Brewington because of substance use — a common result of pre- and postnatal drug testing — can decrease feelings of bonding and the parenting sense of competence, and has been linked to some infant cognitive and memory impairment in animal studies. It also leads to decreased ability to breastfeed, which normally helps reduce symptoms of withdrawal in substance-exposed newborns and provides some protection against illnesses, including COVID-19.

Rajaraman noted that she often encounters medical professionals who recognize this reality but are shockingly unaware of how their call impacts the family. “I’ve had many doctors say to me that by calling [child services] they don’t know the baby would be taken, they say ‘I was calling because I thought it would help get mom into [a] program, I would never recommend separation.’”

In 2021, New York State attempted but failed to pass a law that would ban drug testing of pregnant and postnatal people and their newborns without informed consent or a legitimate medical necessity.  Activists are planning to push the bill again during the 2022 legislative session. Should it pass, it would require that written consent be obtained at the time of testing and delivered to the patient in a manner that is clear and understandable. It must also include a statement that the testing is voluntary. Activists in Washington State also considered pursuing similar legislation, but decided to table the movement for the time being. Should New York succeed in passing the informed consent bill in 2022, it could pave the way for other states to take necessary action to protect pregnant and parenting people and their infants from non-consensual drug testing.

The bill seeks to make three major changes: It would define illicit drug use during pregnancy as child abuse regardless of actual harm to the infant; remove the state’s obligation to engage in family reunification efforts when a child was exposed to drugs; and significantly shorten the amount of time it takes to begin terminating parental rights.

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Although the bill’s stated purpose is the protection of infants, opponents say it does the exact opposite: Separating infants from their parents causes potentially irreversible trauma to a child’s brain. In addition, this type of bill deters pregnant drug users from seeking much-needed medical care for fear of punishment, and denies families the resources to heal from addiction and parent their children to their best capacities.

The North Carolina Urban Survivor’s Union, a harm reduction organization dedicated to protecting the rights of drug users in North Carolina, is doing everything they can to stop this bill from becoming law. They are reaching out to senators, gathering signatories on a letter of opposition (which I joined), and preparing to implore the governor to veto it, failing efforts to stop it from passing. To them and many other harm reduction and reproductive rights advocates, this bill represents a growing national trend to use fear-mongering as a basis for stripping pregnant people of crucial rights, even well beyond pregnancy.

Aly Peeler, advocacy coordinator for the North Carolina Urban Survivor’s Union, notes that although the bill is written to target drug users, it has the potential to affect a much larger population: “It opens the door for prosecuting people who can get pregnant for anything that can harm a fetus. What if you’re not exercising enough, what if you don’t have healthcare when we know that prenatal care is the biggest determinant of fetal health? We are really invested in stopping the bill.”

Allowing the state to define in utero substance exposure as child neglect would permit child services to remove newborn infants from their parents’ custody at birth. Should this pass, North Carolina would join 23 other states in defining prenatal substance exposure as civil child maltreatment. This has a ripple effect: A recent study from the RAND corporation discovered that areas with punitive policies toward drug use during pregnancy, such as conflating it with civil or criminal child maltreatment, saw higher rates of infant withdrawal. Patients who fear being punished for using drugs avoid medical care, whether that means continuing to use drugs instead of engaging in treatment, or avoiding prenatal care altogether.

It is a measure that invites a host of problems, including the traumatic interruption of the dyad between a birthing parent and newborn. Contact between newborns and the parent who birthed them is crucial during the first days of life; this is especially true for infants who experience withdrawal from substances they were exposed to during pregnancy, whether or not those substances were prescribed and taken as recommended. Nursing and skin-to-skin contact have been shown to reduce symptoms of neonatal abstinence syndrome (NAS), or infant withdrawal.

Many hospitals around the country have begun to change their NAS protocols to be more inclusive of families, implementing “mother as medicine” approaches to treating withdrawal symptoms that have led to dramatic decreases in the amount of time infants diagnosed with NAS require medical intervention. The University of North Carolina Children’s Hospital-Chapel Hill recently implemented a new approach to treating NAS called “Eat, Sleep, Console,” which heavily integrates familial support as part of the treatment for infant opioid withdrawal. House Bill 918, however, would undermine that medicine by denying parents access to their newborns, potentially even while the baby is still in the hospital, despite the new protocol’s positive outcomes.

The absolutist attitude toward drug addiction appears to favor stigma over science. It states that in order for a substance exposure-based neglect charge to be substantiated, child services must be able to demonstrate that the parent is “unable to discharge parental responsibilities due to a history of chronic drug abuse.” This would allow a parent’s history of addiction to be weaponized against them, something which is generally not done with other medical conditions unless there is a similar element of stigma involved, such as that which is seen in some cases of intellectual or physical disabilities.

It also opens the door to using addiction treatment history as evidence of an inability to parent. Addiction is defined as a chronic relapsing disorder. It is not uncommon for patients to attend more than one treatment program before achieving long-term remission, or to require long-term medication management with methadone or buprenorphine in the case of opioid addiction. When these histories become confused with the definition of parental fitness, it labels people with substance use disorders as undeserving to parent simply because of their condition.

In an interview for a story published by The Appeal, obstetrician and addiction medicine physician Mishka Terplan described recovery as “finding community connection, purpose, and meaning…Motherhood fits right into that, and yet we have this system that has labeled certain people and populations as being less deserving of that than others, so we are going to even take that away from them, or make it yet another battle in a grossly unfair universe.”

Stating that child services is not required to engage in reunification efforts further codifies this dismissive attitude toward people with substance use disorders. Normally, when a child welfare department opens a case on a parent that involves the removal of a child from the home, the department is required to pursue reunification efforts before moving to forcibly adopt the child to another family.

This means that the department has an obligation to provide referrals and financial assistance for any services the parent is required to complete in order to regain custody. In cases that involve parental drug use, this typically means that the child welfare department must provide timely and appropriate referrals for addiction treatment, and often must also cover the costs of such treatment. But North Carolina’s new bill would remove this burden from the state in cases that involve “exposure to nonmedical substances in utero.”

“[A pregnant person with an untreated substance use disorder] can’t stop using [solely due to pregnancy] because that’s one of the defining features of having a use disorder, and people with a use disorder — they need treatment,” said Terplan, describing with eloquent simplicity the inherent injustice of removing a child due to parental drug addiction, then refusing to provide treatment.

Amber Khan, a senior staff attorney at National Advocates for Pregnant Women (NAPW), has helped oppose bills like this in the past, like a 2017 bill that made substance use during pregnancy civil child neglect in Kentucky and forced mothers to enroll in drug treatment within 90 days of giving birth or face termination of parental rights. Khan said these bills “are counter-intuitive and dangerous and based on misinformation. They certainly do not address a substance use disorder. If the concern is a parent’s substance use disorder, these bills create a punitive system but don’t increase funding for care.”

Finally, North Carolina’s bill also decreases the amount of time it takes to permanently separate parent and child by terminating parental rights, an act that has been dubbed the “civil death penalty.” Currently, federal legislation known as the Adoption and Safe Families Act (ASFA) requires states to file for termination of parental rights when a child has been in foster care for 15 of the past 22 months (it does not necessarily apply in situations of kinship care, when children are living with relatives). Some states have opted to shorten that time, and if HB 918 passes, North Carolina will join them. The bill will shorten the requirement to one year. It also gives foster parents the same rights as relatives, allowing them to petition for custody after only nine months.

“People don’t understand substance use,” said Louise Vincent, the executive director of the North Carolina Urban Survivor’s Union. “I find bills like this really manipulative…You start talking about pregnant women using drugs and people lose their mind. People don’t understand that love doesn’t cure addiction.”

Compounding all of this is the fact that these issues will not be faced by all populations equally. In North Carolina, for example, Black children comprise 33 percent of the foster care population, but only 23 percent of the state’s total population. This law would give the system further leeway to discriminate by race and class, issues already embedded into the child welfare system.

“We know that poor women and women of color are more likely to be suspected of drug use, so they’re more likely to be screened and more likely to be reported,” said Peeler. “The bill is really worrying partially because everyone really values trusting and confidentiality with their doctors and it wouldn’t afford that to people who can get pregnant.”

When legislation perpetuates the idea that addiction can be a chronic relapsing medical condition up until the point of pregnancy — when it becomes a moral failing and representative of a lack of appropriate maternal love — it fails to protect the community, which should be the basic function of the law. HB 918 and other similar laws defy science in favor of stigma and move the government one step closer to repealing reproductive agency in the United States. And, of course, it creates a new avenue for punishing drug users even while the criminal justice system finally, albeit slowly, begins to recognize that punitive measures are ineffective against addiction.

“This is certainly another part of the business as usual for the drug war,” emphasized Vincent.

“I understand the sheer panic of not knowing what to do, and you want to get your kid off the street because you really honestly believe they’re going to die,” said Cochran. “But I had a thought that, you know, if my daughter gets arrested, she’s gonna have a record.”

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The concepts of “enabling,” “rock bottom,” and other punitive approaches toward addiction are mainstays of the 12 step programs that continue to dominate recovery culture despite a lack of scientific evidence backing their efficacy. It’s not uncommon for parents of people in the throes of addiction to feel compelled to call the police on their loved one, pray for their incarceration, or feel relief when their loved one gets locked up. Cochran still encounters the mentality frequently in “Moms for All Paths to Recovery,” an arm of her nonprofit “Heart of a Warrior Woman,” dedicated to disseminating the harm reduction tools and tenets she wished had been more available when she was desperate for ways to help her child.

“In that moment, [parents] say nothing else is working,” explained Cochran. “They need a reprieve and somehow they think no matter what anyone has told them, [their child’s incarceration] gives them a reprieve.”

Parents, however, are not the only people who uphold the myth that incarceration benefits people struggling with addiction. Many people in recovery credit incarceration with their turnaround. It’s not uncommon to hear people say they would never have stopped using if they hadn’t gotten locked up, or that detoxing felt psychologically easier in jail, where they knew they couldn’t get a hit. Amanda Mansur, a restaurant server and mother living in Massachusetts, told TalkPoverty over the phone that, in retrospect, being incarcerated was a “positive experience.”

“It taught me…about gratitude. You don’t realize how good you have it until you lose everything,” said Mansur.

But incarceration is highly traumatic and embedded with both short- and long-term negative consequences. In the long term, convictions, especially felonies, can follow people for years after their release from jail or prison. People with felony drug convictions face difficulties renting homes, gaining employment, and even accessing public benefits.

Most states no longer enforce a lifetime ban on public benefits like food assistance and cash benefits for families with children, but many still impose temporary bans or reinstatement requirements outside of their criminal sentence. That can mean drug testing, which is costly, invasive, and not always accurate; the more common, less expensive urine drug tests, for example, are prone to false positives, which can result from the use of over-the-counter medicines or even edible poppy seeds.

The negative consequences of incarceration are compounded for people of color. Members of Black and Latinx communities are more likely to be incarcerated for drugs, and one in nine Black children has an incarcerated parent, as opposed to one out of every 57 white children. One study conducted in New York City found that Black men with criminal backgrounds faced harsher employment discrimination than white men with similar convictions. One out of every 13 Black Americans will lose voting rights in their lifetime due to felony disenfranchisement. Over 250,000 immigrants have been deported as the result of drug charges since 2007, according to data compiled by the Drug Policy Alliance.

But all of these consequences hinge on the assumption that a person survives the ordeal of incarceration. For people who are addicted to drugs, survival is not guaranteed.

“Any time someone has to use drugs in a way that’s secret, that’s hidden, that’s rushed, that’s not around people, that’s not in a safe secure network where you can get help, you see increased harms,” said Kim Sue, the medical director of the Harm Reduction Coalition, who also performs clinical work at Rikers Island Correctional Facility and recently published a book titled “Getting Wrecked: Women, Incarceration, and the American Opioid Crisis,” that examines the use of methadone and buprenorphine within jails and prisons. Those harms can include increased rates of infections and diseases like HIV and Hep C that can result from sharing syringes and other equipment.

Those harms can also manifest as death due to withdrawal. Although opioid withdrawal is not conventionally considered fatal among otherwise healthy adults, a number of people have been found dead in cells across the country. In 2017, Mother Jones reported that although nobody is tracking how many of these deaths are taking place, 20 lawsuits were filed against United States correctional facilities between 2014 and 2016 in response to alleged opioid withdrawal-related deaths. Withdrawal-related dehydration is often cited as a primary factor in these deaths. In more than one of these cases, distressed inmates reported concerns for their life to family members over the phone, or begged staff for water and medical care in earshot of their cellmates. Surveillance cameras caught the excruciating withdrawal and death of a 32-year old Michigan man who was in addiction treatment when he was arrested and sentenced to 30 days in jail for failing to pay a driving ticket.

“If you’re doing a lot of vomiting or a lot of diarrhea…[that] can lead to different electrolyte disturbances which can affect cardiac function, leading to cardiac arrest,” explained Sue, who also noted that many times, medically untrained guards are the only people available to assist incarcerated people in withdrawal. She added that even when inmates are transferred to medical units, most facilities do not have doctors on site full time.

There is a growing awareness among criminal justice authorities that medications used to treat opioid use disorder, like methadone and buprenorphine, are essential for people struggling with opioid addiction. Often prompted by lawsuits, several facilities have begun inducting incoming inmates who are addicted to opioids, or allowing people already prescribed the medications to continue taking them. Regardless, the majority of facilities do not allow the use of these medications, except for people who are pregnant (even then, patients are typically tapered off after pregnancy, sometimes while still recovering from childbirth).

This means that most people who are incarcerated while addicted to opioids will undergo forcible detox. In some cases, even when people are given methadone or buprenorphine as a withdrawal aid or for maintenance while inside, they are not given adequate referrals on the outside. In some areas of the country, these medications are difficult to access or too expensive to pay for out of pocket. For people addicted to opioids, being forcibly detoxed without adequate access to evidence-based treatment like methadone or buprenorphine can be dangerous upon release because it leaves them at risk of relapse, but without their former tolerance. Opioid-addicted people who have been released from incarceration are at significantly heightened risk of overdose in their first several weeks back in the community.

Even in facilities where evidence-based treatment is offered, the risk of trauma remains ever-present. “[People who are incarcerated] get killed by staff, they get killed by other inmates…they get raped, they get sodomized,” said Dinah Ortiz, a vocal harm reductionist and parent advocate at a New York defense firm. “You don’t know how many rapes I saw, you don’t know how many women I saw sodomized during my little six months in Rikers.”

“If you’re the kind of person who needs to take a walk when you’re feeling stressed, you cannot do that [while incarcerated]. If you’re anxious around other people who are loud or fighting, you can’t avoid that. The environment is not therapeutic,” said Jonathan Giftos, who worked as the clinical director of substance use treatment for the Division of Correctional Health Services at Rikers Island. “A lot of the health side works hard to mitigate the harms of the environment, but you can only do so much.”

Even when formerly incarcerated people praise their experience behind bars, they also often share stories of trauma and relapse that didn’t end with jail or prison, but with evidence-based care that they accessed in the community. Mansur, for example, admitted that she relapsed shortly after her release, and continued using for three years before achieving sobriety with the help of a self-referred buprenorphine prescription. She detailed that she’s had difficulty renting apartments because of her conviction, which was for theft that she committed in order to pay for drugs. She’s also unable to work in the medical field or with vulnerable populations like children or the elderly, which she finds disappointing because she had studied psychology in college.

“Maybe if I had been introduced to medication-assisted treatment previously from going to jail, maybe that would have prevented [the need to be arrested],” Mansur stated, before acknowledging that her addiction became “much worse” after she was released from jail.

“If your [child] is out of control there are ways to go about [helping them] that do not involve incarceration,” advised Ortiz. “If you have that mentality that I prefer they be in jail, then that’s the mentality that they are going to have, too.”