“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.

When Brown and her son met for the second time, the baby cried and did not immediately warm to his mother. Brown said she initially thought “he does not like me,” before conceding that, in reality, “he did not know me.”

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Until this summer, incarcerated people who gave birth in Minnesota had a maximum of 72 hours with their newborns before they were separated. (The length of time depended on the type of birth.) In many other states, the parent and child have as little as 24 hours. As Alysia Santo wrote in PBS Frontline, “giving birth means saying goodbye.”

But recently, stories such as Brown’s and the advocacy of organizations such as the Minnesota Prison Doula Project — an initiative that provides pregnancy and parenting support to incarcerated people in Minnesota — have driven a major policy change. As of August 2021, people who are serving a prison sentence in the state will no longer be separated from their newborns after giving birth.

The Healthy Start Act, which was signed into law by Governor Tim Walz in May, allows the Department of Corrections to place incarcerated pregnant or postpartum parents into community alternatives. These include halfway houses or residential treatment facilities where parents can access treatment for the duration of their pregnancy and bond with their newborns for up to one year after giving birth.

The bill is the next step in a broader push toward improving prenatal and postpartum care for people in prison nationwide. Thirty-two states have passed restrictions on pregnant shackling, seven states have ended solitary confinement for pregnant people, and a few localities have increased the budget for prenatal care. While there are nine prison nurseries in other states across the country that allow children to stay with their parents, the Healthy Start Act is first-of-its-kind legislation because it permits postpartum people to bond with their newborns outside of prison.

According to Safia Khan, Director of Government and External Relations at the Minnesota Department of Corrections, about half of all pregnant people who enter a Minnesota prison will leave while still pregnant. Among the other half that give birth in prison, the majority reach their release dates within six months after giving birth.

Kahn emphasized that while “the separation period is often temporary and short, it is hugely disruptive to bonding and hugely traumatizing for the mother and for the child.” The importance of parent-infant bonding for the early development of newborns and the mental and physical health of postpartum people has been well documented. It impacts everything from the development of connections between brain cells fundamental to learning to the ability to build loving, trusting relationships later in life.

The new law is particularly important for Native American communities: Despite making up only 1.4 percent of the state’s overall population, 34 percent of the people who were pregnant in Minnesota prisons between 2013 and 2020 were Native American. The bill’s passage is due in part to the leadership of Native American elected officials in the state. State Representative Jamie Becker-Finn and Lieutenant Governor Peggy Flanagan both championed the legislation. During the discussion of the Healthy Start Act before it passed in the state legislature, Representative Becker-Finn said the legislation represents “an incredible opportunity to disrupt cycles of trauma.”

“At first, it was a difficult transition” when Jennifer initially reunited with Elijah. But “since then, our bond has grown so much,” she said, as she has been able to witness some of his milestones, including crawling and walking.

While Jennifer was in prison, she would often find herself wondering what her son looked like. Now, she can detail the mundanities that come with a shared bond: the types of food he likes (watermelon) and dislikes (tomatoes); the sound of his laugh; and his quickness to smile.

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.

Mandy had tried methadone, another medication similar to buprenorphine, three times unsuccessfully, but was determined to maintain sobriety this time. When she learned that she was pregnant, using again became a “hard no.” She enrolled in a comprehensive, high-risk pregnancy program geared toward people in recovery from substance use disorders.

There, she learned that due to a Massachusetts state statute requiring hospitals to report any prenatal substance use, she would be subject to a child services case once she had given birth. But she was assured that as long as she remained compliant with treatment and continued to prioritize her health and pregnancy, the investigation would be brief and relatively unintrusive.

That’s not how it went, though. Instead, she was charged with neglect and a placed on a statewide child maltreatment registry that would limit her job options and even her ability to attend field trips with her child.

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Mandy was relatively lucky because she had the knowledge and resources to successfully appeal this decision, but many mothers who face similar circumstances are stuck living with the consequences of child welfare involvement simply for seeking treatment.

Media outlets have labeled the uptick in overdose deaths since 2015 the “opioid crisis,” and a rash of sensationalized stories — cops overdosing from contact with crime scenes, babies born “addicted” to drugs, drug dealers compared with serial killers — are fueling a public perception of drug users as a macabre and dangerous population.

The result? A crackdown on parents — especially mothers — who use drugs, with a hard target centered on those with a past or present addiction to opioids. State laws vary, but at least 23 states and the District of Columbia articulate that substance use during pregnancy is child abuse, and virtually every state in the U.S. will open an investigation (at the very least) into a person who tests positive for substances during or shortly after pregnancy.

According to research compiled by the Vanderbilt Center for Child Health Policy, the number of infants entering the foster care system rose by nearly 10,000 between 2011 and 2017, and at least half of those infant removals were due to parental substance use, often during pregnancy.

Not only can these types of punitive measures make pregnant people who use substances wary about seeking medical care, but applying personhood rights to the unborn is a dangerous precedent that criminalizes people for events outside of their control; for example, earlier this year in Alabama, Marshae Jones faced criminal charges for having a miscarriage after she was shot.

Women’s rights advocates continue to fight laws that pursue the rights of fetuses before those of the people who carry them, and have seen some wins — for example, the charges against Jones were ultimately dropped, and last year the Pennsylvania Supreme Court reversed a ruling against a mother who use opioids and marijuana while pregnant, stating that fetuses were not covered in their child maltreatment laws — but it remains an uphill battle around the nation.

At the same time, abortion rights are under fire. Fueled by the Supreme Court’s conservative majority, many conservative states are implementing laws that make abortions virtually impossible to access legally and safely. For example, Alabama’s governor recently signed into law a bill that holds doctors criminally liable, with a penalty of up to 99 years in prison, for performing abortions that are not medically necessary and also bans abortions at all points of pregnancy, even in cases of rape and incest. Georgia, Louisiana, Mississippi, Missouri, and Ohio also passed recent legislation banning abortions after six to eight weeks respectively, which is before many people even realize they are pregnant. Because habitual drug use can interrupt or alter menstruation, it can be even more difficult for those experiencing addiction to catch a pregnancy early enough to terminate it in one these states.

The concurrent rise of anti-abortion laws and punitive prenatal substance-use laws leaves people who become pregnant while having a substance use disorder — whether active or in remission — trapped in a dangerous situation that is often overlooked due to the stigma attached to substance use during pregnancy.

“Among people with substance use disorders, there’s no one more stigmatized than pregnant women,” said Stephen Patrick, a neonatologist and an associate professor of pediatrics and health policy at Vanderbilt University. He added that this pervasive stigma leads some people with substance use disorders to fear and distrust the medical community, even to the point of avoiding treatment.

Unfortunately, that distrust is often warranted. “Pediatricians often don’t know what they are required to do, and often states have a hard time interpreting what the federal government wants them to do,” Patrick explained. At the federal level, child welfare guidelines are vague and general, leaving states with broad discretion when it comes to defining child maltreatment and the subsequent responses. This means that when state or county authorities are misinformed about the reality of substance use and parenthood, that bad information can easily become codified into the system. Worse, it allows those policymakers determined to give the unborn personhood rights a means for policing the behaviors of pregnant people. “The end result is a system that in many cases over intervenes in some families that may be in recovery, and in other cases may not intervene when it needs to,” Patrick said.

Mandy’s story is just one example of the real-world impact of this stigma. My own life is yet another: I gave birth in 2014 while prescribed methadone. My daughter was hospitalized for neonatal abstinence syndrome, which is a common side-effect of appropriate methadone usage. She had no other health problems and, five years later, remains a healthy and developmentally normal child.

Nonetheless, a child welfare case was opened against me in the state of Florida. At the time, the case was deemed unsubstantiated — but four years later, a call by my mother-in-law to the Florida state child abuse hotline triggered another investigation. This time, the investigator made no attempt to speak with me before making her decision. She simply looked at my previous records of having been prescribed methadone while pregnant and filed to have my two daughters removed from my care. More than a year later, I am still fighting to get them back.

I love my daughters, and I have no regrets when it comes to birthing them — but I remember learning I was pregnant with my youngest less than a year after her elder sister was born. I was on a low dose of buprenorphine after having tapered from the methadone I began taking during my previous pregnancy. I had just finished grad school, and before entering treatment had been using heroin intravenously for nearly five years. My husband and I, both in recovery, were broke and sharing a mobile home with his parents in South Florida.

I became pregnant after being unable to access a timely refill on my birth control. Abortions in Florida are not covered by Medicaid. I didn’t feel ready for another child, but I had no way to finance an abortion. I don’t know that I would have decided to get one if I could have; that’s something I will never know, because it was a choice I simply did not have. Now, the same state that gave me no other options is withholding my children from me for having sought treatment for a medical condition.

No woman should feel compelled to terminate a pregnancy because she has a substance use disorder—but when jurisdictions withhold that choice, they force people who use drugs to suffer harsh punishments simply for becoming pregnant. Sometimes, that even includes jail time.

“In 2006, the Alabama legislature passed the chemical endangerment of a child law, and even though the legislation said this has nothing to do with pregnancy and drug use — it has to do with punishing adults who take children to dangerous places like meth labs — it was used as a basis for arresting pregnant women using any controlled substance, even if prescribed,” explained Lynn Paltrow, the executive director of National Advocates for Pregnant Women. This has led to the arrest or child welfare prosecution of thousands of women since it was implemented; in 2015, ProPublica identified 1,800 affected mothers. The law is still being used.

Both anti-choice activists and those who push for criminal or civil prosecution of pregnant people who use substances claim to be protecting children. But the reality is one of oppression and harm. “It is an anti-woman policy and an anti-child policy,” says Richard Wexler, the executive director of the National Coalition for Child Welfare Reform, of child welfare policies aimed toward substance use. “Any time we take a swing at so-called ‘bad mothers,’ it falls to the children.”

You see this in cases like mine; my judge doesn’t see my daughters crying every time I leave our once weekly supervised visit, nor does she have to answer their questions about why they can’t come home, but that doesn’t mean it’s not happening. You see this also in cases like that of Keri, a mother who I interviewed for a story I wrote for Filter Mag, who bought buprenorphine on the street and self-detoxed before giving birth to avoid child welfare intervention. A 2017 paper by Amnesty International reports that doctors across the nation are seeing substance-addicted people avoid timely prenatal care out of fear of prosecution, harming the very infants these laws claim to protect.

Across the country, harm reduction efforts are gaining traction, and the government is slowly increasing access to evidence-based medical care. But even while the general perceptions and treatment of people with addictions are advancing, pregnant people who use drugs continue to be stigmatized and punished.

Said Paltrow, “There’s no question that prosecutors and others have used the stigma and horrific medical info about the impact of controlled substances on pregnancy to establish in the law separate rights for fetuses, and anti-abortion principles that treat pregnant women like criminals.”