The Trump administration’s zero tolerance border policy, which removed thousands of children from the care and custody of their asylum-seeking parents, was finally reversed on June 20. Attorney General Jeff Sessions affirmed that the zero tolerance policy was created specifically to deter families from immigrating across the border. Republicans and Democrats reached across the aisle to condemn the policy, believing that children should not be used as pawns to punish families in ongoing legal limbo.
Unfortunately, using children to punish families is not a new policy. In many states, health care providers are required to disclose to child welfare agencies any suspicion that an expectant mother may be using drugs during pregnancy. In 2014, Tennessee became the first state to criminalize and explicitly develop legal consequences in pregnancy, enabling child welfare penalties that include terminating a mother’s parental rights and forcing the mother into inpatient treatment programs. Today, in 24 states and the District of Columbia, women who abuse drugs during pregnancy face the potential removal of children from their care.
These policies, like the border policy, were created with the intent of being a deterrent, to reduce prenatal exposure to drugs by intensifying the penalties for pregnant women who struggle with drug addiction during pregnancy. And, like the women at the border, low-income women and women of color are the most affected by this state control. While it is important to promote the health of babies and protect them, the solution is not to punish the mothers.
The problem with zero tolerance policies is that they intensify penalties for mothers who are dealing with factors outside of their control.
Drug abuse among pregnant women in the United States is increasing. A national survey showed that 5.4 percent of women (age 15-44) in the country use illicit drugs during pregnancy. The number of babies born experiencing opioid withdrawal tripled from 1999 to 2013, and Missouri has seen a 538 percent increase in babies born addicted to opiates in the last 10 years.
There are many factors that contribute to drug use and addiction, such as mental illness, trauma and intimate partner violence. Though much has been done in recent history to battle addiction in response to the opioid crisis, policies that take children away from drug-addicted mothers fail to reckon with this epidemic and only exacerbate already serious social issues and health consequences.
Health care providers are required to inform child welfare agencies of any suspicion that a mother is using drugs, just like border guards were required to separate families. This requirement violates patient-provider confidentiality and forces mothers to make an impossible choice between seeking safe prenatal care and potentially losing custody of their child. Most mothers don’t choose the former. This creates unnecessary barriers to accessing health care because women believe that they have few options for seeking prenatal care and safe help with addictive drug abuse, just as the Trump administration has created barriers for immigrant mothers to care for their children and seek safe refuge in the U.S.
Access to quality prenatal care plays a significant role in preventing low birth weight and congenital abnormalities, which are leading causes of infant death. Pregnant women who abuse drugs are also more likely than other pregnant women to suffer from mental health disorders and one cannot be effectively treated without also treating the other. Untreated postpartum drug abuse increases the risk of maternal suicide, a leading cause of death in the postpartum period.
Providing pregnant and postpartum women with treatment services for drug addiction is an important step in mitigating risk for maternal mortality and morbidity. Treatment options should include making sure that pregnant and postpartum women who are addicted to drugs can obtain prenatal and postpartum care as well as mental health services without concerns about losing custody of their children. Pregnant and postpartum women need assurance of patient-provider confidentiality. And they need more treatment programs to combat addiction without fear of criminal charges.
As nurses who work in women’s health and public health, we believe state policies of criminalization of pregnant women must be reversed, just as the zero tolerance policy that separated children from their parents was reversed last month. We believe policies should not put a mother’s needs against her children’s. We must address both the health needs of the mothers and their babies.
These policies force mothers to make an impossible choice between seeking safe prenatal care and potentially losing custody of their child. Most mothers don’t chose the former.
Researchers suggest that what these babies need most is what has been forcibly taken away from them: their mothers. Newborn babies may experience Neonatal Abstinence Syndrome (NAS) from exposure to opioids during a mother’s pregnancy. Basically, opioids pass through the placenta that connects the baby to its mother in the womb. The baby becomes dependent on the drug along with the mother. Since the baby is no longer getting the drug after birth, withdrawal symptoms may occur as the drug is slowly cleared from the baby’s system. Breastfeeding reduces the severity of NAS symptoms and the need for medications to help reduce these symptoms. According to research, it’s better for both mother and baby if they stay together.
There’s no research to support any evidence that punitive legal actions against pregnant and postpartum women enhance the children’s health outcomes. These legal sanctions infringe upon women’s rights to health, privacy, equality and nondiscrimination and are impediments to prenatal and postpartum care and critical mental health services.
Many governmental and private organizations have emphasized repeatedly the long-term, cost-effective benefits of providing quality treatment and recovery services during the perinatal period as compared to zero tolerance, which removes children from mothers. The Substance Abuse and Mental Health Services Administration (SAMHSA) has created clinical guidelines. Congress has passed the Comprehensive Addiction and Recovery Act (CARA) and the Protect our Infants Act (POIA). The American College of Obstetricians and Gynecologists has issued a statement opposing the separation of children from their mothers. And other organizations, notably anti-abortion groups, have strongly opposed unjust policies that use children as pawns in legal disputes with mothers.
A zero tolerance approach separating drug-abusing mothers from their children was a well-intentioned attempt to reduce prenatal exposure to drugs of abuse. The problem is that zero tolerance policies intensify penalties for pregnant women and prevent women from seeking prenatal care and mental health services. While it is important to promote the health of babies and avoid exposure to prenatal drugs, a zero tolerance policy is not an appropriate solution, just like children removed forcefully from their parents at the border is not an acceptable measure.
Using children to punish families is not good for mothers or their children, whether at the border or the hospital. Health care organizations and Republicans and Democrats alike need to continue to fight state policies that separate children from their mothers. Families should not be punished for mental health problems any more than they should be punished for trying to find a new life in the U.S. Children should not be separated from their families because of societal factors that are outside of their parents’ control.
Sarah Oerther, MSN, M.Ed., RN is a nursing instructor enrolled as a PhD student at the School of Nursing, Saint Louis University. Sarah is the Communications Chair of the Public Health Nurse Section of the American Public Health Association.
Ellen Olshansky, PhD, RN, FAAN is Professor Emerita at University of California, Irvine Sue & Bill Gross School of Nursing, and Distinguished Scholar in Nursing Science in the Department of Nursing of the Suzanne Dworak-Peck School of Social Work at the University of Southern California.
Need help with substance abuse or mental health issues? In the U.S., call 800-662-HELP (4357) for the SAMHSA National Helpline.