Across the United States, legislators continue to devise new ways to target parents who use drugs through a variety of state systems. In the past twenty years, the number of states penalizing substance use during pregnancy has doubled. Ostensibly a response to rising rates of opioid-related overdose deaths, such state laws almost universally endanger those already at greatest risk. Take, for example, North Carolina’s HB918, introduced by several Republican legislators in 2019, which explicitly sought to further penalize pregnant and postpartum people already struggling to access evidence-based treatment for substance use. HB918 aimed to punish parents for current or past drug use by making that allegation sufficient grounds for removal of children and by shortening timelines for child removal and permanent placement in adoptive arrangements – even without evidence of neglect. At its foundation, HB918 was predicated on the idea that people who use drugs (and who are not actively in treatment), especially those gendered as women, do not deserve to parent their own children. Yet evidence is insufficient that people who use drugs are less capable of parenting:
much of the literature claiming associations between drug use and child maltreatment suffers from circular logic: the literature determines child maltreatment has occurred if a CPS caseworker says it has occurred, and a CPS caseworker determines child maltreatment has occurred if they find evidence of substance use
(Movement for Family Power 2020)
HB918 emerged in the context of rising rates of substance use disorder (SUD) diagnoses among pregnant people; ongoing criminalization and stigmatization of people who use drugs (PWUD); and longstanding inequity in access to treatment across the US. These trends are especially true in rural areas of the country and in areas with higher overdose rates. Such laws and cases seem especially prevalent in the U.S. South, where overdose rates are disproportionately higher than in the rest of the country.
The purpose of this commentary is to alert fellow social scientists and researchers working in the fields of reproductive justice, harm reduction, and public health advocacy to the prospect and dangers of this type of legislation and its impacts. We also demonstrate how an interdisciplinary coalition formed to oppose punitive perinatal substance use legislation strategically deployed the principles of applied research toward that goal. We share the debate over HB918 and interdisciplinary responses to the bill to draw attention to the increase in non-evidence-based legislation crafted to target PWUD, particularly those who are pregnant and parenting, and to illustrate how interdisciplinary collaboration can be used in such circumstances. We offer advocates countervailing evidence against the claims made by proponents of punitive legislation and examples of political strategy used to combat the unfounded assumptions often put forth by proponents of such bills.
CHILD WELFARE POLICY
Legislation such as HB918 and Tennessee’s recent “fetal assault law” attempt to set a precedent in state-level child welfare policy by making an allegation of parental drug use sufficient grounds for immediate child removal, eliminating the requirement to demonstrate child neglect to justify family separation. However, the legislative intent of punitive perinatal substance use bills such as HB918 runs counter to best practices recommended by the Children’s Bureau, one of the federal agencies tasked with measuring the quality of foster care programs around the country and issuing guidance for government social workers (Child Welfare Information Gateway and Child Welfare Bureau, n.d.). As recently noted by Wakeman et al. (2017), changes like those proposed in civil bills such as HB918, enacted in criminal laws like Tennessee’s “fetal assault law,” and echoed in similar laws and court rulings in South Carolina and Alabama do not deter people from using drugs during pregnancy. Rather, such actions actively discourage people from seeking treatment and reinforce institutionalized racism, producing detrimental effects on the rights, health, and wellbeing of parents and children.
Though child welfare services are governed by federal law, they vary by state, as do specific statutes regarding the degree of parental substance use that can lead to a finding of child neglect resulting in child removal. Under federal guidelines, even when an allegation of child neglect or abuse is substantiated, children may or may not be removed from the parent’s care depending on the “risk” level perceived in the home by agents of the state (e.g. social workers, case managers). Such risk assessments are inherently subjective; determinations are known to vary according the race and income of the parent, with such allegations more likely to be substantiated against parents who are Black and poor. Following removal for neglect, social services give parents a timeline to complete steps required for reunification. If a parent does not complete a court-ordered reunification plan within the allotted time and is not granted an extension for completing that plan, parental rights will be terminated, and the child(ren) placed in the adoption system.
While child removal based on parental drug use is typically carried out through civil processes that may or may not be accompanied by criminal charges (depending on the circumstances of removal), such policies are nevertheless punitive and counterproductive. Sponsors of North Carolina’s HB918 framed the bill as in the best interests of North Carolinian families. Yet, as we summarize below, there is ample evidence that punishment-oriented legislation does nothing to reduce substance use and instead deters pregnant and parenting people from seeking both prenatal care and substance use treatment. Moreover, child removal can be a trigger for return to use of non-prescribed substances, and overdose. There is even evidence that women whose children are removed by child protective services have higher all-cause mortality.
In the summer of 2020, anticipating a floor vote on this harmful legislation in the North Carolina General Assembly, a statewide coalition mobilized in opposition to HB918. This coalition brought together over twenty organizations and professionals from the fields of reproductive health and justice, substance use treatment, harm reduction, child and family and advocacy, racial justice, and civil liberties, as well as numerous faith communities. Key leaders in the effort included parents who had been unable to access substance use treatment while pregnant; perinatal substance use treatment providers; harm reduction advocates; and child welfare advocates. By the time the bill was before the Legislature for a final vote in mid-2020, the North Carolina Ob/Gyn Society, North Carolina Medical Society, and North Carolina Department of Health and Human Services (which administers the child protective services program directly implicated in the bill) each went on record in opposition.
We three authors, as applied researchers in medical anthropology (Ostrach, Carroll) and in law, public health, and political science (El-Sabawi), provided the coalition with syntheses of existing scientific literature on a variety of topics, as needed for communication with state legislators. This included summaries of data on the efficacy of comprehensive perinatal substance use treatment; the harms of removing children from their parents; and the damaging effects of similar legislation elsewhere. We provided links to sources for all such information and shared strategies for weaving this evidence into talking points to highlight the need to protect families, concerns about cost-effectiveness, and the need for racial and social justice. Research on legislative behavior and prior successful applications of reproductive health and access findings to influence policy change informed our approach to synthesizing existing studies to share with the coalition.
The coalition’s advocacy was driven by a shared understanding that punishing parents for substance use is poor public health policy. Such policy is especially pernicious now, as evidence-based treatment for substance use disorder remains inaccessible to many North Carolinians, as in other Southern, Appalachian, and largely rural states. This is especially true for those who are pregnant or postpartum. Our primary contribution to this coalition was to provide shared language and scientific evidence to support these claims in opposition to the bill. Importantly, our understanding of current scientific evidence—and how to interpret it—was informed by our own ethnographic work with communities directly impacted by substance use, reproductive injustice, and criminalization. Our role as researchers and, for two of us, as anthropologists, was to connect published data to real people: those who would be affected by the law, also the legislators’ constituents. Our use of ethnography as both primary research method and style of writing and storytelling enabled us to craft compelling talking points. We could translate, for example, scientific evidence about the biomedical effects of various substances on neonates or the proven benefits of medications for opioid use disorder — largely found in pay-walled, academic journals — into relatable stories about parental love, family, and barriers to healthcare. While any qualified researcher could have conducted the same literature reviews, we believe that the effective humanization of statistics and the centering of lived experience is something that we, as anthropologists, were uniquely poised to offer.
The text of HB918 would have made in-utero exposure to illicit substances grounds for immediate child removal. Moreover, HB918 would have actively hampered the ability of parents who use(d) drugs to achieve child reunification by dramatically reducing the timeline for termination of parental rights to less than half that of the federally allowed 22 months. This accelerated timeline glaringly failed to account for the logistical and administrative requirements for reunification. North Carolina’s Child Protective Services department has historically prioritized kinship placements with an identified and safe relative. However, HB918 would have enabled non-relative foster parents to file a petition with the court to terminate parental rights in half the time. It also would have taken the unprecedented step of regarding non-relative foster parents as “kin,” a category that previously had greater standing in termination and adoption proceedings, and one that has deep emotional resonance in Southern culture.
Perhaps the most egregious element of HB918 was the proposed creation of an aggravating circumstance for in-utero exposure to “unlawful controlled substances or controlled substances used in violation of the law,” effectively equating in-utero substance exposure with murder of a parent, murder of a child, child abandonment, felony assault of a child, and sexual abuse. While such designation is civil, not criminal, it can be likened to criminal “fetal assault laws” that punitively target people who use or used illicit drugs while pregnant — an already stigmatized, marginalized, vulnerable, and underserved population.
An amendment offered to HB918 during the legislative process sought to create an exception to these harsh consequences for parents who were receiving treatment for substance use disorders. There were several problems with this. To begin with, the majority of people who use illicit substances in the United States do not have a diagnosable substance use disorder, making it inappropriate to assign them to substance use treatment. For those who are living with a substance use disorder diagnosis, treatment access is often extraordinarily limited (especially in North Carolina’s rural areas).
New parents with substance use disorders already face barriers related to childcare, transportation, and stigma that are not easily resolved. By deterring pregnant and parenting people with substance use disorders from seeking treatment for fear of child removal, HB918 threatened to undermine the widely proven positive impacts of evidence-based substance use treatment such as that provided through medications for opioid use disorder (MOUD, or MAT) — a scientifically proven and recommended approach likely to preserve family units.
Republicans filed HB918 in the House of the North Carolina General Assembly in April 2019, where it quickly passed the first reading. The bill subsequently moved on to the Senate and passed the first reading there in early May 2019. There the proposed legislation was referred on to a Senate committee and underwent various withdrawals and re-referrals to different committees in August 2019, without reaching a full vote before the session ended. In October 2019 HB918 again went before a Senate committee but did not receive a vote. For the next several months, progress on this legislation appeared to stall. However, despite tracking progress of the proposed legislation from the time it was introduced in 2019 until the summer of 2020, the coalition learned less than 24 hours ahead of time in mid-June 2020, that the North Carolina House Rules Committee was poised to read the bill, near the very end of that legislative session. The bill was rapidly withdrawn from and rescheduled on the Senate calendar three times in less than a week.
Throughout, and especially during this final, frantic week of legislative activity, coalition members mobilized their respective bases to contact legislators on both sides of the aisle with information about how the enactment of HB918 would affect North Carolinians – and the state budget. Coalition members urgently wrote to their state representatives and senators on both sides of the aisle with current evidence about lack of treatment access; the negative impacts and costs of child removal; and data to dispel myths about neonatal abstinence syndrome. We briefly summarize this evidence below.
Lack of treatment access
We emphasized how systemic underfunding has left substance use treatment programs unable to meet current demand for care, particularly in states like North Carolina that have not enacted Medicaid expansion. Nationwide, only 15% of substance use treatment programs offer care for individuals in need of treatment during pregnancy. Such care is even more limited in the U.S. South. North Carolina, the ninth-most populous U.S. state, hosts merely three comprehensive perinatal substance use treatment programs – and only one in a rural area. Treatment for opioid use disorder is hardest to obtain despite higher rates of fatal overdose compared to other substances; North Carolina has some of the highest and fastest growing overdose death rates in the country. People living in rural areas, including in North Carolina, face more challenges and receive fewer supports for attending postpartum substance use disorder treatment—despite the fact that the postpartum period is a crucial time for parents attempting to maintain custody or achieve reunification. Moreover, parents whose children are removed at or soon after birth may have more difficulty engaging with substance use treatment where it is available – visitation schedules may conflict with treatment appointments; missing either can negatively affect reunification.
Negative impacts and economic costs of child removal
By attempting to halve the timeline for permanent termination of parental rights—prioritizing the desires of unrelated foster parents over the long-term wellbeing of a child—HB918 threatened to put children in a situation markedly worse than the home from which they were removed. We shared data syntheses about how such a separation would pose increased risks for children, as “infant removal… increases risk of attachment disorders, cascading to significant emotional, social, and academic issues and increased risk of substance use disorders later in the child’s life.” Advocates in the opposition coalition estimated HB918 would unnecessarily force thousands of additional children into the underfunded, overburdened foster care system. This estimate was based on the current number of notifications of substance exposure required under CAPTA law that do not currently result in substantiated claims meriting removal but that, under HB918, would become grounds for immediate separation.
To justify their proposal to shorten the timeline for permanent termination of parental rights, to less than half that of the federally allowed 22 months, the bill’s sponsors claimed that children are negatively affected by delays in the foster care system. We agree that foster care systems can be harmful and do not advocate extending any child’s time spent in them. But HB918 was not the answer. Psychological, social science, and medical evidence we shared with the coalition and legislators demonstrates that long-term suffering is greater for children separated from their biological parents. Maintaining the parent-baby dyad (more broadly, keeping a child with the parent that delivered them) improves attachment and bonding, reduces trauma and mental illness, improves pediatric health outcomes, and, in some populations, reduces the likelihood a child will go on to have their own child removed in the future. Separating the dyad is shown in a plethora of studies to result in trauma for both parties, and to be associated with a range of mental health issues and other risks. Conversely, to our knowledge, no meaningful evidence exists to support the claim that short-term uncertainty experienced by a foster parent hoping to become a permanent adoptive parent has negative effects on fostered children.
Within North Carolina, a considerable increase in the caseload carried by the foster care system and child services social workers is attributed to an increase in substance use — more accurately, the civil and criminal punishment of substance use. HB918 would have further increased such caseloads to near unmanageable levels without additional funds or alternative means to support an already over-taxed system. This was part of the reason North Carolina’s own department that oversees child welfare programming publicly opposed the proposed legislation and asked the Governor to veto it.
Neonatal opioid withdrawal syndrome myths and facts
The media, lawmakers, and even well-intentioned healthcare providers often frame pregnant and parenting people who use drugs as a danger to their children. A key focus of testimony in the Rules Committee as HB918 was about to go to the Senate for a vote was neonatal abstinence syndrome (NAS) — correctly termed neonatal opioid withdrawal syndrome (NOWS). Thus we prioritized disseminating accurate information about NOWS as an easily treatable condition that, with appropriate care, can be expected to resolve within hours or days of delivery and that affects about half – not all – infants born to people exposed to opioids (illicit or prescribed). Contrary to stereotypes, no well-designed, peer-reviewed studies document long-term negative effects from NOWS. Moreover, for those receiving MOUD with buprenorphine (Suboxone, Subutex, etc.), the likelihood of NOWS appears unrelated to the dose prescribed. Well-designed scientific research demonstrates that, in most circumstances, a fetus is not at significant short-term or long-term risk of clinically significant impacts from substance use by the person carrying it – nor negatively affected by treatments for SUD. In sum, moral panic about NOWS is generally rooted in myth. Ironically, however, legislation like HB918 has been shown to increase the incidence of NOWS in states where enacted, likely by deterring pregnant parents living with substance use disorder from seeking evidence-based treatment.
As the coalition shared these data and talking points, some legislators did not respond. Others responded, requesting additional evidence on specific topics they wished to argue in opposition. In our role as public scholars, we provided requested evidence, sources, and summary talking points to the coalition and to legislators directly.
Through these efforts, the idea that HB918 would deter pregnant and parenting people with substance use disorder from seeking treatment began to gain traction in the General Assembly. In direct response to this growing concern, an amendment was proposed in late June 2020, just before the second Senate reading of HB918, which would have exempted parents in substance use treatment from having children removed or parental rights terminated. The amendment was drafted by Democrats in an effort to mitigate the potential harms of a bill they predicted would be passed by the Republican majority. While the amendment appeared to make the bill more palatable, it in fact made it no less punitive due to the lack of meaningful treatment access for North Carolina parents. Further, the coalition felt that the contribution of this amendment by Democratic senators would undermine the ability of the Governor (also a Democrat) to veto the bill when it eventually landed on his desk. Equally confident the Republican majority would pass the bill, the coalition was intent on creating as much political support for a veto as possible.
Within hours of seeing the text of the proposed amendment, we provided the coalition with specific information about why it did not substantively improve the bill. We particularly highlighted the earlier information shared about the lack of access to substance use treatment in North Carolina – especially for pregnant and parenting people, and even more so in rural areas. We especially emphasized the importance of centering voices of parents within the coalition who had personally experienced civil or criminal penalties (up to and including child removal) in response to their substance use. The coalition emphasized to Democratic allies that the amendment did not substantially improve the bill and would give the appearance of bi-partisan support, markedly increasing the political costs for the Governor should he choose to veto. In response to this advocacy, the Democratic sponsor dropped the proposed amendment, passed it to one of the original Republican sponsors of the bill, and allowed the other party to re-introduce it. This strategy by the Democrats allowed the amendment to pass (thereby creating the opportunity to mitigate the harms of the bill through future investments in the treatment system for substance use disorder) while maintaining a record of solid partisan opposition to the bill.
At the same time, we provided the coalition with information to circulate to Republicans about the projected demands and costs of the bill for the already overburdened foster care system. While few Republicans answered our letters, with the exception of a few perfunctory acknowledgements of receipt, we observed that opposition to the bill from within the Republican party began to emerge, if modestly, following this deliberate outreach. Here, the contribution of coalition members with lived experience of substance use and criminalization proved essential. While Democrats armed themselves for debate with the scientific data we provided, Republicans who opposed the bill sought to persuade their peers through stories. While Democrats reported on the number of children already regularly taken into the overburdened, underfunded foster care system as a result of parental substance use-related reports, Republicans asked, “What if this parent was your child?”; “What if this baby was your grandbaby?”; “Would you want to lose your kin, your family, if your child had been caught smoking marijuana?”; “Would you want the state to step into your place if your own child was struggling with addiction?” The appeals were emotional, personal, and intimate. This is political work that only North Carolinians with lived experience—who were willing to share their own stories of trauma and loss—had the ability to accomplish.
Shortly after, HB918 passed a second Senate reading by a vote of 25-20 – but this time with all Democrats and several Republicans voting against it. HB918 passed a third and final Senate reading again, 25-20 on June 24th, with all Democrats voting against and one of the Senate’s 29 Republicans breaking ranks to oppose the bill. Having passed the Senate, the bill went back to the North Carolina House for concurrence, where it was finally approved in a vote of 59-53 on June 25th, this time with four of the House’s 65 Republicans joining the Democrats in opposition. Between each of these votes, the coalition’s outreach to legislators feverishly continued, fueled by the data syntheses we continually updated and reframed. Despite exhaustive efforts by the coalition and the noteworthy success of swaying several Republican legislators to vote against the bill widely supported by their party, the HB918 ultimately passed. Yet, the bill that was sent to the Governor, which was first filed in 2019 with bi-partisan support, reached his desk marred by bi-partisan opposition—a significant achievement for the coalition.
In the days following the bill’s passage, the coalition sought to provide sympathetic legislators, their constituents, and the Governor himself with enough information to support a veto. We specifically provided updated summaries of evidence focused on how HB918’s enactment would likely increase racialized healthcare inequalities, given existing disparities in treatment access and disproportionate rates of child protective services investigations initiated against families of color despite similar or lower rates of substance use.
On July 2nd, 2020, North Carolina Governor Roy Cooper vetoed HB918, citing the deterrent effect it would have for pregnant people with substance use disorders seeking treatment and prenatal care; the lack of a mechanism to expand treatment access; and the disproportionate impact on women of color and low-income women. The language in the veto statement closely mirrored that of the educational materials provided by the coalition.
HB918 is a cautionary tale for reproductive justice and harm reduction advocates wherever similar legislation may be proposed. Families in North Carolina and other states disproportionately affected by civil and criminal punishments for substance use need more, and more affordable, treatment options—not punishment. Expanding access to comprehensive perinatal substance use treatment (the established most effective and evidence-based approach) and harm reduction, which can be accomplished in large part by enacting Medicaid expansion, would be far more cost-effective and beneficial in the long run than implementing punitive legislation known to deter pregnant and parenting people from accessing life-saving care. While the application of research as part of community advocacy ultimately succeeded in defeating this example of punitive substance use legislation in North Carolina, we must remain vigilant in monitoring legislative action. We must especially oppose laws that disproportionally harm Black and Indigenous pregnant and parenting people and other marginalized communities targeted for surveillance.
We, as anthropologists and public health scholars engaged in applied, person-centered research, were fortunate to have this opportunity to help fend off non-evidence-based legislation that threatened the wellbeing of already marginalized populations, bringing applied research to bear for public advocacy, especially through interdisciplinary collaboration. We also consider our experience to be an example of how scholars can work with community organizations to mobilize existing research as part of a rapid response to legislative threats.
Almost two years to the day that North Carolina Republicans filed HB918, a small group of Democrats who had been central to opposing it filed SB518. As drafted, this legislation would, among other actions: expand the definition of “relative” to include more family members; enact a statute that a parent’s positive drug screen alone is insufficient to deny court-ordered visitation with a juvenile removed from their custody; require hearings on permanency planning within much shorter timelines than previously (as would have HB918); add a new requirement for the court to provide reports on services offered to prevent removal of a juvenile from a parent; and direct North Carolina’s Department of Health and Human Services to develop an operational plan to create a statewide child protective services hotline. Several aspects of the proposed legislation are clearly in line with critiques of punitive surveillance of pregnant and parenting people who use(d) drugs and calls for better supports to ensure family reunification or maintenance of parent-baby dyads in the first place. At least one aspect – expedited permanency planning – would exacerbate the very disparities that raised concerns about HB918. Members of the initial coalition that opposed HB918 have characterized SB518 as a “kindler, gentler” version of the original bill. As of this writing, SB518 had passed a first reading in the Senate but had not been assigned to a committee for further consideration.
Bayla Ostrach, PhD, MA, CIP, is an applied medical anthropologist conducting community-based research on Harm Reduction, substance use, and structural and policy factors in drug user health in Southern Appalachia; as well as periodic fieldwork on inclusive nationalism and protective health effects of social support, with Castellers in Catalunya. Dr. Ostrach is appointed faculty in Medical Anthropology and Family Medicine at Boston University School of Medicine. Dr. Ostrach is Visiting Research-Scholar-in-Residence in the Dept. of Anthropology and Sociology at the University of North Carolina-Asheville and a Board Member of Musicians for Overdose Prevention. Twitter: @BaylaOstrach
Taleed El-Sabawi, JD, PhD, is an Assistant Professor of Law at Elon University School of Law and a scholar with the Addiction and Public Policy Initiative at the O’Neill Institute. Her areas of expertise are in addiction and mental health policy, politics, and law. She recently co-authored a model law to create non-police behavioral health crisis response teams and has been assisting grassroots advocacy groups in developing narrative strategies to garner political support for the reform of institutions that perpetuate racial violence. El-Sabawi is a member of the Actional Advisory Circle of the North Carolina Urban Survivors Union, a chapter of the Urban Survivors Union, and frequently works alongside persons who use drugs advocating for policy. Twitter: @el_sabawi
Jennifer J. Carroll, PhD, MPH, is an NIH-funded medical anthropologist whose mixed-methods research investigates substance use, harm reduction, and drug policy in the U.S., Ukraine, and Russia. She is a scientific consultant for the National Center for Injury Prevention and Control at the U.S. Centers for Disease Control and Prevention and is the lead author of the CDC’s 2018 recommendations for community level interventions to prevent overdose. Her first book, Narkomania: Drugs, HIV, and Citizenship in Ukraine (Cornell University Press, 2019), is an ethnographic study in Ukraine of substance use, drug treatment, and addiction imaginaries — that is, culturally inflected views of addiction. In 2020, Narkomania was awarded the Heldt Prize for best book in any area of Slavic, Eastern European or Eurasian studies. Twitter: @veruka2
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