[Cross-posted from the Petrie Flom Center at Harvard Law School’s Bill of Health Blog]
By: J. Alexander Short
Pennsylvania is the latest state to enact legislation in reaction to the growing impact the opioid epidemic has on infants. Governor Tom Wolf signed H.B. 1232 in June, effectively requiring hospital officials to notify child protective services when children are born affected by the mother’s substance abuse or affected by withdrawal symptoms as a result of prenatal drug exposure.
Such outcomes generally fall within the parameters of neonatal abstinence syndrome (“NAS”), a group of health problems that occur in newborns who were exposed to drugs while in the mother’s womb. This legislation brings Pennsylvania into full compliance with the 2003 Federal Child Abuse Prevention and Treatment Act.
This legislative response makes sense.
According to a report by the Pennsylvania Health Care Cost Containment Council, Pennsylvania has experienced an increase in the rate of NAS by 1,096 percent since 2000. Such enormous growth results in both higher costs for the state and greater health complications for mother and child.
Unfortunately, the findings of the Pennsylvania Health Care Cost Containment Council aren’t unique, and are reflected across the country. But there is no agreement about how to handle it.
In response to the growing NAS problem, legislators and policymakers have failed to find consensus, creating a scattered legal landscape that lacks uniformity from state to state. By reviewing and understanding various policies underlying different legislative approaches to NAS, one can better understand how to appropriately navigate this issue moving forward.
Tennessee employs a unique and arguably extreme legislative approach to NAS. In 2014, the state passed a statute explicitly criminalizing the consumption of narcotics by pregnant women. The first and only state to specifically criminalize this behavior, Tennessee utilizes a punitive approach to the issue. Although this statute seeks to punish pregnant women with substance use disorder, the state allows pregnant women to use evidence of participation in treatment programs as an affirmative defense against such prosecutions.
In states without laws criminalizing NAS, some prosecutors have relied on creative interpretations of pre-existing laws. Although a number of approaches exist, the most prevalent include prosecuting under theories of child abuse, theories of possession of a controlled substance, and theories of postpartum drug delivery through the umbilical cord after the child is born but before the umbilical cord is severed. In doing so, states utilizing these approaches also promote punishment as an appropriate solution to the issue of NAS.
Other states approach NAS from yet another perspective. Minnesota, South Dakota, and Wisconsin, for example, have involuntary civil commitment laws which aim to have expecting women rehabilitate their drug problem prior to giving birth. Among the states that utilize civil commitment laws, there is a distinct lack of uniformity in how the laws operate, including differences in the amount of time required for civil commitment. Additionally, it is unclear how often these laws are enforced.
A majority of states, however, utilize voluntary treatment programs to assist pregnant woman in their recovery. These states may nonetheless classify NAS as child abuse or require mandatory reporting. According to the Guttmacher Institute, 22 states and the District of Columbia require healthcare professionals to report suspected instances of substance use disorder among pregnant women to the appropriate government agency. Seven states require expecting mothers to undergo mandatory drug testing in similar situations. These states tend to approach NAS as a healthcare issue as opposed to a criminal issue.
The recently enacted Pennsylvania legislation mandates health care professionals report any instances of NAS to a child protection agency. This notification, however, will not be considered a child abuse report and will not trigger automatic involvement by child welfare services. This legislative response reflects the care with which legislators are handling this subject as well as a recognition of the stigma commonly felt by individuals with substance use disorder.
However, the new Pennsylvania law highlights larger health policy concerns. Indeed, the issue of NAS underscores an intersection of public health and criminal justice considerations, and as such, policymakers and legislators must examine this issue with both in mind.
Ultimately, policymakers and legislators must address the crux of the issue—whether treatment or punishment is preferable for expecting mothers with substance use disorder.
A better understanding of the health policy considerations underlying NAS will allow policymakers and legislators to develop a less scattered and more unified approach to this public health issue moving forward.
J. Alexander Short is a member of the Addiction Legal Resource Team, Penn State Dickinson School of Law.