The White House Office of National Drug Control Policy (ONDCP) recently released a report detailing the Biden–Harris administration’s plan to increase access to substance use disorder (SUD) treatment for pregnant and postpartum people. Within the report, ONDCP clearly stated that “having SUD in pregnancy is not, by itself, child abuse or neglect” and that criminalizing SUD in pregnancy is an “ineffective and harmful” barrier to care. However, in practice, more states are adopting these punitive policies. This commentary will discuss how the increasing criminalization of substance use in pregnancy disproportionately affects Black pregnant and postpartum people, and recommend policies to improve access to treatment and support.

Black Maternal Mental Health and Substance Use

Maternal mental health conditions, including overdose/poisoning related to substance use disorder, are the leading cause of pregnancy-related death. Black birthing people are twice as likely to experience maternal mental health conditions as their white counterparts, yet are half as likely to receive treatment. Due to systemic racism and inequality, Black birthing people face significant barriers to care throughout pregnancy and the postpartum period. These include logistical and financial barriers, such as lack of transportation or inability to take time off of work, and systemic barriers Black patients face in the health care system, such as physical mistreatment, being ignored and undermined, and lack of representation. In fact, most of the mental health screening tools used are based on research conducted on white participants and do not consider the cultural attitudes and physical symptoms of Black patients.

This is particularly troublesome when we consider how the drug overdose crisis is affecting Black women at a disproportionate rate. From 2015 to 2020, overdose deaths among Black women increased by 144 percent—surpassing drug overdose death rates for women of any other race. There is a clear, dire need for supportive interventions to meet the needs of Black women with SUD, and these needs escalate when pregnancy is introduced. With the Black maternal health crisis worsening concurrently with the drug overdose crisis, Congress and states must act swiftly to improve access to treatment and support for Black birthing people who use drugs.

Criminalization of Substance Use in Pregnancy and Its Impact on Black Families

The undue effects of the criminalization of substance use during pregnancy among Black birthing people have deep roots in the ongoing war on drugs. During this time, the media portrayed Black mothers who used drugs as unfit mothers creating a generation of “crack babies.” Regardless of their pregnancy outcome—and even if they confided in their doctors for support—Black pregnant and postpartum people who used drugs were being targeted, arrested, and separated from their children. These policies were pushed as solutions to protect fetuses, when in effect, they cause great physical and mental harm to women and birthing people, especially those who are Black. Unfortunately, punitive policies being implemented today have a similar effect.

Despite expert consensus from organizations such as the Substance Abuse and Mental Health Services Administration, American College of Obstetricians and Gynecologists, and Centers for Disease Control and Prevention, substance use in pregnancy is increasingly being treated as a moral failing instead of the public health issue that it is. From 1973 to 2015, forty-five states prosecuted women for drug use during pregnancy, regardless of pregnancy outcome. From 2000 to 2015, fifteen states adopted punitive policies to address substance use in pregnancy, bringing the total of states with such policies to thirty-three, and halving the number of states with supportive policies, from seventeen to eight. As of November 2022, twenty-four states and the District of Columbia consider substance use during pregnancy to be child abuse and three states consider it grounds for civil commitment. While almost all health care providers are required to report child abuse, twenty-five states and the District of Columbia also require them to report suspected prenatal drug use, and eight states require them to test for prenatal drug exposure if they suspect drug use. Even worse, there are no uniform screening criteria in health care facilities across the nation, leaving far too much room for discrimination and bias.

The heightened risk of criminalization that Black birthing people face creates undue stress during an already vulnerable period. Infants are the group with the fastest increasing rate for entering the foster care population, and over half of infant placements are due to parental substance use. Black women have a higher likelihood of being screened for drug use during pregnancy and reported to child welfare authorities after delivery, leading to custody loss, incarceration, and lower chances of reunification. A study on Black mothers found that the struggle to cope with losing custody of a child actually increased criminal involvement and maternal substance use—which, in turn, decreased rehabilitation and reunification odds. The resulting fear of criminalization often forces Black birthing people who use drugs into tough decisions, such as whether to maintain the pregnancy or consider abortion, or whether to disclose substance use and endure potentially grave consequences or keep silent and potentially risk health complications.

As of November 2022, twenty-four states and the District of Columbia consider substance use during pregnancy to be child abuse and three states consider it grounds for civil commitment.

Not only do these policies threaten separation of families and criminalization of those in need of treatment, but they also worsen outcomes for the infants themselves. One study found that states that enacted punitive policies regarding substance use in pregnancy had higher rates of neonatal abstinence syndrome among infants. Where prenatal, perinatal, and postpartum visits have the potential to be safe places for Black patients to confidentially disclose drug use and seek support, they are instead marred by excessive surveillance and harmful criminal and civil intervention.

The Overturning of Roe as Another Barrier to Care

The overturning of Roe v. Wade has only increased momentum surrounding so-called “fetal personhood,” making seeking care even more unsafe for Black birthing people who use drugs. The idea of “fetal personhood,” in addition to being used to justify medically unnecessary restrictions on abortion care, is also used to force birthing people who use drugs into civil commitment—that is, forced enrollment in inpatient treatment programs, which separate parents from their infants—and to incarcerate those who experience miscarriages or stillbirths. Moreover, the rate of unintended pregnancies among people with substance use disorder is nearly double that of the general population. In the case of Black birthing people, whose risk of pregnancy-related death is three times greater than their white counterparts and already face significant barriers to accessing abortion, the results of denying abortion access are particularly dangerous. The criminalization of pregnancy outcomes, compounded by the criminalization of substance use in pregnancy, creates a reproductive health care landscape where Black birthing people are less likely to seek care—threatening to worsen both the ongoing Black maternal health crisis and overdose death crisis.

What States and Congress Can Do Now

The criminalization of substance use in pregnancy is a deeply embedded and racialized issue in society that will require actions by both Congress and states to remedy. In order to improve access to support and treatment for Black birthing people who use drugs, there are a number of policies that can and should be passed

  • Congress should pass the Moms Matter Act. This critical bill in the Black Maternal Health Momnibus package awards grants to provide maternal behavioral health services and grants to increase the diversity of the maternal mental and behavioral health workforce, with a focus on racial and ethnic minority groups.
  • Congress should pass the Into the Light for MMH and SUD Act of 2022. This bill reauthorizes and expands grants to states for maternal mental health programs, and establishes and funds a national 24/7 maternal mental health hotline with voice and text services.
  • States must leverage existing federal funds such as federal Substance Abuse Prevention and Treatment Block Grant (SABG) and the Title V Maternal and Child Health (MCH) Block Grant, to support the needs of pregnant and postpartum residents who use drugs. States such as Nevada and New Mexico can serve as examples for how states can leverage available resources.

In addition to these policies, Congress and the states need to ensure that treatment and support for Black pregnant and postpartum people who use drugs are culturally appropriate, centered around unconditional positive regard to destigmatize care, and conducted in partnership with community-based organizations and families. As the Black maternal health crisis and drug overdose crisis continue to claim the lives of far too many Black women and birthing people, Congress and states must take these actions to make it safe for these communities to seek the reproductive and behavioral care they need. As highlighted by the Biden–Harris administration’s recent report, action cannot wait to keep pregnant people and families safe and supported when it comes to substance use treatment and maternity care.