When Melissa was 14 years old, attending middle school in New Jersey, she began taking Percocet off-label to cope with her anxiety and depression. At first, it was fun, she says: a simple way to escape. It wasn't until her early 20s, when she graduated to heroin, that she felt herself losing control of her life.
"When it was just [Percocet], my life was manageable," recalls Melissa, now 27. "It was just partying for me. But when it turned to heroin, my life basically ended. Everything became about getting high." She went to rehab several times to try and kick her addiction, but relapsed each time. Everything was falling apart, and she felt powerless to stop it—her heroin use had ruined her relationship with her parents and broke up a romantic relationship of five years, and she started getting sick more frequently.
When Melissa found out she was pregnant with a baby girl at age 26, she continued to struggle with her addiction. She knew she needed to get clean, but she'd always cave eventually, skipping doctor's appointments to get high. "I was scared the doctors would find out," she says. "My using was so bad that I didn't want to do it anymore, but I didn't want it to go away, so it took a while for me to get convinced to ask for help." She was also afraid of ending up in a 30-day program while pregnant: "I was scared of what people would think and scared to leave my family and boyfriend, and just scared of the judgment that came with me using while I was pregnant."
About four-and-a-half months into the pregnancy, Melissa finally, seriously resolved to get outside help. "I realized I couldn't stop myself from using," she said. "I didn't care what people thought because my daughter was more important." But when she reached out to several national hotlines, she found herself hitting a wall: "Every hotline and helpline I called told me that no rehab would take me because they weren't medically equipped to handle me," she recalls.
When she called the rehabs directly, ignoring the hotlines' advice, she says she was informed they couldn't treat pregnant women. She also went to several hospitals, which she says refused to take her. She claims one hospital, in lieu of taking her on as a patient, suggested she get high to avoid losing her baby during withdrawals. (According to The Pew Charitable Trusts, abruptly stopping opioid use while pregnant, especially during the first and third trimesters, can cause harm to the fetus.)
If hospitals and helplines are ill prepared to deal with to the plight of women like Melissa, much of the country is outright hostile: Pregnant women with substance use disorders are hugely stigmatized in America. Because of the lack of programs that treat pregnant women with addiction, and the troubled history of criminalizing drug addiction in the US, pregnant women who use drugs are often targets of arrest and subject to harsh punishments, treated as though addiction is a personal failing rather than a public health issue.
Public opinion and policy alike tend to view "drugs as an evil, and the person using as not someone who needs health care but as someone who's a bad person," explains professor Sarah Burns, the head of the Reproductive Justice Clinic at NYU Law. "But the fact is that it is a healthcare situation." And it's a particularly urgent one—with America's opioid epidemic rising at startling rates, the increase in opioid use among women in particular is skyrocketing.
Despite the severity of the current opioid epidemic, this logic—that drugs are bad, and drug users should be punished—is troublingly pervasive. In the 1980s, at the height of the so-called "crack baby" epidemic, it dovetailed with the belief that the government has the right to intervene in women's reproductive decisions for public good. During this period, women—specifically low-income women and women of color—were disproportionately punished and arrested for using drugs as the media, jumping on the hot news story of the moment, splashed images of small, skinny babies with trembling arms and legs across television screens.
The "crack baby" panic is now widely regarded as the "epidemic that was not." Crack babies, and the mythology that surrounded the effects of crack on newborns, have been widely debunked. Researchers now argue that exposure to crack cocaine does not have devastating long term effects on babies, and can be easily cured through appropriate treatment—in fact, research shows that drinking alcohol during pregnancy is more harmful to the fetus than using cocaine.
But the fact that the purported epidemic was overblown has not stopped it from having lasting effects on the way we treat pregnant women who use drugs. According to a 2017 Guttmacher report, 24 states consider substance use during pregnancy as child abuse, and three states consider it grounds for civil commitment. Twenty-three states require health care professionals to report people who they suspect have used drugs during pregnancy, or have used substances in the past, and seven states require professionals to test women for drug use.
Legislation that criminalizes drug use during pregnancy effectively turns pregnant women into suspects in crimes many aren't even aware of. In 2013, for instance, a Wisconsin woman named Alicia Beltran was arrested and forced to spend 78 days in a drug treatment center after she admitted to her doctor that she had struggled with a pill addiction the year before she got pregnant; she was not provided with a lawyer, but her 14-week-old fetus was. In 2014, in another high-profile case, a mother in Alabama was arrested and jailed on $10,000 bail for taking a single Valium while she was pregnant.
"In each of these instances, you had women doing the right thing," says Sarah Burns, who represented Beltran alongside the National Advocates for Pregnant Women. "They had sought care, and they were expecting that their physicians would work with them and guide them through a challenging process. They weren't expecting to be turned in."
"It's pretty unanimous that [punishing pregnant women] is a horrible idea," Alexa Kolbi-Molinas, a senior staff attorney at the ACLU Reproductive Freedom Project, tells Broadly. "If you actually cared about maternal or fetal health, this is not what you would be doing."
According to top medical organizations, including the American Academy of Pediatrics and the American Society of Addiction Medicine, the healthiest standard of care for pregnant women with opioid or prescription drug addiction is with opioid medications, like methadone or buprenorphine (drugs like Suboxone). Even though these medications expose the mother and baby to small amounts of opioids, symptoms of withdrawal that the baby might experience—also known as Neonatal Abstinence Syndrome (NAS)—far outweigh the risk of a fatal overdose.
Eventually, after four tries at four different hospitals, Melissa finally found help at a hospital in New Jersey, and was soon enrolled in a Suboxone program. She says she visited the clinic every week for her prescription and for mandatory drug tests. After she enrolled in the program, Melissa admits, she used heroin once. (Her newborn daughter tested positive for Suboxone, she adds, as a result of the program—but not heroin.) When a social worker at the hospital discovered that she had used, she claims, they immediately called the Department of Youth and Family Services (DYFS) the day after her daughter was born. From there, Melissa says she was assigned a caseworker, who discussed potential foster homes for her child.
"They asked me if I had any family members who could take her that didn't live with me," says Melissa. She didn't, at least not in-state. "So instead, they started talking to me about potential foster families. They were saying, 'This mom is a nurse, and she's a great lady.' Like, you're really going to start talking to me about where you're taking my baby?"
Soon enough, the threat of losing her child was lifted. Once Melissa's daughter was removed from the Neonatal Intensive Care Unit and sent to pediatrics, Melissa underwent daily check-ups from the caseworker to see how she and her boyfriend interacted with the baby, and weekly drug tests. The results, she says, showed they were clean and fit to take their baby home. But before they left the hospital, DYFS put her on a safety plan, which meant she couldn't be alone with her child unless her dad and sister were with her at all times. "If I went anywhere with her without them, I could be arrested for kidnapping my own daughter," Melissa says.
"You want people to get healthcare. You want them to feel comfortable going to their doctor… People aren't going to do that if they're going to be thrown into jail."
According to an in-depth 2017 study from Amnesty International, laws that subject pregnant women to additional surveillance and criminalize their actions are a violation of their human rights, including the right to health, the right to privacy, and the right to equality and non-discrimination. "These punitive approaches often deter women from seeking healthcare services, in particular vital prenatal care and drug treatment," the report reads. "Pregnancy criminalization laws are discriminatory against all women… and also particularly discriminatory against those from marginalized groups."
The National Advocates for Pregnant Women say that nearly half of the need for drug treatment is unmet in the United States, and pregnant women are hit particularly hard: Only 19 states have in place drug treatment programs specifically targeted at pregnant women, and just 10 prohibit publicly funded drug programs from discriminating against pregnant women, according to the Guttmacher Institute. In addition, even in states that offer care to pregnant patients, women are reluctant to seek out help due to the fear of arrest or losing custody of their child. A 2015 study found that some clinic workers are wary of offering help, too, out of fear that they could be liable "if anything happened to the fetus."
"You want people to get healthcare," says Kolbi-Molinas. "You want them to feel comfortable going to their doctor and saying, 'I just found out I'm pregnant. I have this problem with substance abuse. I want to stop, what should I do?' People aren't going to do that if they're going to be thrown into jail."
Though it took her months to find appropriate care, Melissa is happy that she found a treatment plan that was right for her. Suboxone has eliminated her cravings, and the urge to get high has all but disappeared. "I love [Suboxone]. It doesn't get me high or anything. It just makes me feel normal," she says. "I feel lucky because this program puts pregnant women at the front of the waiting list. They want to make sure that they get them in first. It's great." The fact that Suboxone was so beneficial to her health only underscores her belief that it's crucial we find better ways to care for pregnant women who use substances.
"I had the two best days of my life when I had my daughter and then the third day, the DYFS lady came, and she took that away from me," says Melissa. "Whenever I held [my daughter] I would just cry because I was like, 'They're going to take her from me.' I feel like this lack of care needs to be talked about so people can hear it and realize that there's a problem. For me to be turned down at a rehab because I'm pregnant—it should be the complete opposite, and that's what's wrong."