More than 210,000 women spent Mother’s Day 2019 in America’s prisons and jails.

Two-thirds of them are mothers of young children; an unknown number are pregnant. Many of them have substance use disorders with a significant history of trauma and mental health problems. Some have been incarcerated solely for the alleged crime of substance use during pregnancy, and many have lost custody of their children because there aren’t enough treatment centers for women and their kids.

Pregnant women with substance use disorders inside and outside of prisons and jails are struggling, and many are dying. The 2017 National Survey on Drug Use and Health found that 1 in 12 pregnant women had used an illicit drug in the past month. Recent reviews of maternal causes of death in three U.S. states identified opioid overdose as a significant contributor to maternal deaths, between 11% and 20% of all deaths during pregnancy. The number of newborns with neonatal abstinence syndrome has increased 300% in 28 states in the last 20 years.

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Ongoing threats of criminal and punitive civil child welfare actions against this group of women with substance use disorders are feeding the most enduring and deadly barrier they face: fear. The policy of punishment has suppressed women’s disclosure of their substance use problems and kept them out of prenatal care and social services when early therapeutic approaches can help them recover and provide support to their families.

Masquerading as health policymakers purporting to protect the fetus, prosecutors, legislatures, and judges have incarcerated more than 1,000 pregnant women in the United States solely for substance use during pregnancy since the 1970s, and the practice continues today. Most of these punitive actions have occurred since 2005 due to increasingly heavy legal penalties for drug-related crimes and mass incarceration policies.

Incarceration rates in the U.S. are growing faster among women than among men, and black women are imprisoned at twice the rate of white women. With the country in the grip of a deadly opioid epidemic, segments of America continue to pursue prosecution and incarceration when treatment and support are needed.

Why do legislators, law enforcement, and misdirected policymakers persist in this cruel and traumatic crusade against women and their children?

One answer is the racism inherent in the justice system, in drug testing, and the demographics of punishment — an enduring and gendered plague. When entering prenatal care, every woman should receive a comprehensive physical and mental health evaluation, and every setting should use the national recommended standards for drug testing. But not all health care settings use these standards. Some rely instead on a single urine drug screen as their basis for diagnosis. The problem with this approach is that staff members are left to decide who to test based on what may be biased notions about which women look like they have a drug problem.

Women of color and those living in poverty are more likely to be drug tested, and a single drug test has been used as grounds for prosecution of pregnant and parenting women. Rates of women’s drug use and drug sales are the same regardless of their race or ethnicity, but women of color are far more likely to face criminal charges for it.

Mythologies about remedies for women with substance use problems still rely on punishment-as-deterrence and prison-as-cure. A recent Associated Press poll revealed that a little more than half of Americans believe that addiction is a disease, yet most say they want no relationship with a substance user. In the same poll, respondents said they saw substance use problems as a matter of morality worthy of harsher legal consequences.

These forms of disregard for so-called misbehaving mothers who need help are familiar and enduring American tropes. But the stigma of addiction grounded in sexism and its antique notions of “correct” womanhood and motherhood have gotten in the way of accepting the new truth for a complex problem: that treatment and recovery supports work.

As several colleagues and I wrote recently in the journal Nursing Outlook, the American Academy of Nursing supports a public health response that incorporates multidisciplinary models of health care, child welfare, treatment and recovery supports, and clinician practices that are culturally and trauma responsive and in line with the accumulated scientific evidence.

Today there is real reason for hope: After 50 years of research and listening to women’s stories, we now have tools for treating substance use during pregnancy and parenting, and there is clear evidence of their effectiveness. Science-based treatment, proven to help women recover from substance use problems, is not only within our reach, it’s here.

Health care and substance use treatment professionals know how to set up and manage residential and outpatient programs for pregnant women and their infants and children. They can deliver medication-assisted treatment, motivational interventions, trauma treatment for those who need it, parenting education, kids’ health care, and comprehensive integrated gender- and culturally-responsive health and social services. States including Texas and Ohio have set up successful treatment program models for women and their children. Judges across the U.S. are active in a national therapeutic jurisprudence movement to establish family drug courts that protect children while providing recovery services and maintaining family cohesion without incarceration. These approaches not only work, but it is also cheaper to provide treatment to women with alcohol and drug problems than it is to incarcerate and ignore them.

With these effective resources in our tool bag, why would we as a nation continue to deter women from treatment with a clearly failed punitive policy of prosecution and incarceration?

We have a moral and humanitarian obligation to stop incarcerating women with substance use disorders. We must fully fund and expand treatment programs that house and serve them and their children and re-route efforts in every state away from punishment and toward providing programs of safe, therapeutic health care and social services.

It’s time to end criminal prosecution and punitive civil actions and guarantee unobstructed access to treatment for women with substance use disorders so they no longer have to fear the worst for themselves and their children.

Marty Jessup, Ph.D., R.N., is professor emerita at the University of California San Francisco School of Nursing and a fellow of the American Academy of Nursing.

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  • Agree but this holds true for anyone struggling with SUD. I call these children the ‘collateral damage’ of this disease. Many are a result of prostitution or trafficking for drugs…very sad way to start your life. Additionally there are limited sober living housing situations for these Mom’s once they deliver..so many of these children are removed.

  • Yes, everything is spot on! I was 5 months pregnant when I was arrested on a drug related charge, and spent 2 months in jail before being sent to treatment. That was in 2006 and I have been clean and sober ever since. Today, I work in a treatment center that had trauma informed, gender specific programming, and we specialize in treating pregnant woman using a wholistic approach. Thank you for this article!!!

  • Very comprehensive current information defining the issues and need for change as we move forward to provide necessary treatment for this valued population. Great work, Martha. The standards are in place and we just need the public will for funding and care.

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