Restricting Reproductive Rights During the War on Drugs: Intersectional Regimes of Surveillance and Criminalization That Harm Us All

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By Taleed El-Sabawi, Jennifer J. Carroll, and Bayla Ostrach

Health law and policy in the United States are, in many senses, driven by a desire to control. When that control is enacted to impose anti-scientific but deeply moralized social norms, suffering always follows. Consider, for example, the decision in Dobbs v. Jackson Women’s Health Organization, which ended a constitutionally recognized right to abortion. This decision allows states to exert near-total control over pregnant people and their bodies — and many are already experiencing physical and emotional harm as a result.

This suffering at the hands of the state is compounded by existing drug law and policies, which also prioritize control over bodies above personal wellbeing and autonomy. Pregnant people who use drugs (including alcohol) are often subject to both of these coercive regimes, facing head-on the harmful synergism between drug criminalization and the criminalization of abortion.

The Intersection of Criminalization of Pregnancy & Drug Use

Even prior to the Dobbs decision, people who used drugs while pregnant were subjected to heightened surveillance and criminalization.

By seeking perinatal care, people who use drugs risk alerting medical professionals of their drug use. Health care providers are often required by law to report suspicions of substance use during pregnancy to Child Protective Services. In some states, substance use during pregnancy is sufficient grounds for child removal at birth, even absent any evidence of abuse or neglect. Black and American Indian/Alaskan Native persons who are pregnant are at greatest risk of having their children removed from their care at birth, compounding social and structural health inequities already faced by these groups.

Moreover, people who use drugs who become pregnant also risk being subjected to criminal prosecution for their drug use based on widespread but grossly misinformed beliefs held by many prosecutors (and many members of the public) that substance use of all kinds causes significant harm to the fetus (in many cases, it does not). While most states do not explicitly criminalize drug use during pregnancy, identification of a stillborn fetus or fetus otherwise not viable outside the uterus may result in pregnant persons being charged with fetal homicide.

Risk of stigma and punishment act as additional, synergistic barriers to appropriate perinatal care and substance use disorder treatment. The threat of punishment for substance use during pregnancy, including, but not limited to, child removal, actively deters pregnant people living with substance use disorder from seeking evidence-based substance use treatment. Further, in North Carolina, for example, we are aware of cases in which pregnant persons have sought medication for opioid use disorder (specifically methadone or buprenorphine, the gold standard treatments for opioid use disorder during pregnancy, supported by an evidence-base that is strong and consistent over time) only to be referred to specialized providers who may be geographically inaccessible, as general treatment providers may feel ill-equipped to provide the standard of care they deemed appropriate for pregnant persons.

The Synergistic Impact of the Criminalization of Abortion & Drugs

Pregnant people who use drugs risk additional surveillance and possibly even criminal sanctions for seeking abortion services post-Dobbs. When a person with substance use disorder seeks or continues to receive medical treatment for their addictions, they may be subject to pregnancy screening or instructed to report pregnancy to their substance use treatment provider. Termination or loss of pregnancy may be similarly documented, thereby creating an evidentiary record that can be used in court by prosecutors in states that have outlawed abortion to prosecute the formerly pregnant person.

And, while some pregnant people may be able to travel to neighboring states to access abortions, doing so becomes increasingly difficult for those who are receiving methadone treatment — an evidence-based, yet highly regulated, treatment for opioid use disorder. Receiving methadone treatment typically requires daily observed dosing at the federally-licensed Opioid Treatment Program where one is registered as a patient. Although mechanisms exist to allow the pregnant person to receive take-home doses or guest-dosing, many providers are hesitant to do so. When permitted, evidence of take-home doses or guest dosing could be used by prosecutors as evidence of travel for the purpose of seeking abortion-related services across state lines.

In sum, under these dual regimes of punishment, pregnant and parenting people who use drugs face the threat of civil or criminal punishment under nearly every conceivable circumstance: whether they terminate or carry that pregnancy; whether they parent their children or surrender parental rights to someone else. Punished for using drugs, punished for their pregnancy, and punished for their parental choice, people who use drugs in a post-Roe America, an America in which the War on Drugs still rages, will bear a disproportionate burden of injury from these harmful, unethical, and unscientific policies.

Taleed El-Sabawi, JD, PhD, is an assistant professor at Florida International University College of Law. 

Jennifer J. Carroll, PhD, MPH, is a medical anthropologist, research scientist, and subject matter expert on substance use and public health. She is currently an Assistant Professor of Anthropology at North Carolina State University and an Adjunct Assistant Professor of Medicine the Alpert Medical School at Brown University.

Bayla Ostrach, MA, PhD, is an Assistant Professor in the Family Medicine Department at Boston University School of Medicine; and Affiliated Faculty at Boston University’s Department of Anthropology.

Restricting Reproductive Rights During the War on Drugs: Intersectional Regimes of Surveillance and Criminalization That Harm Us All

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