“As medical professionals who work with pregnant patients, you face numerous medical, legal, and ethical decision points when treating a patient for substance use during pregnancy, and when providing care to a neonate with drug or alcohol exposure.” So begins a pamphlet of advice for doctors and nurses that discourages them from reporting mothers for substance abuse or babies born exposed to drugs. Published by a group called If/When/How: Lawyers for Reproductive Justice, the pamphlet assures these professionals that it is not offering legal or medical advice—but then goes on to note that “only two states require drug testing of pregnant and birthing patients in certain circumstances, and only four states mandate drug testing of newborns in certain circumstances.”

The idea that medical professionals should not test mothers or infants, even if they have a reasonable suspicion that an infant has been exposed to drugs, is becoming the trendy counsel among advocates today. It is true that the laws vary from state to state, but medical professionals are often mistakenly told that if they report substance exposure, the child involved will automatically go into foster care. This is hardly the case. In fact, contacting child welfare agencies typically results in parents being offered rehabilitation services and, in some cases, being held accountable for making use of them.

If/When/How focuses mostly on abortion access, but the group has plenty to say about law enforcement, too. A group picture of the staff on the organization’s website recently showed a few dozen individuals wearing shirts that say, “Don’t Talk to Cops.” (The group has received seven grants from the Ford Foundation since 2006).

The anti-law-enforcement theme of its work may be the reason why it advises health-care providers not to report anyone to child welfare agencies, which are presumably law enforcement-adjacent. But the consequences of failing to notice or keep track of parents with drug problems are becoming increasingly apparent around the country. Police officers are administering Narcan to infants, and pediatric poisonings are reaching all-time highs. A report from Minnesota found that, of all 88 child maltreatment fatalities from 2014–2022, only three children died from exposure to drugs, one of which was related to fentanyl. But in the one-year follow-up report covering 2022–2023, nine out of 21 fatalities, or 23 percent, were from exposure to fentanyl.

Some officials are finally waking up to the danger. In New Mexico, legislators attempted to pass a bill classifying fentanyl exposure as child abuse. Though the bill received unanimous endorsement from the state’s Courts, Correction, and Justice Committee, the legislature has indefinitely postponed action on it.

A detective from the Albuquerque Police Department testified on behalf of the bill. “We are seeing infants on a weekly basis overdosing on Fentanyl and too often dying as a result.” He said. “Our team reviews approximately 1,100 [Statewide Central Intake] reports each month. . . . We are averaging 50–60 reports monthly detailing fentanyl use in the home of children which added up to 662 . . . reports [involving children] across New Mexico.”

And it’s not just law enforcement. In Kentucky, two judges have recently appeared before the state legislature to discuss concerns that child welfare authorities aren’t taking substance abuse seriously enough. Barren County Family Court Judge Mica Wood Pence testified that, shortly after she took on her position, “there was a fatality that was brought to my attention by the labor and delivery unit here at T.J. Samson Hospital.” Both the mother and baby tested positive for drugs. The hospital reported them, but nothing was done. Pence explained that the baby died at three months old after being in a car accident. Both parents were high on meth and didn’t put the baby in a car seat.

Pence zeroed in on Kentucky’s use of a tool called Structured Decision Making, which seemed to screen out drug use as a serious risk for children. Shelby County Judge Marie Hellard testified at the same hearing. She said, “The alarm has to be sounded because I’m not joking when I say children are perishing in the state of Kentucky because of this ‘Structured Decision Making’ tool and because of the referrals that are not meeting criteria that are called into ‘Centralized Intake.’”

In the months and years ahead, we’ll see a serious battle between, on the one hand, advocates (and their donors) who want to defund the police and abolish child welfare and, on the other hand, American citizens and their elected officials who realize the extraordinary danger of these ideas. While the former will continue to claim that drugs are just a lifestyle choice that should not be punished, let alone monitored, the latter will observe and report the devastating effects of these policies on the most vulnerable populations. Common sense must take hold again before much more damage is done.

Photo by Jessica Rinaldi/The Boston Globe via Getty Images


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