After years of hitting the snooze button as alarms blared, the U.S. Department of Health and Human Services officially declared the opioid epidemic a national public health emergency in October 2017.
By the time of the declaration, the annual death toll was staggering. On average, more than 140 Americans are dying every day from drug overdoses, with 91 of those deaths specifically due to opioids.
In Pennsylvania, overdose deaths easily outpace national averages, earning Pennsylvania the distinction of being one of the five states hit hardest by the opioid crisis. In the commonwealth, fatal drug overdoses jumped from 3,505 in 2015 to 4,884 in 2016, representing a 39 percent increase. Fatalities increased “across age groups, racial/ethnic groups, urbanization level, and numerous state.”
After years of enforcing a failing war-on-drugs, law-and-order approach, the public health declaration indicated that the sheer numbers of fatalities across all demographics had finally forced the government to treat substance use disorder as a public health crisis and seek evidence-based solutions focused on ensuring multiple paths to recovery.
That is, except for pregnant women.
When the focus is expanded to include judicial and legislative approaches to the opioid epidemic, it becomes clear that pregnant women are not only actively excluded from an evidence-based approach to addressing the opioid crisis, but they are also specifically targeted in ways that directly undermine these efforts.
When it comes to pregnant women, the relentless attacks on reproductive rights that have escalated since 2010 are colliding with the opioid epidemic in ways that compromise the civil rights of anyone with the capacity to become pregnant.
Two current Pennsylvania-based cases illustrate this collision and the catastrophic consequences. In June 2017, a woman named Kasey Dischman of Butler County overdosed on heroin while seven months pregnant. After delivering prematurely, Dischman was sent directly from the hospital to jail and charged with first-degree felony of aggravated assault—despite a clear exception in the relevant statute prohibiting the prosecution of pregnant women for conduct alleged to harm their fetus.
This past June, attorneys at the Women’s Law Project filed an amicus brief on behalf of appellee Dischman and urged the Superior Court of Pennsylvania to affirm the order of the Court of Common Pleas dismissing the aggravated assault charge against Dischman.
In it, we argue that allowing for the prosecution of pregnant women for aggravated assault in regard to alleged drug use has no basis in law and contradicts legislative intent. In addition to the clear language of the statute, the lawmakers who authored the legislation repeatedly insisted during public discussion the law is not intended to apply to pregnant women.
Beyond defying both the letter and spirit of the law, prosecuting pregnant people for conduct alleged to harm their pregnancies undermines maternal and fetal well-being and directly contradicts all recommendations of public health experts guiding evidence-based responses to the opioid crisis.
The practical effect of the commonwealth’s novel reading of the relevant statute would be to drive pregnant women who use drugs out of the health care system and away from prenatal care. Early and regular prenatal care improves the chances of a healthy pregnancy and reduces low birth-weight, a factor strongly correlated with infant mortality.
Pregnant Pennsylvanians are also being targeted with drug-war tactics in the civil context too.
In January, attorneys at the Women’s Law Project, along with Robert Lugg of Lugg & Lugg in Lock Haven, asked the state Supreme Court to review a decision from the Superior Court that held that a woman can be charged with civil child abuse for using drugs when pregnant.
At issue in that particular case, known as In re LJB, is whether or not a woman’s use of illegal drugs can constitute child abuse if, by using the illegal drugs, the woman intentionally, knowingly, or recklessly caused or created a reasonable likelihood of bodily injury to a child after birth, under Pennsylvania law.
Like the Dischman case in criminal court, this civil case is an example of how pregnant people are being aggressively excluded from evidence-based public health efforts to address the opioid crisis. On April 3, the Supreme Court granted allocatur to review the Superior Court’s determination, overruling the trial court. We submitted our main brief on May 3, and several organizations, including the Support Center for Child Advocates, filed amicus briefs supporting the mother’s position that this is not child abuse and that such a finding would be contrary to public health.
To be clear, Pennsylvania isn’t the only state where pregnant women are being policed and their actions disproportionately punished. “Across the USA, the heavy-handed policing of pregnant women’s behavior is shattering patient trust in health services with devastating consequences. These laws put pregnant women in a double bind, forcing them to choose between risking their health and risking punishment,” said Carrie Eisert, policy adviser at Amnesty International and author of the report, “Criminalizing Pregnancy: Policing Pregnant Women Who Use Drugs in the USA.”
Meanwhile, the Pennsylvania legislature recently advanced a bill that also undermines evidence-based strategies for addressing the opioid epidemic. In June, the House of Representatives passed House Bill 129 in an attempt to impose a lifetime ban on Temporary Assistance for Needy Families (TANF) assistance for any Pennsylvanian with an addiction that led to a drug-related felony conviction or guilty plea. Supporters of this legislation defend it by arguing that the bill is designed to prevent drug kingpins from welfare fraud.
If that is true, it is a very poorly designed bill. In reality, the bill targets low-income women recovering from substance use disorder. TANF is a program that helps struggling families achieve self-sufficiency. Approximately 90 percent of the adults who receive TANF are women.
By advancing HB 129, the Pennsylvania legislature is contradicting its own policy recommendations. In October 2016, the House Majority Policy Committee of the Pennsylvania House of Representatives published “Combating Pennsylvania’s Opioid Epidemic.” In it, they note they interviewed 65 experts during eight hearings in order to compile a list of evidence-based recommendations.
The report notes efforts to criminalize pregnant women whose babies are born with neonatal abstinence syndrome (NAS) is likely to deter pregnant women from seeking prenatal care and recommends giving priority admission to available treatment slots.
In addition to contradicting themselves, advancing House Bill 129 showcases selective amnesia of the legislature. Pennsylvania already implemented a version of this TANF ban years ago, and it was such a disaster that it was repealed in 2003 when it became clear that it made the drug problem worse by sabotaging women’s recovery. Today, amid the opioid crisis, the impact would be even worse.
To be fair, the Pennsylvania Legislature did advance House Bill 1232, which was signed into law by Gov. Tom Wolf in late June. HB 1232 is a child-abuse bill that says reports of neonatal withdrawal syndrome does not constitute child abuse. This is the type of legislation that should be applauded for reflecting a comprehensive evidence-based strategy for coping with the opioid crisis.
If we have any hope of successfully reversing the opioid epidemic in Pennsylvania, the rest of the legislature, local prosecutors and county attorneys need to also align with a truly comprehensive evidence-based plan that supports multiple paths to recovery. To do that, we must understand the ways the escalated attack on reproductive rights is sabotaging those efforts, and promote evidence-based best practices for all Pennsylvanians—even, and perhaps especially, pregnant people.
Reprinted with permission from the July 20 issue of the Legal Intelligencer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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