Care for Incarcerated Pregnant People With Opioid Use Disorder: Equity and Justice Implications

Abstract

With the simultaneous rise in maternal opioid use disorder and the incarceration of pregnant people in the United States, we must ensure that prisons and jails adequately address the health and well-being of incarcerated pregnant people with opioid use disorders (OUD). Despite long-established, clear, and evidence-based recommendations regarding the treatment of OUD during pregnancy, incarcerated pregnant people with OUD do not consistently receive medication treatment and are instead forced into opioid withdrawal. This inadequate care raises multiple concerns, including issues of justice and equity, considerations regarding the legal and ethical obligations of the provision of healthcare, and violations of the medical and legal rights of incarcerated people. We offer recommendations for improving care for this often-ignored group.

Précis

Through analyzing the oppressive history of mass incarceration, we offer recommendations to improve justice, equity, and care for incarcerated pregnant people with opioid use disorder.

Introduction

Incarceration rates have risen significantly in the last few decades, particularly among women. In 2017, there were over 225,000 incarcerated women on a given day, 75% of whom were of childbearing age.^1,2 This represents an over 700% increase in the female incarcerated population since 1980.³ In 2017, there were over 1.7 million admissions of women to jails in the United States.⁴ Although there is scant research on the number and experiences of incarcerated pregnant people, a 2019 study estimated that 4% of women were pregnant when they entered prison and a 2020 study estimated there are nearly 55,000 pregnant women admitted to jails each year.^5,6 Substance use is common among incarcerated women and in one study of 20 prisons and 4 jails, 26% of pregnant people admitted to state prisons and 14% to jails had OUD.⁷

The term “incarceration” includes jails and prisons, which have important differences that impact healthcare. Jails are locally-operated and typically under county jurisdiction. Each county has its own healthcare policies for its jail system with no mandatory minimum set of standards leading to tremendous variability. When arrested, a person goes first to jail and is usually not detained for longer than 1 year, although release can be unpredictable. Jails may have varying degrees of healthcare available on site and varying arrangements for care off site at community hospitals or clinics—from a custody officer triaging whether a new arrestee needs medical or mental health attention, to an on-site clinic and infirmary.⁸

Prisons are operated at the state or federal level.⁹ Healthcare services in state prisons generally are structured around policies set by the state’s department of corrections, and federal prisons must follow the Bureau of Prisons centralized policies. Prison sentences are longer than one year, and release dates are generally known in advance, which makes facilitating follow-up healthcare more predictable. Many prisons are located in rural areas, which has implications for transport of pregnant people who might need care for delivery or medication for the treatment of OUD (MOUD) if the prison cannot provide it. All of these geographic, jurisdictional, systems delivery, and temporal factors intersect with the regulatory requirements of the Drug Enforcement Agency (DEA) for MOUD, creating unique challenges in ensuring its access.¹⁰

Long-established, evidence-based guidelines advise that pregnant people with OUD should avoid withdrawal and instead be offered MOUD.^11,12 Withdrawal in pregnancy is associated with high rates of recurrence, and other obstetrical and infectious risks, whereas MOUD is associated with improved engagement in prenatal care and addiction treatment.¹² While institutions of incarceration are constitutionally mandated to provide healthcare, there are no mandatory standards or oversight systems, contributing to the lack of MOUD for pregnant people.

We explore the social justice and ethical quandaries of providing clinical care for incarcerated pregnant people and guidelines for MOUD during pregnancy. We then make recommendations to improve the wellbeing of this population, including suggestions for community pregnancy care clinicians. In considering the social justice and ethical quandaries of providing clinical care for incarcerated pregnant people with OUD, several questions emerge:

• First, why are pregnant people incarcerated at all? Are there alternatives to incarceration that increase access to OUD treatment and prenatal care?

• Who is responsible for the healthcare of incarcerated pregnant people?

• Why is MOUD important for incarcerated pregnant people with OUD?

• What are the responsibilities of jails to provide MOUD if there is no opioid treatment clinician in the community?

• What is the role of community pregnancy care clinicians in advocating for this marginalized group of people?

Why are pregnant people incarcerated at all?

Incarceration must be understood through the historical and structural dimensions of the phenomenon of mass incarceration. This includes the exponential rise and disproportionate incarceration of women of color in the U.S. over the last four decades. Comparatively, the U.S. incarcerates more than five times the number of people per capita than the United Kingdom, which has the second highest rate of incarceration among industrialized nations.¹³ While institutionalized racism and shifting cultural views on the reliance on incarceration as a means of social control are central to mass incarceration, the so-called “war on drugs” has also played a critical role, especially for women.^14,15 The increased criminalization of substance use and over-policing of communities of color have led to the disproportionate incarceration of millions of people of color, especially Black women, who were imprisoned at over twice the rate of white women in 2017.^2,16 Other communities are similarly affected, with Native American women having over six times the rate of incarceration of white women in 2003.¹⁷ The connection between draconian drug policies and mass incarceration is especially salient for pregnant people, who are targeted for incarceration uniquely out of concern for the fetus, rather than being cared for in treatment programs.¹⁸ Most states have mandatory reporting laws that require clinicians to report a pregnant patient that uses illicit substances or a newborn with a positive drug screen; sometimes resulting in criminal charges.¹⁹ This dangerous approach to prioritizing fetal health over that of the pregnant person in fact endangers the health of both, and directly violates the bodily autonomy of the pregnant person.²⁰

The opioid epidemic has notable racial and socioeconomic contours that are closely related to the racist structures that contribute to the mass incarceration of people of color. While the “war on drugs” ignited a punitive movement against substance use, the relatively recent focus on addiction as a disease parallels the demographic shifts among those affected by OUD.²¹ Although white people are at the highest risk of developing OUD with prescription opioids, they are also at the lowest risk of becoming incarcerated due to substance use, and instead are preferentially treated in healthcare.²² This differential approach to addiction by race highlights the perils of ignoring historical perspectives in public health approaches to OUD, and further emphasizes the importance of ensuring evidence-based OUD treatment for everyone, particularly those who face intersecting oppressions, such as incarcerated pregnant people.

Who is responsible for healthcare of incarcerated pregnant people?

Unique among incarcerated populations is their constitutionally-mandated right to healthcare, arising from the 1976 Supreme Court case, Estelle v. Gamble; not addressing incarcerated people’s “serious medical needs” is considered a violation of the 8^th amendment’s prohibition of cruel and unusual punishment.²³ Despite this, barriers still exist to accessing appropriate medical care for incarcerated people.²⁴ There is no required set of standard healthcare services or oversight in carceral settings; while several accreditation programs exist, they are voluntary and a majority of institutions are not accredited. Further, Estelle did not specify what was classified as a “serious medical need” that requires treatment. These problems are especially pronounced for incarcerated people in rural jails which have fewer local health resources, including fewer total clinicians, especially those with obstetric or addiction expertise. This contributes to staffing gaps, causing custody officers to inappropriately triage pregnant patients who could be experiencing an obstetric emergency. Research has consistently shown a lack of consistent, comprehensive pregnancy care in carceral settings that often departs from national recommendations for pregnancy care.^25–27

The National Commission on Correctional Health Care—the leading healthcare accreditation organization for institutions of incarceration—and the American College of Obstetricians and Gynecologists provide clear guidance that institutions of incarceration must provide pregnant people with access to standard prenatal care, including MOUD, which is the standard of care.^28–31 Despite these established national guidelines for MOUD in pregnancy, evidence shows that many jails are not following these standards of care. A national survey of 53 U.S. jails found that 46% forced pregnant people with OUD to go through withdrawal.²⁶ In a survey of 43 Minnesota jails, only 14% reported providing MOUD in pregnancy, and 40% reported even discontinuing MOUD for those already taking it.³² Furthermore, even among prisons and jails that provide MOUD in pregnancy, the majority of institutions discontinue it postpartum, increasing risk for overdose upon return to the community.⁷

Why is MOUD important for incarcerated pregnant people?

Put simply, MOUD is important for all pregnant people with OUD, and incarcerated people should be treated the same. Additionally, forcing someone to go through withdrawal is fundamentally unethical.³³ Although considered to be non-life threatening, injury and death have occurred;³⁴ withdrawal can be horrifically painful. A systematic review in 2018 found opioid withdrawal among pregnant people led to higher rates of recurrence.¹² Reducing withdrawal during periods of incarceration lowers relapse rates, subsequently lowering incidents of opioid overdose.^35–37 People are prone to overdoses upon release because their tolerance is reduced while abstinent in custody.³⁵ Furthermore, forcing someone to go through opioid withdrawal while incarcerated has been called “cruel and unusual punishment,” thus violating the eighth amendment.^33,38,39 A 2018 Massachusetts lawsuit argued that failure to provide MOUD in custody violates the Americans with Disabilities Act, and the state now requires institutions of incarceration to continue MOUD in custody.⁴⁰

This issue is also important in combatting maternal mortality, which, like incarceration rates, disproportionately affects black individuals. Opioid-related mortality is an increasing contributor to maternal mortality, with opioids causing 10% of all maternal deaths in 2016 (up from 4% in 2007).⁴¹ In Utah, where drug-induced death is the leading cause of maternal mortality, opioids were found to be the top drug responsible.⁴²

Although incarceration can potentially be a time to connect people to healthcare, this paradox reflects the overall deficiencies of our broader healthcare systems, and our nation’s disproportionate incarceration of certain populations who typically have limited access to healthcare pre-incarceration. On the one hand, mass incarceration in the U.S. is an oppressive phenomenon with significant health consequences that must be disrupted, and we must work towards alternatives to incarceration especially for pregnant people. On the other hand, we must simultaneously ensure access to comprehensive and quality healthcare for pregnant people who are incarcerated. Offering MOUD to pregnant incarcerated people with OUD is absolutely essential for their health, dignity, and well-being. All institutions of incarceration have an ethical and medical responsibility to offer this life-saving medication to pregnant people with OUD. Forcing pregnant incarcerated people with OUD to withdraw is dangerous, constitutes cruel and unusual punishment, and must cease.

What are responsibilities of jails if there is no opioid treatment clinician in the community?

Rural communities often have a lack of medical resources and specialists trained in emergency obstetric care and MOUD.⁴³ This can contribute to poor obstetric outcomes, as well as be a barrier to providing the constitutionally mandated healthcare incarcerated people are afforded. Because methadone is a regulated substance and buprenorphine prescribing requires extra training, there is a paucity of opioid treatment programs in rural areas.^44–46 Despite these local resource constraints, we argue that institutions of incarceration have a moral and legal obligation to address this “serious medical need.”

What is the role of community pregnancy care clinician in advocating for this marginalized group of people?

Because the mean jail stay was 26 days in 2017, most pregnant people who enter jail will leave jail while still pregnant.¹ Thus, community obstetricians, midwives, and other pregnancy care clinicians should be cognizant that when they work with pregnant patients who are currently or were recently incarcerated, their patients were likely receiving sub-standard pregnancy care, especially in regards to OUD treatment. If a person with OUD enters jail or prison and is forced into withdrawal, they are more likely to overdose upon release.

Conclusion and Recommendations

Pregnant people with OUD face significant challenges in accessing medical care, which are further compounded by incarceration. The extensive histories of mass incarceration and systematic, violent oppression against pregnant people of color and people with substance use disorders in the U.S. demand that we all collectively work towards a tangible future where incarcerated pregnant people with OUD are given the medical care, dignity, and compassion they require. In this vein, we make the following recommendations:

1. Pregnant people with OUD should be offered alternatives to incarceration in order to best support their health and that of their pregnancy. In cases where incarceration is deemed necessary, institutions of incarceration should screen incarcerated pregnant people for OUD with a validated screening tool. Additionally, they should follow the well-established, evidence-based recommendations regarding the treatment of OUD for pregnant and postpartum people, including offering initiation of MOUD and continuing MOUD if they were prescribed it pre-incarceration.

2. Provide careful counseling of treatment options in order to avoid coercion into MOUD. Research has demonstrated that some patients feel coerced into MOUD, particularly during pregnancy or incarceration.⁴⁷ Incarcerated pregnant people with OUD are particularly susceptible to coercion due to the overlapping vulnerabilities of being incarcerated, pregnant, and having a substance use disorder. All patients have a right to decline MOUD, after accurate counseling, and coercion into MOUD is a violation of their bodily autonomy and agency.

3. Increase the number of clinicians trained in MOUD. In 2020, the National Council for Behavioral Health and Vital Statistics released a comprehensive toolkit to guide jails and prisons of all sizes, geographies, and community resources to be able to implement MOUD.⁴⁸ Telehealth capabilities have rapidly expanded with the COVID-19 pandemic, offering new and expanded avenues for the successful delivery of MOUD.^49,50 Efforts to expand MOUD access in jails and prisons must be accompanied by similar investments in community-based treatment. An increasing pool of federal and state funds is now available for this.⁵¹

4. Community clinicians should establish collaborations with jails to facilitate continuity of care when a pregnant patient goes into jail and when they return to the community-- including working with jails to provide evidence-based care to incarcerated pregnant people, by consultation or direct care, or specialized services. Community clinicians who care for pregnant patients should be aware that institutions of incarceration often bring pregnant people to local hospitals and clinics for medical evaluation. Clinicians should also know local laws for restraining pregnant people who are incarcerated, and how to report violations of these. Finally, expressing empathy is paramount to avoid further stigmatizing people who experience the dual stigmas of OUD in pregnancy and incarceration.