Development and Implementation of State and Federal Child Welfare Laws Related to Drug Use in Pregnancy

Abstract

Policy Points.

• Over the past several decades, states have adopted policies intended to address prenatal drug use. Many of these policies have utilized existing child welfare mechanisms despite potential adverse effects. Recent federal policy changes were intended to facilitate care for substance‐exposed infants and their families, but state uptake has been incomplete.

• Using legal mapping and qualitative interviews, we examine the development of state child welfare laws related to substance use in pregnancy from 1974 to 2019, with a particular focus on laws adopted between 2009 and 2019. Our findings reveal policies that may disincentivize treatment‐seeking and widespread implementation challenges, suggesting a need for new treatment‐oriented policies and refined state and federal guidance.

Context

Amid increasing drug use among pregnant individuals, legislators have pursued policies intended to reduce substance use during pregnancy. Many states have utilized child welfare mechanisms despite evidence that these policies might disincentivize treatment‐seeking. Recent federal changes were intended to facilitate care for substance‐exposed infants and their families, but implementation of these changes at the state level has been slowed and complicated by existing state policies. We seek to provide a timeline of state child welfare laws related to prenatal drug use and describe stakeholder perceptions of implementation.

Methods

We catalogued child welfare laws related to prenatal drug use, including laws that defined child abuse and neglect and established child welfare reporting standards, for all 50 states and the District of Columbia (DC), from 1974 to 2019. In the 19 states that changed relevant laws between 2009 and 2019, qualitative interviews were conducted with stakeholders to capture state‐level perspectives on policy implementation.

Findings

Twenty‐four states and DC have passed laws classifying prenatal drug use as child abuse or neglect. Thirty‐seven states and DC mandate reporting of suspected prenatal drug use to the state. Qualitative findings suggested variation in implementation within and across states between 2009 and 2019 and revealed that implementation of changes to federal law during that decade, intended to encourage states to provide comprehensive social services and linkages to evidence‐based care to drug‐exposed infants and their families, has been complicated by existing policies and a lack of guidance for practitioners.

Conclusions

Many states have enacted laws that may disincentivize treatment‐seeking among pregnant people who use drugs and lead to family separation. To craft effective state laws and support their implementation, state policymakers and practitioners could benefit from a treatment‐oriented approach to prenatal substance use and additional state and federal guidance.

Over the past decade, the united states has seen increasing substance use among pregnant individuals, including use of opioids. ¹ Untreated substance use during pregnancy increases the risk of adverse outcomes including still birth, preterm birth, birth defects, and sudden infant death syndrome, depending on the type of substance exposure and timing during pregnancy. ² , ³ , ⁴ Prenatal opioid use, in particular, is associated with higher risk of adverse perinatal or postnatal morbidity for childbearing people, ⁵ and opioid‐exposed newborns frequently experience neonatal opioid withdrawal syndrome (NOWS), a condition characterized by respiratory distress, seizures, irritability, and feeding intolerance. ⁶ , ⁷ , ⁸ Compared with newborns unaffected by opioid withdrawal, newborns experiencing NOWS are more likely to have lengthier and more complex hospital stays. ¹ , ⁹ , ¹⁰ , ¹¹

As rates of NOWS have increased and providers have seen higher rates of adverse consequences of prenatal drug use, the prevalence of prenatal drug use has received widespread attention from advocates, providers, and policymakers. Over the past several decades, state legislatures have enacted laws specifically intended to address prenatal drug use. We use drug use here to refer to all types of illicit drug use and use of drugs that have mixed licit/illicit status in the United States. Though these state laws ostensibly target prenatal drug use, they are interwoven with punitive legislative and regulatory strategies adopted as part of the “war on drugs.” As a result, state laws related to prenatal drug use vary in their approach, with many states adopting some combination of laws that use policy levers to facilitate access to treatment for pregnant individuals who use drugs and laws that wield criminal justice or child welfare mechanisms as deterrents. The tension between criminal justice mechanisms and a treatment‐centered approach to prenatal substance use has been long‐recognized and the resultant unstable policy environment burdens pregnant individuals. ¹²

Recent federal legislation provides an opportunity to reflect on the evolution of relevant state child welfare policies and to investigate recent changes. Some states have changed their prenatal drug use laws or implementation of those laws in response to a 2016 amendment to the federal Child Abuse Prevention and Treatment Act (CAPTA), which clarified the federal mandate for plans of safe care for drug‐exposed newborns and family members. Prior work has documented that CAPTA mandates have been implemented poorly by state governments and the 2016 amendments are no exception. ¹³ , ¹⁴ State plans have generally fallen short of CAPTA requirements—a review of state plans in 2018 found that only two states were in full compliance with CAPTA and state approaches varied considerably. ¹⁵ States plans are written, implemented, and enforced in the context of a legislative and regulatory infrastructure. These state laws have been studied, but their text and implementation have not been comprehensively examined. In this study, we provide a comprehensive timeline of punitive state child welfare laws related to drug use in pregnancy and describe stakeholder perceptions of policy implementation, particularly in light of the 2016 changes to CAPTA. First, however, we provide some context—the remainder of this section describes the relationship between prenatal drug use and the child welfare system and the key elements of the state and federal policy infrastructure.

Parental Drug Use and the Child Welfare System

In general, parental drug use is a frequent driver of child protective service (CPS) involvement. ¹⁶ , ¹⁷ , ¹⁸ Child welfare cases have increased as the American opioid crisis has escalated. ¹⁶ , ¹⁸ These cases stem from two separate, but related issues: concern about the consequences of parental drug use for parenting ability and concern about the impact of substances on newborn wellbeing and subsequent development. Some agencies have expressed concern about broad negative effects on children when parents (or other household members) engage in drug use or in the manufacture or distribution of illicit drugs. ¹⁹ Substance‐exposed newborns, including those with NOWS, are an area of particular focus. Children exposed to parental drug use, including substance‐exposed newborns, are frequently the subject of reports to a state's child welfare agency. Though some states offer an alternative pathway for reporting if the parent is enrolled in treatment or if the infant's withdrawal symptoms are related to prescribed drugs, some states use systems designed to address child abuse or neglect. ²⁰

Though anyone can report suspected child abuse or neglect to CPS, certain individuals are statutorily required to do so. ²¹ These mandatory reporters, including health care providers, educators, law enforcement officers, and others, do not need to have proof of abuse or neglect. Rather, they are required to report to the state—usually immediately—as soon they have a reasonable suspicion of harm or risk for harm. ²¹ Prenatal drug use and substance‐exposed newborns are usually identified clinically, meaning that health care providers are the most likely mandatory reporters. Substance‐exposed newborns, in particular, are likely to be identified at delivery, meaning that providers present for labor and delivery—physicians, nurses, and others—may be required to report a substance‐exposed newborn, either by state law or hospital policy. ²² Once CPS or a similar state agency investigates, it may determine that child abuse or neglect has most likely occurred. This initiates a chain of events which can result in temporary placement of a child in foster or kinship care, and in some cases, eventual termination of parental rights. In rare instances, parents may even face criminal charges if the state child welfare agency or other investigating entity suspects that a crime has occurred and refers the case to law enforcement. ²¹

Because of the high stakes, including potential termination of parental rights or criminal charges, providers may experience a tension between reporting requirements and patient care. ²³ , ²⁴ For example, providers involved at all stages of pregnancy care—prenatal, perinatal, and postnatal—may feel unsure about how to prioritize the wellbeing of the pregnant individual or parent vis‐á‐vis the fetus or newborn, and may have doubts about the benefits of the child welfare system. In other words, when a newborn is substance‐exposed, some providers may be hesitant to report to child welfare systems because they believe that the newborn and family may be better served by avoiding the system. Providers may also be worried about jeopardizing therapeutic relationships with patients at each stage of pregnancy. ²³ , ²⁵

Provider fears of harms to the provider‐patient relationship are not unfounded, and there is credible evidence that children who are removed from parental custody and placed in foster care are often at greater risk of long‐term, adverse health outcomes than children who are not removed. ²⁶ , ²⁷ Child welfare outcomes are also unequally distributed—parents of Black and American Indian and Alaska Native children are more likely than White parents to be reported to child welfare systems and are more likely to be separated from their children. ²⁸ , ²⁹ These disparities suggest that these children are more likely than White children to experience adverse health outcomes. Furthermore, pregnant people with a history of drug use may eschew treatment, including substance use treatment and prenatal care, because they are worried about losing parental rights in a punitive legal environment.

Even where pregnant individuals do seek treatment, it may not be accessible. Nationally, very few individuals with a substance use disorder (SUD) receive adequate treatment or care that meets medical standards. ³⁰ Similar to nonpregnant individuals, both pharmacological and non‐pharmacological therapies may be helpful for pregnant individuals with SUD, however, pregnant individuals often face additional barriers to treatment. Although a larger share of pregnant people with SUD get treatment relative to nonpregnant people with SUD, less than half of pregnant people with SUD receive treatment, ³¹ including methadone or buprenorphine, as appropriate, for OUD, the standard of care during pregnancy. ³² , ³³ When pregnant individuals with OUD or another SUD are not able to access treatment—as a result of structural barriers or fears of criminal or civil consequences—the likelihood of a substance‐exposed newborn or other adverse outcome, including maternal death, increases. ³⁴

Some states have tried to fill these treatment gaps for pregnant individuals by enacting laws that create targeted SUD programs for pregnant people who use drugs or that require SUD treatment programs to prioritize pregnant individuals. Though these policies hold promise, many face implementation barriers, including low availability of treatment programs, stigma, and, importantly, other state laws. ³⁵ Other state laws take a punitive approach to preventing prenatal substance use and substance‐exposed newborns by criminalizing prenatal substance use or, the focus of this paper, using the threat of the child welfare system in an attempt to discourage prenatal drug use.

Child Welfare Policies Regarding Substance Use in Pregnancy

As prenatal substance use and specifically opioid‐exposed newborns have become more prevalent, policymakers have turned to the child welfare system as a mechanism for deterring and punishing individuals for prenatal drug use and associated fetal exposure. Much of this policy action has taken place at the state level, but federal policies influence the enactment and implementation of state child welfare policies pertaining to prenatal drug use. The federal government's primary role in preventing child abuse is to facilitate, support, and shape state actions. The central federal child welfare policy is the Child Abuse Prevention and Treatment Act (CAPTA), which Congress originally adopted in 1974 and has periodically amended and reauthorized. ³⁶ CAPTA guides and funds state efforts to prevent and investigate child abuse and neglect, and federal funding is conditioned on state adoption of child abuse prevention plans that meet statutory requirements. ³⁷ CAPTA also establishes a federal Office on Child Abuse and Neglect and a clearinghouse for all child abuse and neglect data.

CAPTA has a long legislative history, but there are certain amendments that are key to understanding the current child welfare policy landscape pertaining to prenatal substance use. In 2003, CAPTA was amended by the Keeping Children and Families Safe Act. ³⁸ Among other changes, the 2003 Act amended CAPTA to require states to have “policies and procedures . . . to address the needs of infants born and identified as being affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure, including a requirement that health care providers involved in the delivery of such infants notify the child protective services system of the occurrence of such condition.” ³⁸ Importantly, the bill noted that this notification requirement was not intended to suggest a federal definition for “child abuse” and states were prohibited from construing the notification requirement to “require prosecution for any illegal action.” ³⁸ CAPTA considered this notification requirement to be distinct from traditional child abuse and neglect reporting. In addition, the 2003 Act required states to develop a plan of safe care for newborns affected by illegal substance abuse or withdrawal.

The Comprehensive Addiction and Recovery Act of 2016 (CARA) expanded the plan of safe care and notification requirements—notification by a health care provider and a plan of safe care are now required for infants affected by “substance abuse or withdrawal symptoms,” not just abuse of illegal substances. The plan of safe care must also address the “health and substance use disorder treatment needs of the infant and affected family or caregiver.” ³⁷ , ³⁹ Further, CARA requires states to have a system in place to monitor that these individuals are receiving the proper services. ⁴⁰ CARA also added a corresponding element to annual state data reports, which, in addition to relevant measures of child abuse and neglect in a state, must include the number of infants identified as being affected by substance abuse or withdrawal symptoms, the number of infants for whom a plan of safe care is developed, and the number of infants who were referred—or had affected family members or caregivers referred—for appropriate services. ⁴¹

Although the 2003 and 2016 amendments to CAPTA included provisions that sought to separate prenatal substance exposure and substance‐exposed newborns from definitions of child abuse and neglect, the statutory language was not particularly prescriptive. In requiring states to institute a policy directing providers to notify CPS of newborns affected by substance use or withdrawal symptoms, federal law notes, specifically, that such a notification should not be construed as an articulation of a federal definition of child abuse or to require prosecution for illegal action. ⁴² This language suggests that Congress did not intend for the federal law to automatically classify prenatal drug use as child abuse and neglect, but it does not directly address state definitions—it does not require states to consider prenatal drug use to be child abuse or neglect or to prosecute parents or caregivers of a substance‐exposed newborn, but it does not prohibit it either, leaving room for states to both comply with CAPTA and maintain civil penalties for people who engage in prenatal drug use. CAPTA also offers no definition for “affected by” substance use, leaving states to determine their own definitions. In short, despite the infrastructure defined by CAPTA, federal law affords flexibility to states attempting to address prenatal drug use.

Some states have explicitly adopted statutory definitions of child abuse and neglect that incorporate prenatal drug use. States have also adopted laws that require health care providers to report substance‐exposed newborns to the state's CPS or other authorities, either as presumptive cases of child abuse or neglect or for public health surveillance. Punitive state policies that use child welfare mechanisms and consider prenatal substance use to be child abuse or neglect have generally had no positive effect on birth outcomes. ⁴³ In fact, recent studies have found that punitive policies are associated with decreased substance use treatment among pregnant individuals, increased reports of infant maltreatment, and increased neonatal withdrawal syndrome. ⁴⁴ , ⁴⁵ , ⁴⁶ State policies focused on pregnant individuals are not unique to drug use and neither are the associated limited public health benefits. ⁴⁷ Punitive policies targeting prenatal alcohol use have become more common and have been associated with restrictions on reproductive rights. ⁴⁸ These policies have not been associated with reductions in alcohol consumption during pregnancy and there may be racial inequities in the distribution of any beneficial or harmful effects of such policies. ^{49 . 50} Substance use treatment during pregnancy holds tremendous promise, but pregnant individuals face barriers to treatment, including stigma and hesitancy. ⁵¹ , ⁵² This literature suggests not just that the punitive approach may be more harmful than beneficial, but also that it is essential for researchers and policymakers to understand the ways in which punitive policy is tied up with public health policy and to attempt to disentangle the two approaches.

While many state child welfare laws related to prenatal drug use predate the CARA amendments to CAPTA, their text or implementation may have changed in response to these amendments. States that rely on the child welfare system and on policy definitions rooted in newborn symptoms may leave pregnant people who use drugs facing the threat of losing parental rights or even criminal charges while trying to manage prenatal care and weigh the possibility of seeking substance use treatment. For this reason, it is necessary to understand both the text of these policies and stakeholder perceptions of policy implementation. Though prior work has examined some of these laws, no prior studies have fully detailed the text, evolution, and barriers to implementation of these laws.

In this paper, we analyze and describe state laws pertaining to prenatal substance exposure and their relationship to federal laws, describe state practitioner perspectives on state‐level implementation of child welfare laws related to prenatal drug use, and consider their implications for pregnant individuals.

Methods

Legal Mapping

We used public health law research methods to identify and collect state child welfare laws related to prenatal drug use for all 50 states and the District of Columbia (DC) from 1974 to 2019. We chose 1974 as a start date because CAPTA was initially enacted in January 1974. ³⁷ Policies were identified through state‐specific standardized searches of the Westlaw legal research database. If specific historical legislative materials were unavailable on Westlaw, we used HeinOnline, Nexis Uni, and state‐specific sources to access those documents. Search terms were determined with input from all research team members and were based on existing literature, research team policy knowledge, and an iterative process that examined search results for additional relevant terms. Relevant terms included: opioid, controlled substance, pregnant, prenatal, perinatal, birth, expectant, newborn, infant, neonatal abstinence, neonatal withdrawal, chemical endangerment, and other forms of these terms. One team member used these search terms to collect relevant policies—including statutory and regulatory documents—and legislative history from all 50 states and the District of Columbia for the entirety of the study period.

Once collected, these policies were sorted into two categories: laws describing prenatal drug use as child abuse and neglect and laws that require health care providers to report diagnosed or suspected prenatal drug use to the state (e.g., CPS). Though we did not include laws that were specific to alcohol use, some of these laws referred to both drug use and alcohol use. To sort these policies into these broad categories, we analyzed the text of each policy to determine the overall purpose and to answer specific questions within each category. Notably, some states had statutory or administrative code sections that were relevant for both policy categories.

States were determined to have laws classifying prenatal drug use as child abuse and neglect if state law defined child abuse and/or neglect in a manner that explicitly included prenatal drug use. Within this category, we determined how states defined “prenatal drug use,” whether an applicable law exempted pregnant individuals receiving treatment for substance use, and whether the law included any conditions for recovering parental rights if they are removed. Prenatal drug use was either defined by diagnosed or suspected drug use by a pregnant individual or by the presence of exposure or withdrawal symptoms in a newborn.

States were determined to have laws requiring health care providers to report diagnosed or suspected prenatal drug use to a state agency (e.g., CPS) if they met one of two general definitions. First, a state might have a policy that explicitly requires providers to report cases of prenatal drug use to CPS, either as suspected abuse, neglect, or something else. Alternatively, a state may have a broad statute mandating health care provider reporting for all suspected child abuse and neglect and a policy that defines prenatal drug use as abuse or neglect. Importantly, we interpreted this category broadly, including state laws that required providers to report or notify CPS or a related agency about prenatal substance use or a substance‐exposed newborn. As others have noted, there are various approaches to reporting requirements, including notification for public health surveillance purposes. ²⁴ , ⁵³ Because we were focused on child welfare systems broadly, we included any law that required a provider to file an individualized report when prenatal substance use or a substance‐exposed infant was suspected. We excluded laws that required aggregate reporting of the incidence of substance‐exposed newborns at a given facility as these reports would not trigger any individualized government response. Within this reporting category, we determined whether the policy language requiring reporting was specific to prenatal drug use, whether providers are required to test parents or newborns for substance use, what circumstances trigger the reporting requirement, and how quickly providers are required to report once they suspect prenatal drug use or a substance‐exposed newborn.

Implementation dates for all policies were determined from legislative and regulatory history. We defined a policy's effective date to be the date that a policy went into effect, which is generally later than the date on which a policy is enacted. We resolved any disputes over policy categorization through review and discussion by the entire research team and through comparison with existing resources that track some of these policies. ²⁴ , ⁵⁴ , ⁵⁵ Any conflicts were resolved through review of the policy text.

Qualitative Interviews

We also conducted interviews with state leaders to better understand implementation and enforcement of state welfare laws pertaining to prenatal drug use, focusing on states that enacted laws in recent years to avoid recall bias. In the subset of states that passed one or more of the state laws of interest between 2009 and 2019, we conducted interviews with state leaders to characterize implementation and enforcement of their state's law. We chose to focus on 2009–2019 because we wanted to recruit implementers, leaders, and other stakeholders that were familiar with the initial implementation of each policy. Interviewees included employees from state agencies legislatively tasked with implementation or enforcement of the law, including health departments, child welfare agencies, and law enforcement agencies like state District Attorneys and state Office of Drug Control Policy employees. Outside of state agencies, interviews were conducted with medical providers, who were often tasked with on‐the‐ground implementation and enforcement of these laws, academic researchers, and representatives of interest groups such as perinatal quality collaboratives, who were experts on implementation of policies related to drug use in pregnancy in their state. The interview guide domains included: (1) perceptions of the problem of drug use in pregnancy in the state; (2) the goals of the state law of interest related to drug use in pregnancy; and (3) implementation and enforcement of the law of interest.

Semi‐structured interviews were conducted by a single study team member from November 2019 to November 2020. Participants were recruited through email, using a combination of purposive and snowball sampling. All interviews were conducted over the phone, lasting 30‐45 minutes. An oral consent process was completed before each interview and all interviews were audio‐recorded and transcribed for analysis. Transcripts were reviewed and validated using the audio recording and all personally identifiable information was removed before analysis. Interviews were conducted in each state until data saturation was reached. Transcripts of interviews were analyzed using a hybrid inductive/deductive approach. The initial development of a codebook was informed through a review of the literature, the study team's a priori knowledge, and summary memos created by the interviewer after each interview. The codebook was piloted by two members of the study team that used double coding until the development and organization of themes were consistent between reviewers. Qualitative coding and analysis were conducted using NVivo 11. Our policy mapping was further informed by these interviews. If an interviewee disagreed with our interpretation of state policy (e.g., disagreement with effective date or key provisions), we investigated to determine whether our legal analysis coding needed to be changed. This research was reviewed and approved by the Johns Hopkins Bloomberg School of Public Health Institutional Review Board.

Findings

Legal Mapping Results

State Laws Classifying Prenatal Drug Use as Child Abuse or Neglect. By the end of our study period in 2019, 24 states and DC had a policy that classified prenatal drug use as child abuse or neglect (Table 1). The remaining 26 states did not explicitly include prenatal drug use in their latest abuse or neglect definitions. Of the 24 states and DC that classified prenatal drug use as abuse or neglect, just three (KY, OH, VA) included a statutory exception for individuals who were seeking treatment for SUD. The definitions of prenatal abuse or neglect varied, but in most cases were based on the status of a newborn or young infant. “Prenatal use” was usually based on newborns with symptoms attributable to withdrawal or substance exposure or toxicology screens of newborns that reveal substance exposure. In Georgia, for example, the statutory definition of “abuse” includes “prenatal abuse,” which is defined as “exposure to chronic or severe use of alcohol or the unlawful use of any controlled substance . . . which results in: (A) Symptoms of withdrawal in a newborn or the presence of a controlled substance or a metabolite thereof in a newborn's body, blood, urine, or meconium that is not the result of medical treatment; or (B) Medically diagnosed and harmful effects in a newborn's physical appearance or functioning.” ⁵⁶ Rarely, a state had a policy that was specifically enforceable against pregnant individuals; a policy that specifically provided the state with the authority to investigate a pregnant individual for child abuse and neglect before the child was born. For example, in 1997 Wisconsin adopted a law that revised its definition of child abuse to include “serious physical harm inflicted on the unborn child . . . caused by the habitual lack of self‐control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.” ⁵⁷

Table 1.

State Child Welfare Laws Related to Prenatal Drug Use, Effective Dates, and Citations

	Prenatal Drug Use Amounts to Child Abuse/Neglect		Health Care Providers are Required to Report Diagnosed or Suspected Prenatal Drug Use to the State Agency
State	Effective Date	Citation (2019)	Effective Date	Citation (2019)
AL	1/11/13 b	Ala. Cod. § 26‐15‐3.2	1/11/13	Ala. Code. § 26‐14‐3
AK			5/4/06 c	AS § 47.17.024
AZ	9/30/09	A.R.S. § 8–201	8/21/98 c	A.R.S. § 13–3620
AR	3/24/05	A.C.A. § 12‐18‐103	3/24/05 c	A.C.A. § 12‐18‐402
CA			7/1/91 c	CA Penal §§ 11165.13
CO	7/1/05	C.R.S. § 19‐3‐102	7/1/05	C.R.S. § 19‐3‐304
CT			1/1/19	C.G.S.A. § 17a‐102a
DC	10/19/02	DC ST. § 16–2301	10/19/02	DC ST § 4–1321.02
DE			6/7/18 c	16 Del.C. § 901B–906B
FL	10/1/98	F.S.A. § 39.806	10/1/98	F.S.A. § 39.201
GA	1/1/14	Ga. Code Ann., § 15‐11‐2	7/1/14	Ga. Code Ann., § 19‐7‐5
HI			7/12/04‐9/1/10	HRS § 587–89 (repealed)
IA	5/4/93	I.C.A. § 232.68	5/4/93	I.C.A. § 232.77
ID	4/2/08	IDAPA 16.06.01.563	4/2/08	IDAPA 16.06.01.551
IL	1/1/90	325 ILCS 5/3; 705 ILCS 405/2‐3	7/1/90 c	325 ILCS 5/4
IN	7/1/97	IC 31‐34‐1‐10	7/1/97	IC 31‐33‐5‐1
KS	2/22/19	Kan. Admin Code § 30‐46‐10	2/22/19	K.S.A. § 38–2223
KY	7/14/18 a	KRS § 625.090	7/14/18	KRS §§ 620.030; 214.160
LA	8/15/06	LSA‐Ch.C. Art. 603	8/15/06	LSA‐Ch.C. Art. 610
MA			11/21/73 c	M.G.L.A. 119 § 51A
MD			10/1/13 c	MD Code, Family Law, § 5–704.2; MD Code, Family Law, § 5–706.3
ME			7/30/04 c	22 M.R.S.A. § 4011‐B
MI			3/31/97 c	M.C.L.A. 722.623a
MN	8/1/89	M.S.A. § 626.556	8/1/89 c	M.S.A. § 626.5561
MO			8/28/19 c	MO ST 191.737
MS
MT			7/1/07 c	MCA 41‐3‐201
NC
ND	8/1/03	ND ST §§ 27‐20‐02; 50‐25.1‐02	8/1/03	ND ST § 50‐25.1‐16
NE
NH			6/26/18	N.H. Rev. Stat. § 132:10‐e
NJ			1/16/18 c	N.J.A.C. § 3A:26‐1.1 et seq
NM			6/14/19 c	N. M. S. A. 1978, § 32A‐4‐3
NV	10/1/05	N.R.S. 432B.330	10/1/05 c	N.R.S. 432B.220
NY
OH	10/25/00 a	OH Rev. Code § 2151.031	10/25/00	OH Rev. Code § 2151.421
OK	7/1/87	10A Okl.St.Ann. § 1‐1‐105	7/1/87 c	10A Okl.St.Ann. § 1‐2‐101
OR
PA			5/8/07 c	23 PCSA § 6386
RI			10/5/17 c	R.I. Gen Laws § 40‐11‐6
SC	1/1/97 b	S.C. Code § 63‐7‐1660	1/1/97	S.C. Code § 63‐7‐310
SD	7/1/98	S.D.C.L § 26–8A–2	7/1/98 c	S.D.C.L. §§ 26–8A–3; 26–8A–35
TN	4/29/14‐7/1/16 a , b	T. C. A. §§ 37‐1‐102; 39‐13‐107	4/29/14–7/1/16	T. C. A. § 37‐1‐403
TX	9/1/97	Tex Family Code § 161.001	9/1/97	Tex Family Code § 261.101
UT	3/15/12	U.A.C. § R512‐80‐2; U.C.A. § 78A‐6‐105	4/29/85 c	U.C.A. § 62A‐4a‐404
VA	10/1/02 a	VA Code Ann. § 63.2‐1509;	10/1/02 c	VA Code Ann. § 63.2‐1509; 22 VAC 40‐705‐40
VT
WA
WI	7/1/97	W.S.A. 48.02	1/22/90**	W.S.A. §§ 48.981; 146.0255
WV
WY

^a State classification of prenatal drug use as abuse/neglect excludes individuals seeking drug treatment.

^b Prenatal drug use is criminalized by state statute or court opinion.

^c State reporting requirement is specific to prenatal substance use (determined prenatally, perinatally, or postnatally).

State Laws Requiring Health Care Providers to Report Prenatal Drug Use to CPS. By 2019, DC and all states that defined abuse or neglect to include prenatal drug use required health care providers to report diagnosed or suspected substance use to CPS, and an additional 15 states required such reporting even in the absence of a specific statutory prenatal drug use definition (Table 1). In some cases, reporting is required as a form of public health surveillance, with CPS or the state Department of Health collecting data to help inform treatment strategies. ⁵³ Four states (IA, LA, MN, ND) required providers to test newborns or parents for substance exposure, and even where those requirements existed, there was some discretion built in—providers were only required to test if symptoms suggested that substance exposure occurred. ⁵⁷ , ⁵⁸ , ⁵⁹ , ⁶⁰ Importantly, this testing was often allowed without parental consent and providers were protected from liability. In general, the circumstances that triggered reporting were similar to the statutory definitions of prenatal drug use. Reporting was required when a newborn exhibited symptoms of exposure or withdrawal or when a toxicology screen revealed the presence of certain controlled substances. Overwhelmingly, states required health care providers to report suspected prenatal substance exposure to the state “immediately,” while other states chose synonymous statutory terms (“promptly,” “as soon as possible,” etc.), though the specific time period was rarely defined.

Both types of child welfare laws increased in prevalence over our study period. At the onset of our study period (1974), no state explicitly defined prenatal drug use as child abuse or neglect and just one state, Massachusetts (1973), had a policy requiring health care providers to report a substance‐exposed newborn to the state. ⁶¹ Most states (96%) that adopted a child abuse or neglect definition that included prenatal drug use enacted such a policy in 1990 or later, with the majority adopted in 1997 or later. Between 2009 and 2019, eight states adopted a new child abuse or neglect definition that included prenatal drug use or made a relevant change to their statutory definition (AL, AZ, GA, KS, KY, OH, TN, UT). Mandatory reporting laws followed a similar trend, with most policies adopted in the 1990s and 2000s. Just seven states (CT, DE, GA, MD, MO, NH, NJ, NM) adopted a prenatal‐substance‐use specific reporting policy between 2009 and 2019, though four of those states had laws that initially took effect in 2018 or 2019 (Table 1). Four other states (IA, ND, OK, SD) initially adopted reporting laws prior to 2009, but made changes to their laws during the 2009‐2019 period that were relevant to implementation.

Qualitative Interview Results

Nineteen states passed one or more of the state laws of interest between 2009 and 2019 and were included in interview recruitment efforts. Among these 19 states, 20 laws of interest were enacted during the study period (Georgia enacted both types of laws during this period). A total of 59 individuals were interviewed across these 19 states (Table 2). Most interviewees were from child welfare agencies (32%) or state health departments (24%), or were medical providers tasked with on‐the‐ground implementation of the state law of interest (20%). The majority (73%) of interview participants were female.

Table 2.

Employment Characteristics of Study Participants

	Mandatory Reporting Laws a	Child Abuse and Neglect Laws
Employment Category	N = 32 interviewees from 12 states	N = 30 interviewees from 8 states
	States: CT, DE, GA, IA, MD, MO, ND, NH, NJ, NM, OK, SD	States: AL, AZ, GA, KS, KY, OH, TN, UT
State Agency Representative
Health (e.g., Department of Health, Division of Mental Health)	9	8
Law enforcement (e.g., District Attorney, Office of Drug Control Policy)	0	4
Child Protective Services (e.g., Department of Child Safety, Division of Family Services)	11	10
Other Representatives
Medical Provider b	6	5
Academic Researcher	2	0
Interest Groups (e.g., Perinatal Quality Collaboratives, state March of Dimes chapters)	4	3

^a One state (GA) passed two laws of interest during our study, meaning the interviewees in this state were asked about both laws.

^b Medical providers were often dual appointed in both medical provider positions and academic researcher/professor positions. In this case, they were counted as medical providers.

Limited Implementation and Enforcement. The most commonly reported theme across all state laws included in our study was limited implementation and enforcement of the law of interest (Table 3). Interviewees discussing 19 of the 20 state child welfare laws related to prenatal drug use said that the department or office legislatively tasked with implementation and/or enforcement did very little across the state. Interviewees noted that a lack of implementation and enforcement encompassed an absence of state guidance on implementation, a lack of oversight for medical providers who were tasked with implementation, and/or inconsistent enforcement due, at least in part, to a lack of guidance.

Table 3.

Key Themes Related to Implementation and Enforcement of State Laws on Drug Use in Pregnancy and Counts of States in Which Each Theme was Identified

			Number of States in which the Theme was Identified, by Policy Type a
			Mandatory Reporting Law	Child Abuse and Neglect Law	Overall
Theme	Description	Illustrative Quote	N = 12 states	N = 8 states	N = 20 states
Limited Implementation and/or Enforcement	Interviewee had no awareness of implementation and/or enforcement actions undertaken for the law of interest. This could mean that the state did not actively inform stakeholders responsible for implementation about their responsibilities under the law, or that the state has not engaged in enforcement strategies for the law of interest.	TN‐5: Certainly, no health care provider education occurred. And I have no idea who was in charge of implementing it. As far as I can tell for my region it was not implemented.	12	7	19
Sub‐theme: Variation in Implementation and Enforcement Across Local Jurisdictions	Interviewees noted that implementation and enforcement were not consistent geographically across the state. Examples include enforcement being varied at the county‐level or hospital systems/health care providers being given heavy leeway in how they implement the law.	OH‐3: I think it would be helpful too if I mention at this point about Ohio being a county administered state. We're state supervised but county administered. And so, we have 88 different counties so there's variability in regard to how different programs are—I don't want to say interpreted, but in terms of how they choose to enact them. And depending on local politics, you may have a judge that feels very strongly one way or one that feels strongly another way. So, there's variability there and there's also variability in regard to services on location, and so that is also a factor here.	10	5	15
Sub‐theme: Intentional Lack of Punitive Enforcement Due to Purpose of the Law	Interviewees noted that implementation efforts stressed the non‐punitive nature of the law and that the lack of an enforcement mechanism was intentional. Most commonly, this was in reference to mandatory reporting law changes that allowed for an expansion to when “plans of safe care” could be made for families.	DE‐2: So along the path of punitive versus non‐punitive, we view the plan of safe care, not as being something that we use to enforce any type of behavior. In the world of child welfare, we have a number of ways that we can do that outside of the plan. So we really look at the plan as being a supportive document to help you move forward with what you're needing. If there are risk factors outside of the substance use, or if your substance use does create risk, we have other ways that we can deal with that.	8	2	10
Availability of Addiction Treatment Services	Interviewees perceived that the lack of availability of treatment beds—generally and gender‐specific treatment services—hindered implementation of the law of interest. Interviewees noted that in states with overlapping punitive and priority access laws, this was especially burdensome to pregnant people who still may be subject to punitive enforcement regardless of the accessibility of services that would prevent that.	AL‐1: We do not have the resources to appropriately provide the care for pregnant women that we need. So, yes, you will not be arrested if you seek care. But if you happen to be in a county that doesn't have care and you don't know that care exists, are you able to really seek care? And that's one of the things that we're really dealing with actively, especially rural counties, is that that law really has no operational affidavit because you can't actually serve women, you can't make sure they are not getting arrested if they have no access to care.	8	8	16
Stigma toward Pregnant People with Substance Use Disorders	Stigma toward pregnant people who use substances was viewed by interviewees as having a strong influence on law implementation and enforcement. Interviewees gave examples of stigma including medical providers overreporting pregnant people to CPS, social workers believing substance use in and of itself is child maltreatment, and pregnant people's reluctance to disclose substance use due to self‐ and anticipated stigma.	OH‐3: So in terms of the problems with that, I think there is a lot of stigma, right? There are differing opinions about the disease models. I think people are very scared about it in terms of the risk level. There is also medication‐assisted treatment—there's a lot of uncertainty in some people's minds. They'll think “you're just trading one drug for another so what difference does that make.” … There are a lot of personal biases in regard to pregnant women who are addicted to opioids.	8	5	13
Distrust and Confusion Between Health Care Providers and Child Protective Services	Interviewees perceived that implementation of the laws by healthcare providers was influenced by distrust between providers and Child Protective Services. This was especially burdensome in states whose laws were enacted in response to the federal Child Abuse Prevention and Treatment Act (CAPTA) and the Comprehensive Addiction Recovery Act (CARA), which often required more interactions between healthcare providers and Child Protective Services.	OK‐1 & OK‐2: There has been somewhat of a barrier in the medical community of even though they're required to report a mother who is been prescribed a substance, and we know the child's going to experience withdrawal, there are some medical providers who don't want to report that, who don't feel like reporting the parent to the department is the right thing to do; regardless of kind of how it's outlined. And so, there's been some barriers there. And we just continue to educate the purpose of the plan at the department's intervention. And those types of plans look much different than what people would stereotypically think of in regard to a child welfare involvement.	8	3	11

^a The state counts represent the number of states with a given law in which at least one interviewee provided an answer that fit within the themes we identified.

One interviewee noted:

“I don't recall there being any trainings or anything for [substance use] treatment providers. We weren't reached out by anybody to say, ‘Hey, this law is going into place. This is what you can help with.’ It wasn't anything like that. It was really kind of all of a sudden, we started getting more calls about women coming in directly from the hospital to treatment.” (KS‐1)

There are two distinct sub‐themes within this theme of limited implementation and enforcement. First, local (e.g., city, health system) variation in implementation and enforcement of state laws of interest was consistently reported across all law types. In addition, interviewees reported geographic variation in mandatory reporting laws at either the health system or individual provider levels. Second, interviewees noted that the lack of punitive enforcement was intentional because the goal of the law was not to penalize pregnant people experiencing addiction, but to serve as a mechanism for getting connected to services. While this was mainly reported by interviewees representing states with mandatory reporting laws (eight of twelve), it was also noted by individuals discussing state child abuse and neglect laws (two of eight). For our study sample, state mandatory reporting law changes were commonly made so the state could ensure compliance with the 2016 CARA amendment requiring tracking of substance‐exposed newborns—which directed states to require providers to document and report exposures, but which remained largely silent as to whether these reports should trigger a CPS investigation—and the development of “plans of safe care” which meant the law did not intend to have a punitive enforcement response. As one interviewee summarized it:

“Our intention was very clear that we wanted the legislation to reflect compliance with the federal guidelines but also not create stigma or barriers for women or use this law as a legal process that could result in prosecution or something other than treatment access.” (ND‐1)

Availability of Addiction Treatment Services. The next most commonly reported theme across all study states was the lack of availability of addiction treatment services, mentioned by interviewees discussing 16 of the 20 state laws. This was mentioned by interviewees from all eight included states with child abuse and neglect laws that included prenatal substance use and eight of the twelve included states with mandatory reporting laws. Interviewees reported that in some cases, the focal child welfare laws included exemptions for pregnant people in treatment. However, interviewees noted that these exemptions were impeded by a lack of access to drug treatment services that could serve pregnant people.

“We have a really serious gap [in our state safety net], which is residential treatment. We have a very small number of beds in the state that are targeted for women. And of those beds, a very small number allow women to bring children with them. And for one program, it's only an infant. And for the other program, I think you can bring two kids with you up to the age of 11. And that's about 26 beds total in the state that allow that. So, we're in a tough situation in terms of the number of women who really have severe substance use disorders or really need residential level of care, have kids that they feel very uncomfortable with leaving,or have lost custody of, and therefore, are really unwilling to go into residential program because it would interfere with visitation for them. So that's a huge gap.” (NH‐1)

Stigma Toward Pregnant People Who Use Drugs. Interviewees perceived that stigma among front‐line law implementers, including health care providers, health system social workers, and CPS caseworkers influenced implementation and enforcement of the law of interest. Interviewees reporting on 13 state laws (five of eight child abuse and neglect laws and eight of twelve mandatory reporting) noted that greater stigma led to greater implementation/enforcement of the punitive aspects of the laws and hindered implementation of the supportive aspects of the laws.

“I think we still have a lot of that stigma. I would say our foster care providers sometimes really struggle with reunification on some of these substance use disorder cases. They're very worried about the safety of children returning to these environments, as are we. But we're trying to make that sober and safe and that stigma still occurs. I think our judges are very focused on “gotcha” sometimes. I would say not all of our judges… But, we definitely have some that are still very kind of gotcha. Very kind of punitive. Very overly reliant on drug testing versus the other aspects of a holistic treatment plan with substance use disorder.” (OK‐2, OK‐3).

Provider Distrust of Child Protective Services. Interviewees discussing 11 of the 20 state laws noted that implementation of child abuse and neglect and mandatory reporting laws was influenced by health care providers’ distrust of CPS, with some health care providers reluctant to report drug use in pregnancy to CPS due to lack of trust that CPS would act in the best interest of the pregnant person. This was concentrated among interviewees discussing mandatory reporting laws (eight of twelve), and less among interviewees discussing child abuse and neglect laws (three of eight). Interviewees explained that implementation of CAPTA at the state‐level was commonly tasked to CPS, giving the agency a larger role in tracking neonatal exposure and connecting pregnant people to services. For this mechanism to work, providers needed to notify the department of substance‐exposed newborns regardless of whether the provider believed exposure warranted a “report” to CPS. This created a tension, as explained by one interviewee:

“The other barrier is perceptions related to child protective services as an entity. So, in talking to individuals that are responsible for reporting, if there is a bias that you know child protective services is a punishment, and they feel the mother, for example, is in recovery and working hard and has good support, but the baby was diagnosed with Neonatal Abstinence Syndrome? They may opt to not report. So, the whole prejudicial attitude towards CPS is a barrier among health care providers that are reporting. And there is a bias of feeling like nothing's going to get followed up anyway. I've heard this from individuals in the hospital that they just think it's busy work paperwork and nothing's going to come of it.” (MD‐2)

Specific State Examples

Our policy mapping and qualitative interviews revealed an array of state policies and implementation choices. Some aggressive schemes strictly require reporting to child welfare agencies by providers who encounter substance‐exposed newborns. Other, less punitive, schemes are focused on implementing CAPTA's notification and plan of safe care strategy. There may even be cases where the two schemes overlap and are implemented simultaneously. Though there are key differences between these approaches and their public health implications, there are common shortcomings. These characteristics are best illustrated through examples of a strict, punitive environment (Arizona) and a less severe, plan‐of‐safe‐care‐focused environment (Delaware).

Arizona: Prenatal Drug Use as Child Abuse. In 2009, Arizona amended its definition of “neglect” to include “a determination by a health professional that a newborn infant was exposed prenatally to a drug or substance . . . and that this exposure was not the result of a medical treatment.” ⁶² , ⁶³ This determination must be based on clinical indicators including “maternal and newborn presentation,” history of substance use, medical history, and/or toxicology test results for the gestational parent or infant. ⁴¹ Prior to this addition, providers were required to file a report with the state when an examination or toxicology test suggested that a newborn was substance‐exposed. ⁶⁴ Though the 2009 legislation does not necessarily alter this reporting requirement, it clarifies that prenatal substance use can be considered child neglect and sets the criteria for reporting. These criteria, however, are broad—for example, it is unclear from the statutory language how providers should incorporate a gestational parent's past substance use or other medical history in determining whether a report should be filed.

In June 2017, following the CARA amendments to CAPTA in 2016, Arizona's Department of Child Safety began requiring an Infant Care Plan for all substance‐exposed newborns. ⁶⁵ These plans, which are Arizona's version of a “plan of safe care,” are created at the earliest possible stage when a provider encounters and reports a substance‐exposed newborn. The plans address “substance use treatment for parents, medical care for the baby, safe sleep environments, home safety, parenting skills, quality child care, and social connections for families.” ⁶⁵ In discussing these care plans, the state Child and Family Services Plan notes that health care professionals are required “to report substance exposure in infants to the Department of Child Safety,” and that there are over 150 possible substances that would trigger this requirement. ⁶⁵ These reporting requirements and the array of substances that must be reported are not explained further.

Though the state requires these infant care plans that incorporate the CAPTA requirement for plans of safe care, interviewees reported confusion among providers and other implementers of state child welfare laws and some fear of family separation among parents. State employees noted that the policy is not intended to be punitive, but they observed fear among patients and providers that the Department of Child Safety will separate a child from their parents. Interviewees also reported that providers were confused about when to report—is a report required, for example, when a gestational parent has a history of substance use but a negative toxicology screen? Similarly, some providers attempt to report pregnant patients they suspect of substance use, but the Department of Child Safety will only note these as “concerns” that may warrant follow‐up if a subsequent report of a substance‐exposed newborn is received. The statutory criteria are so broad that state employees have experienced case backlogs because many families reported to the state do not require services, but receive the same time and resources as families experiencing greater need. This process was described as:

“The health care providers, they're not required to call [CPS for a positive toxicology screen during pregnancy] because there's not a child. So, there's not a mandate to meet, so to speak, but many do call us. And we do take that. We can't screen it in as a report for investigation at that time as a substance‐exposed newborn, but it is in our system and it is flagged with—as a communication type of ‘unborn concern’ which can be a hybrid—if this baby were born today or if this was a child today, we would take a report of abuse or neglect; however, they're not born yet… So, we retain those records and if nothing else in the concern meets reporting criteria for other children, for example, that record just gets maintained in our management information system, and it is there. Now, we don't have a process in place to try to find out when these mothers deliver. That's a pretty exhaustive process to track down these individuals after they've given birth. However, if they are brought to our attention, either at the time of delivery or somewhere else within the first year of that newborn's life, we will screen‐in a substance‐exposed newborn concern and screen in a report for investigation.” (AZ‐4)

Delaware: Plans of Safe Care and Careful Implementation

In contrast to states with child abuse statutes that encompass prenatal drug use, Delaware has taken a different approach. Delaware's statutory definitions of child abuse do not include substance use during pregnancy and do not mention substance‐exposed newborns, but Delaware child welfare laws do include notification requirements. ⁶⁶ In 2018, the Delaware legislature unanimously approved “Aiden's Law,” named after a child born dependent on drugs who died at eight months old. ⁶⁷ , ⁶⁸ The bill was introduced specifically to codify CAPTA and CARA provisions in Delaware state law. ⁶⁹ Since June 2018, health care providers involved in the delivery of a substance‐exposed newborn are required to notify the state child welfare agency—the Division of Family Services. ⁷⁰ These notifications are distinct from reports of child abuse or neglect, but providers are nevertheless still obligated to file a report of suspected abuse or neglect if there are additional factors that appear to jeopardize the safety of the newborn. ⁷¹ In other words, substance exposure alone is insufficient to trigger a report of child abuse or neglect, but does necessitate a notification. Once the Division of Family Services receives notification of a substance‐exposed newborn, it facilitates the creation of a plan of safe care for the newborn and their family. ⁷⁰

“So in October of 2017—even before [the law] was approved the following summer—[the Department of Family Services] worked with our six birthing hospitals to develop a pilot program to start doing the plans of safe care. So, we started with one hospital, but we have six birthing hospitals. All of our six birthing hospitals were represented on our [Substance‐exposed infants committee], and all of the birthing hospitals agreed that they would start doing universal drug testing of all women at labor and delivery. That was the first step with our implementation was, we need to identify which moms need to have services. And it was not a criminal, it wasn't for any sort of criminal purpose but the hospitals agreed to do the universal drug testing instead of doing drug testing based upon a screening that may be very subjective, that may be prejudicial, that may be discriminatory . . . . So, the committee had developed a draft plan of safe care and we went with it and just rolled it out with working between the DFS worker and also the hospital social worker, and they started plans of safe care discharge meetings with the hospitals and really just implementing that collaborative response in our smallest hospital. Then, 2018 rolled around and our law was finally enacted in June of 2018, and then by, I would September of 2018, we had full state implementation in all six hospitals.” (DE‐1)

Interviewees in Delaware reported that Aiden's law was drafted and implemented with attention to potential unintended consequences, but there are still some unresolved tensions between providers, patients, and the Division of Family Services. An advocate interviewee described an interdisciplinary process for drafting the 2018 legislation that involved numerous stakeholders and an iterative process to develop plan of safe care templates. Before the bill was enacted, the plan of safe care process was piloted at hospitals throughout the state. By the time the law was passed, hospitals were largely supportive. Interviewees involved in implementation noted that the plans of safe care are not considered punitive—there are no penalties for families that fail to engage with the plans of safe care—but providers and patients are still hesitant. Although policymakers consulted with advocates and stakeholders, interviewees perceived that providers and patients still view CPS negatively and view plans of safe care as a form of punishment. Interviewees also reported that patients are still reluctant to seek care and providers are worried about patient relationships.

These two states, Arizona and Delaware, illustrate the varied methods for reducing prenatal drug use and the common barriers to effective intervention. Though the two approaches are quite different, they use a similar framework: the child welfare system. Because of perceived and actual inequities and injustice, there is significant hesitancy in both states. In Delaware, in particular, this is notable, as the treatment‐oriented, family‐centered plans of safe care are rooted in public health, but are intertwined with an agency, CPS, that is viewed quite negatively.

Discussion

As the United States has seen increases in substance use during pregnancy, states have continued to turn to the child welfare system for solutions. Roughly half of all states have laws that specifically classify prenatal drug use as child abuse or neglect or evidence thereof. Importantly, this does not mean that prenatal drug use is never considered child abuse or neglect in the remaining states. In fact, many states have broad definitions centered on demonstrated or suspected harm to a child that would allow mandatory reporters to report substance‐exposed newborns or other evidence of prenatal substance use to the state for child welfare investigation. In other words, states that include prenatal substance use in their definition of child abuse and neglect have made it clear that health care providers should report prenatal drug use, but states that do not include prenatal drug use in their definition of child abuse and neglect generally afford discretion to individual providers, hospitals, and other policy implementers to determine whether abuse is suspected. Hospitals, in particular, may have policies that require testing or reporting of newborns suspected of having been exposed to certain drugs in utero. ⁷² , ⁷³

State reliance on the child welfare system and policy definitions that hinge on symptoms present in newborns leave pregnant people who use drugs facing the threat of losing parental rights—or even the threat of criminal penalties—while trying to manage prenatal care and weigh the possibility of seeking substance use treatment. These punitive schemes may be associated with elevated risk of CPS involvement, criminal justice involvement, avoidance of prenatal and substance use care, and other harms. These harms may be even greater for Black individuals and other individuals of color. ⁷⁴ After the 2016 CARA amendments, the notification and plan of safe care infrastructure included in CAPTA policy requirements holds promise as a mechanism for avoiding these punitive threats while facilitating access to treatment. State notification for record keeping purposes is distinct from reports of child abuse and neglect—reports may automatically trigger child welfare investigations, whereas notifications are used to trigger the development of a targeted plan of safe care. Ideally, states implementing CAPTA requirements fully would offer supportive services to a substance‐exposed newborn and any parent or caregiver that needed support or treatment services. If executed properly, such a state system could reduce the legal threats for pregnant people who use drugs, and would help new parents and their newborns access necessary support services and treatment. Our legal mapping and qualitative interviews, however, suggest there are important shortcomings in state laws and their implementation. These shortcomings are further compounded by a lack of state and federal guidance.

A common theme throughout the interviews was a lack of necessary policy implementation guidance from state and federal agencies and officials. States have largely relied on child welfare agencies to implement CAPTA requirements but have mostly failed to adequately implement the CARA changes related to alternative notification pathways and plans of safe care. ¹⁵ Our qualitative interviews revealed consistent implementation challenges across states. Some interviewees reported that, because some of the policies were confusing to providers and states did not provide sufficient guidance, policy implementation varied by locality within the state or was wholly inadequate.

CAPTA requires states to have a notification system for newborns affected by substance use or withdrawal, but distinguishes notification from traditional child abuse reporting. The notification system is ostensibly separate from the child abuse reporting procedure, but in many states, this separation appeared unclear, limited, or nonexistent based on the text of law and reports from the interviewees leading implementation.

In Louisiana, for example, providers must inform the state about all substance‐exposed newborns, but in determining whether to make a report of suspected abuse or a notification, must make a judgment with respect to the gestational parent's substance use. ⁷⁵ If a provider suspects that a newborn was exposed to an unlawfully used controlled substance, they must perform a toxicology test on the newborn (without parental consent) and report suspected “prenatal neglect” to the state. ⁷⁶ Conversely, if the provider observes symptoms that suggest the gestational parent's use of controlled substance in a “lawfully prescribed manner,” the physician must notify the state. ⁷⁷ Providers are informed that such a notification is not a report of child abuse or neglect. ⁷⁵ Both a notification and a report may trigger a plan of safe care, but the implications of the chosen reporting mechanism could be significant. Providers who distrust CPS may be reluctant to use any mechanism that approximates the abuse reporting system, which may be a particular problem when providers are afforded significant discretion to determine when a report or notification is needed.

Where states require reporting of suspected prenatal drug use based on symptoms of withdrawal in a newborn, state policies generally leave the specifics of that determination to health care providers. CAPTA adds another layer of complexity by requiring notification when a newborn is “affected by” substance use, but failing to define “affected by.” States are left to determine the meaning of “affected by,” but have generally failed to articulate a specific definition and have left it up to providers to interpret. The discretion afforded health care providers creates an uneven system that may be affected by a high degree of distrust of CPS among providers and by systemic discrimination and stigmatization of certain populations in health care settings. ⁷⁸ , ⁷⁹ This was a theme we observed throughout our qualitative interviews. Providers were often hesitant to report patients for fear of family separation and advocates reported fear among patients that they would be targeted by providers and hospitals for substance use screening and abuse reporting.

Most state child welfare policies that address prenatal drug use focus on newborns. Though substance‐exposed newborns likely need treatment and other social supports, child welfare policies are not squarely focused on substance use during pregnancy. Some states have gone further, adopting policies that attempt to intervene further upstream—policies that create targeted treatment programs for pregnant people who use drugs or policies that prioritize admission of pregnant patients to substance use treatment programs open to the general public. These policies focus on pregnant individuals specifically and may hold promise as a mechanism for reducing substance use during pregnancy and consequently reducing the prevalence of substance‐exposed newborns. ⁸⁰ Related work has demonstrated that these policies are reliant upon a substance use treatment infrastructure that is hampered by access and implementation problems. ³⁵ Though it was not the focus of this study, stakeholders and practitioners we interviewed noted that substance use treatment availability was a significant concern. In particular, some interviewees noted that the lack of treatment services for pregnant individuals meant that some pregnant individuals who would have benefitted from substance use treatment were unable to access it and were subsequently referred to punitive systems.

In light of the varied policy approaches and the implementation difficulties identified by practitioners, future research should study the outcomes of these policies. Existing literature on these policies is limited. Research suggests that child maltreatment, mandatory reporting, testing, and criminalization laws may be associated with reduced receipt of drug treatment among pregnant people. ²³ , ⁸⁰ , ⁸¹ Though research has previously found that punitive policies do not reduce certain adverse outcomes, including neonatal abstinence syndrome, ¹³ future work should examine whether states that adopted or modified prenatal drug use policies in the wake of the 2016 changes to CAPTA actually saw reductions in substance use among pregnant people and in substance‐exposed newborns. Relatedly, studies should examine whether fear of lost custody or criminal charges dissuades pregnant individuals from seeking medication treatment for opioid use because it may lead their infant to experience NOWS. An equally important line of work should focus on child welfare and plan of safe care outcomes. In evaluating CAPTA's plan of safe care requirement, it is critical to assess the actual delivery of services promised in plans of safe care and whether implementation of those plans actually improved medical and social outcomes, including child health, maternal health, and retention of parental rights. Finally, each of these policies and child welfare decision points should be evaluated for disparate effects and burdens. Certain racial and ethnic groups, including African‐American and American Indian and Alaska Native children, are overrepresented in the child welfare system and are more likely to be separated from their parents. ²⁸ , ²⁹ In addition, relative to White people, Black and Hispanic people generally experience lower rates of drug treatment and prenatal care and higher rates of maternal and infant mortality. ⁸² , ⁸³ , ⁸⁴ , ⁸⁵ , ⁸⁶ , ⁸⁷ , ⁸⁸ Existing qualitative work suggests that punitive prenatal drug use laws may aggravate these disparities. ⁸⁹ , ⁹⁰ , ⁹¹

Even in the absence of empirical analyses of these outcomes, our work highlights the need for adoption of clearer policies and better guidance for implementation of existing policies. For instance, federal law could provide better guidance for state agencies in implementing CAPTA—federal regulators could better define “affected by” substance use or withdrawal and could more clearly define the ways that notification differs from mandatory reporting. In May 2021, Senator Patty Murray introduced the CAPTA Reauthorization Act of 2021, which would make some relevant changes if adopted. ⁹² These include some terminology changes—shifting from “plan of safe care” to “family care plan”, and from “affected by substance use or withdrawal symptoms” to “affected by substance use disorder”—and a general push for a public health approach to substance‐exposed newborns and prenatal substance use. These proposed changes could represent an important shift, but experts have argued that, even if this language is adopted by Congress, the Biden administration must offer evidence‐based clinical and legal guidance for providers, state agencies, and other stakeholders. ⁹² As of July 1, 2022, this legislation is still under consideration in the US Senate. ⁹³ In addition, federal legislation adopted in late 2018 authorized a new grant program to help states implement the plan of safe care requirement. ⁹³ Future work should evaluate recipients of these grants to determine whether they improved implementation and resolved lingering confusion.

Whether the specific language proposed in the Senate bill is adopted, states can and should act to improve their systems for addressing and preventing substance‐exposed newborns and prenatal substance use. States could more clearly define when notification is required and how it differs from standard child abuse reporting. State legislators and other policymakers could shift their efforts from punitive systems that use the child welfare system to reduce the prevalence of substance‐exposed newborns to preventive approaches rooted in expanded prenatal care and substance use treatment for pregnant people.

These findings align well with prior work. Chasnoff and colleagues, in 2018, identified the need for federal and state guidance and called for a public health approach to prenatal substance use. ¹⁴ Similarly, Lloyd Sieger and colleagues argue that the proposed CAPTA reauthorization would attempt to shift implementation from a punitive approach focused primarily on children to a public health approach that centers families. ⁹⁴ Our findings contribute to this growing call for a public‐health‐oriented approach to prenatal substance use by highlighting the problematic use of child welfare policy mechanisms that disincentivize treatment‐seeking and complicate frontline implementation of care‐oriented interventions.

The needs we identify here—for additional research, clarified federal and state policies, and improved federal and state guidance—are particularly important in the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization (597 U.S. __ (2022)). Already, states are adopting new laws and enforcing existing criminal and otherwise punitive laws related to pregnancy and abortion. Laws banning or otherwise curtailing abortion access will undoubtedly lead to adverse health outcomes and may also work in tandem with the punitive laws we identify in this study to create a hostile and high‐risk environment for individuals who engage in substance use while pregnant.

Limitations

Though we used a thorough approach to legal mapping, it is possible that we omitted a state policy that was in place at some point in our study period. To limit the likelihood of an omitted policy, we compared our policy mapping to other efforts to track these policies and, when qualitative interviews were performed for a state, we verified our policy coding with the interviewees and corrected any conflicts. Policy mapping is usually dependent on statutory and regulatory text, but, as we observed in this study, policy implementation may differ from the text. As a result, our policy mapping may not reflect implementation and enforcement. Through qualitative interviews in states that recently changed their policies, we tried to provide context for the policies we collected, but further historical implementation analyses were outside the scope of this research. Interviews may have been subject to response bias due to self‐selection of individuals willing to participate, or social desirability bias stemming from interviewees’ desire to present their state in a positive light. To minimize these concerns, the informed consent process included confidentiality assurances and responses were triangulated across interviewees, all of whom were not representing the same organizations. Qualitative research may also be subject to researchers’ biases. To mitigate this concern, we used a common interview guide and structured coding process.

Conclusion

Over the past several decades, many states have adopted laws that seek to address substance use among pregnant people and substance‐exposed newborns. Although recent changes to federal law were intended to enhance care for these infants and their families, most states have used the child welfare system to implement these changes. Because this system is often punitive, in perception and in practice, these laws may disincentivize treatment‐seeking among pregnant women who use drugs and lead to family separation. Federal and state policy makers seeking to prevent substance use in pregnancy should issue improved guidance to practitioners and providers and should couple current policies with those that facilitate access to treatment earlier in pregnancy.

Funding/Support: This study was funded by the Bloomberg American Health Initiative, Johns Hopkins Bloomberg School of Public Health, Baltimore, MD.