PRELIMINARY STATEMENT
This case arises out of a family court decision in which a father was found to have neglected his child under Family Court Act § 1012 for failing to stop the child’s mother from using illicit drugs while she was pregnant. Matter of L.B., 226 AD3d 554, 554 (1st Dept 2024). The New York legislature did not intend § 1012 to support a finding of child neglect against a father for his failure to control the behavior of a woman pregnant with his future child. It is not only unclear how the legislature could require a person to assert control over the behavior of another adult person’s bodily autonomy, but also counter to the recommendations of medical and public health experts who have counseled against establishing sanctions related to substance use during pregnancy. The unequivocal consensus among amici curiae and every medical or public health organization to address the issue in the United States is that the use of controlled substances during pregnancy is a medical and public health issue that should focus on fostering open communication between family members and healthcare providers to encourage support and access to treatment during pregnancy. It is not an issue that should be subject to criminal intervention, state control, automatic loss of custody, or findings of neglect.
Amici’s brief will demonstrate to the Court how the misapplication of existing law by the lower court will lead to lasting, harmful health consequences for women, children, and families. Amici urge this Court to consider Appellant’s motion in view of the widespread opposition from the medical and scientific community to punishing pregnant people for having a substance use disorder or punishing their partners for failing to control their behavior and somehow stop their substance use.
ARGUMENT
MEDICAL AND PUBLIC HEALTH EXPERTS UNEQUIVOCALLY OPPOSE PUNITIVE RESPONSES TO SUBSTANCE USE DURING PREGNANCY BECAUSE THEY THREATEN WOMEN’S AND CHILDREN’S HEALTH.
Major medical and public health organizations in New York and throughout the country oppose punishing pregnant people who use controlled substances. Among them are the American College of Obstetricians and Gynecologists (ACOG); Association of Women’s Health, Obstetrics and Neonatal Nurses; American Academy of Addiction Psychiatry; American Society of Addiction Medicine; American Psychiatric Association; American Medical Association; American Academy of Pediatrics; American Nurses Association (ANA); American Public Health Association; March of Dimes; 11 and the National Perinatal Association.
Based on the relevant scientific and medical research discussed below, authorities agree that punitive approaches are inappropriate and harmful to the health of women, fetuses, and newborns. Punitive approaches separate newborns from their parents, subject pregnant women to stress, deny pregnant women prenatal and medical care and access to appropriate substance use disorder treatment, and erode the doctor-patient relationship. Accordingly, ACOG opposes punitive state laws and policies because “use of the legal system to address perinatal alcohol and substance abuse is inappropriate.” The ANA has also called upon registered nurses who work with pregnant women who use controlled substances to seek out providers that offer clinically “appropriate rehabilitative therapy, rather than law enforcement or the judicial system.”
Nora Volkow, director of the National Institute on Drug Abuse, states:
Having a substance use disorder during pregnancy is not itself child abuse or neglect. Pregnant people with substance use disorders should be encouraged to get the care and support they need — and be able to access it — without fear of going to jail or losing their children. Anything short of that is harmful to individuals living with these disorders and to the health of their future babies. It is also detrimental to their families and communities, and contributes to the high rates of deaths from drug overdose in our country.
This point is borne out by research. One cross-sectional study of nearly 4.6 million births in eight states found that policies that criminalize substance use during pregnancy, consider it grounds for civil commitment, or consider it child abuse or neglect were associated with significantly greater rates of neonatal abstinence syndrome.
A. Punitive Responses to Drug Use During Pregnancy Directly Inflict Substantial Harm on Women, Children, and Families.
Physical and mental health professionals’ widespread opposition to coercive responses to drug use during pregnancy stems from the scientific and medical research confirming the risks that the legal system poses to the health of pregnant women, their pregnancies, and their future children. The notion that punishing a father for failure to control or coerce a pregnant woman would benefit the fetus drastically misperceives the interests of pregnant women and their fetuses; it is also medically unsupported.
Laws and policies that attempt to promote fetal wellbeing by punishing pregnant women for substance use or prospective parents for failure to exercise control over a pregnant partner misunderstand this unique relationship between fetal and maternal health and ignore the often-interdependent nature of maternal and fetal interests. A fertilized egg, embryo or fetus is physiologically dependent on the pregnant woman, and any intervention by the State, or state mandate on a prospective partner’s actions, ostensibly on behalf of a fertilized egg, embryo, or fetus, “must be undertaken through the pregnant woman’s body.” Anything that affects the pregnant woman’s health, autonomy, and privacy, in turn, affects her pregnancy, and so “questions of how to care for the fetus cannot be viewed as a simple ratio of maternal and fetal risks but should account for the need to respect fundamental values, such as the pregnant woman’s autonomy and control over her body.”
For a pregnant woman who must contend with the physical aspects of pregnancy, added concerns for the health of her fetus, her autonomy to make medical decisions for herself and her pregnancy, and her prospects of retaining parental authority, the psychological strains of control and coercion by the State or by a partner on behalf of the State are exacerbated. Stress, both chronic and acute, can cause physical and chemical changes in a pregnant woman’s body, which has implications for both maternal and fetal health and is associated with increased rates of infant mortality, low birthweight, preterm birth, hypertension, developmental delays, and congenital heart defects.
The adverse effects of punishing women for purported risk of harm to their pregnancies continue to affect mothers, their newborns, and their other children long after the pregnancy ends, especially where parents lose temporary or permanent custody of their children. Young children separated from their parents experience traumatic stress with lifelong consequences, even if they are eventually reunified. Research shows that newborns have better outcomes if they remain with their parents, and that family separation policies triggered by positive drug tests cause irreparable harm. Thus, the harms of punishing pregnant women and removing children from the care of their parents are serious and apparent.
B. The Threat and Prospect of Punishments Deter Women from Securing Treatment and Prenatal Care and Undermine Maternal and Fetal Health.
Women and mothers who use drugs are, like other women and mothers, concerned about their own health, their fetuses, and their children’s mutual wellbeing. Clear evidence establishes that women who desire drug treatment and prenatal care are dissuaded from seeking it when faced with the threat of prosecution and its attendant harms to themselves, their pregnancies, their future children, and their families. Studies consistently show that “fear of being reported to the police or child welfare authorities [is] related strongly to a lack of prenatal care.” Even a small number of stories of women losing custody of their children or being subjected to state coercion may have a chilling effect on a woman’s likelihood of accessing medical care while pregnant if she has used or is using criminalized substances. Women who use controlled substances during pregnancy fear that if their doctor discovers any drug use, it would result in a referral to state child protective services and eventual removal of their child. They may therefore try to avoid intervention by withholding their drug use or forgoing prenatal care altogether.
Women who do seek prenatal care are likely to be discouraged from truthfully discussing their drug use by fear that they will be prosecuted or shamed, labeled “neglectful,” or branded as harmful to their own children. These barriers to trust and communication are particularly damaging because access to early and comprehensive prenatal care is one of the most effective tools for reducing infant mortality, whether or not the pregnant woman uses drugs. Studies also show that prenatal care substantially reduces risks of low birthweight and prematurity among infants born to women experiencing a substance use disorder. Open communication is also especially critical for women who do seek, or who would otherwise seek, treatment for a substance use disorder. Women who have a substance use disorder also face higher rates of depression, increasing the importance of a strong “therapeutic alliance” between patient and healthcare provider for ensuring successful completion of treatment. By contrast, threats of criminal sanctions have been shown to increase women’s stress and thereby increase their risk of relapse.
Using a pregnant woman’s partner’s support in obtaining substance use disorder treatment for the pregnant woman as evidence that the partner knew of drug use during pregnancy, and was therefore neglectful, discourages partners from providing support and further reduces the likelihood that pregnant women will access necessary care. A policy that chills open communication between a father and his pregnant partner about her health, or that punishes the father for a failure to control the behavior of his pregnant partner, is harmful to both maternal and fetal health. The negative health impacts of the fear of punishment and loss of custody due to substance use while pregnant undermine the State’s objectives to protect health. Directly threatening parents with findings of neglect and loss of custody undermines pregnant women’s physical and psychological wellbeing, discourages women from obtaining prenatal care or substance use treatment, discourages their partners from supporting them, and instead demands that their partners control them.
Finding that parents neglected their children over matters of maternal and fetal healthcare or over failure to control the behavior and health of a pregnant woman exacerbate the economic and racial disparities that are already pervasive in he healthcare and family regulation systems (also referred to as the child welfare system). For example, obstetric and gynecologic outcomes and care are marked by racial and ethnic disparities, with people of color, and especially Black women, experiencing higher rates of adverse maternal, fetal, and newborn health outcomes and less access to healthcare services. New York State currently faces a maternal mortality crisis that is exponentially dire for Black women. New York is ranked 15th among all states with a maternal mortality rate at 19.3 deaths per 100,000 live births, with Black women dying at a rate over four times higher than white women. Discouraging men from supporting their pregnant partner’s bodily autonomy will only exacerbate adverse health outcomes and create additional barriers to care for an already underserved population of women.
NO MEDICAL OR SCIENTIFIC EVIDENCE JUSTIFIES A PUNITIVE, NON-THERAPEUTIC APPROACH TO PREGNANT WOMEN WHO USE DRUGS.
Preeminent healthcare organizations agree that drug use during pregnancy is a medical and public health issue that calls for non-punitive, family-centered responses and, if necessary, voluntary treatment. The consensus is that an appropriate response should ensure access to quality prenatal and primary medical care, evidence-based education on drug use during pregnancy, comprehensive drug treatment programs that keep parents and children together, and social service programs such as life skills training, mental health services, and strategies for managing relapse and stress.
Addiction does not show a pregnant woman to be more morally weak, condemnable, or unconcerned with the development of her fetus than any pregnant woman who chooses to carry a pregnancy to term with a disease, condition, or circumstance like diabetes, obesity, tobacco use, or a high-risk occupation. “[I]f the patient is viewed as being the problem or having a problem, as opposed to the substance being a problem,” the risk cannot be most effectively addressed. A prospective father who respects his pregnant partner’s autonomy and agency rather than seeking to exercise control over her body and behavior is similarly not immoral, weak, irresponsible, or condemnable.
A. Substance Use Disorders are Chronic Health Conditions.
Substance use may be a medically complex matter with a wide variety of causes, risk factors, and prognoses. The once-popular misconception of substance use as a failure of moral grit or determination has long been abandoned by medical professionals, social scientists, and most courts. It is medically unrealistic to assume that all women who use substances can or even should simply choose to immediately abstain the moment they become pregnant. It is similarly unrealistic to assume that a woman’s partner can force the woman to stop using substances or should exert such control even if they were able to.
Due to the nature of addiction, most pregnant women, even those who seek out treatment for substance use disorders, cannot achieve abstinence totally and immediately. In one study of women receiving treatment for substance use disorder during pregnancy, the average amount of time needed to achieve abstinence from cocaine and marijuana was approximately five months. Substance use disorders are chronic health conditions influenced by sociocultural, economic, biological, and psychological factors. The American Society of Addiction Medicine, the nation’s largest organization representing medical professionals who specialize in addiction prevention and treatment, defines addiction as “a treatable, chronic disease involving complex interactions among brain circuits, genetics, the environment, and an individual’s life experiences.” The most recent Diagnostic and Statistical Manual of Mental Disorders defines a substance use disorder as “a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.” A person with a substance use disorder may experience a physical need for the controlled substance, which results in cravings and withdrawal symptoms. “People with addiction use substances or engage in behaviors that become compulsive and often continue despite harmful consequences.” Studies have increasingly found that, even when a person experiencing a substance use disorder pursues treatment, relapses are a normal, even expected, part of recovery.
Under the criminal justice theory of deterrence, punitive sanctions are used to lessen the likelihood of similar crimes in future. But as a matter of both law and medicine, people suffering from a substance use disorder “may be unable to abstain even for a limited period.” National Treasury Employees Union v. Von Raab, 489 U.S. 656, 676 (1989). “[T]he inability to control drug use regardless of consequences is a key feature of substance and alcohol use disorders.” An instance of drug use by a pregnant woman therefore does not necessarily reflect a decision about how to treat her own body or that of her developing fetus but should instead be understood to reflect a symptom of a chronic health condition that can and should be managed as such. And research shows that punishing women for this behavior leads to worse health outcomes.
The physiological and psychological characteristics of substance use disorders do not cease to apply and transform into a matter of willpower just because a person becomes pregnant. For pregnant women who experience substance use disorders, as for pregnant women experiencing all other chronic disorders, negative outcomes for both mothers and children are most effectively avoided or diminished with medical and public health strategies.
B. Medical and Scientific Evidence Does Not Show that Substance Use During Pregnancy Causes Uniquely Certain or Severe Harms.
A common misconception, reflected in the myth of the “crack baby,” is that prenatal exposure to any amount of a controlled substance necessarily causes negative health impacts in newborns, and that these health impacts are unusually certain, unusually severe, and distinct from harms associated with social and environmental factors or other actions taken by pregnant women. This perception is false. Medical consensus does not identify a safe level of alcohol use and other substances during pregnancy, and studies have failed to isolate the harms caused by prenatal drug exposure from the effects of exposure to other pregnancy risk factors, such as poverty and lack of access to prenatal care. Scientific studies have failed to prove that in utero exposure to controlled substances—including cocaine, methamphetamine, heroin and other opioids, and marijuana—is the clear cause of any severe or certain harms. Many pregnancy complications and adverse outcomes experienced by women who have used substances during pregnancy may be attributable to risk factors other than substance use, including social determinants and environmental factors such as poverty, lack of access to medical care, malnutrition, or chronic stress, each of which may cause fetal and maternal harm. Drug use during pregnancy is a medical and public health concern requiring the attention of medical providers. Extraordinary measures—which are supposed to “protect” an embryo or fetus—cannot be justified on the unfounded belief that drug use causes universal and uniquely devastating harms to fetal development.
In a large majority of cases in which women have been prosecuted for being pregnant and using a criminalized substance, no adverse pregnancy outcome as a result of that drug use was ever reported. Among many of the remaining cases, including those involving stillbirths or other adverse outcomes, prosecutions have proceeded without any causal evidence that the woman’s drug use or other criminalized conduct caused the harm. But higher courts have now recognized, after reviewing the relevant scientific research, that such prosecutions should not and cannot be sustained based on untested, and now disproven, assumptions about the harms of drug use during pregnancy.
C. Methadone and Buprenorphine are the Recommended Treatment for Opioid Use Disorder During Pregnancy.
Methadone and buprenorphine are the recommended treatments for opioid use disorder (OUD) during pregnancy by both United States and New York health officials and are supported by extensive research and clinical guidelines. The Centers for Disease Control and Prevention, the Substance Abuse and Mental Health Services Administration, and the American College of Obstetricians and Gynecologists recommend methadone or buprenorphine as first-line therapy options for pregnant women addicted to opioids. These medications are considered the standard of care for managing OUD during pregnancy, as they help prevent complications associated with opioid use, addiction, and withdrawal.
New York State guidelines align with these national recommendations. The New York State Office of Addiction Services and Supports advises:
The standard of care for pregnant persons with opioid use or opioid use disorder is medication for opioid use disorder (MOUD) with either methadone or buprenorphine, with psychosocial treatment and supports as needed. Pregnant persons should be advised that MOUD is safe and promotes healthier outcomes for both the pregnant person and the newborn.
Notably, New York health officials advise women to refrain from stopping opioid use on their own. The state’s office website directs:
If you are pregnant, do not try to stop using opioids on your own. Opioid withdrawal, whether experienced on your own in attempting to stop opioid use or with medically supervised withdrawal (“detox”) likely leads to poor outcomes for the pregnant person and the developing fetus, including miscarriage, premature delivery, and risk of fatal overdose for the pregnant person and the developing fetus with return to opioid use.
Yet, the lower court found that Mr. B neglected his child because he failed to force Ms. W to stop using drugs despite the State’s own health guidance that this approach is to be avoided because opioid withdrawal can lead to miscarriage, premature delivery, and death. Babies born with methadone in their system and with neonatal withdrawal syndrome are expected and manageable outcomes of the recommended and medically supervised treatment for OUD during pregnancy. The U.S. Department of Health and Human Services advises:
A diagnosis of [neonatal abstinence syndrome] or [neonatal opioid withdrawal syndrome] does not imply harm, nor should it be used to assess child social welfare risk or status. It should not be used to prosecute or punish the mother or as evidence to remove a neonate from parental custody.
In this case, the presence of methadone in the newborn’s system indicates both that the mother was in treatment and that she was engaged in what health authorities view as the standard of care for treating OUD during pregnancy. Allowing this to be used as evidence of neglect not only defies best practice for achieving healthy outcomes for parents and babies but also forces pregnant women and their partners to make the impossible choice of foregoing what is best for their health and their child’s health or risking state intervention.
III. THE WAR ON DRUGS HAS USED STIGMATIZING NARRATIVES TO TARGET PARENTS OF COLOR BASED ON ALLEGED SUBSTANCE USE AND HAS CAUSED LASTING DAMAGE THROUGH FAMILY SEPARATIONS.
The war on drugs and its racist underpinnings and narratives have fueled family separation. This has resulted in significant increases in the number of children within the foster system, exposing greater numbers of children to its harmful effects. These significant and long-lasting harms are particularly burdensome for young children and have been disproportionately borne by children of color.
A. The War on Drugs Has Perpetuated Racist Narratives About Parents Who Use Drugs.
The war on drugs has long relied on stigmatizing narratives regarding the capacity of parents. In addition to establishing harsh criminal penalties for possession and distribution of substances, the war on drugs has infiltrated the family regulation system (also known as the child welfare system), resulting in the separation of families based on the perceived risks associated with parental drug use. These actions were partly spurred by racist stereotypes regarding lowincome communities of color that took root in the 1980s. Specifically, media coverage around the so-called “crack baby” epidemic constructed an exaggerated view of Black mothers poisoning their children and provided justification for punitive state intervention.
In the decades that followed, these sensationalized depictions contributed to the rapid growth of the number of children, particularly Black children, in foster care. These narratives coincided with increases in federal funding for family separation and decreases in funding for basic health and social services, such as drug treatment, housing, and childcare.
Removals from parental custody have become commonplace and continue to disparately affect communities of color. In fiscal year 2022, 186,603 children entered the foster care system, which totaled 368,530 children. Despite representing 14 percent of the child population, Black children comprised 23 percent of the total foster child population. Between 2000 and 2011, one out of every 17 white children, one out of every nine Black children, and one out of every seven Indigenous children were taken from their parents’ custody. Many family regulation system inquiries are associated with parental drug use, with nearly 80 percent of foster system cases involving allegations of drug use by caretakers. As in the present case, these inquiries are often initiated by a positive drug test, rather than any articulated harm to a child. Parental substance use has become the “second most common circumstance associated with child removal.” For children under the age of one, removals for parental alcohol or drug use comprised a shocking 51 percent of cases. The war on drugs is a primary driver of family separations.
Inaccurate assumptions about parents who use drugs routinely result in findings of neglect and subsequent custody removals. As the current case demonstrates, without clear guidance, courts will continue to perpetuate family separations based on stigma born from the deleterious legacy of the war on drugs.
B. Removals Are Often Unnecessary, Cause Significant Damage to Children, and Expose Children to the Negative Effects of the Foster System.
The theory used to justify removing large numbers of children from their parents’ care is that removal is necessary to keep children safe. This theory was recently tested in New York City and proved to be unsupported. During the COVID-19 pandemic starting in March 2020, the number of children removed from their homes fell by over 50 percent. 81 The data now shows that children’s safety was not comprised. Rather children remained safe across a range of metrics.
In contrast, separating children from their families causes long-lasting disruption and trauma. One study showed children at the margin of removal from their parents’ custody and placement in the foster system may have better life outcomes when they remain at home. Even if young children are eventually reunified with their parents, they can experience traumatic stress and other lifelong consequences due to separation.
Many of these negative outcomes are connected to placement within the foster system. Being in the foster system is associated with significant and lasting negative effects, including increased behavioral problems, criminal involvement, and homelessness. A 2012 survey showed that children placed in foster care generally had more mental and physical conditions than children not placed in the foster system. These children were approximately twice as likely to have asthma, speech problems, and learning disabilities, as well as three times as likely to have hearing and vision problems. Particularly for infants, foster care has significant lasting negative impacts on children’s attachment with caregivers. Even if young children are eventually reunified with their parents, they can experience traumatic stress and other lifelong consequences due to separation, leading scholars to proclaim, “If a child survives foster care it’s not because of the system, it’s despite the system.”
Furthermore, these outcomes are not evenly distributed.95 The foster system disproportionately burdens children of color. The U.S. Government Accountability Office found that Black children were more than twice as likely to be foster children and stayed in foster care an average of nine months longer than white children. It follows that Black children are disparately more exposed to the risks of harm from the foster system.
In this case, infant L.B. was ordered removed from Father’s custody without any articulable evidence of risk of harm and placed in the custody of the state. This removal actually places L.B. in harm’s way due to the myriad harms associated with severance of parental relationships. Courts will continue to utilize the arbitrary and stigmatizing approach adopted by the lower court in this case and justify findings of neglect and custody removals based solely on drug use and the requirement of prospective fathers to control the bodies and actions of pregnant women, placing more children at risk of entering the foster system, unless this Court provides clarity. If this Court does not intervene, these scientifically unsound and discriminatory assumptions of the war on drugs will continue to separate families and cause lasting harm to children, particularly children of color.
CONCLUSION
For these reasons, amici respectfully urge the Court to grant Appellant’s motion for leave to appeal.