Effects of Substance Use Disorder Criminalization on American Indian Pregnant Individuals

Abstract

Individuals with substance use disorders (SUDs) are at markedly elevated risk of involvement in the criminal legal system. Over the past 30 years, substance use during pregnancy has been criminalized through laws on the federal, state, and tribal level. American Indian (AI) individuals are disproportionately affected by these laws due to their race, socioeconomic status, and limited access to SUD treatment. This article aims to educate readers on laws criminalizing substance use during pregnancy and on how AI individuals are disproportionately affected by these laws. It also discusses how these laws conflict with the ethical principles of autonomy, nonmaleficence, and justice. Finally, this article recommends that clinicians advocate for the decriminalization of SUDs during pregnancy and for improvement in access to comprehensive, evidence-based SUDs care. Criminalization of Substance Use Disorder in Pregnancy Approximately 1 in 10 individuals in the United States will develop a substance use disorder (SUD). 1 Between 1999 and 2016, drug overdoses increased dramatically, 2 and, in 2017, overdose was the leading cause of accidental death in the United States. 2 American Indians (AIs) have been hit particularly hard, with a prevalence of SUD exceeding that of other racial and ethnic groups in the United States. 3 Tribes across the country have declared treatment of SUD a public health priority. 4

Mandated Reporting of Perinatal Substance Use

“…This raises concerns regarding the study’s equity implications. Although rates of perinatal substance use are similar among Black and White women, Black as well as Indigenous women are more likely to be screened for illicit substance use in prenatal care . This frequently occurs without their knowledge or permission and has resulted in parents losing their parental rights and being incarcerated.…”

“…This frequently occurs without their knowledge or permission and has resulted in parents losing their parental rights and being incarcerated. In addition to being more likely to be drug tested, Black women are also more likely to be reported to CPS . To provide context for these inequities, it is helpful to understand the historical backdrop that gives rise to biases against Black women related to substance use and their fitness to parent.…”

Partnering with recovery community centers to build recovery capital by improving access to reproductive health

“…These additional barriers will disproportionately affect marginalized populations with health disparities, including women with SUD. Prior to these policy challenges, some health care providers have been implicated in unjustly referring people with SUD to legal authorities who have had a stillbirth, pregnancy loss, termination, or adverse outcome and there are fears that these punitive strategies will increase when states have more authority over reproductive rights (McMahon et al, 2022; Simon et al, 2020). Nurses need to strongly advocate for solutions that improve recovery capital and the health of the pregnant person or person who can get pregnant with SUD, not those that are punitive criminalize them for their reproductive decision‐making or behaviors during pregnancy.…”

“…These additional barriers will disproportionately affect marginalized populations with health disparities, including women with SUD. Prior to these policy challenges, some health care providers have been implicated in unjustly referring people with SUD to legal authorities who have had a stillbirth, pregnancy loss, termination, or adverse outcome and there are fears that these punitive strategies will increase when states have more authority over reproductive rights (McMahon et al, 2022;Simon et al, 2020).…”

Early Insights into Implementation of Universal Screening, Brief Intervention, and Referral to Treatment for Perinatal Substance Use

“…People of color, in particular, face racism and discrimination in the healthcare and child welfare systems (Roberts & Nuru-Jeter, 2012 ), which may further deter engagement with healthcare systems. For example, American Indian/Alaskan Native (AI/AN) women are disproportionately impacted by the criminalization of perinatal substance use disorder (Simon et al, 2020 ). Additionally, women living in rural communities experience additional barriers to accessing care (Jumah, 2016 ), despite higher rates of substance exposure in utero compared to urban counterparts (Villapiano et al, 2017 ).…”