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“Being separated from your mother as a baby is traumatic,” she says. “When you remove the skin-to-skin contact, the opportunity to breastfeed … we know that that’s not good for the baby’s brain development.”

Mandated reporting laws are one front of the United States’ five-decade-long war on drugs, which has criminalized generations of Americans, primarily people of colour and the poor. Mass incarceration is the most common metric used to demonstrate the drug war’s socially destructive and racially disproportionate impact, but the American child welfare system tells a similar story.

Nationwide, between 2000 and 2011, one in 17 children removed from their family’s care was white, while one in nine was Black and one in seven Native American, according to the not-for-profit Movement for Family Power, which opposes the American foster system.

Advocates for change say the laws may have the perverse effect of preventing people with substance use disorder from getting help at all.

“Punitive responses deter people from getting medical care,” says Sam Lee, a staff attorney at the non-profit National Advocates for Pregnant Women. “If pregnant women know that asking their doctor for a methadone prescription risks getting their child taken away from them, they’re less likely to seek treatment.”

Elizabeth Peacock-Chambers, a pediatrician who specializes in promoting healthy child development among vulnerable families, has cared for many children who were exposed to opioids in utero. She says mandated child welfare reports make parents who use or have used drugs, even those in stable situations or long-term recovery, “afraid to talk about things openly with clinicians or other service providers.”

The Massachusetts Department of Children and Families did not respond to a request for comment.

« Being separated from your mother as a baby is traumatic. »

Bell, Lee and Peacock-Chambers are among a broad coalition of people who’ve been lobbying Massachusetts to change the state’s law, arguing that it harms patients, women, and the children it purports to protect.

This year, a new bill to remove prenatal substance exposure as an automatic 51A report trigger began making its way through the legislative process, with the support of the Massachusetts Medical Society, Boston Medical Center and other doctors’ groups. Nationally, leading medical associations oppose punishment as a response to drug use during pregnancy.

The bill is one part of a wave of efforts nationwide to end punitive laws targeting people who use drugs during pregnancy. An effort is also underway in New York to fight drug testing of pregnant people without informed consent, and in Wisconsin the National Advocates for Pregnant Women is legally challenging charges of child endangerment against people who use drugs during pregnancy.

Ultimately, Nikki Bell’s 51A claim was dismissed last year. But the weeks-long investigation was “very invasive in an already difficult time,” she says.

That invasiveness may partly explain why relatively few people sign up for Massachusetts’ free early intervention programs, in which counselors support opioid-exposed children with regular home visits. In theory, participating in this kind of voluntary program makes families more likely to retain or regain custody of their children. It can also provide much-needed childcare help.

But for many, allowing more clinicians into their lives feels too risky.

“I always had a fear that you couldn’t be too honest,” one Massachusetts mother told Peacock-Chambers and her colleagues in a 2020 study on how parents of opioid-exposed perceive early intervention services. “Like, I know you guys are mandated reporters.”

“That fear,” says Peacock-Chambers, “comes from a very evolutionarily primal place: a fear of having one’s child taken.”

Catesby Holmes is a freelance journalist based in U.S.

Heloísa Marques is a visual artist whose principal mediums are embroidery and collage.

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This issue of IMPACT was prepared by Catesby Holmes, Heloísa Marques, Megan Clement, Rebecca Amsellem and Steph Williamson from the team at Les Glorieuses.

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