Abstract
Background:
Incarcerated perinatal populations report high rates of substance use in the United States (US). Despite this, substance use disorder (SUD) treatment is not routinely available in carceral settings and state policies related to the provision of substance use screening and treatment are unknown.
Methods:
We conducted a systematic search in WestLaw through the end of the 2020 legislative session combining the terms “pregnant” and “postpartum” with terms for incarceration and related terms. The search returned 453 statutes from 43 states. A deductive codebook of various maternal health topics was developed. Legislative texts related to SUD screening and treatment were extracted for textual analysis.
Results:
Of the 43 states identified as having at least 1 state statute pertaining to pregnant or postpartum incarcerated people, 7 states had statutes relevant to SUD screening and treatment. Statutes related to substance use screening, education, treatment and diversion programs, program eligibility, aftercare and release planning, and funding appropriations.
Conclusions:
The majority of states across the U.S. lack legislation that address SUD screening and treatment among incarcerated perinatal populations. Given the known limited access to SUD treatment for perinatal populations in custody, increasing legislative statutes could increase access to essential care.
Introduction
While women comprise only 9% of incarcerated adults in the United States (U.S.), the rate of women’s incarceration increased by over 550% from 1980 to 2019.1,2 Over 60% are incarcerated for non-violent property, drug, and public order offenses, with drug-related charges (eg, possession, trafficking) being the most serious offense for a quarter of the population. 3 Among the broader population of incarcerated women, nearly 4% are pregnant upon intake with ~3000 and ~55 000 entering prisons and jails each year, respectively.4,5 National estimates indicate that 70% of incarcerated women meet criteria for a substance use disorder (SUD), 6 and one study of a sample of prisons and jails reported that 14% of pregnant people entering jails and 26% entering prison have opioid use disorder; thus a substantial number of pregnant incarcerated people need SUD treatment. 7 Building upon a recent literature review of SUD treatment programs in carceral settings, 8 we present the first systematic legal review relevant to substance use screening and treatment for incarcerated pregnant and postpartum populations across the U.S.
Method
We conducted a systematic search in WestLaw through the end of the 2020 legislative session combining the terms “pregnant” and “postpartum” with terms for incarceration, including “prison,” “jail,” “incarceration” and its variations, “inmate,” “detainee,” and “corrections” and related terms. The search returned 453 statutes from 43 states. Through discussion, the interdisciplinary research team developed a deductive codebook of maternal health topics including those related to SUD screening and treatment. Two researchers independently coded each statute and met to resolve discrepancies. For this current report, we extracted for textual analysis legislative text related to SUD screening and treatment among pregnant and/or postpartum incarcerated people. In our results, we use gender-inclusive language, such as “people” alternative to “women,” to acknowledge that not all pregnant persons identify as women and that pregnancy can overlap with multiple gender identities, including people who identify as trans or non-binary. 9
Results
Of the 43 states identified as having at least 1 state statute pertaining to pregnant or postpartum incarcerated people, only 7 states had laws directly related to SUD screening and treatment among incarcerated pregnant populations. No statues addressed SUD treatment for postpartum people. We identified and described 8 codes relevant to SUD screening and treatment for pregnant populations (See Table 1). Laws varied significantly by state. For example, Texas had statues relevant to substance use screening, education, and treatment, but focused exclusively on pregnancies at risk for alcohol-related complications. California was the only state that had laws mandating both education and treatment for opioid use disorder (OUD), including access to medications for opioid use disorder (MOUD). Maryland was the only other state to have a law related to the provision of substance use treatment for incarcerated pregnant populations; there, each carceral facility must have a written policy regarding the medical care of people with high-risk pregnancies, including SUD. Although Massachusetts had no law regarding SUD treatment during incarceration, state law does specify that carceral medical staff must provide pregnant people with counseling and discharge planning to ensure continuity of care, which includes uninterrupted SUD treatment.
State laws by deductive code.
Regarding diversion programs, laws in California, Missouri, and New Jersey contained language that enable use of residential rehabilitation programs in pregnancy rather than incarceration—though eligibility criteria varied. In California, pregnant women were eligible only if they had an “established history of substance abuse.” Similarly, in Missouri, pregnant women are eligible for Alt-Care (ie, diversion program) if violated the provisions of the Drug Control Act (Chapter 195), whose controlled substance use contributed an offense, and is placed on probation. In New Jersey, pregnant people were permitted to enroll in residential drug treatment programs in lieu of incarceration “provided they meet the requirement of the program.” No specific eligibility requirements were listed within their statue.
Discussion and Conclusion
The majority of states across the U.S. lack legislation addressing SUD screening and treatment among incarcerated pregnant and postpartum populations. Notably, the few state laws that do exist are often characterized by stigmatizing language (eg, “female inmate, substance abusing pregnant women”). National clinical guidelines recommend screening all pregnant individuals, including those who are incarcerated, for SUDs and facilitating appropriate referrals to care.10,11 However, it is unclear how many carceral settings are implementing SUD screening 8 and referring to care. Although some states do have mandated screening procedures, our search returned no state laws that required carceral settings to provide a generalized SUD treatment program for incarcerated pregnant people.
We also found a lack of mandates for specialized SUD care, such as MOUD programs, which is notable given that opioid overdose is a significant cause of maternal mortality. 12 Evidence-based guidelines advise that pregnant persons with OUD should be on MOUD and avoid withdrawal. 13 Recent studies show that many carceral settings continue pre-incarceration MOUD in pregnancy, but few initiate MOUD and provide both methadone and buprenorphine. Furthermore, at facilities that provide MOUD during pregnancy, the vast majority discontinue postpartum, despite that most OUD pregnancy deaths occur postpartum.8,14,15 Thus, the fact that no statutes in our study addressed postpartum SUD is concerning. Carceral institutions are constitutionally mandated to provide healthcare 16 to those with “serious medical need”; however, there is significant ambiguity in the definition of “serious medical need” and whether SUD treatment, including MOUD for OUD, among pregnant populations legally constitutes a serious medical need. 17 Given the variability and lack of clinical standardization, legislation can help ensure carceral facilities adhere to standard of care.
Federal statues (34 U.S. Code §10591, 34 U.S. Code §10592) allocate grant funds for developing and implementing comprehensive and clinically-appropriate substance use treatment alternatives to incarceration for non-violent pregnant people. Thus, states should place greater emphasis on drafting legislation and utilizing federal funding to support programs that would divert perinatal populations from incarceration. For example, the Substance Abuse and Mental Health Services Administration (SAMHSA) provides grant funding dedicated to piloting and supporting existing evidence-based substance use treatment programs for pregnant and postpartum people. State programs that benefit from SAMHSA funds are likely to serve pregnant and postpartum populations impacted by the criminal legal system; however, these funds have not typically targeted this population. Given the complexities and variability of health care service delivery in jails and prisons, it is not required or guaranteed that carceral facilities will access these SAMHSA resources to directly address care for pregnant people in custody. Increased availability of state funding for programs could provide more opportunities for utilizing community-based residential treatment programs as alternative options to incarceration.
There are important limitations to note. First, our search does not include state laws that may divert pregnant persons early in the criminal legal system, such as after an arrest. Second, it is possible that our search missed laws related to SUD treatment, in general, as our search terms were specific to incarcerated pregnant people. We must also acknowledge that laws mandating diversion to community-based residential programs for incarcerated persons with young children could exist; however, do not provide specific language that includes pregnant persons eligibility.
Participation in residential treatment programs while under community supervision would provide greater opportunities to engage in comprehensive, integrated culturally-responsive treatment and support services that might not otherwise be accessible. At the same time, treatment of SUD among pregnant and postpartum populations in carceral settings is inadequate and there is an urgent need for legislative accountability so that evidence-based standard SUD care can be implemented. Future federal and state legislative efforts should increase and standardize the oversight of carceral SUD treatment for pregnant and postpartum persons.
Footnotes
Acknowledgements
The authors wish to thank Jennifer Saunders for their early work in data collection and management for this project.
Author Contributions
RS conceptualized and designed the study, coded data, and analyzed the data. RL assisted with coding. MSS drafted the initial manuscript and MZ revised and edited the initial manuscript. Thereafter, all authors provided revisions to the manuscript and approved the final version prior to submission.
Funding:
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Funding for this effort was provided by the Center for Leadership Education in Maternal and Child Public Health at the University of Minnesota. The Center is supported by the Health Resources and Services Administration (HRSA) of the U.S. Department of Health and Human Services (HHS) under grant number T76MC00005-67-00 for Leadership Education in Maternal and Child Public Health in the amount of $1 750 000. This information or content and conclusions of related outreach products are those of the authors and should not be construed as the official position or policy of, nor should any endorsements be inferred by HRSA, HHS, or the U.S. Government. Manuscript preparation was also supported by T32DA022981 (PI: Kilts) and K23DA048162 (PI: Zielinski) which provided salary support for the first and second authors.
Declaration of Conflicting Interests:
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
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