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Hastings Women’s Law Journal

Abstract

According to new research, one in five pregnant women in the United States take some form of opioid during pregnancy, and one in twenty are addicted to opioid medications. In response, the government has increased their attempts to regulate pregnant women’s conduct in order to protect the health of unborn children. Opioid dependent mothers often find themselves subject to being reported to Child Protective Services by doctors and hospital staff for ingesting drugs while pregnant. Individuals’ in substance abuse treatment, including pregnant mothers receiving opioid replacement therapy, are protected from discrimination under the Americans with Disabilities Act. However, mothers who are prescribed opioid replacement medication as part of a substance abuse treatment program are often reported in the same way, and to the same authorities as mothers who are taking illicit opioids. I argue that not only is there a strong constitutional argument against the practice of reporting mothers receiving medication assisted therapy to social services, but also the way the federal statute is currently written and applied constitutes illegal discrimination against a group of people classified as disabled under various federal statutes. This note makes a plea to lawmakers to address the issue statutorily—by explicitly defining and creating clear categories of neonatal abstinence syndrome that are screened using readily available, inexpensive, and reliable methods.

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