Analysis Health Systems

The CDC’s Newest Report on Opioids Prioritizes Hypothetical Fetuses Above Living Women

Kristen Gwynne

The CDC suggested in a press release that women “of reproductive age”—pregnant or not—should face additional scrutiny when it comes to receiving prescription painkillers, simply because they are biologically capable of hosting a fetus.

On Thursday, the Centers for Disease Control and Prevention (CDC) released a report on opioid prescription claims among women 15-to-44 years old. The report found that between 2008 and 2012, about one-third of women on Medicaid and private health insurance filled opioid prescriptions in the past year. Rather than explore the data’s implications for women’s health, however, CDC representatives have concentrated their manufactured alarm on the report’s potential implications for patients’ hypothetical fetuses, potentially welcoming medical discrimination against people with wombs.

Because of the (overstated) risk of birth defects and withdrawal symptoms in newborns, the CDC suggested in a press release that women “of reproductive age”—pregnant or not—should face additional scrutiny when it comes to receiving prescription painkillers, simply because they are biologically capable of hosting a fetus. CDC officials did not make an explicit judgment call on doctors’ decisions; still, it is not inconceivable that providers could take their recommendation as a justification for withholding prescriptions.

“Many women of reproductive age are taking these medicines and may not know they are pregnant and therefore may be unknowingly exposing their unborn child. That’s why it’s critical for health-care professionals to take a thorough health assessment before prescribing these medicines to women of reproductive age,” CDC Director Tom Frieden said in the press release, as if all women should be treated by physicians as potentially pregnant—with a fetus whose welfare takes priority over the woman’s own.

Indeed, though Frieden touched on the possibility of opioids’ harm to grown women by saying, “Taking opioid medications early in pregnancy can cause birth defects and serious problems for the infant and the mother,” neither he nor the CDC report provided any additional insight into the effects of opioid use on women themselves. The report did not even acknowledge that fatal opioid overdose among women is rising at the alarming rate of 400 percent since 1999; nor did its authors wonder what diagnoses may be causing the pain behind the prescriptions. Any concern CDC representatives had for women themselves was not documented in their report or press release.

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Instead, the agency dwelled on the possibility of birth defects in the fetuses of pregnant women using opioids. “Previous studies of opioid use in pregnancy suggest these medications might increase the risk of neural tube defects (major defects of the baby’s brain and spine), congenital heart defects and gastroschisis (a defect of the baby’s abdominal wall),” its press release noted. “There is also a risk of neonatal abstinence syndrome (NAS) [characterized by symptoms of withdrawal] from exposure to medications such as opioids in pregnancy.”

To suggest that women be held to a different medical standard simply because they are presumed biologically capable of pregnancy is not only sexist; it also presents the possibility of inadequate treatment for women. Prioritizing wombs over people could have serious implications for women’s health, particularly when it comes to access to opioid painkillers for the treatment of chronic or severe pain. Whether a woman suffers from rheumatoid arthritis, has slipped a disc in her back, or has undergone dental surgery, she deserves access to medication that will make her pain more tolerable. No one should endure unnecessary suffering when there is a remedy available, and suggesting that a woman’s reproductive ability should urge doctors to take special care when prescribing her opioids puts the potential for a fetus above a living woman and her needs.

What’s additionally alarming is that CDC officials also overlooked the benefits of treatment for opioid-dependent women, while sensationalizing the broader potential health risks of fetuses exposed to opioids in utero.

The report, for example, included in its data women who were prescribed opioid-replacement therapy medications like buprenorphine and methadone, but did not note that these substances have become standard in care for opioid-dependent pregnant women.

“Methadone maintenance therapy (MMT) enhances an opioid-dependent woman’s chances for a trouble-free pregnancy and a healthy baby,” a National Institute Drug Abuse staffer wrote of a 2012 report, “Compared with continued opioid abuse, MMT lowers her risk of developing infectious diseases, including hepatitis and HIV; of experiencing pregnancy complications, including spontaneous abortion and miscarriages; and of having a child with challenges including low birth weight and neurobehavioral problems.”

Similarly, a 2010 report from the National Institute of Health advised, “Methadone is currently the recommended treatment for opioid-addicted pregnant women, and when properly used is considered relatively safe for the fetus.” A 2012 report funded by the National Institute of Drug Abuse concluded “buprenorphine treatment during pregnancy has some advantages for infants compared with methadone and is equally safe.” The articles do mention the possibility of neonatal abstinence syndrome; however, medical advances are available to treat such withdrawal, and these replacements are still believed to be safer for a developing fetus than other opioids.

Opioid-replacement therapy drugs are also considered a healthier alternative for fetuses to quitting cold turkey. According to the American Congress of Obstetricians and Gynecologists, “Abrupt discontinuation of opioids in an opioid-dependent pregnant woman can result in preterm labor, fetal distress, or fetal demise.”

Yet, in a report full of worry regarding the wellness of fetuses, the CDC waived an opportunity for education and lumped opioid replacement medication in with the other opioids it recommended doctors be leery of prescribing to women. Regardless of whether women are pregnant, denying them replacement therapy is an inhumane action: According to a 2013 UN Human Rights Council Report on torture and other cruel or degrading treatment or punishment, “A particular form of ill-treatment and possibly torture of drug users is the denial of opiate substitution treatment.” And again, if women are pregnant, neglecting to prescribe them opioid replacements could, in fact, put their fetuses in more danger.

Meanwhile, the authors of the CDC report also overstated the risks of birth defects in fetuses, relying on a 2011 study by Cheryl S. Broussard et. al. that does not, in fact, support the wide-sweeping claims the agency makes in its report.

“The development of birth defects often results from exposures during the first few weeks of pregnancy, which is a critical period for organ formation,” the CDC researchers said. “Given that many pregnancies are not recognized until well after the first few weeks and half of all U.S. pregnancies are unplanned, all women who might become pregnant are at risk”—though, again, these risks are to the hypothetical fetus rather than the woman herself.

A much more modest summary than the CDC report’s characterization of the research, Broussard et. al.’s study actually concluded, “It is important to emphasize that an increased relative risk for any rare birth defect with an exposure [to substances] usually translates into only a modest absolute increase in risk above the baseline birth defects risk.”

In other words, the study cited by the CDC researchers found that although opioid use during pregnancy raised the risk of some birth defects, they still remained exceedingly rare even among opioid-exposed newborns. Broussard et. al.’s study found, for example, that the chances of a baby being born with a congenital heart defect to a mother who used opioids more than doubled, but only brought the rate up to “5.8 in 10,000”—less than 1 percent.

Regarding the “neural tube defects” mentioned in the CDC’s press release, too, Broussard et. al. wrote that these defects “have not been associated with maternal opioid treatment in human pregnancy,” but only in pregnant hamsters. Broussard’s study did find a previously unobserved link between opioid use and babies born with glaucoma, hydrocephaly, and gastroschisis—the third birth defect referenced in the release—but said that “Given the probability that some findings may be due to chance, our results should be treated with caution and deserve further investigation.”

Broussard et. al.’s study also acknowledged as a limitation that “opioids were most commonly reported within the surgical procedures” part of the questionnaire, and the potential effects of anesthesia or the medical conditions that prompted the surgery were not differentiated from opioid use. Unlike the CDC scientists, the authors of this study noted that previous research has been inconsistent and limited, so that “the effects of opioid use on the developing fetus during pregnancy are poorly understood.”

Meanwhile, the 2011 study by Ann Kellogg, et. al. that CDC researchers used to point to withdrawal symptoms in opioid-exposed newborns is also an inappropriate resource to parrot. This study actually found withdrawal symptoms among infants exposed to opioids in-utero was uncommon: Only 5.6 percent of babies exposed in-utero were diagnosed with neonatal withdrawal syndrome. But the study did not evaluate the effects of “co-morbid conditions” like cigarette-smoking and alcohol use, which could have also played a factor in the results. And like the Broussard study, its reliance on surveys conducted after-the-fact made confirming at what doses prescriptions were consumed—or whether they were taken at all, and not just filled—impossible.

Why some opioid-exposed fetuses are born experiencing withdrawal, but most are not, is unknown. “What we do know is that if we abruptly discontinue their mother from opioid treatment, a greater percentage will experience problems. And we know how to treat withdrawal. It’s simple,” Dr. Carl Hart, an associate professor of psychology and psychiatry at Columbia University who has studied drug-use in pregnant women, told Rewire. “And so when we think about risk-benefit ratio, it is more favorable in terms of keeping mothers on opioids and then dealing with withdrawal, if the infant even has it. That’s a no-brainer.”

All in all, although medical providers and patients should be aware of the potential risks of opioid use on themselves and their fetuses, it is offensive and discriminatory to use these inconclusive studies to suggest that gender should be a factor in decisions regarding the prescription of medications that can help mitigate debilitating pain.

And yet, despite the damaging implications of the CDC’s study and instructive press release, dozens of media outlets took the bait. NBC went so far as to run the absurd headline, “Pill-Popping Mommas: ‘Many’ Pregnant Women Take Opioids, CDC Finds.” The New York Times claimed, “In Scioto County in southeast Ohio, for example, about one in 10 babies are born addicted,” despite the fact that babies cannot possibly exhibit addictive behavior—the seeking-out of drugs despite interference with their lives—required by DSM guidelines. “Ladies!!! The CDC Says to Dial Back the Opioids!!!” the feminist website Jezebel declared in a headline, quoting the press release before adding, “This is particularly important because opioid addiction rates are climbing in the United States, with overdoses among women becoming disproportionately common.” The site’s endorsement of the report came despite the fact that, again, the CDC made no mention of said increase in overdose.

Do feminists really think that women should be suscepted to a system of scrutiny when it comes to opioid prescriptions, simply because of their biology? Should pregnant women who have undergone surgery be denied these medications because the fetuses they may or may not be carrying just might show symptoms of withdrawal?

It’s time everyone—feminists in particular—understands the implications of drug and health policy that uses stigma to put women’s wombs over their person. Beyond the possibility of bias in the health-care system, the demonization of opioid use during pregnancy can lead to unnecessary, invasive medical procedures like drug-testing at birth, the results of which can strip loving parents, especially people of color, from guardianship over their children. In Ohio, for example, a pregnant woman addicted to opioids began buprenorphine treatment at the recommendation of her doctor, only to be charged by Child Protective Services after her son tested positive for the drug.

The CDC’s latest report, which relies on the perception of women as vessels for human reproduction, is the most recent in a long line of panic over “drug-addicted babies” who grew up to be just fine. Elevating inconclusive research to pit the interests of a fetus against those of a woman is degrading and dangerous, and the CDC—and much of the mainstream media—owes us an apology.

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.

Commentary Maternity and Birthing

Pregnant and Punished: How Our Drug Policies Hurt Women

Farah Diaz-Tello & Cynthia Greenlee

The sad truth is that pregnant women with drug problems are overwhelmingly likely to be criminalized rather than getting the help they need.

Throughout the world, pregnant women involved in illicit drugs as users, producers, or sellers are roundly vilified. They are viewed, as described by conservative Tennessee state legislator Rep. Terri Lynn Weaver (R-Lancaster), as the “worst of the worst.”

The sad truth is that pregnant women with drug problems are overwhelmingly likely to be criminalized rather than getting the help they need. At this week’s U.N. General Assembly Special Session (UNGASS) on the world drug problem, dozens of organizations worldwide are pushing global leaders to reconsider punitive drug policy in a declaration that explains how such laws hurt women and families.

In the eyes of the law and often the broader society, a woman’s pregnancy can compound any crime she may have committed. In countries as different as Russia and the United States, a pregnant woman charged with a drug offense may be harshly punished-and often treated more severely than a woman who is not pregnant. In addition, she is very likely to lose custody of any child born while she is incarcerated or undergoing legal proceedings.

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In 2014, for example, the U.S. Department of Justice’s Knoxville, Tennessee, office issued a press release about the prosecution of Lacey Weld, who had six years added to a prison term because she was pregnant when she participated in methamphetamine manufacturing. Weld pleaded guilty to the offense, but the court increased the penalty because she had used methamphetamine during the manufacturing, which the prosecutor argued risked the health of her fetus.

Notably, none of the men who were involved in the manufacture of the drugs, who were equally responsible for any toxic fumes Weld may have inhaled, were given enhanced penalties.

Tennessee legislators in 2014 also passed a controversial and wrong-headed fetal assault law that allowed pregnant drug users to be prosecuted for harming their fetus—even if there was no medical evidence of harm or no chronic health effects. It was a law that had the chilling effect of scaring women who used drugs away from seeking help; at least one gave birth without medical assistance.

The good news is that in March, after a long fight by activists and public health authorities, Tennessee legislators voted to let the law expire. That was a heartening but single victory. The bigger fight is overcoming the notion that jail is an appropriate place for a pregnant woman—or any person—who has committed a nonviolent drug crime.

Too often, women are on the wrong end of conventional wisdom that is based on bad science and knee-jerk sensationalism. In the 1980s and 1990s, media reported countless lurid stories of a generation of “crack babies” forever harmed by this new form of cocaine. But the link between cocaine use and chronic health and developmental issues in infants and children turned out to be unclear, at minimum, and sometimes spurious. Factors like poverty and the level of neonatal care were as important as cocaine use or many other licit and illicit drugs, including alcohol.

And that generation of crack babies who would overwhelm and threaten our health-care and educational systems? Never materialized.

Still, the mythology persists.

The same tropes are now reappearing in connection with neonatal abstinence syndrome (NAS), a treatable and temporary condition that may affect drug-exposed infants. We are now seeing a groundswell of anxiety about NAS and opioid use, particularly in the United States. While research suggests that NAS is but one of many factors affecting a child’s health, infants with NAS are the subjects of the same panicked rhetoric of a generation ago.

And their mothers are condemned even when they seek help. Public health authorities recognize that medication-assisted treatment (MAT), such as methadone, is the gold standard of treatment for pregnant women experiencing drug dependency. But on the ground, probation officers, social workers, and judges in family courts and drug courts often have shockingly little knowledge about the benefits of MAT and order women off the very medication that can help them carry a pregnancy to term.

For a woman behind bars, denial of MAT during pregnancy is just the start of her worries. Even if she has a healthy delivery, her baby can be removed from her within hours. The state is supposed to prefer placing the infant with a family member, but some will end up in the foster-care system-a bleak outcome that challenges the official line that the goal is really to defend the vulnerable and preserve healthy families. In too many cases, children whose mothers could have safely parented them with just a little support wind up cycling through foster care and, for some, a permanent placement with another family or guardian.

A minor drug offense shouldn’t mean the splitting of a family. Being pregnant is not a crime. Instead of being criminalized, a woman who needs help for problematic drug use should be given appropriate health care outside the criminal justice system and services that can help her lead a healthy life and support her parenting. Time and time again, public health research has shown that supportive services that focus on the whole woman and preserve the family bond, can mean better health outcomes for both mother and child.

But public health consensus means little in the context of the War on Drugs and mass incarceration. The United States is a world leader in how many of its people it puts in jails and prisons. According to data compiled by the Sentencing Project, the number of incarcerated women in the country has risen almost 650 percent between 1980 and 2010. Statistics from the Department of Justice estimated that, in 2004, 3 percent of inmates in federal corrections facilities and some 4 percent in state institutions were pregnant when they arrived in detention.

The United Nations’ Bangkok Rules on the treatment of women offenders and prisoners, adopted in 2010, urge authorities to seek alternatives to imprisonment for women, especially if they are pregnant or a sole or primary caretaker, and to take into consideration women’s special needs as prisoners.

Instead, what we have are U.S. states and many nations investing more in the drug war than they’ve invested in the health and human rights of the women, children and families they claim to protect.