When the Criminalization of Drugs Shows Up

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When the Criminalization of Drugs Shows Up

by Elizabeth Guerra

For the past fifteen years, I’ve worked as a full spectrum doula, supporting pregnant people regardless of the outcome of their pregnancies.

I support pregnant people birthing at home and in hospitals. I support patients through complications and fast births where we all thought that a baby would be born in a car. I work primarily with clients who identify as West Indian, Afro-Latinx, or Latinx and I witness the difference in treatment they receive in hospitals in comparison to my white clients.

I recently learned of a parent who had sickle cell and had just given birth. Upon admission to the hospital, the person immediately disclosed their sickle cell diagnosis and provided a calendar of morphine treatments they had received throughout their pregnancy so staff could provide quality care to the newborn. Armed with this knowledge, staff moved swiftly to plan for the complications that would arise from in utero exposure to morphine while working closely with the new parent to offer counseling and support.

This situation is a stark contrast to the experiences of people of color. BIPOC people who, based on an assumption of health care providers, are drug tested and traumatized through one of the most critical moments of their lives. Instinctually, safety is the one thing we must all feel while giving birth. Unfortunately, too many BIPOC pregnant people struggle to establish a safe space while in labor in hospitals.

Instinctually, safety is the one thing we must all feel while giving birth. Unfortunately, too many BIPOC pregnant people struggle to establish a safe space while in labor in hospitals.

In 2020, the NYC Human Rights Commission launched an investigation of hospital policies that targeted Black and Latinx pregnant people and infants for drug testing. As a result, New York City ended a longstanding practice of drug testing pregnant people without consent. Blood and urine tests are often needed by physicians in the hospital and outpatient clinics for a number of reasons throughout a person’s care. While many of these tests are truly necessary to determine a person’s health, one of the tests that are done without patient knowledge is a toxicology screening, a mechanism that doctors use to determine if a patient has consumed substances from cannabis to opiates to methadone and amphetamines.

For pregnant people, substance screenings aren’t just used to determine someone’s health, they are used as a barometer of how safe a child will be in that home, and when a positive read occurs, child protective services are engaged. Toxicology screenings have consequences tied to them, and when the ordering provider has the power to determine who gets screened for substances and who doesn’t, any racial bias creates the opportunity for the surveillance and criminalization of the Black community.

The result of racial bias launches parents and their newborns into the child welfare system. Black and Brown people are disproportionately represented in the child welfare system, with “close to 56% of New York City children in foster care last year were Black, according to the Administration for Children’s Services, while 5.3% were white.” While in labor, a pregnant person is hyper-focused on meeting their baby and the last thing they want to think about is the implicit bias of their providers, but it has been a necessary conversation in today’s healthcare landscape.

The "war on drugs" was created in the 1930s by known racist & hate-monger Harry Anslinger.
Anslinger's "war on drugs" was exclusive to BIPOC communities.

Substance screenings during pregnancy is just one example of how drug testing criminalizes and incarcerates BIPOC.

The “war on drugs” was created in the 1930s by known racist & hate-monger Harry Anslinger. Anslinger was the head of the then Federal Bureau of Narcotics (a precursor to the DEA). He galvanized his racism and propelled BIPOC and BIPOC musicians, such as Billie Holiday, into the prison industrial complex and profoundly impacted the lives of BIPOC people in the U.S. Anslinger did this by influencing policies such as the 1937 Marijuana Tax Act which effectively made cannabis illegal, and the Boggs Act of 1952 which required mandatory sentencing (a first offense for marijuana possession led to minimum sentence of 2-10 years!).

Anslinger spent his career using his position to advocate for state laws that further criminalized drug use, specifically targeting BIPOC communities. Anslinger laid the foundation for the fake war on drugs that has been adopted by nearly every U.S. president since the 1950s. Anslinger’s bias created a lasting impact on the social and political views of drug use by linking drug use to violence and music. Anslinger even impacts the terminology we use to describe drugs. The term “marihuana” or “marijuana” is a racially-inspired term normalize by Anslinger to racialize cannabis and connect cannabis usage to Mexican migrants.

Anslinger’s “war on drugs” was exclusive to BIPOC communities. While Anslinger was influencing policies that criminalized drug use for communities of color, Anslinger worked with Senator McCarthy to supply him with heroin as a form of treatment for his substance use. Anslinger ensured Senator McCarthy that his drug use was safe, offering what we now understand as a harm-reduction model. Anslinger’s double-standard approach to drug use is racist. With this in mind, if Anslinger approached Billie Holiday or the BIPOC community with the same compassionate approach used with McCarthy, then drug use would center treatment and rehabilitation and not vilification, criminalization, and incarceration.

Toxicology screenings have consequences tied to them, and when the ordering provider has the power to determine who gets screened for substances and who doesn’t, any racial bias creates the opportunity for the surveillance and criminalization of the Black community.

Nearly a century after Anslinger’s passage of the ’37 Marijuana Tax Act, his legacy continues. According to a 2007 study, “black women and their newborns were 1.5 times more likely to be tested for illicit drugs as nonblack women, in multivariable analysis. However, race was not independently associated with a positive result.” In another study published by the Journal of Pediatrics in 2010, “… among infants who met at least one of the NICU’s criteria for drug screening, those born to African-American mothers were more likely to be tested: 35 percent, versus 13 percent of infants born to white mothers.”

Study after study shows the racial bias experienced by Black pregnant people and their newborn babies in the medical-industrial complex. Drug testing of Black pregnant people is another tool of surveillance and control of Black people in the United States. Understanding this pattern of racism needs to stop, the NYC Commission in Human Rights launched their investigation of drug testing of parents and newborns in three major private hospitals in NYC: “The manifestation of anti-Black racism in medical settings is a well-known and entrenched problem, and, under the leadership of Commissioner Carmelyn P. Malalis, confronting such racism has been, and continues to be, a top priority.” However, the reality is that drug test results are not reliable, and is forensic evidence. According to the National Advocates for Pregnant Women, “a clinical drug test is qualitative, meaning it states that a chemical compound is present, it does not prove that the drug is present.”

Bodily autonomy needs to be centered both in legislation and individual care. Current drug policy requires that providers act as enforcers of the law instead of prioritizing a person’s wellbeing and autonomy. If drug use was approached with harm reduction as opposed to criminalization, we could focus on providing services that work best for individual community members and fight against the harm caused by racialized drug policies. In a time of state legalization of recreational use of cannabis, researchers are focusing on the impact of cannabis on pregnant people who use cannabis for medicinal purposes. But this research neglects the history of cannabis criminalization that continues to target communities of color. According to the Colorado-based birth justice organization, Elephant Circle, studies in the state of Colorado are done disproportionately with white pregnant people. Many published research studies on cannabis use in the perinatal period are riddled with racial bias and don’t account for a pregnant person’s socioeconomic status, and other factors that would lead to poor outcomes for pregnant people and their newborns. We must demand equitable research of pregnant people of all races, understanding that each person’s individual experience may impact their birth outcome.

My clients know what it means to be Black in the United States which is why they decide to hire a doula to support, educate, and navigate through these situations. Part of my role is to review a pregnant person’s rights and ensure that the birthing person and support person are clear on them. At the top of this list is a conversation about drug testing policies. Our system has to change if we want to ensure the safety of Black pregnant, birthing and postpartum people. Until the system shifts, I will continue to support my clients so they are able to advocate for their own health and safety.