What a difference a few years makes.
When New Mexico’s governor, Michelle Lujan Grisham, took office in 2019, she touted a “public health” approach to the state’s child welfare issues. Instead of what she saw as “punishing” mothers who used drugs while pregnant, she instituted voluntary “plans of safe care.” With this strategy, women whose babies tested positive for drugs were offered resources, but they were sent home with no follow-up from child protective services.
The results were tragic — a baby dying every month from opioid exposure, unsafe sleep, medical neglect or myriad other circumstances that result from parents suffering from addiction. Earlier this spring, Lujan reversed course, saying she regretted the policy, and New Mexico started requiring that all infants born substance-exposed be taken into custody by the state’s Children, Youth, and Families Department. There would still be a hearing to determine the parents’ fitness to care for the child, but substance exposure at birth would be presumptive evidence of child maltreatment. Since then, none of these children have died.
While Lujan may have changed her mind, her progressive allies dug their heels in. The ACLU filed suit against her, claiming that the state was violating parental rights. Last week, the New Mexico Supreme Court dismissed the ACLU’s challenge. But it is worth understanding exactly what these advocates are pushing for.
The ACLU argued that the effects of this new policy would be terrible. “The directive causes the very harm it purports to prevent,” the organization wrote in a press release. “Stigma and criminalization drive families away from care — parents may avoid prenatal appointments, travel out of state to give birth, or conceal their health history from providers, leaving both mother and child worse off.”
It’s hard to see how you get much worse off than dozens of dead babies. Does the “A” in ACLU stands for adults? The organization seems to care nothing for the civil liberties of children or their right to be protected from harm.
Amicus briefs supporting the suit were also revealing of a mindset that prioritizes the interests of adults over children. One was from Pregnancy Justice, a New York-based nonprofit that says it “defends and advocates for the rights of pregnant women and all pregnancy-capable people facing civil or criminal prosecution in connection with their pregnancies and pregnancy outcomes.”
This brief argued: “The idea that prenatal substance use is child abuse or neglect is rooted in the concept of maternal-fetal conflict, which frames ‘people with the capacity for pregnancy as threatening, potential perpetrators of harm to their unborn children.’”
Well … if the shoe fits. If a mother is using fentanyl during pregnancy, is there any doubt that there is a “maternal-fetal conflict”? And whose side are you on in this conflict?
Another amicus brief was filed by some of New Mexico’s Native American tribes, who claimed that the new rule violates New Mexico’s Indian Family Protection Act, specifically regarding the state’s obligation to engage in “active efforts to maintain Indian families.” Somehow the fact that Native children made up a disproportionate number of the kids who were born substance-exposed and the ones who were dying after they were sent home does not seem to concern these leaders. How do you maintain families when kids are in such grave danger? Instead, the tribes seem more concerned with the rule’s interference with “tribal jurisdiction in child custody proceedings, which collectively impede on tribal sovereignty.”
States across the country are wrestling with how to handle the effects of the drug crisis on children. Legislators in New York have been debating a bill that would require verbal and written consent from mothers before testing newborns for drugs. It just failed to pass again. But the pressure on lawmakers has been growing for years. And so has the pressure on doctors and hospitals. In recent years, New York Attorney General Letitia James has been investigating hospitals for discrimination in testing. One obvious response to this would be universal testing.
Now they have even found doctors to testify against testing. One told The Imprint that a drug test “doesn’t tell you anything about that individual’s relationship with drugs. It doesn’t tell you anything about how an individual parents, or their ability to parent.”
Actually, it does. It tells you that a woman was unable to stop using drugs even at the time when it could create severe and long-lasting problems for her unborn child.
Perhaps New Mexico’s tragic experience will inform how other states handle cases of substance-exposed infants. But there seems no end to the willful blindness of advocates who prioritize the interests of adults over the safety of children.