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Jointly-Issued Comments Before the New York State Senate Committee on Women’S Issues Regarding Maternal and Child Health in Upstate New York

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Jointly-Issued Comments Before the New York State Senate Committee on Women’S Issues Regarding Maternal and Child Health in Upstate New York Jointly-Issued Comments before the New York State Senate Committee on Women’s Issues regarding Maternal and Child Health in Upstate New York November 19, 2020 Our organizations are grateful to the Senate Committee and its Chair Senator Julia Salazar for the opportunity to submit the following comments. Ancient Song Doula Services,1 Brooklyn Defender Services,2 The Bronx Defenders,3 Movement for Family Power,4 National Advocates 1 Ancient Song Doula Services is an international doula certifying organization with the goal to offer quality Doula Services to Women of Color and Low Income Families who otherwise would not be able to afford Doula Care, and training a workforce of full spectrum doulas to address health inequities within the communities they want to serve. Ancient Song Doula Services mission is to offer all pregnant and parenting individuals regardless of their socio-economic standing quality Doula Care, provide resources young mothers to make healthy choices in their lives, and advocacy to address health inequities within marginalized communities. 2 BDS, a multi-disciplinary and client-centered criminal, family, and immigration defense office, is the primary provider of legal representation to parents in child welfare cases in Brooklyn Family Court. 3 BxD is a public defender non-profit that is radically transforming how low-income people in the Bronx are represented in the legal system, and, in doing so, is transforming the system itself. BxD seeks thoughtful, creative, energetic individuals with a strong commitment to social justice to join our dynamic and diverse staff. Our staff of over 350 includes interdisciplinary teams made up of criminal, civil, immigration, and family defense attorneys, as well as social workers, benefits specialists, legal advocates, parent advocates, investigators, and team administrators, who collaborate to provide holistic advocacy to address the causes and consequences of legal system involvement. Through this integrated team-based structure, we have pioneered a groundbreaking, nationally-recognized model of representation called holistic defense that achieves better outcomes for our clients. 4 Movement for Family Power works to end the Foster System’s policing and punishing of families in order to create a world where the dignity and integrity of all families is valued and supported. Rooted in 1 for Pregnant Women,5 and the New York Civil Liberties Union6 are submitting this collective testimony to lend our strong support to your work to improve maternal and child health outcomes and better the lives of families and communities across New York State. Together we are a coalition of advocacy and defense organizations that work collaboratively to eliminate discrimination at the intersection of reproductive health and child welfare. Our comments thereby raise the often unexplored, yet critical connection between discriminatory drug testing in health care settings, involvement by the family regulation system7 that results in harmful family separation, and the deleterious consequences for maternal and infant health and well- being. Improving maternal health outcomes requires eliminating structural discrimination and medical racism. We need courage and holistic approaches to undo and heal the stigma and violence perpetuated by this country’s history of racism, classism, patriarchy and ableism. This is a necessary piece of any robust dialogue around maternal health, and we urge this committee to explore bold and creative solutions that ensure care at birth is non- discriminatory, culturally responsive, respectful, supportive, and patient-informed. The United States’ History of Drug Use, Racism and Black Mothers In the 1980’s and 90s, increased media attention of women who used crack-cocaine perpetuated a racist narrative.8 During this so-called “crack epidemic”, the media, researchers and policymakers aggressively advanced a narrative that women and people of color were more likely to be associated with crack use, and responded with correlating punitive measures. With this increased scrutiny and punishment, the reproductive rights and caregiver roles of women who use drugs became a major subject of political debate. In this way, the War on Drugs further entrenched this country’s history of reproductive coercion and violence, which abolitionist principles and our elders, driven by movement lawyering, impacted people MFP carries out its work by: (1) Building out a loving, healthy community with and amongst people working to shrink the Foster System: (2) Raising social consciousness around the harms of the foster system to support the reclaiming and reimagining of Safe and Healthy Families; and (3) Disrupting and curtailing Foster System Pipelines, reducing the level of harm inflicted by forced family separations. 5 NAPW works to secure the human and civil rights, health and welfare of all people, focusing particularly on pregnant and parenting people, and those who are most likely to be targeted for state control and punishment — low income women, women of color, and drug-using women. 6 The NYCLU, the New York State affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization that defends and promotes the fundamental principles and values embodied in the Bill of Rights, the U.S. Constitution, and the New York Constitution through an integrated program of litigation, legislative advocacy, public education, and community organizing. 7 Many, including scholar Professor Dorothy Roberts, have come to refer to the so-called “child welfare” system as the family regulation system, given the harms historically and currently perpetuated by the system. See e.g., Dorothy Roberts, “Abolishing Policing Also Means Abolishing Family Regulation”, The Imprint (June 16, 2020), found at: https://imprintnews.org/child-welfare-2/abolishing-policing-also- means-abolishing-family-regulation/44480. 8 See e.g., Michael Winerip, “Revisiting the ‘Crack Babies’ Epidemic That Was Not,” New York Times, May 20, 2013, found at: https://www.nytimes.com/2013/05/20/booming/revisiting-the-crack-babies- epidemic-that-was-not.html. 2 was largely against enslaved Black women, Latinxs, Indigenous women and women of color, by reinforcing notions of who is and who is not deserving of motherhood. This was a perfect storm. As a result of the War on Drugs, the population of parents and children under the foster system’s supervision and control increased sharply.9 Hospitals were drug testing Black and Latinx mothers at birth largely based on a grossly exaggerated “crack baby” mythology. At the same time, the federal government began to pour unprecedented funds into reimbursing states for the costs of removing children from their mothers (with no comparable funding increase for reunification), while simultaneously decreasing funds for basic necessities for families such as health care – including mental health and drug treatment – housing or child care.10 Law and Policy: Federal Child Abuse Prevention and Treatment Act (CAPTA) While the panic surrounding crack-cocaine use has abated (and indeed was found to be unsupported by medicine and science)11 the policies and practices created during this era continue to inform how reproductive health care is administered and regulated for people who use drugs. One such example is the rapid expansion of state laws surveilling pregnant people reinforced and expanded in response to the Child Abuse Prevention and Treatment Act (CAPTA), and the Comprehensive Addiction and Recovery Act (CARA).12 Enacted in 1974, CAPTA provides federal funding to states to support the “prevention, assessment, investigation, prosecution, and treatment” of child abuse, in exchange for states’ fulfillment of certain requirements. In the last twenty years CAPTA has been amended to require states to have policies in place to “notify” child welfare agencies of babies who fall into one of the three enumerated categories: being “affected by substance abuse”, affected by “withdrawal symptoms resulting from prenatal drug exposure” or having Fetal Alcohol Spectrum Disorder.13 While these notifications neither legally require child protective reports, nor require hospitals to drug test pregnant people, people who give birth, or newborns, studies confirm that doctors and hospitals frequently misunderstand their responsibility under CAPTA, and states have widely expanded the scope of legal requirements to further 9 Leroy Pelton, For Reason of Poverty: A Critical Analysis of the Public Child Welfare System in the United States (1989), pp. 6–7, 10–13; Dorothy Roberts, Shattered Bonds, 2002, pp. 174-177; National Coalition for Child Protection Reform, A Child Welfare Timeline, found at: https://nccpr.org/a-child- welfare-timeline/. 10 Id. 11 Increased research on the impact of cocaine exposure on developing fetuses revealed that the impact of the substance was exaggerated and largely decontextualized. See e.g., Kristina B. Wolff, Panic in the ER: Maternal Drug Use, the Right to Bodily Integrity, Privacy, and Informed Consent, Politics & Policy, vol. 39, no. 5, (Oct. 2011) pp. 679–714, found at: https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1747- 1346.2011.00313.x. 12 42 U.S.C. § 5106; U.S. Dep’t of Health and Human Services, Admin. For Children and Families, About CAPTA: Legislative History (July 2011), found at: https://www.childwelfare.gov/pubPDFs/about.pdf. 13 Id. 3 consecrate the practice of routine and medically unnecessary drug testing and reporting in hospital settings.14 The Womb-to-Foster-Care
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