Pregnant woman sitting across desk from doctor wearing scrubs and holding a pen

Opioid Claims for Fetal Opioid Exposure Alarm Pregnancy Advocates

By Alexa Richardson

Lawyers calling themselves the “Opioid Justice Team” are pushing forward in their mission to certify babies exposed to opioids in utero, as well as “all women in the United States capable of becoming pregnant,” as distinct classes in the multi-district opioid litigation now unfolding in federal court in Ohio. Last week, lawyers filed an amended complaint on behalf of the legal guardians of individuals diagnosed with neonatal abstinence syndrome (NAS), and a list of “experts” with the court. Their claims misrepresent the science regarding fetal exposure to opioids and position fetal rights in opposition to those of pregnant people. National Advocates for Pregnant Women (NAPW) has issued a statement and fact sheet denouncing the claims.

In a series of court filings, sweeping claims about the impact of prescription opioid exposure on fetuses are being made. The lawyers falsely claim “[a]nything a pregnant woman ingests or breathes is transmitted to her baby by the placenta” and that “[i]n-utero opioid exposure leaves most children with physical, social, educational disabilities that require constant and regular interventions. Most of these disabilities are considered permanent.” In actuality, the American College of Obstetricians and Gynecologists states that the available data show “no significant differences” in long-term outcomes for individuals exposed to opioids in utero versus those who are not. The Centers for Disease Control (CDC) finds there may be early childhood impacts on cognitive or developmental abilities from prenatal opioid exposure. However, available studies struggle to separate the physical effects from environmental and social variables. There is not enough data to conclude whether any long-term consequences of fetal opioid exposure exist, the CDC finds.

Unscientific claims about the effects of prenatal drug use on fetuses have been used to prosecute women with crimes, remove their children, force treatment, and otherwise violate their legal and constitutional rights. Starting in the 1980s, faulty science about the effects of crack cocaine use in pregnancy led to a media frenzy and widespread targeting of women of color by law enforcement. Later, substantial data emerged showing no long-term impact of fetal crack exposure. Today, the opioid epidemic has already resulted in extensive criminalization of pregnant women, a reality that risks deterring people from seeking prenatal care and worsening outcomes for babies. These opioid litigation claims, by promoting myths and stoking fear about the impact of drug use on fetuses, further threaten pregnant people and their offspring.

Critically, the claims made by lawyers in the opioid litigation take aim at prescription opioid use–not at heroin use or other unauthorized opioid use. In the proceedings on behalf of “all women in the United States capable of becoming pregnant,” the lawyers have sought a preliminary injunction that would require women to be tested for pregnancy before being prescribed opioids, prohibit any woman capable of becoming pregnant from receiving more than a 7-day supply of prescription opioids at one time, and require retesting for pregnancy before prescription of additional opioids could be authorized. They also ask the court to issue a declaratory judgement stating, contrary to the evidence, that “prescription opioids have a teratogenic effect.” (A teratogen is an agent that causes a malformation of the embryo).

If implemented, the injunctions would prohibit medication-assisted treatment during pregnancy, which is the recommended treatment for pregnant patients with opioid use disorder. Legal claims on behalf of babies diagnosed with neonatal abstinence syndrome would also curtail appropriate treatment. Evidence supports that prescribing medication-assisted treatment in forms such as methadone or buprenorphine reduces obstetric complications and relapse, and helps patients avoid periods of intense withdrawal that can endanger the fetus. Doctors consider neonatal abstinence syndrome “an expected and treatable condition” that will follow appropriate use of medication-assisted treatments in pregnancy, and have concluded that the benefits of receiving treatment, both for the baby and for the pregnant person, outweigh the drawbacks of withdrawal after birth.  Allowing babies born with NAS to sue falsely frames fetal interests as in opposition to those of the pregnant person and risks deterring appropriate treatment.

National Advocates for Pregnant Women has roundly condemned the efforts of these opioid plaintiffs lawyers, whom they have dubbed “Pregnancy Profiteers.” They rightly call for the courts and the public to reject the misinformation and stigmatization of pregnant people occurring through the false claims. At the moment, the suspect claims appear left out of the larger settlement agreement being formed in the MDL, but they are continuing to move through the court process, and could be heard as early as January if the current schedule agreed to by the parties is upheld.  

Alexa Richardson

Alexa Richardson

Alexa Richardson is a law student at Harvard Law School and a Certified Professional Midwife. Prior to coming to law school, Alexa cared for families as the Director of a private midwifery practice in Baltimore, and led successful efforts to license and regulate Certified Professional Midwives in Maryland in her roles as President of the Association of Independent Midwives of Maryland (AIMM) and Chair of the Direct-Entry Midwife Committee under the Board of Nursing. Her research interests center on pregnant and birthing people, with particular focus in expanding the legal rights and protections available to this population. At HLS, Alexa serves as an editor of the Harvard Law Review, and as a student attorney in the Prison Legal Assistance Project.

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