A New Mexico judge ruled last week in a written order that all mothers, including those who are incarcerated, have a fundamental right to breastfeed their babies under the state Constitution.
The decision came in response to a lawsuit filed by Monique Hidalgo, a 33-year-old woman with opioid-use disorder, who gave birth while incarcerated at a state prison. She sued after prison officials said she couldn’t breastfeed her newborn during family visits.
The ruling was hailed as a major victory for women behind bars in New Mexico ― but in a twist, Hidalgo is no longer allowed to breastfeed her baby, or to pump and store milk for her.
The court order stipulated that Hidalgo could breastfeed her child while her lawsuit was pending in district court, unless she was caught using drugs. On Aug. 3, she tested positive for buprenorphine, an opioid medication that can help alleviate withdrawal symptoms and cravings.
Amber Fayerberg, Hidalgo’s lawyer, said her client was set up to fail when she returned to the prison population after giving birth and was immediately forced off the doctor-recommended opioid maintenance treatment she used throughout her pregnancy.
“It is extremely common for women to relapse postpartum if pregnancy methadone treatment is cut off, as it was in this case,” Fayerberg said in a statement to HuffPost. “If the Department’s lactation program is to be successful, it must permit mothers to continue to take those medications prescribed during pregnancy.”
Complicating matters, medical experts encourage opioid-dependent mothers, such as Hidalgo, to nurse, as breastfeeding and skin-on-skin contact can help babies recover from exposure to opioids in the womb. However, most prisons do not allow women to breastfeed, period.
Hidalgo’s case arrives at a time when the number of women incarcerated has grown at an even faster rate than male incarceration, outpacing men by more than 50 percent between 1980 and 2014. In addition, most female inmates are mothers and of reproductive age, which raises critical questions about how the U.S. treats incarcerated women who are pregnant or who are mothers of small children.
It is virtually unknown how many women are pregnant or give birth while behind bars, said Carolyn Sufrin, an OB-GYN, and assistant professor at the John Hopkins School of Medicine who wrote a recent book on the topic. Prisons and jails don’t keep track.
Criminal justice reform advocates say that because the prison system is primarily designed for men, women’s unique health care needs ― such as access to OBGYN and prenatal care, and humane treatment before, during and after labor ― are often given little consideration.
Hidalgo was addicted to opioids and ― unbeknownst to her ― newly pregnant when she arrived at Western New Mexico Correctional Facility in October 2016 to serve three years for parole violations stemming from a drug case.
Most opioid users held in jails and prisons across the country are not allowed to use opioid maintenance treatments, such as methadone and buprenorphine, to aid in their recovery. But an exception is often made for pregnant women like Hidalgo, as quitting opioids suddenly can be dangerous for both the mother and baby, increasing the risk for preterm labor and fetal death. During her pregnancy, she was prescribed methadone, as recommended by the National Institutes of Health.
Monique Hidalgo is a mother who has shown great courage by standing up for her right to breastfeed.
Lissa Knudsen, chair of the New Mexico Breastfeeding Task Force
Hidalgo gave birth to her daughter, Isabella, in May.
Lawrence Leeman, a doctor at the University of New Mexico Hospital who cared for both Hidalgo and her daughter, said prison authorities urged him to discharge Hidalgo shortly afterwards. He declined to do so, stating that she needed more time to wean off of the methadone she had been taking for eight months.
If she was any other patient of his, he explained, she would have been prescribed methadone or buprenorphine after pregnancy as it is safe to use while nursing. Instead, he said, he had to halt the drug use over two weeks ― not nearly enough time ― as the prison does not generally allow inmates to take it.
There was another big reason why Leeman wanted Hidalgo to remain in the hospital after labor: She was a crucial part of her daughter’s treatment plan. Isabella was born with neonatal abstinence syndrome (NAS), an increasingly common but treatable condition that can result from exposure to opioids in utero.
“Most of the babies go through the same thing ― they are a little shaky, their muscles are tighter, and often they will have trouble feeding,” he said.
Many experts now believe that breastfeeding and skin-on-skin contact with their mothers can help infants with NAS recover more quickly and reduce the amount of medication needed to treat their symptoms.
That’s what happened with Hidalgo and Isabella. She and her baby bonded quickly, Leeman said, and Isabella’s withdrawal symptoms were easily managed with the use of breastfeeding and tiny drops of morphine.
Hidalgo’s efforts to hold and feed her baby were complicated by the fact that her ankles and wrists were shackled. In an affidavit, Leeman said he warned the guards that the shackles created an unsafe condition for Hidalgo, who was still recovering from childbirth and had swelling in her legs, and for Isabella, who was in her care and often in her arms.
At one point, the complaint states, Hidalgo tripped on her ankle chain and fell over while holding Isabella. The baby needed X-rays, and had to spend 24 hours in an intensive care unit. Hidalgo’s leg was also injured, the lawsuit alleges.
After two weeks, Hidalgo was discharged from the hospital with doctor’s orders to continue breastfeeding Isabella as much as possible. But prison officials tried to prevent that from happening, and Hidalgo took swift action, filing a lawsuit.
Hidalgo was initially granted an emergency restraining order that allowed her to pump and store milk for her baby, which her fiancé picked up, and breastfeed during visits, since June. But the recent positive drug test reversed that order.
Leeman said Hidalgo was likely experiencing symptoms of withdrawal after coming off a high dose of methadone so quickly, and expressed dismay that the prison did not allow her to be prescribed an opioid maintenance drug during the postpartum period, when mood changes are common.
“Monique Hidalgo is a mother who has shown great courage by standing up for her right to breastfeed,” said Lissa Knudsen, chair of the New Mexico Breastfeeding Task Force.
She said she knew of at least 25 correctional facilities across the U.S. that allow inmates to breastfeed or offer prison nurseries where mom and baby are housed together.
Breastfeeding can benefit all babies, Knudsen added, but it is especially important for those born to incarcerated mothers.
“Most of these children are reunited with their mothers later on in their lives, and supporting that bond is especially important,” she said.
Hidalgo’s lawyer said they may petition the court to allow her to resume breastfeeding.
“It’s important to remember, she’s not just an inmate,” Fayerberg said. “She’s a person, and a mother.”
A trial date has not been set for Hidalgo’s case yet.
Melissa Jeltsen covers domestic violence and other issues related to women’s health, safety and security. Tips? Feedback? Send an email or follow her on Twitter.