Saving Lives, Protecting People, https://www.samhsa.gov/medication-assisted-treatment, prevent overdoses and substance use-related harms, Learn about the Division of Reproductive Healths efforts to address opioid use disorder to improve maternal and infant health, CDC Guideline for Prescribing Opioids for Chronic Pain, A Collaborative Approach to the Treatment of Pregnant Women with Opioid Use Disorders, Opioid Use and Opioid Use Disorder in Pregnancy, Clinical Guidance for Treating Pregnant and Parenting Women with Opioid Use Disorder and their infants, Final Report: Opioid Use, Misuse, and Overdose in Women, What We Can Do About Opioid Use Disorder in Pregnancy, SAMHSAs Behavioral Health Treatment Services Locator, guidance from the American College of Obstetricians and Gynecologists, What You Need to Know About Marijuana Use and Pregnancy, The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research (2017), Prevalence and patterns of marijuana use among pregnant and nonpregnant women of reproductive age. Learn about the Division of Reproductive Healths efforts to address opioid use disorder to improve maternal and infant health. A representative example of this due process reasoning was expressed by the court in State v. Martinez: To expand the ordinary meaning of this statute would deny Defendant reasonable notice that her actions were criminal, thereby violating her due process rights.39 Six courts held that allowing the contested statute to apply to prenatal drug use would in effect permit it to be applied to a range of prenatal conduct not previously considered illegal, in effect opening the floodgates to prosecution of pregnant women. 31]. The court held that the legislature did not intend for the relevant statute to apply to conduct during pregnancy that affected fetuses. This conclusion should not be a surprise, given that appellate decisions are based on interpretation of law, not facts. In the subsequent months, M. saw her son once a week at best. The report pays particular attention to the impact of the 'chemical endangerment' law in Alabama, the state that has carried out the most prosecutions against pregnant women; and Tennessee's 'fetal assault' law, which between 2014 and 2016 made it a crime to give birth to a child showing symptoms of drug exposure. The decisions do not go so far as to say that it would be unlawful for the legislature explicitly to prohibit substance use during pregnancy, although questions about the constitutionality of such an approach have been raised in the legal literature.2,3,20 Rather, most of the decisions simply found that the legislature did not intend for the existing criminal laws to apply to prenatal conduct. However, in 2015, law enforcement cracked down on drug use during pregnancy. They also found that cocaine users were more likely to use alcohol or other drugs during pregnancy: 88 percent of pregnant cocaine users smoked, 80 percent consumed alcohol, 72 percent smoked marijuana, 14 percent used opiates and 9 percent used other illicit drugs. A representative example is State v. Wade, where the court stated, The plain language of the child endangerment statute does not proscribe conduct harmful to fetuses.40 The courts typically made explicit that any ambiguity in the statutes must be construed liberally in favor of the criminal defendant. [I]t would be an anomaly, indeed, if the law were such that a pregnant woman who, by ingesting drugs, recklessly caused the death of a viable fetus would suffer no criminal liability for manslaughter but, if the child was born alive and did not die, could be imprisoned for five years for reckless endangerment [Ref. Prenatal drug exposure may also contribute to long-term behavioral effects and developmental deficits. For more information, see What You Need to Know About Marijuana Use and Pregnancyand The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research (2017). Criminalization has taken many forms including, but not limited to, the passage of fetal assault laws, policies that punish or penalize pregnant people for substance use during pregnancy, and the practice of judicial intervention or legal attempts at coercion for refusal of care during pregnancy. Stakeholders should ensure safe prescribing practice for pregnant women through developin If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance. Civil child abuse proceedings are explicitly permitted in 18 states.9 These may lead to termination of parental rights, but not to prison sentences. MSACD collaborates with Georgias Alcohol Prevention Providers and their communities in all six of Georgias regions to raise awareness about alcohol and substance abuse among pregnant women. Substance abuse reporting and pregnancy: the role of the obstetriciangynecologist, Board of Trustees, American Medical Association, Legal interventions during pregnancy: court-ordered medical treatments and legal penalties for potentially harmful behavior by pregnant women, Tennessee voices: drug use in pregnancy is an epidemic, Prenatal Drug Use/Criminal Offense S.B. One local news source investigated Poolaw's case in conjunction with 45 other pregnant women across the state charged with felony child abuse, neglect, or manslaughter in relation with substance use since 2017. Arizona now has one of the highest foster care placement rates in the nation. Unless otherwise noted, you can republish our stories for free if you follow these rules. Support a worker-led Appeal. To receive email updates about this page, enter your email address: We take your privacy seriously. It's best not to stop abruptly without first seeking medical advice as there may be . 24 states and the District of Columbia consider substance use during pregnancy to be child abuse under civil child-welfare statutes, and 3 consider it grounds for civil commitment. Heroin is an illicit opioid. Opioid use during pregnancy can affect women and their babies. All of these cases were appellate decisions except for one published trial court decision,24 which we discuss separately, given that trial court decisions are not typically published and do not resolve matters of law. 10 states prohibit publicly funded drug treatment programs from discriminating against pregnant people. Cases of Women Charged With Child AbuseRelated Crimes for Substance Use During Pregnancy, The substances related to the charges were cocaine (n = 15), methamphetamine (n = 10), heroin (n = 2), marijuana (n = 1), oxycodone (n = 1), and unspecified prescription pills (n = 1). The South Carolina Supreme Court held that a viable fetus is a "person" under the state's criminal child-endangerment statute and that "maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus" constitute criminal child abuse. Reproductive rights are under attack. Studieshave found that babies exposed to cocaine in utero are not at greater risk of maltreatment as young children than similarly situated babies. The Wisconsin law is especially draconian: A woman can be detained against her will for the duration of her pregnancy, her fetus has its own court-appointed lawyer, she can lose custody of her baby after birth and the proceedings are mostly secret. An example of this reasoning was articulated by the majority in State v. Welch: Using illegal or street drugs during pregnancy, including cannabis, ecstasy, cocaine and heroin, can have a potentially serious effect on your unborn baby. Illegal Drug Use and Pregnancy. 2006), State v. Martinez, 137 P.3d 1195, 1198 (N.M. Ct. App. Illegal Drugs Marijuana (Cannabis) More research needs to be done on how marijuana use during pregnancy could impact the health and development of infants, given changing policies about access to marijuana, significant increases in the number of pregnant women seeking substance use disorder treatment for marijuana use, and confounding effects of polysubstance use. For example, pregnant women should drink less than 1 liter (about 3 cans) of diet soda per day. The National Survey on Drug Use and Health (NSDUH), conducted annually by the Substance Abuse and Mental Health Services Administration (SAMHSA), provides nationally representative data on the use of tobacco, alcohol, and illicit drugs; substance use disorders; receipt of substance use treatment; mental health issues; and the use of mental health She had given birth approximately one year earlier to a child who had also tested positive for cocaine. In all of the cases, the judicial decision depended on the disposition of the question of whether, for the purpose of adjudicating the criminal charges, a fetus is a child. My distant cousin is a meth addict. Instead of punishing women for the chronic condition of addiction, something that is unethical, ineffective and inhumane, we should invest instead in the expansion of women- and family-friendly treatment resources, said Dr. Mishka Terplan, a professor in obstetrics and gynecology and psychiatry and associate director in addiction medicine at Virginia Commonwealth University. In many places, women lose their children or end up in behind bars, sometimes even if the drug was prescribed. Three of the nine mothers arrested that year tested positive for marijuana, and all were held on $100,000 bonds. Drug abuse has a long and storied history in the United States, and we've been "at war" with it since 1971 under the Nixon administration. Many advocates I interviewed in the course of my own research on this subject described the surveillance of pregnancies and non-consensual drug testing performed on pregnant women and their newborns as comparable to stop-and-frisks for young men of color. That said, there are a few things you should know about "drugs-while-pregnant" law across the U.S.: Most states have tried, at one point or another, to prosecute women for drug use during pregnancy. A mother taking illegal drugs during pregnancy increases her risk for anemia, blood and heart infections, skin infections, hepatitis, and other infectious diseases. It is part of the non-profit Organization of Teratology Information Specialists (OTIS), a national information network. The research that does claim to link substance use to maltreatment of children is not authoritative. For example, Amanda Kimbrough's child was born prematurely and died shortly after birth, having tested positive for methamphetamine. Establishes requirements for health care providers to encourage and facilitate drug counseling. App. NAS is a group of withdrawal symptoms that most commonly occurs in newborns after exposure to opioids during pregnancy.If you are pregnant and using opioid pain medications, CDC recommends you talk to your provider before starting or stopping any medications to help you understand all of the risks and make the safest choice for you and your pregnancy. Criminalization of substance use during pregnancy because of harm to the fetus or child is fiercely debated. 19 states have either created or funded drug treatment programs specifically targeted to those who are pregnant, and 17 states and the District of Columbia provide pregnant people with priority access to state-funded drug treatment programs. 10 states prohibit publicly funded drug treatment programs from discriminating against pregnant people. The survey also notes that if prenatal drug use is suspected, Illinois, Michigan, Ohio and Wisconsin require health professionals to report it while Indiana requires pregnant women to be tested; Iowa, Minnesota, North Dakota and South Dakota require both. Many substance use treatment services dont accept pregnant women, or are otherwiseinaccessibleto them, despitefederalandstateregulations that require prioritizing them for treatment. Cookies used to make website functionality more relevant to you. The Center for MSACD also provides training, workshops, and other informational services concerning prenatal exposure to alcohol, nicotine, illicit drugs, and prescription drugs. Although briefs from medical or public health organizations supporting the defendants' position were submitted to the court in 29 percent of the cases (n = 7), only one majority ruling directly referenced a medical or public health organization amicus brief. For example, the Maryland state law that permits manslaughter or murder charges if a person kills a viable fetus has an exception that does not permit a woman to be charged with manslaughter for actions that led to the death of her own viable fetus. 297 (N.C. 2015), Arrests of and forced interventions on pregnant women in the United States, 19732005: implications for women's legal status and public health, State v. McKnight, 352 S.C. 635, 647 (S.C. 2003), Ankrom v. State, 152 So.3d 397, 411 (Ala. 2013), Moral and social issues regarding pregnant women who use and abuse drugs, A gap in the criminal justice system, creating a new class of felons in pregnant drug-addicted women, a state-by-state analysis, Prosecution of illicit drug use during pregnancy: Crystal Ferguson v. City of Charleston, From the Office of the General Counsel. 1991), State v. Luster, 419 S.E.2d 32 (Ga. Ct. App. There may be many more unpublished trial decisions, the dimensions of which we have no way of assessing. Studies show when a pregnant woman uses illegal drugs during pregnancy it can result in miscarriage, low birth weight, premature labor, placental abruption, seizures, respiratory problems, feeding difficulties, and death of the baby and the mother. Only four states (North Dakota, Minnesota, Iowa and Kentucky) require hospitals to test both new mothers and their children if medical professionals suspect drug use. 1994), Reinesto v. Superior Court, 894 P.2d 733 (Ariz. Ct. App. Maternal Substance Abuse and Child Development Project If you or someone close to you needs help for a substance use disorder, talk to your healthcare provider or call SAMHSAs National Helpline at1-800-662-HELP. In Alabama and South Carolina, high courts have interpreted existing child endangerment and chemical endangerment statutes to allow prosecution of drug-using pregnant women and new mothers. Marijuana is the most widely used illegal drug during pregnancy in the U.S., and marijuana use is on the rise among all adult age groups, both sexes, and pregnant women. There were over 100,000 drug overdose . Because drug use during pregnancy can potentially harm a fetus, federal law requires state CPS agencies maintain a protocol for when babies are born with drugs in their system or showing drug withdrawals. Learn more at Alcohol Use in Pregnancy from the Division of Birth Defects and Infant Disorders. Neonatal abstinence syndrome . Such policies are rooted in stigma and gross indifference to what the best available science tells us about how to compassionately and effectively serve pregnant women struggling with drug use disorders and their families. This isaccomplished through a statewide OBHP contract withEmory University. Facts are largely determined at the trial level. In three states Minnesota, South Dakota and Wisconsin women who use drugs during pregnancy can be involuntarily committed to a treatment program. Second, they claim that drug use during pregnancy is a reliable indicator of parental unfitness. In the 22 judicial opinions wherein charges were dismissed or convictions overturned, all held that the legislature did not intend to include fetuses in the definition of a child or victim in the relevant statute. In order to to avoid the risk of withdrawal and possibly harming her fetus, M. did what many pregnant women in her situation do she continued to use illicit opioids. Urine screening remains the most commonly used method despite the limited period during which drugs can be detected. Yet despite the country's best efforts to fight it, the problem is getting worse, and is exacerbated by the COVID-19 pandemic. The apparent lack of a link between the proscribed conduct and a distinct harm in a large number of the cases is one example of this significant limit to the rationale for criminalization. Long-term effects of alcohol include: The baby being born with fetal alcohol syndrome (FAS) having symptoms, such as: Physical and facial abnormalities Learning disabilities, such as not being able to concentrate. The use of prescription drugs during pregnancy, excluding supplements, in Ethiopia was high. It often relies on caseworker-confirmed reports of child maltreatment, despite thewell-documentedpropensity of caseworkers and family courts to base findings of child neglect on evidence of drug use alone. Both stand to undermine the medical treatment of pregnant women with substance use disorders and potentially increase harm to mothers and children. Despite a lack of criminal statutes specifically targeting substance use by pregnant women in other states, women have been charged and, infrequently, convicted of a range of criminal offenses for illicit substance use while pregnant, including child abuse, assault, manslaughter, and murder.15 In two states, South Carolina and Alabama, these convictions have been upheld by the state supreme court.16,,18 The effect of these rulings is to permit women to be convicted for substance use during pregnancy under existing laws that are not specific to pregnancy. It is, however, not known how many women, if any, have been convicted at the trial court level and not had their case heard at the appellate level. The Maternal Substance Abuse and ChildDevelopment (MSACD) Project focuses on theprevention of negative consequences of a maternalsubstance use through a variety of services. More mothers may soon know M.s pain. The state argued that the drug delivery occurred via the umbilical cord in the period after birth but before the cord was clamped. Cases wherein charges resulted in civil proceedings only (e.g., custody proceedings) were not included. The infant was born prematurely. In three of the cases in which medical expert testimony was referenced, the expert testimony was contradictory. If you valued this article, please help us produce more journalism like this by making a contribution today. These cases typically involve significant civil matters, such as termination of parental rights or civil commitment to inpatient treatment facilities.55,56 There are instances where women have faced civil complaints for behavior that is consistent with current standards of care for medical treatment of addictions. The other opinion33 that directly referenced medical literature did so to demonstrate the range of behaviors that are not legally proscribed (e.g., smoking, failing to obtain prenatal care) that are associated with poor neonatal outcomes. We did not examine judicial decisions regarding women who have faced civil child abuse proceedings related to prenatal substance use. Abstract. Despite several phone calls to treatment providers in her county and surrounding counties, M. could not find a provider who was willing to accept her. Charges included child endangerment (n = 11), child abuse (n = 6), drug delivery (n = 4), attempted aggravated child abuse (n = 2), chemical endangerment of a child (n = 2), child neglect (n = 1), child mistreatment (n = 1), homicide (n = 1), manslaughter (n = 1), and reckless injury to a child (n = 1). While a robust body of literature supports a causal connection between prenatal exposure to alcohol or tobacco (or lead or poverty for that matter) and negative postnatal health outcomes, thescientific literaturehas not conclusively demonstrated any long-term negative effect of prenatal exposure to opioids. There are several limitations to this study. In the three judicial opinions that upheld convictions, the court determined that the legislature intended to include fetuses in the definition of child for the purposes of the relevant statute. In 2014, Tennessee made national news when it became the first state in the country to pass a law specifically making it a crime to use drugs while pregnant. As of 2018, 38 states had . Women charged with or convicted of crimes against their child or fetus related to substance use during pregnancy have won on appeal much more often than they have lost. Published on September, 30, 2015. Clear evidence suggests that recognizing the substance exposed infant and . All information these cookies collect is aggregated and therefore anonymous. The implication for medical experts is that advocacy efforts may be most useful when focused on state legislatures that are contemplating policies to reduce harms associated with prenatal substance abuse. Visitour state legislation trackerfor policy activity on all sexual and reproductive health topics. Dehumanizing Discourse, Anti-drug Law, and Policy in America: A "Crack Mother's" Nightmare . Aspartame is an artificial sweetener in some food and drinks and small amounts may be safe during pregnancy. These unintended consequences include keeping women from getting the treatment they need and failing to reduce the number of babies addicted to drugs. Pregnancy. Support ProPublica's award-winning investigative journalism. Since 1973, authorities in at least 45 states have sought to prosecute women for exposing their unborn children to drugs. Substance use providers that accept Medicaid must give pregnant people priority in accessing services. Hair has been recognized as a possible alternate test specimen, but wider acceptance of hair testing must await . Despite the opposition of medical and public health professionals, several state legislatures are considering laws that permit child abuse charges for substance use during pregnancy. Before losing contact with her lawyer, M. told me her story via email. App. (3) Another major concern is addressing the harm that a child of any age can \ suffer when a parent's use of alcohol or other substances leads to neglect of the child, or the child is exposed to illegal drug activity. The overwhelming majority of parents prosecuted by the child welfare system are poor, and parents ofcolorare overrepresented. We also were unable to determine the race or economic status of the defendants and do not know if poor or minority women are overrepresented among the defendants. Consistent with guidance from the American College of Obstetricians and Gynecologists, CDC advises against using marijuana during pregnancy. To date, the United States Supreme Court has declined to hear cases that raise questions about the constitutionality of such laws. Narcotics Anonymous World Service Office in Los Angeles PO Box 9999 Van Nuys, California 91409 Telephone: (818) 773-9999 Fax: (818) 700-0700 Web site: www.na.org Substance Abuse and Mental Health Services Administration Every pregnant woman facing substance use disorder deserves to get the help she needs so that she and her infant have the best possible chance to thrive. One of the authors read six cases in random order, abstracting data into the identified categories of variables to determine the applicability of the a priori coding scheme.