The report also found that Kentuckys child protection agency was not making enough efforts to prevent removal or re-entry to foster care. 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. When she visited him, she was distressed to find he often had seemingly untreated rashes. Four courts noted that allowing a conviction would result in an absurd punishment scheme. We identified 24 judicial opinions published between 1977 and 2015 in cases involving 29 women prosecuted in 19 states. 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. The substances related to the charges included cocaine, heroin, methamphetamine, marijuana, and prescription pills. Thank you for your interest in recommending The Journal of the American Academy of Psychiatry and the Law site. 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). An obvious example is the recent Tennessee law that explicitly made illicit drug use during pregnancy a form of criminal assault. Healthy pregnancies are essential for the well-being of mothers, infants, families and communities. 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. The Tips campaign features information about how smoking and secondhand smoking affect specific groups, including pregnant women or women planning to have a baby. For example, a woman in New Jersey faced civil child abuse and neglect proceedings for complying with her doctor's recommendation to stay on methadone treatment while pregnant,57 the gold standard treatment for opioid dependency during pregnancy.53 The proceedings against her were ultimately thrown out by an appellate court. So the very condition that Kentucky believes should trigger fast-tracked termination of parental rights is in fact often most effectively treated by close, consistent contact between the mother and newborn. However, pregnant women with a disease called phenylketonuria shouldn't eat or drink aspartame. The use of tobacco and alcohol are common (these are discussed in Sections 12 and 13) but the use of illicit substances and the misuse of prescription medications is also important. His girlfriend is also a meth addict. Despite progress in the criminal legal system, the drug war remains almost unchallenged in the child protection system, and it is wreaking havoc on families. If you valued this article, please help us produce more journalism like this by making a contribution today. Marijuana use during and after pregnancy and association of prenatal use on birth outcomes: A population-based study. Marijuana remains illegal at the federal level, even as some states have legalized it for recreational and medicinal use. Webster v. Reproductive Health services: the AMA position, Prosecuting pregnant women for drug use during pregnancy: the criminal justice system should step out and the affordable care act should step up, People v. Morabito, 580 N.Y.S.2d 843 (N.Y. City Ct. 1992), Reyes v. Superior Court, 75 Cal. 1994), Reinesto v. Superior Court, 894 P.2d 733 (Ariz. Ct. App. There may be many more unpublished trial decisions, the dimensions of which we have no way of assessing. Among pregnant women aged 15 to 44, the average . Heroin is an illicit opioid. Cases were decided by state supreme courts (n = 15) and state courts of appeals (n = 14). The search yielded 77 published cases, of which, on closer review, 16 were found to be relevant. The substances being abused during pregnancy can include alcohol, cocaine, heroin, and opioid addiction. State Responses to Substance Abuse Among Pregnant Women, Concerns Mount over Punitive Approaches to Substance Abuse Among Pregnant Women. This isaccomplished through a statewide OBHP contract withEmory University. State law prohibits a medical provider from releasing information about a pregnant individuals drug or alcohol test without the patients consent. This is a sad situation. Drug addiction is a serious problem, especially when the drug addict is pregnant. In three states Minnesota, South Dakota and Wisconsin women who use drugs during pregnancy can be involuntarily committed to a treatment program. In the family court systems, there is no respect for medicine or science, she wrote. Under states child abuse law, a parent is considered unfit if they test positive for substances within eight hours after delivery and have previously been convicted of child abuse or neglect or if they failed to complete a drug treatment program recommended by Child Protective Services. 31]. 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. 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. Key takeaways: In some states in the U.S., healthcare providers are required by law to report substance use during pregnancy. Aspartame. In the subsequent months, M. saw her son once a week at best. App. Reproductive rights are under attack. The child was placed with CPS and now is in the custody of the great grandmother. Thank you for taking the time to confirm your preferences. If youre using marijuana and are pregnant or are planning to become pregnant, talk to your healthcare provider. Otherstudieshave found that babies exposed to cocaine in utero perform better on several developmental measures when left with their mothers than do those removed to foster care. Substance use providers that accept Medicaid must give pregnant people priority in accessing services. Twelve opinions noted that other jurisdictions ruled similarly when faced with such cases. 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. 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. These may include the medical model of substance use disorders,4 racial disparities in substance use screening and reporting in pregnancy,47 and the difficulty of attributing a particular birth outcome to a single cause.48, Criminalization of pregnant women for substance abuse is fraught with problems related to conceptual and practical implementation, even if in theory one believes that substance use in pregnancy is both a moral dilemma and a medical problem. 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. Also, some of the flavorings used in e-cigarettes may be harmful to a developing baby. Some research shows that marijuana use during pregnancy is linked to health concerns, including high use of other substances that may impact pregnancy and infant health such as tobacco, and developmental problems in adolescents. 2006), State v. Martinez, 137 P.3d 1195, 1198 (N.M. Ct. App. She was charged with chemical endangerment of a child. MAT is the standard of care for treating people with opioid use disorder especially pregnant women, as quitting opioids too suddenly during pregnancy can result in complications. The first case was adjudicated in 1977 and the last case in 2015. M. thought she was doing the right thing. 10 states prohibit publicly funded drug treatment programs from discriminating against pregnant people. A drug possession conviction in Georgia also results in the suspension of your driver's license. In females, there is evidence that marijuana use may disrupt the menstrual cycle. Katie Jane Fernelius State legislators, law enforcement officials, and physicians have struggled to reach consensus on how to identify, treat, and possibly punish women who abuse illegal substances during pregnancy. Opioids can be prescription or illicit. The balance in the courts in favor of treating substance use during pregnancy as a medical problem depends on the definition of a child for the purposes of criminal statutes. In totality, medical expertise seemed to play relatively little role in determining the outcome of most judicial decisions. A total of 24 published judicial opinions met the inclusion criteria (Table 1). This conclusion should not be a surprise, given that appellate decisions are based on interpretation of law, not facts. They have 1 child together that was born prematurely due to her drug use. More about medicines in pregnancy. Further research is needed to better understand how marijuana may affect pregnant women and developing babies. While medication assisted treatment (MAT) is covered under Arizonas newly expanded Medicaid programs, Arizonans still struggle withaccessto MAT treatment. donate today. Temporary Assistance for Needy Families (TANF) funding, The Truth About Marijuana and the Criminal Legal System, Florida Cops Nearly Sent a Five-Year-Old to Jail, When It Comes to Reporting Deaths of Incarcerated People, Most States Break the Law, M. Forrest Behne, Craig Waleed, Meghan Peterson, and Lauren Brinkley-Rubinstein, Gay And Trans Panic Is Still Being Used To Justify Anti-LGBTQ Attacks. Only two courts found for the defendant, in part on the grounds that there was no medical evidence to support the charge. In Minnesota and North Dakota, a test is required if there are drug-related complications at birth. Since the late 1980s, policymakers have debated the question of how society should deal with the problem of substance use during pregnancy. Fentanylis a prescription opioid that can be used to treat severe pain. Priority applies to pregnant people referred for treatment. The discourse about criminalization of substance use in pregnancy suggests that women are at serious risk of successful prosecution for illicit drug use during pregnancy.8,15 Based on our review of published judicial decisions, this does not appear to be the case in most jurisdictions. One published trial court decision was identified.24 In this case, a New York trial court in 1992 dismissed the charge of child endangerment for cocaine ingestion during pregnancy. Good reproductive health policy starts with credible research. For example, onestudyfound that parents who use opiates find babies less cutewhile conceivably notable, this finding does not meet the legal standard for terminating a parents rights. We did not examine judicial decisions regarding women who have faced civil child abuse proceedings related to prenatal substance use. Exact terminology for relevant crimes varies across states and broad inclusion criteria were used for initial case review. In Alabama and South Carolina, the majority of state supreme court judges determined that the plain meaning of the word child includes a fetus, or in their term, an unborn child.16,,18 In the other 17 states that considered the question, the opposite conclusion was reached: that is, a fetus is not a child in the eyes of the law in those jurisdictions. This is all exacerbated by a series of measures Arizona has undertaken to constrict its social safety net, leaving families struggling with inadequate access to cash, food, housing, child care, and transportation. Eighteen states have laws that say drug use during pregnancy is child abuse. Significantly higher numbers come from the Centers for Disease Control, which in 2019 reported that some 16% of pregnant women . These cookies may also be used for advertising purposes by these third parties. Some research shows that marijuana use during pregnancy is linked to health concerns, including high use of other substances that may impact pregnancy and infant health such as tobacco, and developmental problems in adolescents. Babies exposed to cocaine in the womb have a 25 percent increased chance of being born premature. 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. Based on results of this analysis, the authors jointly finalized the coding scheme, which was then applied to all of the identified cases. At least in theory, legislatures could amend criminal laws to make clear that they intend them to apply to prenatal conduct that affects fetuses. Tennessee is the only state with a statute that specifically makes it a crime to use drugs while pregnant. Many states recognize this as an act of child abuse on the unborn fetus . More and more states are adopting drug testing for newborns because of the recent increase in opioid use . Arizona also has the strictest TANF timeline in the nation, kicking families off welfare after one year. These unintended consequences include keeping women from getting the treatment they need and failing to reduce the number of babies addicted to drugs. Anonymous screening of consecutive urine samples testing positive for pregnancy from a UK inner-city clinic demonstrated that approximately 16% of the women had taken one or more illicit substances (Sherwood et al, 1999). Hence, health care providers should select relatively safe drugs. CDC twenty four seven. Support ProPublica's award-winning investigative journalism. Quitting tobacco can be hard, but it is possible. Indeed, Kentucky has one of the highest rates of child removal in the country. Community after community has seen this in the aftermath oflocal crackdownson drug-using pregnant womenfewer women seek prenatal care and substance use treatment, even after the local authorities decide to change course. Opioid abuse, dependence, and addiction in pregnancy, Medication assisted treatment in US drug courts: results from a nationwide survey of availability, barriers and attitudes, Maternal-fetal rights and substance abuse: gestation without representation, Pregnant women and the use of corrections restraints and substance use commitment, New Jersey Division of Child Protection & Permanency v. 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). Exposing how the U.S. criminal legal system fails to keep people safe and perpetuates harm. Tobacco and alcohol are the most commonly abused substances, followed by marijuana and cocaine. For example, the court held in State v. Gethers that, fear of prosecution could deter pregnant drug abusers from seeking treatment for drug problems.26 Thus, all of the courts whose decisions functionally overturned convictions or dismissed charges did so on the basis of legislative intent, but varied with respect to additional supporting legal arguments. As of last year, they were still apart, and M. has since lost touch with her lawyer. A newborn infant's death nearly 15 years ago is still causing a fierce legislative battle in Arizona and other states around the country. Drugs with evidence of fetal harm were widely used. An example of this reasoning was articulated by the majority in State v. Welch: 1. 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. Section 2 of the Georgia Security and Immigration Compliance Act of 2006 (Act 457) requires public employers, their contractors and subcontractors to verify the work eligibility of all newly hired employees through an electronic federal work authorization program. 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. Getty Creative. Kentucky ranks amongst the last in the nation in rates ofchildhood poverty. Experts recognize that pregnancy and childbirth present an especially opportune moment to connect a woman with services, including substance use disorder treatmentyet threats of punishment onlyisolatepregnant women.