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. Your doctor can play an important role in helping you quit, including giving advice and support with quitting and connecting you with other resources. The Florida Supreme Court found the medical testimony inadequate to support the trial court's finding that a delivery occurred during the birth process, even if the criminal statute had been applicable.29 In Arms v. State, Arms was also convicted of a drug delivery charge that was overturned by the state supreme court, in part on the grounds that the relevant statute, does not expressly criminalize the passive bodily processes that results in a mother's use of a drug entering her unborn, or newborn child's system.45. Contact your healthcare provider, local Alcoholics Anonymous, or local alcohol treatment center. 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. Intellectual & Developmental Disabilities, Applications for New & Existing Providers, Improving Health Outcomes Initiative Collaborative Learning Center, How to Report a Concern or Complaint about the Quality of Care or Safety, Facebook page for Georgia Department of Behavioral Health and Developmental Disabilities, Twitter page for Georgia Department of Behavioral Health and Developmental Disabilities, Linkedin page for Georgia Department of Behavioral Health and Developmental Disabilities, The Maternal Substance Abuse and ChildDevelopment, Maternal Substance Abuse and Child Development Project. Katie Jane Fernelius You can review and change the way we collect information below. Twelve opinions noted that other jurisdictions ruled similarly when faced with such cases. Additional factors were relevant to the stated judicial rationale in at least some of the cases. 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. The number of pregnant women with opioid use disorder at labor and delivery more than quadrupled from 1999 to 2014, according to a recent CDC analysis. 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. State Policies on Substance Use During Pregnancy. To view abstracts of recent publications in PubMed, see Prevalence and patterns of marijuana use among pregnant and nonpregnant women of reproductive age and Marijuana use during and after pregnancy and association of prenatal use on birth outcomes: A population-based study. Enter multiple addresses on separate lines or separate them with commas. Yet despite the country's best efforts to fight it, the problem is getting worse, and is exacerbated by the COVID-19 pandemic. There are several limitations to this study. Although this may be the case, the medical care mandated by many drug treatment courts falls well below the standard of care required for some pregnant women.53,54, Of note, the cases loosely reflect epidemiological trends in patterns of drugs of choice. A drug possession conviction in Georgia also results in the suspension of your driver's license. It found that parents face long wait lists when accessing substance use treatment services and often dont have the means to pay. donate today. Smoking during and after pregnancy also increases the risk of sudden infant death syndrome (SIDS). Briefs from medical or public health organizations were submitted to the court in seven of the cases, all supporting the defendant's position. How some hospitals are drug testing new mothers without consent, How Alabamas meth lab law is unfairly punishing pregnant women, Mothers: tell us about drug testing at your hospital. This claim disregards the fact that drug addiction is ahealth issuewith biological, behavioral, and genetic dimensions, and similar to other health conditions, itdoes not respond wellto artificially imposed treatment timelines or mandated treatment. Learn more at Alcohol Use in Pregnancy from the Division of Birth Defects and Infant Disorders. If you regularly use drugs, it's important to tackle this now you're pregnant. State Responses to Substance Abuse Among Pregnant Women, Concerns Mount over Punitive Approaches to Substance Abuse Among Pregnant Women. For example, pregnant women should drink less than 1 liter (about 3 cans) of diet soda per day. In three of the cases in which medical expert testimony was referenced, the expert testimony was contradictory. 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. Most states do not have a law that requires hospitals to test infants and new moms for controlled substances. They help us to know which pages are the most and least popular and see how visitors move around the site. State law prohibits a medical provider from releasing information about a pregnant individuals drug or alcohol test without the patients consent. Visitour state legislation trackerfor policy activity on all sexual and reproductive health topics. More and more states are adopting drug testing for newborns because of the recent increase in opioid use . 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. Mar 02, 2022. In Tennessee, this law carries a maximum penalty of 15 years in prison. 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. Copyright 2023 by The American Academy of Psychiatry and the Law. She told her treating physician about her opioid use during pregnancy, not realizing this could precipitate call to Child Protective Services (CPS). Tennessee is the only state with a statute that specifically makes it a crime to use drugs while pregnant. Since the late 1980s, policymakers have debated the question of how society should deal with the problem of substance use during pregnancy. M. thought she was doing the right thing. 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. Of the 24 judicial opinions, only nine directly referenced medical evidence in the form of medical expert testimony (n = 7), published medical literature (n = 3), or amicus briefs (n = 1). 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. If you valued this article, please help us produce more journalism like this by making a contribution today. In Johnson v. State, the defendant was charged and convicted of two counts of delivery of a controlled substance to a minor via the umbilical cord after she reported to the treating obstetrician that she had smoked marijuana and crack cocaine the day she went into labor. The search yielded 77 published cases, of which, on closer review, 16 were found to be relevant. These cookies perform functions like remembering presentation options or choices and, in some cases, delivery of web content that based on self-identified area of interests. Exact terminology for relevant crimes varies across states and broad inclusion criteria were used for initial case review. Key takeaways: In some states in the U.S., healthcare providers are required by law to report substance use during pregnancy. 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. Fetal or infant toxicology was reported in 24 of the pregnancies, and included positive findings for cocaine (n = 13), heroin (n = 1), and methamphetamine (n = 8) and one case wherein testing was negative for the relevant drug oxycodone, but the infant nonetheless displayed signs of withdrawal.31. Similarly, in Ankrom v. State, the state supreme court found that the plain meaning of the word child is broad enough to encompass all childrenborn and unborn.18 When fetuses are included in the definition of child, the child abuse statutes are then found to be applicable to the alleged prenatal conduct. An official website of the State of Georgia. Meanwhile, several states have expanded their civil child-welfare requirements to include prenatal substance use, so that prenatal drug exposure can provide grounds for terminating parental rights because of child abuse or neglect. To date, the United States Supreme Court has declined to hear cases that raise questions about the constitutionality of such laws. Those unable to pay may perform community service instead. Disclosures of financial or other potential conflicts of interest: None. An example of this reasoning was articulated by the majority in State v. Welch: Such inhumane responses to drug use can only exist because they are almost exclusively reserved for poor people and people of color. How you know. Tobacco and alcohol are the most commonly abused substances, followed by marijuana and cocaine. Finally, a number of states have placed a priority on making drug treatment more readily available to pregnant individuals, which is bolstered by federal funds that require prioritized access to treatment programs for anyone who is pregnant. For each case, we recorded the charges, the substance abused, neonatal outcome, legal resolution of the case, and judicial reasoning. 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. Support a worker-led Appeal. Georgia drug possession laws treat the crime very seriously and a conviction for possession of even a small amount of an illegal drug can subject you to serious penalties. No adverse neonatal outcomes were reported in 41 percent of the pregnancies in this study. Many states recognize this as an act of child abuse on the unborn fetus . Drugs with evidence of fetal harm were widely used. Among pregnant women aged 15 to 44, the average . At least two states, Arizona and Kentucky, have just made it easier to terminate the rights of mothers who use controlled substances while pregnant. 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. Arizona now has one of the highest foster care placement rates in the nation. There is also no safe time during pregnancy to drink. It's best not to stop abruptly without first seeking medical advice as there may be . Source: ProPublica research by Leticia Miranda and Christine Lee; Guttmacher Institute; National Advocates for Pregnant Women. 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). Many substance use treatment centers do not offer MAT due to the stigma associated with it, and those centers that do provide MAT have not necessarily fulfilled their responsibility toprioritizepregnant women. Comparisons of drug laws to alcohol laws show that the policy trajectories started in opposite directions, but by 2016, the results were the same: Punitive policies were more prevalent than supportive policies across states. In other instances, where medical expertise was referenced, it did not necessarily support the defendants' position. We developed categories of relevant variables to code a priori. 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. Convictions were upheld only in Alabama and South Carolina, involving a total of four women. "Opioids are what we worry about most," he explained. Eighteen states have laws that say drug use during pregnancy is child abuse. The laws can vary widely from state to state in terms of reporting requirements and consequences of reporting. Prosecutors have attempted to rely on a host of criminal laws already on the books to attack prenatal substance use. The use of illicit substances such as cocaine and heroin during pregnancy is common. Thank you for your interest in recommending The Journal of the American Academy of Psychiatry and the Law site. 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. Using illegal or street drugs during pregnancy, including cannabis, ecstasy, cocaine and heroin, can have a potentially serious effect on your unborn baby. 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. 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. When she visited him, she was distressed to find he often had seemingly untreated rashes. More about smoking in pregnancy and drinking alcohol in pregnancy. Cookies used to track the effectiveness of CDC public health campaigns through clickthrough data. Drug addiction is a serious problem, especially when the drug addict is pregnant. About half of the states treat drug use during. The mother was a drug addict. Stakeholders should ensure safe prescribing practice for pregnant women through developin Three courts stated that permitting prosecutions under the contested statute was counterproductive to state policy goals and public health. Additional cases were identified by reviewing the cases cited in the initial set of cases and published literature, yielding an additional nine cases. 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. Thus, it is not clear whether racial or economic bias is a factor in these cases. A mother taking illegal drugs during pregnancy increases her risk for anemia, blood and heart infections, skin infections, hepatitis, and other infectious diseases. July 14, 2014 -- Though the first mother has been charged under a new Tennessee law that makes it a crime to use drugs while pregnant, many of the most respected medical groups have opposed . Defense attorneys who represent women charged for prenatal conduct may benefit from resources that clarify the relevant medical concerns. Smoking during pregnancy increases the risk of health problems for developing babies, including preterm birth, low birth weight, and birth defects of the mouth and lip. App. To learn about CDC activities to prevent fetal alcohol spectrum disorders, visit About Us from the National Center on Birth Defects and Developmental Disabilities. 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. 2007), State v. Geiser, 763 N.W.2d 469 (N.D. 2009), Cochran v. Commonwealth, 315 S.W.3d 325 (Ky. 2010), State v. Stegall, 828 N.W.2d 526 (N.D. 2013), Arms v. State, 471 S.W.3d 637 (Ark. Using cocaine or methamphetamine -- also called speed, Tina, crank, or ice -- increases the risk of miscarriage early in the pregnancy. Significantly higher numbers come from the Centers for Disease Control, which in 2019 reported that some 16% of pregnant women . These 24 cases included 29 women in 19 states who were prosecuted for criminal charges related to harm to a fetus or child as a result of substance use during pregnancy. In contrast, state legislatures could choose to preclude attempted efforts at prosecution with amendments that make explicit that existing laws are not meant to apply to prenatal conduct that may affect fetuses. 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. [Ref. 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. The groups listed below help people with drug abuse. However, fentanyl has also been manufactured illicitly, and its distribution is on the rise. 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. Using illegal drugs while pregnant can cause many complications to the baby including brain damage, premature birth, low birth weight and even fetal death. 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. Several leading medical organizations opposed the legislation and cautioned that it would have a negative public health effect of scaring women away from seeking medical help. However, in 2015, law enforcement cracked down on drug use during pregnancy. The Tips campaign features information about how smoking and secondhand smoking affect specific groups, including pregnant women or women planning to have a baby. Stopping your medication suddenly could be harmful for you and your baby. But, for that matter, she could have been a pregnant alcoholic, causing fetal alcohol syndrome; or she could have been addicted to self abuse by smoking, or by abusing prescription painkillers, or over-the-counter medicine; or for that matter she could have been addicted to downhill skiing or some other sport creating serious risk of prenatal injury, risk which the mother wantonly disregarded as a matter of self-indulgence. App.3d 214 (Cal. Later in the pregnancy, these illicit drugs may cause. Prescription Opioid Pain Reliever Use During Pregnancy, The US Opioid Crisis & Maternal Infant Health, Centers for Disease Control and Prevention. Some policymakers and law enforcement officials argue that criminal punishment deters substance use among pregnant women.1,,3 In contrast, the medical model of addiction views substance use disorders as chronic, relapsing diseases, with substance abuse during pregnancy an unfortunate, but common occurrence. Women might use opioids as prescribed, misuse prescription opioids, use illicit opioids such as heroin, or use opioids (opioid agonists and/or antagonists) as treatment for opioid use disorder. 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. The pregnancies had the following outcome: no adverse effects of the substance reported (n = 12), withdrawal symptoms (n = 7), prematurity and/or small size at birth (n = 5), death in the neonatal period (n = 3), and stillbirth (n = 2). LEXIS 970 (Tenn. Crim. 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. 2007), State v. Hudson, 2007 Tenn. Crim. On June 13, 1997, the governor of Tennessee signed House Bill 1413, making it a Class A misdemeanor for child abuse where: (1) a woman consumes alcohol or illegal drugs during pregnancy with knowledge or the reason to know that such consumption may result in harm to her child; and (2) the child is born addicted to alcohol or drugs. Heroin is an illicit opioid. A new study co-authored by a University of Central Florida researcher shows that laws that punish substance use during pregnancy actually do more harm than good. Daily/near daily cannabis use in the past month increased from 0.9% to 3.4% among pregnant women overall, and from 1.8% to 5.3% during the first trimester; from 0.6% to 2.5% during . Clear evidence suggests that recognizing the substance exposed infant and . Priority applies to pregnant people referred for treatment. 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. Ct. App. A substantial body of legal literature traces the development of case law related to substance use during pregnancy and problems with criminalization of pregnant women.15,19,,23 In this article, we systematically review published legal cases of women charged with offenses causing harm to their fetus or child as a result of substance use during pregnancy, wherein the trial court decision was appealed. All information these cookies collect is aggregated and therefore anonymous. We do not capture any email address. Opioid use during pregnancy can affect women and their babies. It is part of the non-profit Organization of Teratology Information Specialists (OTIS), a national information network. You can also call 1-800-QUIT-NOW (1-800-784-8669) for free support.