Between 2002-2003 and 2016-2017, past-month cannabis use increased from 3.4% to 7.0% among pregnant women overall and from 5.7% to 12.1% during the first trimester. Substance use providers that accept Medicaid must give pregnant people priority in accessing services. New Jersey, however, does not view drug use during pregnancy as constituting child abuse or neglect on its own, unlike other states. 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. 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. M. thought she was doing the right thing. 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). App. The South Carolina Supreme Court in McKnight v. State17 referenced its earlier decision in Whitner v. South State16 when it opined that, in several cases this Court has specifically held that the Legislature's use of the term child includes a viable fetus. The court also pointed out that, after the Whitner decision, the legislature did not modify the statute to exclude viable fetuses from its definition of child. With the U.S. Supreme Court considering a high-profile case involving the prosecution of pregnant substance abusers, policymakers and advocates once again are confronted with the decade-old question of how best to deal with pregnant women who use drugs. 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. App. The research that does claim to link substance use to maltreatment of children is not authoritative. Maternal Substance Abuse and Child Development Project | Georgia Department of Behavioral Health and Developmental Disabilities For access to services and immediate crisis help, call the Georgia Crisis & Access Line (GCAL) at 1-800-715-4225, available 24/7. The Supreme Courts in Alabama and South Carolina have upheld convictions ruling that an individuals substance use in pregnancy constitutes criminal child abuse. Reproductive rights are under attack. Cookies used to track the effectiveness of CDC public health campaigns through clickthrough data. Kentuckyslegislation, which also became law last month, permits termination of a mothers parental rights if her newborn exhibits signs of withdrawal, known as neonatal abstinence syndrome, as the result of illicit opioid use, unless the mother is in substantial compliance with both a drug treatment program and a regimen of postnatal care within 90 days of giving birth. At the present time, the Center for MSACD fulfills several roles in Georgia by sponsoring clinical, prevention, and research programs. An example of this reasoning was articulated by the majority in State v. Welch: The child was placed with CPS and now is in the custody of the great grandmother. Yet despite the country's best efforts to fight it, the problem is getting worse, and is exacerbated by the COVID-19 pandemic. Otherwise, the law on drug testing newborns varies from state to state. Both stand to undermine the medical treatment of pregnant women with substance use disorders and potentially increase harm to mothers and children. Prosecuting Women for Drug Use During Pregnancy: The Criminal Justice System Should Step Out and the Affordable Care Act Should Step Up. 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. In Tennessee, this law carries a maximum penalty of 15 years in prison. 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. As of last year, they were still apart, and M. has since lost touch with her lawyer. Kentucky similarly struggles with poverty, poor access to substance use treatment services, and a child protective system that spends more resources on placing children in foster care than keeping them with their families. First, they say the developing fetus and newborn will be harmed by prenatal exposure to illicit substances. Cases wherein charges resulted in civil proceedings only (e.g., custody proceedings) were not included. Wisconsin provides priority access to pregnant people in both general and private programs. Prenatal drug exposure may also contribute to long-term behavioral effects and developmental deficits. A drug possession conviction in Georgia also results in the suspension of your driver's license. 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. Will you help us fight back with facts? These cookies may also be used for advertising purposes by these third parties. Substance use providers that accept Medicaid must give pregnant people priority in accessing services. Fentanylis a prescription opioid that can be used to treat severe pain. Fifteen states have laws requiring health care workers to report to authorities if they suspect a woman is abusing drugs during pregnancy. A number of states require health care professionals to report or test for prenatal drug exposure, which can be used as evidence in child-welfare proceedings. Babies exposed to cocaine in the womb have a 25 percent increased chance of being born premature. Six ruled that the contested application of the statute to conduct during pregnancy violated due process, which requires that criminal offenses be defined in plain language so that an ordinary person has fair notice about the actions proscribed. State laws now vary considerably in their approach to the problem, reflecting a deep division in public opinion. She told her treating physician about her opioid use during pregnancy, not realizing this could precipitate call to Child Protective Services (CPS). 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. 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. Apr 20, 2022, M. Forrest Behne, Craig Waleed, Meghan Peterson, and Lauren Brinkley-Rubinstein As of 2018, 38 states had . Georgia regulates the possession of both illegal and prescription drugs. 1977), State v. Gethers, 585 So.2d 1140, 1143 (Fla. Dist. 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. Criminal or civil penalties discourage women from seeking prenatal care they need for fear of having their drug use discovered, critics say. In the medical model, treatment, not punishment, is the remedy to reduce consumption of substances during pregnancy.4 Medical and public health experts are widely opposed to efforts to criminalize substance use by pregnant women.5,,8, Reflecting societal uncertainty about the best approach, legal penalties for substance use during pregnancy because of harm to the fetus or child vary significantly among the states. Opioid use disorder is a problematic pattern of opioid use that can result in health problems, disability, or failure to meet major responsibilities at work, school or home. There is no known safe amount of alcohol use during pregnancy or while trying to get pregnant. More concerning, limited evidence suggests that punitive polices may deter women from prenatal care.49,,51 These policies also disproportionately affect minority and poor women.15,52 For example, in one study, black women who tested positive for substances at birth were reported to authorities at about 10 times the rate of white women, despite similar rates of substance use.47 Advocates of the punitive approach assert that drug courts can be used to compel treatment for pregnant women with substance use disorders. And in order to receive federal child abuse prevention funds, states must require health care providers to notify child protective services when the provider cares for an infant affected by illegal substance use. To learn about CDC activities to prevent fetal alcohol spectrum disorders, visit About Us from the National Center on Birth Defects and Developmental Disabilities. She had given birth approximately one year earlier to a child who had also tested positive for cocaine. [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. Drug use is an uncommon cause of birth defects, yet approximately 200,000 children (3-5% of live births) are born with birth defects each year. 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. Along with counseling and behavioral therapy, opioid medications (buprenorphine, methadone, and naltrexone) may be used in medication assisted therapy (MAT) to treat opioid use disorder. Additional cases were identified by reviewing the cases cited in the initial set of cases and published literature, yielding an additional nine cases. Disclosures of financial or other potential conflicts of interest: None. Local, state, and federal government websites often end in .gov. Support a worker-led Appeal. Clear evidence suggests that recognizing the substance exposed infant and . They have 1 child together that was born prematurely due to her drug use. 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. Tennessee is the only state that has enacted a law that targets substance use by pregnant women on the basis of presumed harm to the fetus or child. State law prohibits a medical provider from releasing information about a pregnant individuals drug or alcohol test without the patients consent. Medical and public health experts who are desirous of seeing a greater focus on treatment of substance-abusing pregnant women must stay particularly alert to legislative efforts to expand the legal definition of a child to include fetuses or to define prenatal substance use explicitly as a form of child abuse. 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. 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. Later in the pregnancy, these illicit drugs may cause. 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. 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. We reviewed legal decisions regarding women charged with a crime against a fetus or child as a result of substance use during pregnancy. The Center houses the Emory Neurodevelopmental Exposures Clinic (ENEC), a multidisciplinary clinic dedicated to providing evaluation and intervention services to individuals exposed to substances in pregnancy. Cocaine lingers in a fetus much longer than an adult and often 5-7 days after birth. Drug Use by State: Problem Areas. State Policies on Substance Use During Pregnancy. Three courts stated that permitting prosecutions under the contested statute was counterproductive to state policy goals and public health. This means that first-time offenders will be issued an infraction (like a speeding ticket) instead of jail, with a maximum fine of $150. In 2018, an estimated 12% of U.S. residents 18 years or older reported current unhealthy drug use in a national survey. Supporters of these laws blame the mothers for the dissolution of their families, arguing that the mothers need only enroll in a drug treatment program to retain custody of their children. In 2005, the Tennessee Court of Appeals overturned convictions based on guilty pleas for aggravated child abuse for methamphetamine use during pregnancy in two cases combined as Richards v. State.37 The judicial reasoning was that the women received ineffective assistance of counsel, in that their attorneys should have argued that their conduct fell outside the scope of the law, which at that time was intended to apply only to conduct that affected children, not fetuses. donate today. Briefs from medical or public health organizations were submitted to the court in seven of the cases, all supporting the defendant's position. Visitour state legislation trackerfor policy activity on all sexual and reproductive health topics. Heroin is an illicit opioid. The Maternal Substance Abuse and ChildDevelopment (MSACD) Project focuses on theprevention of negative consequences of a maternalsubstance use through a variety of services. 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. Thus, it is not clear whether racial or economic bias is a factor in these cases. 38]. Additionally, in three states, Minnesota, South Dakota, and Wisconsin, women who use drugs during pregnancy can be involuntarily committed to a treatment program. 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). And the scientific literature that suggests that substance use produces social cognitive deficits in parenting is in its infancy and rather underwhelming.