Those unable to pay may perform community service instead. 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. Future professional advocacy efforts may be most beneficial when directed at state legislatures that are dealing with proposed statutes that address these questions. 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. As her due date approached, M. found a hospital that claimed to specialize in the care of babies who were exposed to opioids in utero and traveled a far distance to give birth there. 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. Only two courts found for the defendant, in part on the grounds that there was no medical evidence to support the charge. Heroin is an illicit opioid. What if a pregnant woman drives over the speed limit, or as a matter of vanity doesn't wear the prescription lenses she knows she needs to see the dangers of the road? The following information can help you understand [] 31]. Before sharing sensitive or personal information, make sure youre on an official state website. Pregnancy. 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. We do not capture any email address. 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. CDC twenty four seven. In 2014, Tennessee became the first (and only) state to pass a law that criminalized drug use during pregnancy, after a district court judge added an additional six years to the prison sentence of a woman who had been involved in a methamphetamine manufacturing operation while pregnant. MSACD is committed to raising the awareness of thedevastating effects of alcohol and other substances whenused during pregnancy. Georgia Marijuana Statutes Maternal Substance Abuse and Child Development Project Getty Creative. Ct. App. The legislators behind these laws are essentially creating a capital offense for women who give birth despite having used an illegal drug, said Erin Miles Cloud, a senior attorney at the Bronx Defenders Family Defense Practice, who has represented numerous parents facing termination of parental rights proceedings. Using illegal drugs while pregnant can cause many complications to the baby including brain damage, premature birth, low birth weight and even fetal death. App.3d 214 (Cal. Disclosures of financial or other potential conflicts of interest: None. The underlying legal question considered in the judicial decisions in these cases is whether, for the purpose of adjudicating the criminal charges, a fetus is a child. Research projects funded by both state and federal agencies continue to examine effects of prenatal exposure on development, evaluate intervention programs, and describe the clinic population using comprehensive databases. This means that a woman who uses opiates during pregnancy may be prosecuted if her child shows any signs of harm (including neonatal withdrawal) related to the use of opiates. The child was placed with CPS and now is in the custody of the great grandmother. You can review and change the way we collect information below. While the findings varied dependent upon county, across the board, only 18 received any kind of rehab/treatment for drug abuse as . 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. Across the country, hundreds of pregnant women and new mothers have been accused of child abuse or other crimes when they or their newborns tested positive for controlled substances. 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. For each case, we recorded the charges, the substance abused, neonatal outcome, legal resolution of the case, and judicial reasoning. Thus, it is not clear whether racial or economic bias is a factor in these cases. App. 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. donate today. 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. Abstract. Between 1992 and 1995, the number of states that prosecuted drug-addicted pregnant women increased nearly threefold. Three courts stated that permitting prosecutions under the contested statute was counterproductive to state policy goals and public health. At issue is whether the continued drug use of a newborn's mother is tantamount to "child abuse" that would give child protective services workers and law enforcement officers the ability to remove the child from the mother's care - even if the . In Kilmon v. State, the court said, 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. Theresearchis also clear that the results of a drug test alone are not an appropriate proxy for determining parental fitness. New Jersey, however, does not view drug use during pregnancy as constituting child abuse or neglect on its own, unlike other states. Substance use providers that accept Medicaid must give pregnant people priority in accessing services. About half of the states treat drug use during. Thank you for taking the time to confirm your preferences. 1 *The Alabama Supreme Court held that drug use while pregnant is considered chemical endangerment of a child. (3) Neonatal abstinence syndrome . Enter multiple addresses on separate lines or separate them with commas. Opioids are a class of drugs used to manage pain, but also have serious risks, such as addiction. When she visited him, she was distressed to find he often had seemingly untreated rashes. Federal drug laws exist to control the use, manufacturing, possession, and distribution of various drugs that are legal and illegal. Eighteen states have laws that say drug use during pregnancy is child abuse. Unfortunately, many women of childbearing age in the U.S. use some form of illegal drug. 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. 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. The court held that the legislature did not intend for the relevant statute to apply to conduct during pregnancy that affected fetuses. 488. first criminal charges brought against a woman for using drugs during pregnancy came in 1977 against Margaret Reyes. Medical and public health authoritieswarn that women who fear losing their babies upon seeking medical care will bedeterredfrom seeking the care they need. 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 Supporters of these laws justify the surveillance, policing, and punishment of drug-using mothers by referencing two assumptions that were touted and then discredited during and after thecrack baby scare. Approximately 700 women in the United States die every year . Babies exposed to cocaine in the womb have a 25 percent increased chance of being born premature. If you valued this article, please help us produce more journalism like this by making a contribution today. We identified 24 judicial opinions published between 1977 and 2015 in cases involving 29 women prosecuted in 19 states. State law prohibits a medical provider from releasing information about a pregnant individuals drug or alcohol test without the patients consent. 2015), The prevalence of illicit-drug or alcohol use during pregnancy and discrepancies in mandatory reporting in Pinellas County, Florida, Substance use during pregnancy and postnatal outcomes, Punishing pregnant drug users: enhancing the flight from care, Women's perspectives on screening for alcohol and drug use in prenatal care, Drug use and limited prenatal care: an examination of responsible barriers, Universal screening for alcohol and drug use and racial disparities in child protective services reporting, The American College of Obstetricians and Gynecologists Committee on Health Care for Underserved Women and American Society of Addiction Medicine, Committee Opinion No 524. 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. Prescription Opioid Pain Reliever Use During Pregnancy, The US Opioid Crisis & Maternal Infant Health, Centers for Disease Control and Prevention. 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. 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. The report also found that Kentuckys child protection agency was not making enough efforts to prevent removal or re-entry to foster care. 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. 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. Neonatal exposure to some drugs during pregnancy can have harmful effects on development and may lead to acute adverse events, including neonatal abstinence syndrome (NAS) and infant mortality. by Leticia Miranda, Vince Dixon and Cecilia Reyes At least in theory, legislatures could amend criminal laws to make clear that they intend them to apply to prenatal conduct that affects fetuses. Several methods of drug testing are efficacious in identifying and monitoring drug use during pregnancy. 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's best not to stop abruptly without first seeking medical advice as there may be . Proceedings resulted in dismissal of the charges or convictions overturned for 86.2 percent of the women. In other words, the key concern in the judicial decisions to date has turned on the courts' interpretation of legislative intent. Before losing contact with her lawyer, M. told me her story via email. 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. 10 states prohibit publicly funded drug treatment programs from discriminating against pregnant people. 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. Termination of parental rights is a mechanism by which families are turned into strangers, all contact and personal identity is erased, and families are destroyed forever. 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. 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. Drugs with evidence of fetal harm were widely used. 1991), People v. Hardy, 469 N.W.2d50 (Mich. Ct. App. Call 1-800-GEORGIA to verify that a website is an official website of the State of Georgia. Heavy use of marijuana - that is, marijuana with high amounts of THC - has been linked to decreased fertility in both men and women. The research that does claim to link substance use to maltreatment of children is not authoritative. Support a worker-led Appeal. 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. This was lower than the rate among women in this age group who were not pregnant (11.4 percent). [Ref. If you or someone you know has a drug problem, seek help. Cookies used to make website functionality more relevant to you. 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. 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. Also, some of the flavorings used in e-cigarettes may be harmful to a developing baby. 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. All types of alcohol are equally harmful, including all wines and beer. 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. Arizona also has the strictest TANF timeline in the nation, kicking families off welfare after one year. However, in 2015, law enforcement cracked down on drug use during pregnancy. 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. Drug addiction is a serious problem, especially when the drug addict is pregnant. Keywords: laws, policies, substance use, care, treatment, infants, neglect Created Date: 8/17/2022 9:48:14 PM 25states and the District of Columbia require health care professionals to report suspected prenatal drug use, and 8states require them to test for prenatal drug exposure if they suspect drug use. Convictions were upheld only in Alabama and South Carolina, involving a total of four women. App. There is also no safe time during pregnancy to drink. While some papers estimate that 1-3% of birth defects are thought to be caused by medications taken during pregnancy, the authors could not find a source for this statement that was based on study d. 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. [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. Severalstudiesdocument that hospital staff disproportionately drug test and report to child protective services low-income women andwomen of color. Indeed, few, if any, middle- or upper-class women who use drugs during pregnancy will ever experience a child abuse and neglect proceeding, let alone a termination of parental rightsthough drug use is common among people of all socioeconomic levels. 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. Civil child abuse proceedings are explicitly permitted in 18 states.9 These may lead to termination of parental rights, but not to prison sentences. Facts are largely determined at the trial level. Source: ProPublica research by Leticia Miranda and Christine Lee; Guttmacher Institute; National Advocates for Pregnant Women. 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. For example, Amanda Kimbrough's child was born prematurely and died shortly after birth, having tested positive for methamphetamine. 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. Dehumanizing Discourse, Anti-drug Law, and Policy in America: A "Crack Mother's" Nightmare . Collaborations have included media messages on maternal substance abuse during pregnancy and supplying resources addressing the use of any substance. 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. The first case was adjudicated in 1977 and the last case in 2015. The overwhelming majority of parents prosecuted by the child welfare system are poor, and parents ofcolorare overrepresented. This means that first-time offenders will be issued an infraction (like a speeding ticket) instead of jail, with a maximum fine of $150. 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. Quitting early or before pregnancy is best, but its never too late to quit smoking. 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. DRH presents state and national estimates of marijuana use among pregnant women. The Guttmacher Institute, which researches reproductive health issues, says 18 states consider abusing substances during pregnancy to be child abuse under civil child welfare laws, and Tennessee . A mother taking illegal drugs during pregnancy increases her risk for anemia, blood and heart infections, skin infections, hepatitis, and other infectious diseases. Tennessee is the only state with a statute that specifically makes it a crime to use drugs while pregnant. Thank you for your interest in recommending The Journal of the American Academy of Psychiatry and the Law site. 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. App. 10 states prohibit publicly funded drug treatment programs from discriminating against pregnant people. 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. 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. Arizona's legislation, which became law in April, permits termination of a mother's parental rights, either immediately when her newborn is born or within one year of her newborn's birth, depending on how chronic the illicit drug use appears to the court. 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). Arizonaslegislation, which became law in April, permits termination of a mothers parental rights, either immediately when her newborn is born or within one year of her newborns birth, depending on how chronic the illicit drug use appears to the court. 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. Psychiatrists should be involved with drug treatment courts to ensure that any court-compelled treatment meets the complex medical and psychosocial needs of pregnant women with substance use disorders. Studieshave found that babies exposed to cocaine in utero are not at greater risk of maltreatment as young children than similarly situated babies. Briefs from medical or public health organizations were submitted to the court in seven of the cases, all supporting the defendant's position. 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). More about medicines in pregnancy. App. Hair has been recognized as a possible alternate test specimen, but wider acceptance of hair testing must await . 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. Maternal deaths in the United States are increasing. 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. State of Georgia government websites and email systems use georgia.gov or ga.gov at the end of the address. In females, there is evidence that marijuana use may disrupt the menstrual cycle. Will you help us fight back with facts? Quitline coaches can answer questions, help you develop a quit plan, and provide support. Since the late 1980s, policymakers have debated the question of how society should deal with the problem of substance use during pregnancy. Reyes was charged with two counts of felony child endangerment for her heroin use 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. Priority applies to pregnant people referred for treatment. 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. We also identified judicial references to expert or fact witness medical testimony and to medical literature or medical or public health-related amicus briefs. 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. The court also referred to rulings by appellate courts in other jurisdictions that had held similarly in comparable cases. 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. For example, pregnant women should drink less than 1 liter (about 3 cans) of diet soda per day. Katie Jane Fernelius Illegal Drug Use and Pregnancy.
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