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). Keywords: laws, policies, substance use, care, treatment, infants, neglect Created Date: 8/17/2022 9:48:14 PM 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. Unfortunately, many women of childbearing age in the U.S. use some form of illegal drug. In that way, this legislations attempt to punish mothers and fathers acts as a civil death penalty for families, for which children will pay the ultimate price.. Severalstudiesdocument that hospital staff disproportionately drug test and report to child protective services low-income women andwomen of color. To learn about CDC activities to educate the public about the harms of tobacco use, visit Tips From Former Smokers (Tips) from the Office on Smoking and Health. Using drugs while pregnant and addiction is a grave concern because it puts two lives at risk. 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. Aspartame is an artificial sweetener in some food and drinks and small amounts may be safe during pregnancy. 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. 2006), State v. Martinez, 137 P.3d 1195, 1198 (N.M. Ct. App. 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. 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. Through these efforts, the Center for MSACD continues to be a valuable resource to individuals, parents, and professionals in Georgia and the Southeast. Learn more at Alcohol Use in Pregnancy from the Division of Birth Defects and Infant Disorders. 1. Prescription opioids may be prescribed by doctors to manage moderate to severe pain. 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. 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. The federal Department of Health and Human Services recently released areportreviewing Kentuckys child welfare system. Kentucky ranks amongst the last in the nation in rates ofchildhood poverty. 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. 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. If a woman is drinking alcohol during pregnancy, it is never too late to stop. Many of the early cases were related to maternal cocaine use, whereas more recent cases tended to involve maternal methamphetamine use. Prescribed medicines. Further, some states, under the rubric of protecting the fetus, authorize civil commitment (such as forced admission to an inpatient treatment program) of pregnant people who use drugs; these policies sometimes also apply to alcohol use or other behaviors. 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. More mothers may soon know M.s pain. If you need to go back and make any changes, you can always do so by going to our Privacy Policy page. 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. 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. 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. Sign In to Email Alerts with your Email Address. Among pregnant women aged 15 to 44, the average . Given the opposition of medical and public health professionals to the criminalization of substance use during pregnancy, an understanding of both the range of criminal charges pregnant substance users may face and the role, if any, that medical expertise has played in the adjudication of these cases would inform understanding of the problem and of medical professional advocacy efforts. 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. To learn about CDC activities to prevent fetal alcohol spectrum disorders, visit About Us from the National Center on Birth Defects and Developmental Disabilities. 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. 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. 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. Stopping your medication suddenly could be harmful for you and your baby. Ct. App. The effects of illegal drugs, such as cocaine, can be devastating on a fetus. Studieshave found that babies exposed to cocaine in utero are not at greater risk of maltreatment as young children than similarly situated babies. 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. You can also call 1-800-QUIT-NOW (1-800-784-8669) for free support. 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. 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. The treating pediatrician opined that the cause of death was respiratory arrest secondary to prematurity, whereas the medical examiner said that the cause of death was acute methamphetamine intoxication.18 Two of the opinions16,30 that directly referenced published medical literature referred to data that supported the conclusion that cocaine use during pregnancy creates a substantial and well-established risk to the unborn child and that this effect is within the scope of public knowledge. Three of the nine mothers arrested that year tested positive for marijuana, and all were held on $100,000 bonds. Published on September, 30, 2015. Criminal or civil penalties discourage women from seeking prenatal care they need for fear of having their drug use discovered, critics say. "Among newborns exposed to opioids in utero, between 55 percent and 94 percent develop withdrawal signsand 30 to 80 . Since 1973, authorities in at least 45 states have tried to prosecute women for exposing unborn children to drugs. 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. Arizona now has one of the highest foster care placement rates in the nation. In jurisdictions where criminal charges are permitted, dispositions for convicted women should be treatment oriented. 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. In Minnesota and North Dakota, a test is required if there are drug-related complications at birth. 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. Using cocaine or methamphetamine -- also called speed, Tina, crank, or ice -- increases the risk of miscarriage early in the pregnancy. 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. In three states Minnesota, South Dakota and Wisconsin women who use drugs during pregnancy can be involuntarily committed to a treatment program. 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. In Kilmon v. State, the court said, 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. All types of alcohol are equally harmful, including all wines and beer. 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 substances related to the charges included cocaine, heroin, methamphetamine, marijuana, and prescription pills. 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. In many places, women lose their children or end up in behind bars, sometimes even if the drug was prescribed. Enter multiple addresses on separate lines or separate them with commas. 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. Federal Drug Laws. As of last year, they were still apart, and M. has since lost touch with her lawyer. 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. There were over 100,000 drug overdose . Yet despite the country's best efforts to fight it, the problem is getting worse, and is exacerbated by the COVID-19 pandemic. This claim also disregards the seriousgapsin access to treatment for substance use disorders, especially for poor people, and the absence of a social safety net to even support struggling families in the first place. A total of 24 published judicial opinions met the inclusion criteria (Table 1). This helps clinicians better understand the prevalence of marijuana use as they care for their pregnant patients and provide screening and treatment. Dehumanizing Discourse, Anti-drug Law, and Policy in America: A "Crack Mother's" Nightmare . App. 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. 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. LEXIS 970 (Tenn. Crim. All information these cookies collect is aggregated and therefore anonymous. 1 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. Local, state, and federal government websites often end in .gov. The city of Savannah decriminalized the possession of marijuana, effective July 1, 2018. 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. 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. 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. 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. 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. Visitour state legislation trackerfor policy activity on all sexual and reproductive health topics. The Supreme Courts in Alabama and South Carolina have upheld convictions ruling that an individuals substance use in pregnancy constitutes criminal child abuse. A mother taking illegal drugs during pregnancy increases her risk for anemia, blood and heart infections, skin infections, hepatitis, and other infectious diseases. Prosecuting Women for Drug Use During Pregnancy: The Criminal Justice System Should Step Out and the Affordable Care Act Should Step Up. Quitting smoking is one of the most important ways you can protect your health and the health of your baby. Y.N., 104 A.3d 244 (N.J. 2014), Late-Onset Sex Offending and the Assessment of Behavioral Variant Frontotemporal Dementia (bvFTD), Factors Associated with Successful Completion of Juvenile Mental Health Court, by The American Academy of Psychiatry and the Law, https://www.guttmacher.org/statecenter/spibs/spib_SADP.pdf/, http://www.tennessean.com/story/opinion/contributors/2014/05/10/tennessee-voices-drug-use-pregnancy-epidemic/8914401/, http://wpde.com/news/videos/regina-mcknight-released-from-prison/, 2017 American Academy of Psychiatry and the Law. Wisconsin provides priority access to pregnant people in both general and private programs. 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. Briefs from medical or public health organizations were submitted to the court in seven of the cases, all supporting the defendant's position. Hence, health care providers should select relatively safe drugs. Otherwise, the law on drug testing newborns varies from state to state. Unless otherwise noted, you can republish our stories for free if you follow these rules. She had become dependent on opioids, but when she learned she was pregnant, she immediately tried to enroll in a medication assisted treatment (MAT) program. Indeed, Kentucky has one of the highest rates of child removal in the country. Only two courts found for the defendant, in part on the grounds that there was no medical evidence to support the charge. Marijuana remains illegal at the federal level, even as some states have legalized it for recreational and medicinal use. To learn more about medication-assisted treatment for opioid use disorder and considerations in pregnancy, visit https://www.samhsa.gov/medication-assisted-treatment. A recent addition to the Center is Mother To Baby Georgia, a service providing evidence-based information to women about exposures to medications and other substances during pregnancy. Applying CDCs Guideline for Prescribing Opioids: Substance Abuse and Mental Health Services Administration: American College of Obstetricians and Gynecologists (ACOG) Committee Opinion: The Centers for Disease Control and Prevention (CDC) cannot attest to the accuracy of a non-federal website. Opioids are a class of drugs used to manage pain, but also have serious risks, such as addiction. 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. You can review and change the way we collect information below. As is true across the nation, rural areas have limited, if any, access to MAT. 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. 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. M. thought she was doing the right thing. Fifteen states have laws requiring health care workers to report to authorities if they suspect a woman is abusing drugs during pregnancy. Collaborations have included media messages on maternal substance abuse during pregnancy and supplying resources addressing the use of any substance. 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. 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 the purpose of this review, we identified published legal decisions regarding women criminally charged with a crime against a fetus or child for substance use during pregnancy from appellate level courts. State law prohibits a medical provider from releasing information about a pregnant individuals drug or alcohol test without the patients consent. 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. Cocaine (including crack cocaine) and methamphetamine (speed, or ice) are powerful stimulants that effect the central nervous system. 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. Since the late 1980s, policymakers have debated the question of how society should deal with the problem of substance use during pregnancy. Drug addiction is a serious problem, especially when the drug addict is pregnant. No adverse neonatal outcomes were reported in 41 percent of the pregnancies in this study. Drugs with evidence of fetal harm were widely used. These same legislators would be hard-pressed to take babies away from mothers who were struggling with medical treatment for hypertension or diabetes. Support ProPublica's award-winning investigative journalism. The substances being abused during pregnancy can include alcohol, cocaine, heroin, and opioid addiction. Contributions are tax deductible to the fullest extent allowable. 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. Your doctor can play an important role in helping you quit, including giving advice and support with quitting and connecting you with other resources. 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. 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. 2007), State v. Hudson, 2007 Tenn. Crim. Copyright 2023 by The American Academy of Psychiatry and the Law. 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. Trainings on maternal substance abuse, child development, alcohol and other drug related effects are conducted for prevention providers. The infant was born prematurely. A study Wexelblatt led between 2012 and 2013 found 5.4% of all mothers had a positive drug test on admission and 3.2% of the mothers tested positive for opioids. If you valued this article, please help us produce more journalism like this by making a contribution today. 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. 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. 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. 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.