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Terminating a mothers rights to her newborn is an especially brutal drug war tactic that research and experience show will inflict far more harm than good on the children and families it allegedly aims to protect. MSACD has currently established relationships with at least one community in every region across the state. 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. 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). Video Transcribed: Life imprisonment for using drugs while pregnant.I'm Tulsa criminal defense attorney James Wirth, and we're talking about a new law in Oklahoma.And that became effective in September of 2020, and it essentially provides that mothers to be who use drugs or CDS, while pregnant, can be prosecuted for child neglect, receiving up to life imprisonment. 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. When she visited him, she was distressed to find he often had seemingly untreated rashes. All of these cases were appellate decisions except for one published trial court decision,24 which we discuss separately, given that trial court decisions are not typically published and do not resolve matters of law. For example, Amanda Kimbrough's child was born prematurely and died shortly after birth, having tested positive for methamphetamine. In the subsequent months, M. saw her son once a week at best. 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. An example of this reasoning was articulated by the majority in State v. Welch: This is all done under the cloak of what is in the best interest of the childbut that is ironic, because they are hurting my son.. Since 1973, authorities in at least 45 states have tried to prosecute women for exposing unborn children to drugs. 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. An obvious example is the recent Tennessee law that explicitly made illicit drug use during pregnancy a form of criminal assault. Charges included child endangerment, child abuse, drug delivery, attempted aggravated child abuse, chemical endangerment of a child, child neglect, child mistreatment, homicide, manslaughter, and reckless injury to a child. 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. The research that does claim to link substance use to maltreatment of children is not authoritative. We also identified judicial references to expert or fact witness medical testimony and to medical literature or medical or public health-related amicus briefs. Using cocaine or methamphetamine -- also called speed, Tina, crank, or ice -- increases the risk of miscarriage early in the pregnancy. About half of the states treat drug use during. Thus, it is not clear whether racial or economic bias is a factor in these cases. The Tips campaign features information about how smoking and secondhand smoking affect specific groups, including pregnant women or women planning to have a baby. Unfortunately, many women of childbearing age in the U.S. use some form of illegal drug. State law prohibits a medical provider from releasing information about a pregnant individuals drug or alcohol test without the patients consent. 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. 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. 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. 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. Prescribed medicines. Maternal deaths in the United States are increasing. LEXIS 496 (Tenn. Crim. Drug addiction is a serious problem, especially when the drug addict is pregnant. However, pregnant women with a disease called phenylketonuria shouldn't eat or drink aspartame. 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. 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. Prevalence of Current Substance Use Among Pregnant People in the US. 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 . 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. Additionally, e-cigarettes and other tobacco products containing nicotine (the addictive drug found in tobacco) are not safe to use during pregnancy. 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 regularly use drugs, it's important to tackle this now you're pregnant. The court held that the legislature did not intend for the relevant statute to apply to conduct during pregnancy that affected fetuses. If youre using marijuana and are pregnant or are planning to become pregnant, talk to your healthcare provider. 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. 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. Wisconsin provides priority access to pregnant people in both general and private programs. State laws vary, but at least 23 states and the District of Columbia articulate that substance use during pregnancy is child abuse, and virtually every state in the U.S. will open an investigation (at the very least) into a person who tests positive for substances during or shortly after pregnancy. 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. Many states recognize this as an act of child abuse on the unborn fetus . Dehumanizing Discourse, Anti-drug Law, and Policy in America: A "Crack Mother's" Nightmare . The Center for MSACD also provides training, workshops, and other informational services concerning prenatal exposure to alcohol, nicotine, illicit drugs, and prescription drugs. This means that first-time offenders will be issued an infraction (like a speeding ticket) instead of jail, with a maximum fine of $150. For access to services and immediate crisis help, call theGeorgia Crisis & Access Line(GCAL) at1-800-715-4225, available 24/7. 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. App. As is true across the nation, rural areas have limited, if any, access to MAT. App. Question by Miss Crickett: Az law on drug use during pregnancy? Both stand to undermine the medical treatment of pregnant women with substance use disorders and potentially increase harm to mothers and children. 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. Three courts stated that permitting prosecutions under the contested statute was counterproductive to state policy goals and public health. Collaborations have included media messages on maternal substance abuse during pregnancy and supplying resources addressing the use of any substance. 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 was lower than the rate among women in this age group who were not pregnant (11.4 percent). Mar 02, 2022. 1. Her infant tested positive for cocaine shortly after birth. Here is a survey of state laws. 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. It found that parents face long wait lists when accessing substance use treatment services and often dont have the means to pay. 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. 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 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. You can review and change the way we collect information below. Prosecutors have attempted to rely on a host of criminal laws already on the books to attack prenatal substance use. Clear evidence suggests that recognizing the substance exposed infant and . International Perspectives on Sexual and Reproductive Health (19752020), Perspectives on Sexual and Reproductive Health (19692020). 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. 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. To learn more about medication-assisted treatment for opioid use disorder and considerations in pregnancy, visit https://www.samhsa.gov/medication-assisted-treatment. 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. 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. 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. 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. by Leticia Miranda, Vince Dixon and Cecilia Reyes Since 1973, authorities in at least 45 states have sought to prosecute women for exposing their unborn children to drugs. 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. Only four states (North Dakota, Minnesota, Iowa and Kentucky) require hospitals to test both new mothers and their children if medical professionals suspect drug use. For example, pregnant women should drink less than 1 liter (about 3 cans) of diet soda per day. 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. We developed categories of relevant variables to code a priori. 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. Further research is needed to better understand how marijuana may affect pregnant women and developing babies. 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. Despite the opposition of medical and public health professionals, several state legislatures are considering laws that permit child abuse charges for substance use during pregnancy. You will be subject to the destination website's privacy policy when you follow the link. Nicotine is a health danger for pregnant women and developing babies and can damage a developing babys brain and lungs. Keywords: laws, policies, substance use, care, treatment, infants, neglect Created Date: 8/17/2022 9:48:14 PM Prescription Opioid Pain Reliever Use During Pregnancy, The US Opioid Crisis & Maternal Infant Health, Centers for Disease Control and Prevention. Will you help us fight back with facts? State Policies on Substance Use During Pregnancy. In 2018, an estimated 12% of U.S. residents 18 years or older reported current unhealthy drug use in a national survey. Among pregnant women aged 15 to 44, the average . In totality, medical expertise seemed to play relatively little role in determining the outcome of most judicial decisions. Quitting smoking is one of the most important ways you can protect your health and the health of 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. remove barriers to pregnant women with substance use disorders from getting evidence-based treatment that's tailored to their unique needs. 38]. Before losing contact with her lawyer, M. told me her story via email. 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. Such information can assist in making diagnosis of neonatal abstinence syndrome (NAS), as well as help clinicians focus the plan for treatment and follow-up for the neonates. 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. 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 . Thank you for your interest in recommending The Journal of the American Academy of Psychiatry and the Law site. There may be many more unpublished trial decisions, the dimensions of which we have no way of assessing. Before sharing sensitive or personal information, make sure youre on an official state website. Meanwhile, private insurance companies have found ways to circumvent Obamacare requirements on MAT coverage. 1994), Reinesto v. Superior Court, 894 P.2d 733 (Ariz. Ct. App. 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. Tobacco and alcohol are the most commonly abused substances, followed by marijuana and cocaine. Three of the key areas in which they can have an effect are 1) adhering to safe prescribing practices, 2) encouraging healthy behaviors by providing appropriate information and education, and 3) identifying and referring patients already abusing drugs to addiction treatment professionals 13. Sign In to Email Alerts with your Email Address. Contributions are tax deductible to the fullest extent allowable. Published on September, 30, 2015. The following information can help you understand [] These cookies may also be used for advertising purposes by these third parties. Kansas and Nebraska have no reporting or testing requirements, the survey says. The Supreme Courts in Alabama and South Carolina have upheld convictions ruling that an individuals substance use in pregnancy constitutes criminal child abuse. 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. Professional advocacy may best be directed at state legislatures. Additional cases were identified by reviewing the cases cited in the initial set of cases and published literature, yielding an additional nine cases. Studieshave found that babies exposed to cocaine in utero are not at greater risk of maltreatment as young children than similarly situated babies. 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. 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. 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. A mother taking illegal drugs during pregnancy increases her risk for anemia, blood and heart infections, skin infections, hepatitis, and other infectious diseases. Cases of Women Charged With Child Abuse-Related Crimes for Substance Use During Pregnancy The substances related to the charges were cocaine ( n = 15), methamphetamine ( n = 10), heroin ( n = 2), marijuana ( n = 1), oxycodone ( n = 1), and unspecified prescription pills ( n = 1). Dr. Appelbaum is Elizabeth K. Dollard Professor of Psychiatry, Medicine, and Law, Department of Psychiatry, Columbia University, and Director, Division of Law, Ethics, and Psychiatry, Columbia College of Physicians and Surgeons, and NY State Psychiatric Institute, New York, NY. State laws now vary considerably in their approach to the problem, reflecting a deep division in public opinion. Exact terminology for relevant crimes varies across states and broad inclusion criteria were used for initial case review. 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). Approximately 700 women in the United States die every year . There were over 100,000 drug overdose . NOTE: We only request your email address so that the person you are recommending the page to knows that you wanted them to see it, and that it is not junk mail. 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. 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. Source: ProPublica research by Leticia Miranda and Christine Lee; Guttmacher Institute; National Advocates for Pregnant Women. Cookies used to make website functionality more relevant to you. 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. 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. 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. 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. 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. 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. 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. The laws can vary widely from state to state in terms of reporting requirements and consequences of reporting. However, in 2015, law enforcement cracked down on drug use during pregnancy. LEXIS 970 (Tenn. Crim. In Minnesota and North Dakota, a test is required if there are drug-related complications at birth. Millions ofparentswho use drugs or have substance use disorders parent their children well. Although pregnancy is an exciting time, there are stresses and risks that come with pregnancy and the postpartum period. 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. 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.