The short answer is, maybe. Law enforcement officials and policymakers have long debated the question of how to deal with the issue of women’s substance use during pregnancy. Prosecutors have relied on statutory criminal laws already in place in order to justify charges against women who use illegal substances during pregnancy.

Thus, women who use illegal substances during their pregnancy are able to be prosecuted under federal law for criminal endangerment of their child or for delivery of controlled substances to a child.

Further, some states are even prosecuting mothers who take their prescription medication and several states have expanded their civil child welfare requirements to include prenatal substance abuse; this means that prenatal drug exposure may be used as grounds for terminating their parental rights.

Additionally, a 15 states require health care professionals to report or even test for prenatal substance abuse, which then may be used as evidence in child welfare proceedings.

Tennessee is the only state with a statute that makes it a crime to use drugs while pregnant, while South Carolina and Alabama high courts have interpreted existing child endangerment laws to allow prosecution of substance abuse during pregnancy or for new mothers.

Further, every state besides Iowa, Vermont, Maine, Rhode Island, and Delaware, have sought to prosecute women for drug exposure during pregnancy. In Minnesota, South Dakota, and Wisconsin, women use drugs during pregnancy may be involuntarily committed to a treatment program; in the extreme case of Wisconsin a woman can be detained against her will for the duration of the pregnancy and may lose her baby after birth through secret proceedings.

Lastly, eighteen states, including Texas and Florida, have laws that say drug use during pregnancy is child abuse.

What is the Basis of Federal Law on Prenatal Substance Abuse?

There is a consensus that the basis of federal law on prenatal substance abuse is for the protection of the unborn child. As noted above, Tennessee is the only state that has enacted a law targeting substance use and abuse by pregnant women, based on presumed harm to the unborn child.

Tennessee state legislature passed the law in 2014 to explicitly permit criminal assault charges for illegal substance use during pregnancy, however the law expired on July 1, 2016. No other state have similar criminal statutes, but despite a lack of statutes specifically targeting substance use by pregnant women, women are still being prosecuted and convicted of a range of criminal offenses including: child abuse, assault, manslaughter, and in extreme cases murder.

It is important to note that, as of November 2018, the United States Supreme Court has not heard or ruled on any cases that raise questions about the constitutionality of laws specifically targeting substance abuse by pregnant women.

Because there is no specific government authority making substance use a crime during pregnancy, state prosecutors have managed to fit existing theories of criminal law in order to prosecute women for a crime.

For instance, women whose prenatal substance abuse injures their newborn infants are charged under the criminal statutes concerning child abuse, endangerment, or even drug delivery laws. In some cases, mothers are prosecuted for possession of a controlled substance on the basis of the illegal substance’s existence in their infants.

Who Prosecutes Women for Crimes of Substance Abuse?

Many people may prosecute a mother for prenatal substance abuse, most notable being the local district attorney. For instance, if the substance abuse has risen to levels of having a harmful effect on the child and there is strong evidence of past drug abuse by the mother, a local district attorney may have the mother or pregnant woman arrested and prosecuted. Other persons may file civil suits against the mother including the other parent of the unborn child or concerned relatives.

What are the Defenses to the Crime of Substance Abuse?

While there are situations where a newborn displays obvious drug related behaviors where district attorneys are able to prosecute a case against a mother successfully, that is not always the case. In fact, a number of mothers have been able to defend against charges using a number of different defenses.

For example, some argue that the fetus is not yet a child so they cannot be charged with a crime involving a minor. Further, some argue that due to the lack of state statutory authority on the subject of prenatal substance abuse, they cannot be prosecuted of the crime.

Should I Contact an Attorney if I am Facing Charges of Prenatal Substance Abuse?

If you are facing charges of prenatal substance abuse, a well qualified and experienced criminal defense attorney may be able to help you defend against such a charge. As can be seen, this area of criminal law is a new and very difficult area to navigate.

Further, statistically juries have been very tough on mothers that have abused drugs during pregnancy, and the loss of such cases may result in a significant amount of jail time.