The short answer is yes. Law enforcement officials and policymakers are unsure how to deal with women’s substance use during pregnancy. However, prosecutors have already relied on statutory criminal laws to justify charges against pregnant women who use illegal substances. In other words, pregnant women can be charged with possessing or using illegal drugs, just as non-pregnant people can be.
In addition to normal prosecution for drug possession or use, pregnant drug users face additional potential charges. They can be accused of child abuse. They can be prosecuted under state or federal law for criminal endangerment of their child or delivery of controlled substances to a child. Prenatal drug exposure may be used as grounds for terminating their parental rights.
Some states even prosecute mothers who take their prescription medication if it can harm the fetus. Additionally, 5 states require healthcare professionals to report or even test for prenatal substance abuse, which may be used as evidence in child welfare proceedings.
Tennessee is the only state that has enacted a specific statute that makes it a crime to use drugs while pregnant. South Carolina and Alabama high courts have interpreted existing child endangerment laws to allow prosecution of substance abuse during pregnancy or afterward.
This is a real risk for women using drugs during pregnancy. They can indeed be prosecuted. Every state (except Iowa, Vermont, Maine, Rhode Island, and Delaware) has actually prosecuted women for drug exposure during pregnancy. In Minnesota, South Dakota, and Wisconsin, women who use drugs during pregnancy may be involuntarily committed to a treatment program. If they are unsuccessful in the treatment program, they may lose their baby immediately after giving birth.
While most states rely on general case law to prosecute women for child abuse because of using illegal drugs during pregnancy, eighteen states, including Texas and Florida, have laws that specifically state that illegal drug use during pregnancy is child abuse.
What is the Basis of Federal and State Law on Prenatal Substance Abuse?
There is a consensus that the basis of federal and state law on prenatal substance abuse is for protecting 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. The 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, and has not been re-enacted.
What are the Medical Risks of Using Drugs During Pregnancy?
Substance use during pregnancy can have harmful health effects on the baby. The most common illegal drugs used during pregnancy are marijuana, cocaine, and opioids.
The use of opioids (such as heroin, fentanyl, and certain pain pills during pregnancy has been linked to premature birth, poor fetal growth, stillbirth, and congenital disabilities. The damage to the baby does not stop once it is born. Babies have to withdraw from the drugs, which can lead to neonatal abstinence syndrome (NAS) or neonatal opioid withdrawal syndromes (NOWS).
Some research has shown that marijuana use during pregnancy is linked to low birth weight. It may also increase the chances of developmental problems for a child, such as problems with attention and learning.
Of course, illegal drugs are not the only substances that affect babies in utero. Alcohol use during pregnancy can cause miscarriage, stillbirth, lifelong congenital disabilities, and developmental disabilities. These disabilities are known as fetal alcohol syndrome (FAS). Moreover, cigarette smoking during pregnancy increases the risk of health problems for developing babies, such as preterm birth, low birth weight, and congenital disabilities of the mouth and lips. Smoking during and after pregnancy also increases the risk of Sudden Infant Death Syndrome (SIDS)
Who Prosecutes Pregnant Women for Crimes of Substance Abuse?
Several people may prosecute a mother for prenatal substance abuse. The most notable is the local district attorney. For instance, if the substance abuse has risen to levels of harming the child and there is evidence of drug abuse by the mother, a local district attorney may have the mother or pregnant woman arrested and prosecuted for drug use and child abuse.
Other persons may file civil suits against the mother, including the other parent of the unborn child or concerned relatives.
Because there is no specific law making substance use a crime during pregnancy, state and federal prosecutors have instead fit the use of illicit drugs by pregnant women into 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 criminal statutes concerning child abuse, child endangerment, drug delivery laws, and assault. If the child dies from an overdose, the mother can be convicted of manslaughter or murder.
If illegal drugs are found in the newborn’s blood system, their mothers can be prosecuted for possessing a controlled substance. This is based on the theory that the only way the baby could have drugs in its system is if the mother ingested them. The baby’s blood test is evidence against the mother, and she can be prosecuted for drug possession or use just as a non-pregnant person can be.
What Are the Defenses to the Crime of Substance Abuse?
Several mothers have successfully defended themselves against criminal charges using two different defenses. First, some have argued that the fetus is not yet a child, so they cannot be charged with a crime involving a minor. Second, some have asserted that they cannot be prosecuted for the crime due to the lack of specific state statutory authority to charge pregnant women with drug use or child abuse.
While these defenses have been successful in a handful of cases, they are far more often unsuccessful.
Why Don’t Pregnant Women Just Quit?
Punitive policies cause pregnant people to fear disclosing their substance use to their healthcare providers or to avoid seeking treatment for a substance use disorder. These policies may also cause them to avoid or delay getting obstetric care.
Moreover, it is harder for pregnant women to get treatment than other people. In one recent study using a “secret shopper” approach, callers to addiction treatment providers in 10 states were 17% less likely to receive an appointment if they said they were pregnant.
Should I Contact an Attorney if I am Facing Charges of Prenatal Substance Abuse?
This area of criminal law is new and difficult to navigate. It is changing year by year.
Statistically, juries have been very tough on mothers who have abused drugs during pregnancy, and the loss of your case may result in a significant amount of jail time or even the loss of your right to parent your child.
If you are facing charges of prenatal substance abuse, a well-qualified and experienced drug lawyer will be able to defend you against such charges. They will protect your constitutional rights, give you information about the evidence against you, negotiate with the prosecution on your behalf, and, if necessary, represent you at trial and on appeal. Find a skilled local criminal law attorney. The potential consequences are simply too serious to risk.