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. 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. CDC also works to better understand the association between marijuana use while pregnant with birth outcomes and postpartum experiences, such as depression and breastfeeding. Disclosures of financial or other potential conflicts of interest: None. Using illegal drugs while pregnant can cause many complications to the baby including brain damage, premature birth, low birth weight and even fetal death. Wisconsin provides priority access to pregnant people in both general and private programs. 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. 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. Substance use providers that accept Medicaid must give pregnant people priority in accessing services. The city of Savannah decriminalized the possession of marijuana, effective July 1, 2018. Several leading medical organizations opposed the legislation and cautioned that it would have a negative public health effect of scaring women away from seeking medical help. 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. 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). In Tennessee, this law carries a maximum penalty of 15 years in prison. App. We did not examine judicial decisions regarding women who have faced civil child abuse proceedings related to prenatal substance use. The substances being abused during pregnancy can include alcohol, cocaine, heroin, and opioid addiction. Although the legal bases for appellate court decisions varied (see Table 1), the functional outcome was that the charges were dismissed (n = 14) or convictions overturned (n = 11) for 86.2 percent of the women (25/ 29). Opioids can be prescription or illicit. 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. 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. 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. She was charged with chemical endangerment of a child. 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. You can also go to SAMHSAs Behavioral Health Treatment Services Locator. These same legislators would be hard-pressed to take babies away from mothers who were struggling with medical treatment for hypertension or diabetes. 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. State law prohibits a medical provider from releasing information about a pregnant individuals drug or alcohol test without the patients consent. Saving Lives, Protecting People, https://www.samhsa.gov/medication-assisted-treatment, prevent overdoses and substance use-related harms, Learn about the Division of Reproductive Healths efforts to address opioid use disorder to improve maternal and infant health, CDC Guideline for Prescribing Opioids for Chronic Pain, A Collaborative Approach to the Treatment of Pregnant Women with Opioid Use Disorders, Opioid Use and Opioid Use Disorder in Pregnancy, Clinical Guidance for Treating Pregnant and Parenting Women with Opioid Use Disorder and their infants, Final Report: Opioid Use, Misuse, and Overdose in Women, What We Can Do About Opioid Use Disorder in Pregnancy, SAMHSAs Behavioral Health Treatment Services Locator, guidance from the American College of Obstetricians and Gynecologists, What You Need to Know About Marijuana Use and Pregnancy, The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research (2017), Prevalence and patterns of marijuana use among pregnant and nonpregnant women of reproductive age. 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. In the subsequent months, M. saw her son once a week at best. The survey also notes that if prenatal drug use is suspected, Illinois, Michigan, Ohio and Wisconsin require health professionals to report it while Indiana requires pregnant women to be tested; Iowa, Minnesota, North Dakota and South Dakota require both. 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. This was lower than the rate among women in this age group who were not pregnant (11.4 percent). 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. Georgia Marijuana Statutes 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. 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. Based on results of this analysis, the authors jointly finalized the coding scheme, which was then applied to all of the identified cases. In the family court systems, there is no respect for medicine or science, she wrote. The Supreme Courts in Alabama and South Carolina have upheld convictions ruling that an individuals substance use in pregnancy constitutes criminal child abuse. 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. Otherwise, the law on drug testing newborns varies from state to state. 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. The state legislature passed the law in 2014 explicitly to permit criminal assault charges for illicit substance use in pregnancy and, on conviction, imprisonment.10 The impetus for the law was rapidly rising rates of neonatal abstinence syndrome, an opioid withdrawal syndrome in infants that may require prolonged monitoring in intensive care units.12 The law expired on July 1, 2016, based on a sunset provision in the original bill.10 No other states have similar criminal statutes, but two other state legislatures recently debated criminalization to combat the opioid epidemic.13,14. 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. 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. We also identified judicial references to expert or fact witness medical testimony and to medical literature or medical or public health-related amicus briefs. His girlfriend is also a meth addict. Neonatal abstinence syndrome . 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. There are several limitations to this study. Visitour state legislation trackerfor policy activity on all sexual and reproductive health topics. Tennessee is the only state with a statute that specifically makes it a crime to use drugs while pregnant. It found that parents face long wait lists when accessing substance use treatment services and often dont have the means to pay. Prescription opioids may be prescribed by doctors to manage moderate to severe pain. Many states recognize this as an act of child abuse on the unborn fetus . CDCs Division of Reproductive Health (DRH) provides scientific leadership in the surveillance of marijuana use during pregnancy. There is also no safe time during pregnancy to drink. Twelve opinions noted that other jurisdictions ruled similarly when faced with such cases. Kansas and Nebraska have no reporting or testing requirements, the survey says. MSACD is committed to raising the awareness of thedevastating effects of alcohol and other substances whenused during pregnancy. 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. Before losing contact with her lawyer, M. told me her story via email. [Ref. 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. 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.. Prescription Opioid Pain Reliever Use During Pregnancy, The US Opioid Crisis & Maternal Infant Health, Centers for Disease Control and Prevention. Drug addiction is a serious problem, especially when the drug addict is pregnant. 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. The search yielded 77 published cases, of which, on closer review, 16 were found to be relevant. 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). State Policies on Substance Use During Pregnancy. Prescribed medicines. State of Georgia government websites and email systems use georgia.gov or ga.gov at the end of the address. 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. The overwhelming majority of parents prosecuted by the child welfare system are poor, and parents ofcolorare overrepresented. How some hospitals are drug testing new mothers without consent, How Alabamas meth lab law is unfairly punishing pregnant women, Mothers: tell us about drug testing at your hospital. Abstract. Healthy pregnancies are essential for the well-being of mothers, infants, families and communities. For tips and advice to quit smoking, you can also visit How to Quit and Pregnancy, Motherhood, and Smoking. 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. At the present time, the Center for MSACD fulfills several roles in Georgia by sponsoring clinical, prevention, and research programs. The court also referred to rulings by appellate courts in other jurisdictions that had held similarly in comparable cases. 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. Six ruled that the contested application of the statute to conduct during pregnancy violated due process, which requires that criminal offenses be defined in plain language so that an ordinary person has fair notice about the actions proscribed. 2023 Guttmacher Institute. 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. Aspartame is an artificial sweetener in some food and drinks and small amounts may be safe 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. Convictions were upheld only in Alabama and South Carolina, involving a total of four women. 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. The federal Department of Health and Human Services recently released areportreviewing Kentuckys child welfare system. 2007), State v. Hudson, 2007 Tenn. Crim. Along with counseling and behavioral therapy, opioid medications (buprenorphine, methadone, and naltrexone) may be used in medication assisted therapy (MAT) to treat opioid use disorder. 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. This is all exacerbated by a series of measures Arizona has undertaken to constrict its social safety net, leaving families struggling with inadequate access to cash, food, housing, child care, and transportation. If you need to go back and make any changes, you can always do so by going to our Privacy Policy page. 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. She told her treating physician about her opioid use during pregnancy, not realizing this could precipitate call to Child Protective Services (CPS). The Maternal Substance Abuse and ChildDevelopment (MSACD) Project focuses on theprevention of negative consequences of a maternalsubstance use through a variety of services. Drugs with evidence of fetal harm were widely used. Thank you for taking the time to confirm your preferences. Hair has been recognized as a possible alternate test specimen, but wider acceptance of hair testing must await . As part of CDCs efforts to prevent overdoses and substance use-related harms, CDC is taking specific actions to prevent opioid use disorder among pregnant women and women who could become pregnant and to make sure women with opioid use disorder get proper treatment. Four courts noted that allowing a conviction would result in an absurd punishment scheme. Between 2002-2003 and 2016-2017, past-month cannabis use increased from 3.4% to 7.0% among pregnant women overall and from 5.7% to 12.1% during the first trimester. Reyes was charged with two counts of felony child endangerment for her heroin use And the scientific literature that suggests that substance use produces social cognitive deficits in parenting is in its infancy and rather underwhelming. Stopping your medication suddenly could be harmful for you and your baby. 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. More and more states are adopting drug testing for newborns because of the recent increase in opioid use . At least two states, Arizona and Kentucky, have just made it easier to terminate the rights of mothers who use controlled substances while pregnant. Federal agencies collaborate with both state and local law enforcement to ensure effective controls over substances that are deemed to be a danger to individuals and to society. The new requirements become effective on July 1, 2007 Marijuana use during and after pregnancy and association of prenatal use on birth outcomes: A population-based study. 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.
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