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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. You will be subject to the destination website's privacy policy when you follow the link. Second, they claim that drug use during pregnancy is a reliable indicator of parental unfitness. 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. 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. The new requirements become effective on July 1, 2007 To receive email updates about this page, enter your email address: We take your privacy seriously. Many substance use treatment centers do not offer MAT due to the stigma associated with it, and those centers that do provide MAT have not necessarily fulfilled their responsibility toprioritizepregnant women. If you valued this article, please help us produce more journalism like this by making a contribution today. In Kilmon v. State, the court said, 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. This claim disregards the fact that drug addiction is ahealth issuewith biological, behavioral, and genetic dimensions, and similar to other health conditions, itdoes not respond wellto artificially imposed treatment timelines or mandated treatment. 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 use of illicit substances such as cocaine and heroin during pregnancy is common. Priority applies to pregnant people referred for treatment. In all of the cases, the judicial decision depended on the disposition of the question of whether, for the purpose of adjudicating the criminal charges, a fetus is a child. Heroin is an illicit opioid. Apr 20, 2022, M. Forrest Behne, Craig Waleed, Meghan Peterson, and Lauren Brinkley-Rubinstein Quitline coaches can answer questions, help you develop a quit plan, and provide support. Exposing how the U.S. criminal legal system fails to keep people safe and perpetuates harm. 2005), Richards v. State, 2005 Tenn. Crim. Cases were decided by state supreme courts (n = 15) and state courts of appeals (n = 14). Before sharing sensitive or personal information, make sure youre on an official state website. 488. first criminal charges brought against a woman for using drugs during pregnancy came in 1977 against Margaret Reyes. Exact terminology for relevant crimes varies across states and broad inclusion criteria were used for initial case review. Criminal Charges for Child Harm from Substance Use in Pregnancy, Journal of the American Academy of Psychiatry and the Law Online, Substance and shadow: women and addiction in the United States, Pregnancy and drug use: the dangerous and unequal use of punitive measures, Fetal protection laws: moral panic and the new constitutional battlefront, Clinical, ethical, and legal considerations in pregnant women with opioid abuse, American Academy of Pediatrics Committee on Substance Abuse, Council on Addiction Psychiatry, American Psychiatric Association, Position statement on the care of pregnant and newly delivered women addicts, ACOG Committee Opinion No 473. However, pregnant women with a disease called phenylketonuria shouldn't eat or drink aspartame. The state argued that the drug delivery occurred via the umbilical cord in the period after birth but before the cord was clamped. 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. 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. State Responses to Substance Abuse Among Pregnant Women, Concerns Mount over Punitive Approaches to Substance Abuse Among Pregnant Women. 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. Support ProPublica's award-winning investigative journalism. Convictions were upheld only in Alabama and South Carolina, involving a total of four women. 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. As is true across the nation, rural areas have limited, if any, access to MAT. 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. In jurisdictions where criminal charges are permitted, dispositions for convicted women should be treatment oriented. A substantial body of legal literature traces the development of case law related to substance use during pregnancy and problems with criminalization of pregnant women.15,19,,23 In this article, we systematically review published legal cases of women charged with offenses causing harm to their fetus or child as a result of substance use during pregnancy, wherein the trial court decision was appealed. 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). 38]. Abstract. 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 . 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. The mother was a drug addict. In many places, women lose their children or end up in behind bars, sometimes even if the drug was prescribed. An obvious example is the recent Tennessee law that explicitly made illicit drug use during pregnancy a form of criminal assault. 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. The vast majority ofTemporary Assistance for Needy Families (TANF) funding, or federal welfare dollars meant to help the poor, is not spent on assistance to poor families, but rather on placing and keeping children in the foster care system. She struggled every day with the unimaginable pain and grief of separation from her newborn. 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. Otherwise, the law on drug testing newborns varies from state to state. 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. Support a worker-led Appeal. More and more states are adopting drug testing for newborns because of the recent increase in opioid use . The National Survey on Drug Use and Health (NSDUH), conducted annually by the Substance Abuse and Mental Health Services Administration (SAMHSA), provides nationally representative data on the use of tobacco, alcohol, and illicit drugs; substance use disorders; receipt of substance use treatment; mental health issues; and the use of mental health You should also speak to your GP, midwife or a drug support service if you're regularly taking prescribed medicines. To learn more about medication-assisted treatment for opioid use disorder and considerations in pregnancy, visit https://www.samhsa.gov/medication-assisted-treatment. by Leticia Miranda, Vince Dixon and Cecilia Reyes There may be many more unpublished trial decisions, the dimensions of which we have no way of assessing. 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. This helps clinicians better understand the prevalence of marijuana use as they care for their pregnant patients and provide screening and treatment. Cocaine (including crack cocaine) and methamphetamine (speed, or ice) are powerful stimulants that effect the central nervous system. Using these drugs during pregnancy may affect your baby's growth and puts you at higher risk of miscarriage, early labour, and placental abruption, where the placenta comes away from the wall of the womb . These cookies may also be used for advertising purposes by these third parties. 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 is a sad situation. App. Four courts noted that allowing a conviction would result in an absurd punishment scheme. 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. The infant was born prematurely. Establishes requirements for health care providers to encourage and facilitate drug counseling. Reproductive rights are under attack. Cocaine use during pregnancy poses severe issues for affected babies both short and long-term. 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. 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. 1994), Reinesto v. Superior Court, 894 P.2d 733 (Ariz. Ct. App. App. Hence, health care providers should select relatively safe drugs. If you need to go back and make any changes, you can always do so by going to our Privacy Policy page. We do not know the role that medical expertise and testimony played in influencing the judicial outcome at the trial court level. -- A Tennessee woman is the first to be charged under a new state law that specifically makes it a crime to take drugs while pregnant . The report pays particular attention to the impact of the 'chemical endangerment' law in Alabama, the state that has carried out the most prosecutions against pregnant women; and Tennessee's 'fetal assault' law, which between 2014 and 2016 made it a crime to give birth to a child showing symptoms of drug exposure. There is also no safe time during pregnancy to drink. 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. Contributions are tax deductible to the fullest extent allowable. In 2014, Tennessee made national news when it became the first state in the country to pass a law specifically making it a crime to use drugs while pregnant. 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. Drug Use by State: Problem Areas. Arizona now has one of the highest foster care placement rates in the nation. Tobacco and alcohol are the most commonly abused substances, followed by marijuana and cocaine. 24 states and the District of Columbia consider substance use during pregnancy to be child abuse under civil child-welfare statutes, and 3 consider it grounds for civil commitment. 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. 1. 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.