Pregnancy and Law USA - Canadian Law Tomorrow

State Responses to Substance Abuse Among Pregnant Women

 

The Guttmacher Report on Public Policy

By Cynthia Dailard and Elizabeth Nash

(Please also review chart at bottom.)

While no state has enacted a law specifically criminalizing drug use during pregnancy, prosecutors have relied on a host of criminal laws already on the books to attack prenatal substance abuse. Women across the nation have been arrested and charged with a wide range of crimes, including possession of a controlled substance, delivering drugs to a minor (through the umbilical cord), corruption of a minor, and child abuse and neglect. Others have been charged with assault with a deadly weapon and manslaughter.

Women who have appealed their convictions to their state supreme court have prevailed in all but one instance. Typically, courts have overturned these convictions on the grounds that a fetus could not be considered a child or person under criminal child abuse statutes, or that the legislature did not intend for an existing criminal statute to apply to a pregnant woman and her fetus. Other courts have found such convictions to be unconstitutional violations of women's rights to due process (because the state applied the law in a way that could not be foreseen by the pregnant woman) and privacy. Only in South Carolina has the state supreme court, in the 1997 case Whitner v. South Carolina, upheld the conviction of a woman charged with criminal child abuse for using cocaine during pregnancy. In that case, the 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" could constitute child abuse.

Child Welfare Laws

Meanwhile, several states have expanded their child welfare laws to address prenatal drug exposure (treating the issue as a matter of civil rather than criminal law). These laws vary considerably in their scope and approach. Laws in 12 states specify either that a child born exposed to drugs is presumed to be abused or neglected or that positive results from a toxicology test performed on a newborn or signs of prenatal drug exposure in newborns constitute evidence of child abuse or neglect. In these states, such evidence provides grounds for removing the infant from the mother's custody and qualifies as a factor in determining whether to terminate parental rights. Under the South Carolina law, for example, a newborn is presumed to be neglected and "cannot be protected from further harm without being removed from the custody of the mother" if there is a positive drug test on either the mother or the child at birth.

Additionally, the Ohio Supreme Court, in its October decision In re Baby Boy Blackshear, found that a newborn testing positive for drug exposure is per se an abused child under the state's civil child abuse law, even though the law makes no mention of prenatal drug exposure. The law defines an "abused child" as one who suffers "physical or mental injury that harms or threatens to harm the child's health or welfare." Unlike the lower court, the supreme court said that it need not address whether a fetus is a child under the state's child abuse law, since a "postbirth" drug test indicated that drug exposure, and therefore abuse, had occurred. Accordingly, the state was justified, the court said, in its decision to terminate parental rights. State supreme courts in Connecticut and New York, however, have refused to treat pregnant women who used drugs as presumptively neglectful, while the New Jersey Supreme Court held that a newborn's addiction and symptoms of withdrawal, combined with a mother's failure to provide care, could be considered as a factor in terminating parental rights.

Other states require health care professionals to report or test for prenatal drug exposure—information that the state may use as evidence in child welfare proceedings. Health care professionals in seven states are required to report to the state if a newborn tests positive for drug exposure or if a pregnant woman shows evidence of drug use. In Iowa, Minnesota and Virginia, health care professionals are required to test some or all pregnant women or newborns for prenatal drug exposure. Kentucky law says that provided a woman is given notice, a physician may screen her for drug use and then determine whether to make a report to the state. In Iowa and Kentucky, however, test results may not be used as prosecutorial evidence.

Civil Commitment

Constitutional requirements for civil commitment require clear and convincing evidence that an individual is mentally ill and dangerous to herself or others. Three states have enacted laws specifically authorizing the civil commitment (or detention in a noncriminal setting) of women who use drugs during pregnancy; these statutes are based on the notion that the fetus is an endangered person. Minnesota and South Dakota authorize the emergency admission of pregnant women for mandatory drug treatment, including inpatient treatment, for as long as the duration of a pregnancy. The Wisconsin children's code, as amended in 1998, goes so far as to grant the state's juvenile court "exclusive jurisdiction" over an unborn child when a pregnant woman "habitually lacks self-control" with regard to alcohol or controlled substances. Because the statute defines an "unborn child" as a "human being from the time of fertilization to the time of birth," the state may intervene and detain a woman throughout her pregnancy if she poses a "substantial risk to the physical health" of her fetus.

Laws Pertaining to Pregnant Women Who Use Drugs

State	Civil Child Welfare*	Reporting Requirements	Testing Requirements	Civil Commitment	Drug Treatment†
Alabama
Alaska
Arizona		X			X
Arkansas					X
California					X
Colorado					X
Connecticut					X
Delaware
Florida	X				X
Georgia					X
Hawaii
Idaho
Illinois	X	X			X
Indiana	X
Iowa		X	X
Kansas					X
Kentucky					X
Louisiana					X
Maine
Maryland	X				X
Massachusetts		X
Michigan		X
Minnesota	X	X	X	X	X
Mississippi
Missouri					X
Montana
Nebraska					X
Nevada	X
New Hampshire
New Jersey
New Mexico
New York					X
North Carolina					X
North Dakota
Ohio					X
Oklahoma					X
Oregon					X
Pennsylvania					X
Rhode Island	X
South Carolina	X
South Dakota	X			X
Tennessee
Texas	X				X
Utah		X
Vermont
Virginia	X		X		X
Washington					X
West Virginia
Wisconsin	X			X	X
Wyoming
*In addition, an Oklahoma statute deems an infant as "deprived" if it tests positive for a controlled substance and "is determined to be at risk of future exposure to such substances" (emphasis added). In Iowa, grounds for terminating parental rights include the fact that an "illegal drug is present in a child's body as a direct and foreseeable consequence of the acts or omissions of the person responsible for the care of the child"; this statute, however, does not appear to be directed at pregnant women. †A Tennessee state law stipulates that the state may provide treatment services to pregnant women. In South Carolina, women who participate in the state-funded Family Independence Program and give birth to an infant who tests positive for drugs must participate in a drug rehabilitation program approved by the state.