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States Increasingly Penalize Pregnant Women for Drug Use

August 13, 2015 — Some states are working to penalize pregnant women who use drugs, countering advice from medical groups that recommend treatment instead, the Daily Beast reports.

In some cases, the states are responding to reported increases in drug misuse. For example, heroin use among U.S. adults ages 18 to 25 increased by more than two-fold over the last decade, according to CDC. Further, neonatal abstinence syndrome has also become increasingly prevalent over about the same time period, now affecting 3.39 per 1,000 hospital births, up from 1.2 in the past.

States Penalize Pregnant Women

CDC has suggested states respond to the increase by boosting access to substance use disorder treatment, but some states instead have tried to address the uptick in NAS cases by imposing criminal penalties on pregnant women who use drugs.

Overall, according to a report from the Guttmacher Institute, 18 states currently classify drug misuse by a pregnant woman to be a form of child abuse, and few of them overlap with the 19 states that have established or funded programs designed to treat pregnant women who misuse drugs. Specifically, 10 of the 18 states that classify drug use as a form of child abuse have not established drug treatment programs for pregnant women. Similarly, only six of the 15 states that impose mandatory reporting requirements for suspected drug misuse have funded or established such programs.

Meanwhile, some states have imposed additional penalties on pregnant women who misuse drugs. For example, Tennessee in 2014 became the first state to pass a law (SB 1391) designed specifically to penalize pregnant women who misuse drugs. Under the law, a pregnant woman who misuses certain drugs can be charged with aggravated assault, which can carry a prison sentence of 15 years. A woman was charged under the law weeks after it took effect, the Daily Beast reports.

According to the Daily Beast, five states have sought to pass measures similar to the Tennessee law. For example, in North Carolina, lawmakers advocated for a measure (SB 297) that would classify substance use by a pregnant woman as assault. Meanwhile, pregnant women also have faced charges under "fetal homicide" or "fetal harm" laws, many of which were designed to punish individuals who harmed pregnant women.

Separately, the Daily Beast reports that the Alabama Supreme Court in 2013 upheld the convictions of two women who had used drugs while pregnant, ruling that the women's drug use constituted "chemical endangerment of a child." Similarly, the South Carolina Supreme Court in 1997 held that substance use during a pregnancy "could be considered criminal child abuse."

Different Approach Advised

The American Congress of Obstetricians and Gynecologists and the American Civil Liberties Union, among other groups, have criticized the penalization of pregnant women for drug use.

For example, CDC and ACOG have urged states to reduce substance use among pregnant women through treatment programs instead. ACOG and ACLU also have noted that laws such as Tennessee's discourage women from seeking prenatal care rather than seeking substance use disorder treatment.

Similarly, the American Psychiatric Association in a 2001 position statement said that "societal resources (should) be directed not to punitive actions but to adequate preventive and treatment services for these [women] and children." In addition, the American Medical Association, which opposed the Alabama ruling, has argued against laws that criminalize substance use during pregnancy.

Ohio Program Focuses on Treatment

The Daily Beast highlights one new program in Cincinnati that will test all new mothers or infants for drugs and send women who test positive to treatment programs while providing continued care for their infants.

According to the Daily Beast, the program has spurred controversy among some advocates who support a screening program rather than mandatory testing. However, the Daily Beast reports that if such testing "can be effective anywhere, it would be in a state like Ohio where there are no criminal consequences for drug-using pregnant women, no mandatory reporting requirement, and state-funded treatment available for pregnant women" (Allen, Daily Beast, 8/12).