For the purpose of this review, we identified published legal decisions regarding women criminally charged with a crime against a fetus or child for substance use during pregnancy from appellate level courts. We conducted a LexisNexis search of published U.S. state and federal cases in these categories using the following search terms: pregnant OR pregnancy AND cocaine OR methadone OR heroin OR controlled substance OR methamphetamine OR narcotic AND child abuse OR child neglect OR child endangerment OR assault OR homicide OR murder OR manslaughter. Contact your healthcare provider, local Alcoholics Anonymous, or local alcohol treatment center. 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 Keywords: laws, policies, substance use, care, treatment, infants, neglect Created Date: 8/17/2022 9:48:14 PM Contributions are tax deductible to the fullest extent allowable. As of 2018, 38 states had . Temporary Assistance for Needy Families (TANF) funding, The Truth About Marijuana and the Criminal Legal System, Florida Cops Nearly Sent a Five-Year-Old to Jail, When It Comes to Reporting Deaths of Incarcerated People, Most States Break the Law, M. Forrest Behne, Craig Waleed, Meghan Peterson, and Lauren Brinkley-Rubinstein, Gay And Trans Panic Is Still Being Used To Justify Anti-LGBTQ Attacks. Thank you for taking the time to confirm your preferences. Despite progress in the criminal legal system, the drug war remains almost unchallenged in the child protection system, and it is wreaking havoc on families. If you need to go back and make any changes, you can always do so by going to our Privacy Policy page. Neonatal exposure to some drugs during pregnancy can have harmful effects on development and may lead to acute adverse events, including neonatal abstinence syndrome (NAS) and infant mortality. But, for that matter, she could have been a pregnant alcoholic, causing fetal alcohol syndrome; or she could have been addicted to self abuse by smoking, or by abusing prescription painkillers, or over-the-counter medicine; or for that matter she could have been addicted to downhill skiing or some other sport creating serious risk of prenatal injury, risk which the mother wantonly disregarded as a matter of self-indulgence. The substances being abused during pregnancy can include alcohol, cocaine, heroin, and opioid addiction. In 2018, an estimated 12% of U.S. residents 18 years or older reported current unhealthy drug use in a national survey. App. Smoking during and after pregnancy also increases the risk of sudden infant death syndrome (SIDS). Narcotics Anonymous World Service Office in Los Angeles PO Box 9999 Van Nuys, California 91409 Telephone: (818) 773-9999 Fax: (818) 700-0700 Web site: www.na.org Substance Abuse and Mental Health Services Administration Only two courts found for the defendant, in part on the grounds that there was no medical evidence to support the charge. 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. The child was placed with CPS and now is in the custody of the great grandmother. When she visited him, she was distressed to find he often had seemingly untreated rashes. If you or someone close to you needs help for a substance use disorder, talk to your healthcare provider or call SAMHSAs National Helpline at1-800-662-HELP. Katie Jane Fernelius Hair has been recognized as a possible alternate test specimen, but wider acceptance of hair testing must await . CDC also works to better understand the association between marijuana use while pregnant with birth outcomes and postpartum experiences, such as depression and breastfeeding. No adverse neonatal outcomes were reported in 41 percent of the pregnancies in this study. Reproductive rights are under attack. They help us to know which pages are the most and least popular and see how visitors move around the site. You should also speak to your GP, midwife or a drug support service if you're regularly taking prescribed medicines. 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. Published on September, 30, 2015. 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. Significantly higher numbers come from the Centers for Disease Control, which in 2019 reported that some 16% of pregnant women . Your doctor can play an important role in helping you quit, including giving advice and support with quitting and connecting you with other resources. Opioids are a class of drugs used to manage pain, but also have serious risks, such as addiction. 2005), Richards v. State, 2005 Tenn. Crim. Civil child abuse proceedings are explicitly permitted in 18 states.9 These may lead to termination of parental rights, but not to prison sentences. Maternal deaths in the United States are increasing. These unintended consequences include keeping women from getting the treatment they need and failing to reduce the number of babies addicted to drugs. Some policymakers and law enforcement officials argue that criminal punishment deters substance use among pregnant women.1,,3 In contrast, the medical model of addiction views substance use disorders as chronic, relapsing diseases, with substance abuse during pregnancy an unfortunate, but common occurrence. 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. The treating pediatrician opined that the cause of death was respiratory arrest secondary to prematurity, whereas the medical examiner said that the cause of death was acute methamphetamine intoxication.18 Two of the opinions16,30 that directly referenced published medical literature referred to data that supported the conclusion that cocaine use during pregnancy creates a substantial and well-established risk to the unborn child and that this effect is within the scope of public knowledge. App. Learn more at Alcohol Use in Pregnancy from the Division of Birth Defects and Infant Disorders. 1991), People v. Hardy, 469 N.W.2d50 (Mich. Ct. App. NAS is a group of withdrawal symptoms that most commonly occurs in newborns after exposure to opioids during pregnancy.If you are pregnant and using opioid pain medications, CDC recommends you talk to your provider before starting or stopping any medications to help you understand all of the risks and make the safest choice for you and your pregnancy. In the subsequent months, M. saw her son once a week at best. 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. A representative example of this due process reasoning was expressed by the court in State v. Martinez: To expand the ordinary meaning of this statute would deny Defendant reasonable notice that her actions were criminal, thereby violating her due process rights.39 Six courts held that allowing the contested statute to apply to prenatal drug use would in effect permit it to be applied to a range of prenatal conduct not previously considered illegal, in effect opening the floodgates to prosecution of pregnant women. Hence, health care providers should select relatively safe drugs. "Georgia Supreme Court Orders C-Section Mother Nature Reverses on Appeal." . There were over 100,000 drug overdose . Federal Drug Laws. You can also call 1-800-QUIT-NOW (1-800-784-8669) for free support. At issue is whether the continued drug use of a newborn's mother is tantamount to "child abuse" that would give child protective services workers and law enforcement officers the ability to remove the child from the mother's care - even if the . 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 . One published trial court decision was identified.24 In this case, a New York trial court in 1992 dismissed the charge of child endangerment for cocaine ingestion during pregnancy. However, pregnant women with a disease called phenylketonuria shouldn't eat or drink aspartame. Exact terminology for relevant crimes varies across states and broad inclusion criteria were used for initial case review. So the very condition that Kentucky believes should trigger fast-tracked termination of parental rights is in fact often most effectively treated by close, consistent contact between the mother and newborn. This isaccomplished through a statewide OBHP contract withEmory University. " Among pregnant women aged 15 to 44, 5.4 percent were current illicit drug users based on data averaged across 2012 and 2013. 2015), The prevalence of illicit-drug or alcohol use during pregnancy and discrepancies in mandatory reporting in Pinellas County, Florida, Substance use during pregnancy and postnatal outcomes, Punishing pregnant drug users: enhancing the flight from care, Women's perspectives on screening for alcohol and drug use in prenatal care, Drug use and limited prenatal care: an examination of responsible barriers, Universal screening for alcohol and drug use and racial disparities in child protective services reporting, The American College of Obstetricians and Gynecologists Committee on Health Care for Underserved Women and American Society of Addiction Medicine, Committee Opinion No 524. Apr 20, 2022, M. Forrest Behne, Craig Waleed, Meghan Peterson, and Lauren Brinkley-Rubinstein 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. Prescription opioids may be prescribed by doctors to manage moderate to severe pain. Twelve opinions noted that other jurisdictions ruled similarly when faced with such cases. 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. Section 2 of the Georgia Security and Immigration Compliance Act of 2006 (Act 457) requires public employers, their contractors and subcontractors to verify the work eligibility of all newly hired employees through an electronic federal work authorization program. Copyright 2023 by The American Academy of Psychiatry and the Law. Dr. Angelotta is Instructor of Psychiatry and Behavioral Sciences, Department of Psychiatry, Northwestern University Feinberg School of Medicine, Chicago, IL. Fentanylis a prescription opioid that can be used to treat severe pain. Cases of Women Charged With Child AbuseRelated Crimes for Substance Use During Pregnancy, The substances related to the charges were cocaine (n = 15), methamphetamine (n = 10), heroin (n = 2), marijuana (n = 1), oxycodone (n = 1), and unspecified prescription pills (n = 1). Most states do not have a law that requires hospitals to test infants and new moms for controlled substances. 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. Stopping your medication suddenly could be harmful for you and your baby. If you regularly use drugs, it's important to tackle this now you're pregnant. It's best not to stop abruptly without first seeking medical advice as there may be . Many advocates I interviewed in the course of my own research on this subject described the surveillance of pregnancies and non-consensual drug testing performed on pregnant women and their newborns as comparable to stop-and-frisks for young men of color. Support ProPublica's award-winning investigative journalism. Opioid abuse, dependence, and addiction in pregnancy, Medication assisted treatment in US drug courts: results from a nationwide survey of availability, barriers and attitudes, Maternal-fetal rights and substance abuse: gestation without representation, Pregnant women and the use of corrections restraints and substance use commitment, New Jersey Division of Child Protection & Permanency v. In three states Minnesota, South Dakota and Wisconsin women who use drugs during pregnancy can be involuntarily committed to a treatment program. The substances related to the charges included cocaine, heroin, methamphetamine, marijuana, and prescription pills. In 2005, the Tennessee Court of Appeals overturned convictions based on guilty pleas for aggravated child abuse for methamphetamine use during pregnancy in two cases combined as Richards v. State.37 The judicial reasoning was that the women received ineffective assistance of counsel, in that their attorneys should have argued that their conduct fell outside the scope of the law, which at that time was intended to apply only to conduct that affected children, not fetuses. That said, there are a few things you should know about "drugs-while-pregnant" law across the U.S.: Most states have tried, at one point or another, to prosecute women for drug use during pregnancy. The city of Savannah decriminalized the possession of marijuana, effective July 1, 2018. DRH presents state and national estimates of marijuana use among pregnant women. The Guttmacher Institute is registered as a 501(c)(3) nonprofit organization under the tax identification number 13-2890727. However, fentanyl has also been manufactured illicitly, and its distribution is on the rise. It is part of the non-profit Organization of Teratology Information Specialists (OTIS), a national information network. Severalstudiesdocument that hospital staff disproportionately drug test and report to child protective services low-income women andwomen of color. Cases were decided by state supreme courts (n = 15) and state courts of appeals (n = 14). 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. In order to to avoid the risk of withdrawal and possibly harming her fetus, M. did what many pregnant women in her situation do she continued to use illicit opioids. Drug use during pregnancy is a severe problem worldwide because it exposes not only the woman but also her developing baby to harmful substances. 1992), Johnson v. State, 602 So.2d 1288 (Fla. 1992), State v. Gray, 584 N.E.2d 710 (Ohio 1992), Commonwealth v. Welch, 864 S.W.2d 280, 283 (Ky. 1993), Sheriff, Washoe County, Nevada v. Encoe, 885 P.2d 596 (Nev. 1994), Collins v. State, 890 S.W.2d 893 (Tex. 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. 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. A November study published in the Journal of the American Medical Association tracked the rise of laws that criminalized taking drugs while pregnant, as well as classifying drug use during pregnancy as child abuse that could result in loss of custody rights or as grounds for a civil commitment. The Center houses the Emory Neurodevelopmental Exposures Clinic (ENEC), a multidisciplinary clinic dedicated to providing evaluation and intervention services to individuals exposed to substances in pregnancy. 1. Maternal Substance Abuse and Child Development Project A neonatologist who was an expert witness for the defense testified that the cocaine derivatives present in the children's urine were from exchange between the womb and placenta during pregnancy and that only a tiny amount of cocaine derivative could have passed through the umbilical cord during the 30- to 60-second period after the child was born and before the umbilical cord was cut. Briefs from medical or public health organizations were submitted to the court in seven of the cases, all supporting the defendant's position. Ct. App. An official website of the State of Georgia. To date, the United States Supreme Court has declined to hear cases that raise questions about the constitutionality of such laws. 2007), State v. Hudson, 2007 Tenn. Crim. Cases wherein charges resulted in civil proceedings only (e.g., custody proceedings) were not included. Before losing contact with her lawyer, M. told me her story via email. Given the opposition of medical and public health professionals to the criminalization of substance use during pregnancy, an understanding of both the range of criminal charges pregnant substance users may face and the role, if any, that medical expertise has played in the adjudication of these cases would inform understanding of the problem and of medical professional advocacy efforts. For tips and advice to quit smoking, you can also visit How to Quit and Pregnancy, Motherhood, and Smoking. She told her treating physician about her opioid use during pregnancy, not realizing this could precipitate call to Child Protective Services (CPS). CDC is not responsible for Section 508 compliance (accessibility) on other federal or private website. There are several limitations to this study. 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. What if a pregnant woman drives over the speed limit, or as a matter of vanity doesn't wear the prescription lenses she knows she needs to see the dangers of the road? [I]t would be an anomaly, indeed, if the law were such that a pregnant woman who, by ingesting drugs, recklessly caused the death of a viable fetus would suffer no criminal liability for manslaughter but, if the child was born alive and did not die, could be imprisoned for five years for reckless endangerment [Ref. 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.
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