Substance Use During Pregnancy

Background

Since the late 1980s, policymakers have debated the question of how society should deal with the problem of substance use during pregnancy. Prosecutors have attempted to rely on a host of criminal laws already on the books to attack prenatal substance use. The Supreme Courts in Alabama and South Carolina have upheld convictions ruling that an individual’s substance use in pregnancy constitutes criminal child abuse. 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. Further, some states, under the rubric of protecting the fetus, authorize civil commitment (such as forced admission to an inpatient treatment program) of pregnant people who use drugs; these policies sometimes also apply to alcohol use or other behaviors. 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. And in order to receive federal child abuse prevention funds, states must require health care providers to notify child protective services when the provider cares for an infant affected by illegal substance use. Finally, a number of states have placed a priority on making drug treatment more readily available to pregnant individuals, which is bolstered by federal funds that require prioritized access to treatment programs for anyone who is pregnant.

Highlights

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.
25 states and the District of Columbia require health care professionals to report suspected prenatal drug use, and 8 states require them to test for prenatal drug exposure if they suspect drug use.
19 states have either created or funded drug treatment programs specifically targeted to those who are pregnant, and 17 states and the District of Columbia provide pregnant people with priority access to state-funded drug treatment programs.
10 states prohibit publicly funded drug treatment programs from discriminating against pregnant people.

State Policies on Substance Use During Pregnancy
	SUBSTANCE USE DURING PREGNANCY CONSIDERED:		WHEN DRUG USE DIAGNOSED OR SUSPECTED, STATE REQUIRES:		DRUG TREATMENT FOR PREGNANT INDIVIDUALS
STATE	Child Abuse	Grounds for Civil Commitment	Reporting	Testing	Targeted Program Created	Pregnant People Given Priority Access in General Programs	Pregnant People Protected from Discrimination in Publicly Funded Programs
Alabama	X^*					X	X
Alaska			X
Arizona	X		X			X
Arkansas	X		X		X	X
California			X		X
Colorado	X				X^ξ
Connecticut					X
Delaware						X
District of Columbia	X		X			X
Florida	X				X		X
Georgia	X					X
Illinois	X		X		X^ξ	X	X
Indiana	X^†			X	X
Iowa	X		X	X		X	X
Kansas						X	X
Kentucky	X		X	X	X	X	X
Louisiana	X		X	X
Maine			X			X
Maryland					X
Massachusetts			X
Michigan			X
Minnesota	X	X	X	X	X
Missouri	X^Ω				ξ	X^‡	X
Montana			X
Nebraska
Nevada	X		X
New York					X
North Carolina					X
North Dakota	X		X	X
Ohio	X		X		X^ξ	X	X
Oklahoma			X			X	X
Oregon					ξ
Pennsylvania			X		X
Rhode Island	X		X	X
South Carolina	X^*				X
South Dakota	X	X	X	X
Tennessee					X^ξ	X	X
Texas	X
Utah	X		X			X
Virginia	X		X		X^ξ
Washington	X				X^ξ
West Virginia						X^Ө
Wisconsin	X	X	X		X	Xᵝ
TOTAL	24+DC	3	25+DC	8	19	17+DC	10
* The Alabama Supreme Court held that drug use while pregnant is considered chemical endangerment of a child. 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. † State law prohibits a medical provider from releasing information about a pregnant individual’s drug or alcohol test without the patient’s consent. ‡ Priority applies to pregnant people referred for treatment. ξ Establishes requirements for health care providers to encourage and facilitate drug counseling. Ω Under state’s 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. Ө Substance use providers that accept Medicaid must give pregnant people priority in accessing services. β Wisconsin provides priority access to pregnant people in both general and private programs.

Source URL: https://www.guttmacher.org/state-policy/explore/substance-use-during-pregnancy