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.
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- 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.
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