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Risk of Prosecution for Substance Use During Pregnancy

Can a woman who uses a controlled substance during pregnancy be prosecuted for child abuse? Must health care workers report substance use during pregnancy? The answer to these questions and others varies from state to state, with little consistency, according to a comparison of state laws and policies by Pro Publica, the non-profit investigative journalism organization. Their results, published in 2015, and available in an interactive map show that1,2:

  • While only three states have laws specifically making drug use during pregnancy a crime, women in almost every state have been prosecuted for such use since 1973 under a wide variety of laws.
  • Eighteen states have laws defining drug use during pregnancy as child abuse, and 15 states require healthcare workers to report to authorities if they suspect a woman is abusing drugs during pregnancy.
  • In many states, courts have ruled that women cannot be charged with one a “crime” based on substance use, and that child endangerment laws do not apply to a pregnant woman’s action in relation to her fetus. But in other states, courts have held the opposite.

1Miranda L, Dixon V, & Reyes C. (2015). How States Handle Drug Use During Pregnancy. Retrieved from https://projects.propublica.org/graphics/maternity-drug-policies-by-state. Accessed December 11, 2019.

2Guttmacher Institute. Substance use during pregnancy. Published 2015. Most recent update: January 1, 2020. https://www.guttmacher.org/statepolicy/explore/substance-use