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Will I Get Arrested If I Use Drugs During Pregnancy?

By Melissa Bender, Esq. | Reviewed by Joseph Fawbush, Esq. | Last updated on

It's not news to note that people with substance abuse disorder (addiction) have a hard time stopping. It's also not news that a wide variety of drugs can be harmful to fetal health, including legal recreational drugs like tobacco, alcohol, and cannabis. The National Institutes of Health estimates that about 5% of pregnant women use addictive substances during pregnancy. So, if someone suffering from substance abuse disorder is unable to quit, are there criminal penalties?

Using Drugs While Pregnant Is Not Generally a Crime

Though you may be arrested by law enforcement officers for using illegal drugs, there are generally no additional criminal charges if you do so while you are pregnant. A number of states such as Alabama and South Carolina have state laws which have been used to uphold criminal child abuse verdicts for prenatal illegal drug use, primarily on the grounds those states believe a viable fetus is a person and using drugs while pregnant constitutes child endangerment. In most other states, you are relatively safe from the criminal justice system. Tennessee was the only state that had a specific criminal law against using illegal drugs while pregnant, but it expired in 2016.

Pregnant women who continue to use harmful drugs may still face consequences, however.

Civil Penalties for Pregnant Illegal Drug Use

Nearly half of the states in the U.S. view prenatal illegal drug use as a form of civil child abuse. As such, in most of these states, pregnant illegal drug users may face civil penalties, generally in the form of losing parental rights to your child who would then enter the child welfare system after an investigation by child protective services. Only a few states allow for the involuntary commitment to a rehab facility for a treatment program before you can be found to be capable of parenting your newborn.

Many states have laws that require health care providers to test for and report prenatal drug use, and a subset of those laws only require testing for Medicaid patients. Other states only require health care professionals to report any known prenatal drug use. Some believe laws that require testing and reporting for only those individuals on Medicaid is racially discriminatory as it does not include all pregnant people and unfairly targets minorities.

Public Policy Favors Intervention

Courts generally view illegal drug use during pregnancy as a substance abuse issue requiring medical intervention rather than imprisonment. The punitive policies of criminalizing drug addiction are a controversial topic but is rarely viewed favorably when it comes to pregnant women who are struggling with substance use disorders. There are treatments such as methadone which can be used to treat opioid use disorder but they can still cause neonatal abstinence syndrome in the newborn where they would need to be detoxed after being born.

One reason, which isn't exactly heart-warming, is the cold reality that prisons don't want to be responsible for a pregnant inmates addicted to illicit drugs such as methamphetamine or opioids. Its fears are somewhat justifiable. Detoxing an addict is a science, and if left to prison officials, might endanger the pregnant mom and unborn fetus. Not to mention that prisons do not have the facilities and doctors who specialize in obstetrics and pediatrics to deliver and care for the child’s health once they are born.

Another reason is that, if it were illegal, pregnant women would rarely risk their freedom in order to seek treatment and may also avoid important prenatal care. Nothing deters asking for help like prison. So long as punitive approaches are viewed negatively and women are not risking their freedom, many will seek out drug treatment and other public health options, even if only to keep from having to endure the hardships of raising a child with birth defects caused from illegal drug use.

If you or someone you love is addicted to illegal drugs while pregnant, talk to your doctor. Seeking help will be better for you, and your baby, in both the short and the long term. And if you do face criminal charges, contact a local criminal defense attorney. A lawyer can help you know your rights, and stand up for you in court.

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