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Pregnancy and Alcohol: Civil Commitment

Laws addressing involuntary civil commitment of pregnant alcohol abusers to treatment or involuntary placement in protective custody of the State for the protection of a fetus from prenatal exposure to alcohol.



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Expander Policy Description

(Period Covered: 1/1/1998 through 1/1/2016)

This policy topic covers laws addressing involuntary civil commitment of pregnant alcohol abusers to treatment or involuntary placement in protective custody of the State for the protection of a fetus from prenatal exposure to alcohol.  

Scientific research has established that alcohol consumption during pregnancy is associated with adverse health consequences. Fetal Alcohol Spectrum Disorders (FASD) is the term used to describe the range of birth defects caused by maternal alcohol consumption during pregnancy. FASD are considered the most common nonhereditary cause of mental retardation. Included in Fetal Alcohol Spectrum Disorders is the diagnosis often referred to as Fetal Alcohol Syndrome (FAS), which is the most severe form of FASD. It is characterized by facial defects, growth deficiencies, and central nervous system dysfunction. Also included in FASD are other types of alcohol-induced mental impairments that are just as serious, if not more so, than in children with FAS. The term "alcohol-related neurodevelopmental disorder" (ARND) has been developed to describe such impairments. Prenatally exposed children can also have other alcohol-related physical abnormalities of the skeleton and certain organ systems; these are known as alcohol-related birth defects (ARBD). (National Institute on Alcohol Abuse and Alcoholism, June 2000; Warren and Foudin, 2001; SAMHSA, 2004).

State and Federal governments have established various policies in response to the risks associated with drinking during pregnancy. This section of APIS addresses involuntary civil commitment of pregnant alcohol abusers. Civil commitment refers either to involuntary commitment of a pregnant woman to treatment or involuntary placement of a pregnant woman in protective custody of the State for the protection of a fetus from prenatal exposure to alcohol. As of January 1, 2008, five jurisdictions have statutory authorization for the civil commitment of women who abuse alcohol during pregnancy: Minnesota, North Dakota, Oklahoma, South Dakota, and Wisconsin.

There are two types of civil commitments: emergency and judicial. Emergency commitments are short in duration and may be imposed by the administrator of an appropriate mental health facility. Emergency commitment laws are not included in this research or in the coding of this policy topic except as described in this policy description. Judicial commitments are typically lengthier and must be ordered by a court.

The involuntary civil commitment arrangements in North Dakota, Oklahoma, and South Dakota provide for committing pregnant alcohol abusers to treatment facilities. The procedures in those three States are similar, as shown in the first table below.

Minnesota provides two types of civil commitment procedures: early intervention and judicial commitment. Early intervention is of shorter duration and involves a less intrusive program than the standard judicial commitment procedure.

Wisconsin's child welfare laws provide for involuntary civil commitment to a variety of placements including a treatment facility, jail, and a relative's home. In Wisconsin there are three stages leading to a judicial commitment. In the first stage, a woman is taken into protective custody, usually by law enforcement or child protective services. In the second stage, in cases in which there is a substantial health risk to the fetus, the woman may be held (detained) in protective custody for up to 48 hours. In the third stage, if custody is sought for a sustained period of time (i.e., a period longer than provided for in the second stage), the woman is entitled to legal representation and a hearing at which a court determines whether it will enter an order for her continued custody.

Despite their differences, all of these commitment and custody provisions are designed to protect the fetus via the involuntary restriction of the pregnant woman's action or conduct. The tables below present key characteristics of civil commitment and custody procedures in each of the five States where they currently exist.

MINNESOTA, NORTH DAKOTA, OKLAHOMA, SOUTH DAKOTA: ELEMENTS OF CIVIL COMMITMENT

Jurisdiction Who Can Seek a Judicial Commitment? Grounds for a Judicial Commitment Maximum Length of a Judicial Commitment Location of a Judicial Commitment
Minnesota (Early Intervention) An "interested person" which includes a public official, a local welfare agency, legal guardian, spouse, parent, legal counsel, adult child, next of kin, other person designated by a proposed patient, or a health plan company that is providing coverage for a proposed patient Clear and convincing evidence that a pregnant woman is a chemically dependent person such that during pregnancy she engaged in excessive nonmedical use of alcohol that poses a substantial risk of damage to the brain or physical development of the fetus 90 days A variety of treatment alternatives including, but not limited to, day treatment, medication compliance monitoring, and short-term hospitalization not to exceed 21 days; early intervention treatment must be less intrusive than long-term inpatient commitment and must be least restrictive treatment program available that can meet treatment needs
Minnesota (Judicial Commitment) An "interested person" which includes a public official, a local welfare agency, legal guardian, spouse, parent, legal counsel, adult child, next of kin, other person designated by a proposed patient, or a health plan company that is providing coverage for a proposed patient Clear and convincing evidence that a pregnant woman is a chemically dependent person such that during pregnancy she engaged in excessive nonmedical use of alcohol and a finding that there is no suitable alternative to judicial commitment 6 months, which could be extended up to 12 months upon court's review The least restrictive treatment program which can meet patient's treatment needs, including community-based nonresidential treatment, community residential treatment, partial hospitalization, acute care hospital, and regional treatment center services
North Dakota The Department of Human Services or its designee If person is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property 90 days, with the possibility of a continuing order of commitment not to exceed one year State hospital or another treatment facility
Oklahoma District attorney following assistance of multi-disciplinary team Pregnant woman "is abusing or is addicted to" alcohol "to the extent that the unborn child is at risk of harm" Review at least once every three months or within 30 days of request Public or private treatment facility willing to accept pregnant woman for treatment
South Dakota Person's spouse or guardian, relative, physician, administrator of any approved treatment facility or any other responsible person Person is "pregnant and abusing alcohol" and "habitually lacks self-control" 90 days, with up to two 90-day recommitment orders possible Appropriate accredited treatment facility

 

WISCONSIN: THREE STAGES OF CUSTODY

Stage 1: Taking Person into Physical Custody

Who Can Take a Pregnant Woman into Custody? Who Can be Taken into Custody? Grounds for Taking a Person into Custody Release or Delivery From Custody
Court or law enforcement officer Female minor or female adult "Substantial risk" to "physical health of unborn child" After counseling or warning "as may be appropriate," immediate release to parent or adult friend ~ or ~ delivery to hospital if fetus is suffering from serious physical condition

 
Stage 2: Holding a Person Briefly in Custody

Who Determines Whether to Place a Hold on Person in Custody? Grounds for Holding Person in Custody Maximum Length of Hold of Person in Custody Location of Hold of Person in Custody
Intake worker "Probable cause" exists to believe that "there is a substantial risk" that if mother is not held  "physical health of unborn child" will be seriously affected or endangered by... mother's "habitual lack of self-control... exhibited to a severe degree" and that mother has refused to accept, or has not made  "good faith effort to participate in, alcohol services offered to her" 48 hours Parent's home, adult relative's home, public treatment facility, hospital, and county jail


Stage 3: Continued Physical Custody

Who Determines Continuation of Custody?    Grounds for Continuation in Custody Maximum Length of Continued Custody Location of Hold of Person in Custody
Court, after a hearing    "Probable cause" exists to believe that "there is a substantial risk" that if mother is not held  "physical health of unborn child" will be seriously affected or endangered by... mother's "habitual lack of self-control... exhibited to a severe degree" and that mother has refused to accept, or has not made  "good faith effort to participate in, alcohol services offered to her" Varies Parent's home, adult relative's home, public treatment facility, hospital, and county jail

 

 

Expander Explanatory Notes and Limitations for Pregnancy and Alcohol: Civil Commitment

Explanatory Notes and Limitations Specifically Applicable to Pregnancy and Alcohol: Civil Commitment

  1. APIS collects legal provisions that either specifically refer to FASD or issues related to prenatal alcohol exposure or refer to a condition that reasonably may be interpreted as referring to FASD or prenatal alcohol exposure (e.g., "prenatal substance abuse," "prenatal legal drug abuse") or to a condition that reasonably may be interpreted as referring to alcohol abuse (e.g., "substance abuse," "use of legal drugs," "addictive drug," "drug of abuse").
     
  2. APIS does not collect provisions that refer only to "controlled substances" or those that exclude alcohol. 

Explanatory Notes and Limitations Applicable to All APIS Policy Topics 

  1. State law may permit local jurisdictions to impose requirements in addition to those mandated by State law. Alternatively, State law may prohibit local legislation on this topic, thereby preempting local powers. For more information on the preemption doctrine, see the About Alcohol Policy page. APIS does not document policies established by local governments. 
     
  2. In addition to statutes and regulations, judicial decisions (case law) also may affect alcohol-related policies. APIS does not review case law except to determine whether judicial decisions have invalidated statutes or regulations that would otherwise affect the data presented in the comparison tables. 
     
  3. APIS reviews published administrative regulations. However, administrative decisions or directives that are not included in a State's published regulatory codes may have an impact on implementation. This possibility has not been addressed by the APIS research. 
     
  4. Statutes and regulations cited in tables on this policy topic may have been amended or repealed after the specific date or time period specified by the site user's search criteria. 
     
  5. If a conflict exists between a statute and a regulation addressing the same legal issue, APIS coding relies on the statute. 
     
  6. A comprehensive understanding of the data presented in the comparison tables for this policy topic requires examination of the applicable Row Notes and Jurisdiction Notes, which can be accessed from the body of the table via links in the Jurisdiction column. 

Expander Federal Law for Pregnancy and Alcohol: Civil Commitment

(Policies in effect on: 1/1/2016)

Our research identified no Federal statutes or regulations pertaining to involuntary civil commitment of pregnant women who may have exposed a fetus to alcohol.
 

Expander Selected References for Pregnancy and Alcohol: Civil Commitment

  1. Abel, E.L., and Kruger, M. Physician attitudes concerning legal coercion of pregnant alcohol and drug abusers. American Journal of Obstetrics & Gynecology 186(4):768-772, 2002.
     
  2. Drabble L, Thomas S, O’Connor L, and Roberts SM. State responses to alcohol use and pregnancy: Findings from the Alcohol Policy Information System. Journal of Social Work Practice in the Addictions, 14(2):191-206, 2014.
     
  3. Floyd, R.L., Ebrahim, S., Tsai, J., O'Connor, M., and Sokol, R. Strategies to reduce alcohol-exposed pregnancies. Maternal and Child Health Journal 10(5):149-151, 2006.
     
  4. Golden, J. Message in a Bottle: The Making of Fetal Alcohol Syndrome. Cambridge: Harvard University Press, 2005.
     
  5. Jessup, M.A., Humphreys, J.C., Brindis, C.D., and Lee, K. A. Extrinsic barriers to substance abuse treatment among pregnant drug dependent women. Journal of Drug Issues 33(2):285-304, 2003.
     
  6. Jones, K.L., and Streissguth. A.P. Special issue introduction: Fetal alcohol syndrome and fetal alcohol spectrum disorders: A brief history. Journal of Psychiatry & Law 38(4):373-38, 2010.
     
  7. Lester, B.M., Andreozzi, L., and Appiah, L. Substance Use During Pregnancy: Time for Policy to Catch Up with Research. Harm Reduction Journal 1:5, 2004.
     
  8. Roberts, S.C., and Nuru-Jeter, A. Women’s Perspectives on Screening for Alcohol and Drug Use in Prenatal Care. Women’s Health Issues 20(3):193-200, 2010.
     
  9. Roberts, S.C., and Pies, C. Complex Calculations: How Drug Use During Pregnancy Becomes a Barrier to Prenatal Care. Maternal and Child Health Journal 15(3): 333-41, 2011.
     
  10. Substance Abuse and Mental Health Services Administration, Center for Excellence. Fetal Alcohol Spectrum Disorders (FASD). Accessed August 9, 2012 at: http://fasdcenter.samhsa.gov/.
     
  11. Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Substance Use Among Women During Pregnancy and Following Childbirth. Rockville, MD: The National Survey on Drug Use and Health Report, 2009.
     
  12. Thomas, S., Cannon, C., and French, J. (2015). The effects of state alcohol and pregnancy policies on women’s health and healthy pregnancies. Journal of Women, Politics & Policy 36(1), 68-94. DOI:10.1080/1554477X.2015.985153. Retrieved from http://www.tandfonline.com/doi/full/10.1080/1554477X.2015.985153 .
     
  13. Thomas, S., Rickert, L., and Cannon, C. The meaning, status, and future of reproductive autonomy: The case of alcohol use during pregnancy. UCLA Women’s Law Journal 15:1-46, 2006.
     
  14. Young, N.K., Gardner, S., Otero, C., Dennis, K., Chang, R., Earle, K., and Amatetti, S. Substance-Exposed Infants: State Responses to the Problem. Rockville, MD: Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, 2008.

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