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Pregnancy and Drugs

Limitations on Criminal Prosecution

Laws addressing the use of medical test results, such as prenatal screenings or toxicology tests, as evidence in the criminal prosecution of women who may have caused harm to a fetus or an infant.

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About This Policy: Pregnancy and Drugs: Limitations on Criminal Prosecution

Introduction:

The data for the Pregnancy and Drug Use policy topics were developed as part of a research project headed by Dr. Sarah CM Roberts, Professor, Department of Obstetrics, Gynecology, and Reproductive Sciences at the University of California, San Francisco. The project was funded by grants from the National Institute on Alcohol Abuse and Alcoholism (#R01AA023267) and the University of California, San Francisco, California Preterm Birth Initiative, funded by Marc and Lynne Benioff.

The Pregnancy and Drug Use Policy Dataset consists of six policy topics that mirror the Pregnancy and Alcohol policy topics on APIS:

  • Civil commitment policies pertain to mandatory involuntary commitment of a pregnant woman to treatment or mandatory involuntary placement in protective custody of the state for the protection of a fetus from prenatal exposure to drugs.
  • Mandatory warning signs require that notices about cannabis use during pregnancy are posted in medical/recreational marijuana dispensaries. The warning language must warn of the risk associated with using cannabis while pregnant.
  • Priority treatment mandates priority access to substance abuse treatment for pregnant and postpartum women who use drugs.
  • Prohibitions against criminal prosecution prohibits use of the results of medical tests, such as prenatal screenings or toxicology tests, as evidence in the criminal prosecutions of women who may have caused harm to a fetus or an infant.
  • Reporting requirements are mandated or discretionary reporting of suspicion of or evidence of drug use or abuse by women during pregnancy to agencies such as law enforcement, social services, and health services. Evidence may consist of screening and/or toxicological testing of pregnant women or toxicological testing of infants after birth, and reporting may be for child abuse/neglect investigation, provision of health services, or for data gathering purposes.
  • Child abuse/child neglect refers to the legal significance of a woman’s conduct prior to birth and of damage caused in utero and, in some cases, defines drug use during pregnancy as child abuse or neglect.

 

Data Gathering Process:

The “Roberts” data range from 1968–2017. Data were gathered in a two step research process as follows:

  • Because pregnancy and alcohol statutes and regulations across U.S. jurisdiction overlap substantially (although not completely; see Thomas et al., 2018), project staff started the Pregnancy and Drug dataset with all relevant citation data (statutes and regulations that addressed both alcohol and drugs) from all six APIS Pregnancy and Alcohol policy topics in 2017 and traced each citation back to its original effective date. Data for all amendments or recodifications to statutes and regulations that occurred from 1968 to 2017 were also gathered and included in the dataset.
  • Using, Westlaw1, HeinOnline2, and StateScape3, additional searches for statutes and regulations pertaining to the six Pregnancy and Drug Use policy topics were run for all 51 jurisdictions (50 States and the District of Columbia). That is, searches were conducted to locate statutes and regulations pertaining to drugs, but not to alcohol. This original round of drug-specific research sought to identify policies in effect as of January 1, 2017. Each identified statute and regulation was tracked back in time to the effective date for that policy in that jurisdiction – and any changes that occurred within the 49-year time frame.

1 Westlaw is an online legal research tool that features information on state and federal statutes, administrative codes (regulations), case law, law journals and other legal resources.

2 HeinOnline is a legal database containing titles of historical and government documents.

3 StateScape provides information on effective dates practices in all jurisdictions. So, for example, if a statute notes that its effective date is 30 days after the end of a legislative session, StateScape displays information on the beginning and end of legislative sessions per jurisdiction. These data allow legal policy researchers to calculate effective dates when they are not directly provided in statutes.  

 

Additional Legal Research Context:

1. The legal research protocol used by staff members on the Roberts project was as follows: one legal researcher performed the research work on States with names in the first half of the alphabet as the other legal researcher performed legal research on the second half of the alphabet.  Then, the researchers exchanged the data and performed independent quality control steps to validate the coding. Researchers worked together to reach consensus when independent findings diverged. When available, secondary sources were used to compare the original data collection to the data from other sources. In this case, publicly-available Guttmacher data were the most useful secondary data collections. See: https://www.guttmacher.org/state-policy/explore/substance-use-during-pr… .

2. For data gathering on statutes and their original effective dates as well as all amendments to statutes within the 49 year time frame, staff members used the online legal research tools:  Westlaw, HeinOnline, and Statescape. For data gathering on regulations, staff relied on Westlaw as well as general internet searches, as other legal research tools do not address regulatory enactments. This means that tracking original effective dates of regulations is more difficult than for statutes. Still, using all available methods, staff were able to locate original effective dates for all but a very small number of regulations.            

3. One important caveat to this research process is that there is a possibility that a jurisdiction may have enacted a statute or regulation on drug use during pregnancy and then repealed it before 1/1/2017. If this is the case, then it is possible that any such statute or regulation would not be included in this dataset.

 

Substantive References:

Drug Use During Pregnancy Policies in the United States From 1970 to 2016. Contemporary Drug Problems. 2018 Dec 1; 45(4):441-459. Sue Thomas, Ryan Treffers, Nancy F. Berglas, Laurie Drabble, Sarah C. M. Roberts.

Forty Years of State Alcohol and Pregnancy Policies in the USA: Best Practices for Public Health or Efforts to Restrict Women's Reproductive Rights? Alcohol Alcohol. 2017 Nov 01; 52(6):715-721. Roberts SCM, Thomas S, Treffers R, Drabble L. PMID: 29016712.

Associations Between State-Level Policies Regarding Alcohol Use Among Pregnant Women, Adverse Birth Outcomes, and Prenatal Care Utilization: Results from 1972 to 2013 Vital Statistics. Alcohol Clin Exp Res. 2018 Jun 18. Subbaraman MS, Thomas S, Treffers R, Delucchi K, Kerr WC, Martinez P, Roberts SCM. PMID: 29912478.

Differential Effects of Pregnancy-Specific Alcohol Policies on Drinking Among Pregnant Women by Race/Ethnicity. Health Equity. 2018; 2(1):356-365. Roberts SCM, Mericle AA, Subbaraman MS, Thomas S, Treffers RD, Delucchi KL, Kerr WC. PMID: 30560228.

Estimating the Prevalence of United States Women with Alcohol-exposed Pregnancies and Births. Women’s Health Issues. 2019 Mar - Apr; 29(2):188-193. Roberts SCM, Thompson KM. PMID: 30651200.

State Policies Targeting Alcohol Use during Pregnancy and Alcohol Use among Pregnant Women 1985-2016: Evidence from the Behavioral Risk Factor Surveillance System. Women’s Health Issues. 2019 May - Jun; 29(3):213-221. Roberts SCM, Mericle AA, Subbaraman MS, Thomas S, Treffers RD, Delucchi KL, Kerr WC. PMID: 30876695.

"Alcohol During Pregnancy? Nobody Does That Anymore": State Legislators' Use of Evidence in Making Policy on Alcohol Use in Pregnancy. J Stud Alcohol Drugs. 2019 05; 80(3):380-388. Woodruff K, Roberts SCM. PMID: 31250804.

Racial differences in the relationship between alcohol/pregnancy policies and birth outcomes and prenatal care utilization: A legal epidemiology study. Drug Alcohol Depend. 2019 08 01; 201:244-252. Roberts SCM, Berglas NF, Subbaraman MS, Mericle A, Thomas S, Kerr WC. PMID: 31255852.

Variations by Education Status in Relationships Between Alcohol/Pregnancy Policies and Birth Outcomes and Prenatal Care Utilization: A Legal Epidemiology Study. J Public Health Manag Pract. 2020 Mar/Apr; 26 Suppl 2, Advancing Legal Epidemiology:S71-S83. Roberts SCM, Mericle AA, Subbaraman MS, Thomas S, Kerr W, Berglas NF. PMID: 32004225.

Costs Associated with Policies Regarding Alcohol Use during Pregnancy: Results from 1972-2015 Vital Statistics. (2019). PloS one, 14(5), Subbaraman, M. S., & Roberts, S. C. e0215670.

 

Methodological References (How to collect legal data for use in social science research):

Tremper, Charles, Sue Thomas, and Alexander C. Wagenaar. 2010. Measuring Law for Evaluation Research. Evaluation Review, 34:242-66.

Evan Anderson, Charles Tremper, Sue Thomas, and Alexander C. Wagenaar. Measuring Statutory Law and Regulations for Empirical Research. Public Health Law Research: Theory and Methods. Wiley. 2014.

Period Covered: 1/1/1968 through 1/1/2022

This policy topic covers laws addressing the use of medical test results, such as prenatal screenings or toxicology tests, as evidence in the criminal prosecution of women who may have caused harm to a fetus or an infant.

Scientific research has shown that many drugs, both licit and illicit, when consumed during pregnancy, may result in miscarriage, premature birth, low birth weight, and behavioral and cognitive problems in infants. An infant may also be born dependent on certain drugs (Wendell, 2013).

State and Federal governments have established various policies in response to the risks associated with drug use during pregnancy. This section describes legal provisions that prohibit the use of the results of medical tests, such as prenatal screenings or toxicology tests, as evidence in the criminal prosecution of women who may have caused harm to a fetus or an infant. Such prosecutions may be based on a law specific to harm to a fetus or infant from drug use or on more general criminal laws addressing child abuse and criminal endangerment.

Explanatory Notes and Limitations Specifically Applicable to Pregnancy and Drugs: Limitations on Criminal Prosecution

  1. APIS collects legal provisions that either specifically refer to "prenatal substance abuse," "prenatal drug abuse" or to a condition that reasonably may be interpreted as referring to drug abuse (e.g., "substance abuse," "addictive drug," "drug of abuse").
  2. There is a possibility a jurisdiction may have enacted a statute or regulation on drug use during pregnancy and then repealed it before 1/1/2017. If this is the case, then it is possible that any such statute or regulation would not be included in this dataset. (Please see the "Overview of Pregnancy and Drugs Policy Topics," above, for more information.)
  3. The provisions covered in this policy topic prohibit the use of medical tests such as prenatal screenings and toxicology tests as evidence in criminal prosecutions, not whether criminal prosecution of a woman for exposing a fetus to drugs is prohibited.
  4. This topic does not address provisions that merely prohibit reporting the results of medical tests to a law enforcement agency, as opposed to the use of such tests as evidence in a criminal prosecution.
  5. States may also exclude medical tests from civil prosecutions. This possibility has not been analyzed.
  6. This data collection excludes statutes mandating that required disclosure of background information about biological parents who place an infant for adoption, including information about substance abuse, shall not result in criminal proceedings against the individual(s) who furnish the information.
  7. If a State law can reasonably be interpreted as applying to a woman’s conduct during pregnancy, the law is collected for this policy topic. If the law only relates to treatment for the woman/parent/caregiver, or the infant, and the context does not apply to the woman’s conduct during pregnancy, the law is not collected.

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. The operation or enforcement of statutes or regulations affecting the policies addressed on APIS may have been suspended or modified by executive or administrative orders issued in response to the COVID-19 pandemic. With the exception of the COVID-19 Digest and Dataset, APIS research does not address these orders or the effects they may have on the policies covered by APIS.
  6. Policy changes in APIS are presented as of the date these changes take effect as law. Users should be aware that in some situations there may be a delay between the effective date of a law and the time a corresponding policy change occurs in practice. Because APIS research is based entirely on primary legal source materials (codified statutes and regulations and, on rare occasions, published court opinions), APIS is unable to accurately determine when policy changes may appear in practice.
  7. If a conflict exists between a statute and a regulation addressing the same legal issue, APIS coding relies on the statute.
  8. 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.

(Policies in effect on: 1/1/2022)

Our research identified no Federal statutes or regulations pertaining to prohibitions against use of medical tests, such as positive toxicology findings or the results of prenatal screenings, as evidence in criminal prosecutions of women who may have caused harm to a fetus or an infant.

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