Pregnancy and Alcohol

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 a child.

Policy Topics

View another policy topic by selecting an option from the following menu.

About This Policy: Limitations on Criminal Prosecution

(Period Covered: 1/1/1998 through 1/1/2021)

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 a child.

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 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 a child. Such prosecutions may be based on a law specific to harm to a fetus or child from alcohol consumption or on more general criminal laws addressing child abuse and criminal endangerment.

The research for this policy topic also examined whether States have legal provisions that prohibit prosecution of women for harm to a fetus or a child as a result of alcohol use during pregnancy; no such provisions were found.

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

  1. General statutes in public health and safety codes or elsewhere that stipulate that intoxication is not an element of a criminal offense are not included in this data collection.
  2. No statutes were identified that prohibit criminal prosecution of women for exposing a fetus to alcohol. Instead, 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.
  3. 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.
  4. States may also exclude medical tests from civil prosecutions. This possibility has not been analyzed.
  5. This data collection excludes statutes mandating that required disclosure of background information about biological parents who place a child for adoption, including information about substance abuse, shall not result in criminal proceedings against the individual(s) who furnish the information.
  6. For purposes of this policy topic, in addition to the specific mention of alcohol in statutes and regulations, the term "substance abuse," and references to the abuse of "legal substances," "legal drugs," and "addictive drugs," have been interpreted as including "alcohol abuse."
  7. APIS does not collect provisions that refer only to "controlled substances" or those that exclude alcohol.
  8. If a State law can reasonably be interpreted as applying to the mother’s conduct during pregnancy, the law is collected for this policy topic (for this purpose, references to FASD or terms such as “infant”, “newborn,” or “child born affected by” are sufficient). If the law only relates to treatment for the mother/parent/caregiver, or the child, and the context does not apply to the mother’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: 1/1/2021)

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 exposed a fetus to alcohol.

  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. Bakhireva, L. N., Shrestha, S., Garrison, L., Leeman, L., Rayburn, W. F., & Stephen, J. M. (2018). Prevalence of alcohol use in pregnant women with substance use disorder. Drug and Alcohol Dependence, 187, 305–310. doi: 10.1016/j.drugalcdep.2018.02.025
  3. Bishop, D., Borkowski, L., Couillard, M., Allina, A., Baruch, S., & Wood, S. (2017). Bridging the divide white paper: Pregnant women and substance use: Overview of research & policy in the United States. Jacobs Institute of Women's Health: Paper 5. Retrieved from:
  4. Choi, S., and Leslie, D. (2020). Out‐of‐state childbirths disproportionately increased among racial and ethnic minorities since the implementation of the Tennessee fetal assault law. Health Services Research 55: 49-49.
  5. Davis, A.S., Hoover, K.L., Moore, B.M., & Petrenko, C.L.M. (2016). Neuropsychological aspects of prevention and intervention for FASD in the USA. Journal of Pediatric Neuropsychology, 3(1): 7-24. doi:10.1007/s40817-016-0024-x.
  6. Denny, C. H., Acero, C. S., Naimi, T. S., & Kim, S. Y. (2019). Consumption of alcohol beverages and binge drinking among pregnant women aged 18–44 years — United States, 2015–2017. MMWR. Morbidity and Mortality Weekly Report, 68(16), 365–368. doi: 10.15585/mmwr.mm6816a1
  7. 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.
  8. Duso, A.J., & Stogner, J. (2016). Re-evaluating the criminalization of in utero alcohol exposure: A harm-reduction approach. 24 William & Mary Bill of Rights Journal, 24(3).  Retrieved from
  9. England, L.J., Bennett, C., Denny, C.H., Honein, M.A., Gilboa, S.M., Kim, S.Y., Guy, G.P., et al. (2020). Alcohol use and co-use of other substances among pregnant females aged 12–44 years—United States, 2015–2018. Morbidity and Mortality Weekly Report 69(31): 1009.
  10. Faherty, L.J., Stein, B.D., and Terplan, M. (2020). Consensus guidelines and state policies: the gap between principle and practice at the intersection of substance use and pregnancy. American Journal of Obstetrics & Gynecology MFM 2(3): 100137.
  11. 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.
  12. Golden, J. Message in a Bottle: The Making of Fetal Alcohol Syndrome. Cambridge: Harvard University Press, 2005.
  13. Hagan, J.F. Jr., Balachova, T., Bertrand, J., Chasnoff, I., Dang, E., Fernandez-Baca, D., Kable, J., Kosofsky, B., Senturias, Y.N., Singh, N., Sloane, M., Weitzman, C., Zubler, J., on behalf of Neurobehavioral Disorder Associated with Prenatal Alcohol Exposure Workgroup, American Academy of Pediatrics. (2016). Neurobehavioral disorder associated with prenatal alcohol exposure. Pediatrics. Published online 2016 Sep 27. doi: 10.1542/peds.2015-1553.
  14. 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.
  15. 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.
  16. 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.
  17. May, N.J., Eliott, J., Crabb, S., Miller, E.R., and Braunack-Mayer, A. (2020). Alcohol warning labels to reduce alcohol-related harm: a scoping review protocol. JBI Evidence Synthesis 18(1): 186-193
  18. Roberts, S. C., Mericle, A. A., Subbaraman, M. S., Thomas, S., Treffers, R. D., Delucchi, K. L., & Kerr, W. C. (2018). Differential effects of pregnancy-specific alcohol policies on drinking among pregnant women by race/ethnicity. Health Equity, 2(1), 356–365. doi: 10.1089/heq.2018.0059
  19. Roberts, S. C., Mericle, A. A., Subbaraman, M. S., Thomas, S., Treffers, R. D., Delucchi, K. L., & Kerr, W. C. (2019). State policies targeting alcohol use during pregnancy and alcohol use among pregnant women 1985–2016: Evidence from the behavioral risk factor surveillance system. Womens Health Issues, 29(3), 213–221. doi: 10.1016/j.whi.2019.02.001
  20. 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.
  21. 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.
  22. Roberts, S.C.M., Berglas, N.F., Subbaraman, M.S., Mericle, A., Thomas, S., & Kerr, W.C. (2019). Racial differences in the relationship between alcohol/pregnancy policies and birth outcomes and prenatal care utilization: A legal epidemiology study. Drug and Alcohol Dependence, 201, 244-252. doi: 10.1016/j.drugalcdep.2019.04.020
  23. Roberts, S.C.M., Mericle, A.M., Subbaraman, M.S., Thomas, S., Kerr, W., and Berglas, N.F. (2020). Variations by education status in relationships between alcohol/pregnancy policies and birth outcomes and prenatal care utilization: a legal epidemiology study. Journal of Public Health Management and Practice: JPHMP 26, no. Suppl 2 ADVANCING LEGAL EPIDEMIOLOGY: S71.
  24. Roberts, S.C.M., Thomas, S., Treffers, R., & Drabble, L. (2017). Forty years of state alcohol and pregnancy policies in the U.S.: Best practices for public health or efforts to restrict women’s reproductive rights?" Alcohol and Alcoholism, 52(6): 715-721. doi: 10.1093/alcalc/agx047.
  25. Roberts, S.C.M., Thompson, T.A., and Taylor, K.J. (2021). Dismantling the legacy of failed policy approaches to pregnant people’s use of alcohol and drugs. International Review of Psychiatry 33(6): 502-513.
  26. Seiler, N. K. (2016). Alcohol and pregnancy: CDC’s health advice and the legal rights of pregnant women. Public Health Reports, 131(4): 623-627. doi: 10.1177/0033354916662222.
  27. Silver, D., Macinko, J., Giorgio, M., & Bae, J. Y. (2019). Evaluating the relationship between binge drinking rates and a replicable measure of U.S. state alcohol policy environments. Plos One, 14(6). doi: 10.1371/journal.pone.0218718
  28. Sitvender, C. O., Amato, L. H., & Bill, A. (2019). EFFECTS OF STATE LEVEL MINIMUM LEGAL DRINKING AGE LAWS ON LIVE BIRTH RATES. ASBBS Proceedings, 26, 525-525.
  29. Subbaraman, M. S., & Roberts, S. C. M. (2019). Costs associated with policies regarding alcohol use during pregnancy: Results from 1972-2015 vital statistics. Plos One, 14(5). doi: 10.1371/journal.pone.0215670
  30. Subbaraman, M. S., Thomas, S., Treffers, R., Delucchi, K., Kerr, W. C., Martinez, P. and Roberts, S.C. (2018). Associations between state‐level policies regarding alcohol use among pregnant women, adverse birth outcomes, and prenatal care utilization: Results from 1972‐2013 Vital Statistics. Alcoholism: Clinical and Experimental Research. doi: 10.1111/acer.13804.
  31. Subbaraman, M. S., Thomas, S., Treffers, R., Delucchi, K., Kerr, W. C., Martinez, P., & Roberts, S. C. (2018). 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. Alcoholism: Clinical and Experimental Research, 42(8), 1511–1517. doi: 10.1111/acer.13804
  32. Subbaraman, M. S., Ye, Y., Martinez, P., Mulia, N., & Kerr, W. C. (2020). Improving the validity of the Behavioral Risk Factor Surveillance System alcohol measures. Alcoholism: Clinical and Experimental Research, 44(4), 892-899.
  33. 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.
  34. Sundermann, A. C., Edwards, D. R. V., Slaughter, J. C., Wu, P., Jones, S. H., Torstenson, E. S., & Hartmann, K. E. (2020). Week-by-week alcohol consumption in early pregnancy and spontaneous abortion risk: a prospective cohort study. American Journal of Obstetrics and Gynecology.
  35. Tebeka, S., Higgons, A. D. P., Dubertret, C., & Le Strat, Y. (2020). Changes in alcohol use and heavy episodic drinking in US Women of childbearing-age and peripartum between 2001-2002 and 2012-2013. Addictive Behaviors, 106389.
  36. 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 .
  37. 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.
  38. Thomas, S., Treffers, R., Berglas, N. F., Drabble, L., & Roberts, S. C. M. (2018). Drug use during pregnancy policies in the United States from 1970 to 2016. Contemporary Drug Problems, 45(4), 441-459. doi: 10.1177/0091450918790790
  39. Walker, D.S., Edwards, W.E., & Herrington, C. (2016). Fetal alcohol spectrum disorders: Prevention, identification, and intervention. Nurse Practitioner, 41(8): 28-34. doi: 10.1097/01.NPR.0000488709.67444.92.
  40. Wetzel, L. M. (2018). Comparing policies on drug and alcohol use by pregnant women. Contemporary OB/GYN, 63(9), 26-27.
  41. Woodruff, K., & Roberts, S. C. M. (2019). “Alcohol during pregnancy? Nobody does that anymore”: State legislators’ use of evidence in making policy on alcohol use in pregnancy. Journal of Studies on Alcohol and Drugs, 80(3), 380–388. doi: 10.15288/jsad.2019.80.380
  42. 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.