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Policymakers have been debating how society should address the issue of pregnancy-related substance abuse since the 1980s. To attack prenatal substance abuse, prosecutions have tried to use a variety of criminal laws. The Supreme Courts of Alabama and South Carolina have upheld convictions that a person’s pregnancy substance use constitutes criminal child abuse. Several states have also expanded their civil child welfare requirements to include prenatal substance abuse. This allows for termination of parental rights due to child neglect or abuse. Some states also allow civil commitment, such as forced admission into an inpatient program, for pregnant women who use drugs. These policies can sometimes also be applied to alcohol or other behavior. Many states require that health care providers report or test prenatal drug exposure to be made available for evidence in child welfare proceedings. To receive federal funds for child abuse prevention, states must require that health care providers notify child protective services if they are caring for an infant with illegal substance use. A number of states have made drug treatment more accessible to pregnant women. Federal funds are required to prioritize access to any treatment program for any pregnant woman.

Check out our state legislation tracker to see policy activity related to sexual and reproductive health.

Highlights

  • Twenty four states and the District of Columbia consider drug use during pregnancy child abuse according to civil child-welfare statutes. 3 consider it grounds of civil commitment.
  • 25 states and the District of Columbia require that health care professionals report suspected prenatal drug abuse. 8 states require that they test for prenatal drug exposure.
  • Nineteen state have created or funded drug treatment programs that are specifically for pregnant women. 17 states and District of Columbia offer priority access to state-funded drug treatments programs to pregnant people.
  • Ten states ban discrimination against pregnant women in drug treatment programs funded by the public.

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Substance Use during Pregnancy

SUBSTANCE USE DURING PREGNANCY CONSIDERED:

WHEN DRUG USE IS DIAGNOSED OR SUSPECTED, THE STATE REQUIRES:

DRUG TREATMENT FOR PREGNANT INDIVIDUALS

STATE

Child Abuse

Grounds for Civil Commitment

Reporting

Testing

Targeted Program Created

Pregnant Women Given Priority Access to General Programs

Pregnant Women Protected From Discrimination In Publicly Funded Programs

* The Alabama Supreme Court ruled that drug use during pregnancy is chemical endangerment. South Carolina’s Supreme Court ruled that a viable foetus is considered a “person” under state criminal child-endangerment statutes and that “maternal acts that endanger or are likely to endanger a viable foetus’ constitute child abuse.

+ The state law forbids medical providers from disclosing information about pregnant individuals’ drug or alcohol tests without consent.

++ Pregnancy is considered priority if a pregnant person is referred for treatment.

x Requirements for health care providers to encourage drug counseling.

O A parent who tests positive for drugs within 8 hours of delivery is considered unfit under the state’s child abuse laws.

O Substance abuse providers who accept Medicaid must prioritise pregnant women accessing services.

b Wisconsin offers priority access for pregnant women in both general and private programs.

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