Laws Covering Drugs Use While Pregnant

It is not illegal for a pregnant woman to use recreational drugs in Pennsylvania. While the practice is obviously discouraged, as it can result in serious harm to the fetus, it is not illegal.

Neonatal Abstinence Syndrome

A recent research study in the Journal of Perinatology reported that nearly 6 out of every 1,000 babies born in the United States is diagnosed with neonatal abstinence syndrome (NAS).

NAS is caused by the mother’s use of drugs or alcohol during pregnancy. There is a wide range of effects that can occur as a result of a mother’s drugs or alcohol during pregnancy.

  • Delays in development
  • Hyperactivity
  • Attentional difficulties and other cognitive issues
  • Irritability
  • Dehydration
  • Problems with sleep

Common Drugs Abused That Can Be An Issue for Pregnant Women

  • Alcohol: Can cause birth defects such as fetal alcohol syndrome, or FAS.
  • Marijuana: May cause the child exposed during pregnancy to developmental and hyperactivity disorders.
  • Cocaine: Can cause premature membrane rupture, or a separation of the placental lining.
  • Heroin: In addition to NAS, it can cause  third-trimester bleeding, preeclampsia, and more.

Is It Against the Law for a Pregnant Woman to Use Drugs or Alcohol?

At the time of this writing, there are no federal laws restricting pregnant women from drinking alcohol or using any legal drug.

According to the National Institute on Alcohol Abuse and Alcoholism, the state of Pennsylvania (PA) does not have any law that prohibits serving alcohol to a pregnant woman, that requires civil commitment of women who use alcohol or drugs while pregnant, or that requires treatment for pregnant women who drink alcohol.

Federal and State Laws

There are federal and state laws that prohibit the unauthorized use of controlled substances, the possession or use of other illicit drugs, and operating a vehicle while legally intoxicated that apply to everyone. Other federal, state, and local laws regarding being under the influence of alcohol or drugs in numerous situations also apply to pregnant women.

In such cases where these statutes are violated, just like with anyone else, a pregnant woman can be prosecuted. Being pregnant does not offer any special consideration in these instances.

Courts may place additional restrictions or requirements on pregnant women in these circumstances. However, based on a recent decision courts in Pennsylvania,  pregnant women who use drugs or alcohol cannot be charged with child abuse of the unborn child.

A Recent Pennsylvania Ruling

According to an article published in The Pennsylvania Post/Gazette on December 28, 2018, the Supreme Court of Pennsylvania ruled that mothers who use illicit substances while they are pregnant cannot be charged with child abuse aimed at the fetus or newborn children, according to the state’s child protection laws.

The Pennsylvania decision follows an earlier Superior Court ruling that a woman who had overdosed on heroin while she was pregnant could not be charged with assault of her unborn child. The rulings do not affect the power of governmental authorities to remove a child from the homes of parents with severe addictions when the health and safety of the child is threatened (see below for more).

What Are Some Consequences of the Ruling?

While some states do consider the use of drugs or alcohol by a pregnant mother as a form of child abuse, most do not.  There are various justifications used by the states that do not consider it abuse.

  • The definition of a child or person in many states does not include fetuses.
  • Such legislation would deter pregnant mothers with substance abuse issues from seeking treatment.
  • Pregnant woman with substance abuse problems might also be discouraged from seeking medical care, prenatal care, or other needed services.
  • Finding in favor of child abuse could adversely affect the future of the mother by placing her on a registry that could make it more difficult to procure employment or educational services.

At least in Pennsylvania, the ruling does not inhibit the involvement of Child Protective Services (CPS) or child welfare services to help the child of a mother who abuses drugs or alcohol.

The Other Side of the Argument

The dissenting opinion, including the opinions of the Pennsylvania justices who voted against the ruling, indicate that substance abuse during pregnancy does much damage. The case pertained to abuse of opioids. They made the following arguments:

  • Substance abuse produces irreparable harm to the fetus and therefore should carry punitive charges.
  • The use drugs or alcohol by a pregnant mother is likened to cases of severe neglect, such as malnourishment. In the case reviewed that led to the decision, the newborn child spent nearly three weeks hospitalized while being treated for opioid withdrawal.
  • Neglect cases, like prenatal substance abuse, are when the actions or inactions of the parent occur well before the manifestation of the actual injury, but they clearly cause the injury to the child.

Thus, drug or alcohol abuse by a pregnant mother is an action that directly affects the health and safety of the child. They argue that it produces damage that never fully resolves.

Other Considerations

Simple exposure to drugs or alcohol alone is not a sufficient reason to remove a child from its mother in most jurisdictions.

Very often, prior to the removal of the child, the CPS worker, law enforcement agent, or other authority has to consider whether mitigating circumstances would justify leaving the child in the care of the parent. Such mitigating circumstances include whether or not the mother is open to getting treatment for her addiction (which many mothers are) and whether CPS can find an appropriate alternative environment for the child (obviously impossible in the case of a pregnant mother).

The conclusion of whether the unborn child (or any child) faces imminent physical or mental damage, or can be diagnosed with a physical or mental health disorder, can only be made by a physician or psychologist.

The Ruling Does Not Apply to Other Children

The abuse or neglect of other children in the home is not addressed in the recent ruling by the Pennsylvania Supreme Court.

Pregnant mothers with moderate to severe substance use disorders who also have other children are likely to be investigated based on evidence of abuse or neglect or on the basis of complaints by others that there is ongoing child abuse or neglect. If the allegations are substantiated, there may be some type of action taken regarding the custody of the unborn child.

In most of these cases, the mother is directed to enter a substance use disorder treatment program by the court, or she could voluntarily enter such a program.

Addiction Treatment for Pregnant Women

There are addiction treatment options for women who are struggling with substance abuse during pregnancy. Recovery programs of this nature may offer women-only support groups in a caring environment. Medical professionals can also advise these patients how to safely detox from a substance.

Whenever you need us, we're here

Day & Night - 7 Days a Week

Free & Confidential Consultations