This report, Year 2000 Overview: Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs, surveys the nation and provides a comprehensive review of every state and federal law specifically touching on the issue of pregnant women's drug use.This report also provides:
• Background on the development of these laws,
• A summary of criminal prosecutions and judicial action that have taken place outside of the legislative realm.
• Reactions to legislation and legal action from the medical and public health communities and
• Suggested directions for future legislation in the area.
This Overview, now more than 20 years old, reveals a patchwork of policies, some oriented toward treatment, some purportedly focused on child protection, some frankly punitive. If there had been any trend in the law in this area and at that time, it is that states have generally chose treatment, education, and prevention over criminal sanctions, regarding drug use during pregnancy as a public health problem rather than a crime. At the same time, there was a clear trend toward defining civil child abuse to include conduct during pregnancy that could affect fetuses, specifically treating children who as fetuses were exposed to alcohol and other drugs as neglected or abused within the civil child welfare system. This approach can be highly punitive for both the mother and the child as it can lead to unnecessary removals of the children, depriving them in many cases of the opportunity to bond and live with mothers who are in fact very capable of parenting.
Considering that much of the policies in this area first arose out of the media-fueled “crack baby” hysteria of the late 1980s, it is remarkable that most states had steered clear of a criminally punitive response to pregnant women’s use of alcohol or other drugs. Listening to the wisdom of drug and alcohol counselors, medical professionals, researchers, social workers, and the women themselves, states instead adopted a variety of strategies aimed at eliminating barriers to treatment, ranging from modestly expanding treatment opportunities for women with children to prohibiting pregnancy discrimination by treatment providers. The Overview noted that legislation that would have criminally punished pregnant women for seeking help for their substance use disorders were—with a few notorious exceptions—defeated.
We viewed this restrained policymaking as cause for hope, but not celebration. We recognized how volatile the issue of pregnancy and drug use was and would likely continue to be. More to the point, we recognized that simply avoiding punitive actions against women, some of whom are suffering as a result of untreated substance use disorders, was plainly not enough. While throwing them in jail or treating any evidence of drug use as a basis for presuming an inability to parent were not the answers, neither was ignoring the abysmal lack of access to treatment that characterized the nation’s policy toward women with addictions. We knew that replacing anti-drug hysteria and totalitarian policing of pregnant women with an informed and compassionate concern for women’s well-being before, during, and after pregnancy would require resources and a national commitment to developing a system of care that works for women with a variety of needs. Such a new approach would have to draw on the best of the developing knowledge about the dynamics of substance use disorders , the physical and sexual abuse (trauma) many drug dependent women experienced, the intersection of racism and poverty, the shortcomings of our public health system, and the ways in which women’s reproductive choices were stigmatized and second-guessed by a culture still confined by gender stereotypes. Such a new approach would honor women’s decisions about childbearing and devote serious attention to treating the disease of addiction—not simply for the sake of promoting healthy pregnancies, but out of concern for the women themselves.
In the year this Overview was published, the Guttmacher Institute began categorizing and reporting state laws and policies regarding substance use and pregnancy. Although this report is not comprehensive, they update it annually. See e.g. https://www.guttmacher.org/state-policy/explore/substance-use-during-pregnancy