Though you may be arrested for using illegal drugs, there are generally no additional criminal charges for doing so while pregnant. Two states, Alabama and South Carolina, have upheld criminal child abuse verdicts for prenatal illegal drug use, primarily on the grounds those states believe a viable fetus is a person. In the other 48 states, you are relatively safe. Tennessee had a specific criminal law against using illegal drugs while pregnant, though it expired in 2016.

Civil Penalties for Pregnant Illegal Drug Use

Nearly half of the states in the U.S. view prenatal illegal drug use as a form of civil child abuse. As such, in most of these states, pregnant illegal drug users may face civil penalties, generally in the form of losing parental rights. Only a few states allow for the involuntary commitment to a rehab facility.

Regarding detection of drug use, many states have laws that require health care providers to test for and report prenatal drug use, and a subset of those only require testing for Medicaid patients. Other states only require reporting any known prenatal drug use. Some believe laws that require testing and reporting for only those on medicaid is racially discriminatory, but that’s another discussion.

Public Policy Favors Intervention

Courts generally view illegal drug use during pregnancy as a substance abuse issue requiring medical intervention rather than imprisonment. The criminalization of drug addiction may be a controversial topic, but is rarely viewed as favorable when it comes to pregnant women.

One reason, which isn’t exactly heart-warming, is the cold reality that prisons don’t want to be responsible for an opioid addicted pregnant inmate. Its fears are somewhat justifiable. Detoxing an addict is a science, and if left to prison officials, might endanger the pregnant mom and unborn fetus.

Another reason is that, if it were illegal, pregnant women would rarely risk their freedom in order to seek treatment. Nothing deters asking for help like prison. So long as women are not risking their freedom, many will seek out drug rehab options, even if only to keep from having to endure the hardships of raising a child with birth defects caused from illegal drug use.

If you or someone you love is addicted to illegal drugs while pregnant, talk to your doctor. Seeking help will be better for you, and your baby, in both the short and the long term. And if you do face criminal charges, contact a local criminal defense attorney. A lawyer can help you know your rights, and stand up for you, even in your darkest days.

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