Is Criminalizing Drug Use During Pregnancy the Answer?

Young woman addict covering with a hood.

I was surfing through U.S. News the other day when I came across a news story that really caught my eye. U.S. News posted an article titled, “Pennsylvania Supreme Court Rules Pregnant Women Abusing Drugs is Not Child Abuse.” Having worked in addiction treatment most of my adult life, this story hit close to home for me.

The issue of drug use during pregnancy is a tough topic to discuss. Obviously, knowingly taking a substance that would harm an unborn child or potentially create devastating birth defects isn’t something that anyone agrees with. However, it is just as clear that criminalizing addiction and addictive behaviors has not solved the problem of drug and alcohol addiction in our country. In addition, despite laws being passed in many states requiring priority access to treatment by expectant mothers, the number of programs willing to accept these clients is shockingly low. In fact, the current “best practice” is to treat expectant mothers addicted to heroin or opiates with suboxone or methadone on an outpatient basis until after the child is born.

The reality is most women using drugs never wanted to get pregnant and the same factors that created the addiction in the first place don’t simply disappear because an unborn child is involved. Further stigmatizing and criminalizing the addiction which created the problem is not a solution.

In light of this, the recent supreme court decision in Pennsylvania bears some consideration.

Pennsylvania Supreme Court Tackles Tough Questions

According to the U.S. News article, the case revolved around a Pennsylvania woman who gave birth while testing positive for marijuana and Subutex (an opioid medication which falls under “medication-assisted therapy” but which is still an addictive opioid). According to the data, the newborn infant showed signs of neonatal abstinence syndrome and the severe drug withdrawals that are usually attendant with such a condition.

Neonatal abstinence syndrome (NAS) is a medical condition in which a baby who was exposed to drugs while in the womb displays intensive withdrawal symptoms post-birth. NAS babies usually have to be kept in hospital intensive care units, closely monitored and assisted in withdrawing off of the drugs that are in their systems. NAS is rarely fatal, but it is an unpleasant experience to have to endure while in one’s first days of life.

In the situation in Pennsylvania, the newborn baby girl stayed at Williamsport Hospital for nineteen days while suffering from withdrawal symptoms due to the drugs that Mom was on during pregnancy. As a result, a case was brought against the mother with allegations of child abuse, but the case was overruled by the Pennsylvania Supreme Court.

How and Why the Court Made the Ruling That It Did

According to Pennsylvania Supreme Court Justice Christine Donohue, “A mother cannot be found to be a perpetrator of child abuse against her newly born child for drug use while pregnant.”

Legal take away of a child

Another Justice, Senior Judge Eugene Strassburger put forth the question is it really acting out of concern for the best interests of the unborn fetus, to label Mom a child abuser? In fact, wouldn’t doing so deter the mother from seeking addiction treatment, not only for fear of being accused of child abuse and having to face legal and criminal implications as a result, but for fear of possibly having her parental rights taken away even before her child is born?

And that’s exactly why the Supreme Court made the ruling that it did. Furthermore, the Justices indicated that they were concerned that if drug use by a pregnant mom is labeled child abuse, what’s preventing other habits from being so labeled, such as drinking coffee, eating sushi, and traveling—all of which are technically advised against for women who are pregnant?

Ultimately, the Pennsylvania Supreme Court made the ruling that they did because they did not want pregnant mothers who suffer from addiction to be further stereotyped and stigmatized. However, simply wishing something to be true and actively working to achieve it are two different things.

Instead of focusing on the criminal aspect of addiction, Pennsylvania would be better served by focusing on making treatment available to expectant mothers. Removing the stigma only to have mothers continue to seek, but not find, quality treatment is not a solution.

In addition, there are those who refuse treatment even if they are lucky enough to find it. In these cases, intervention by the criminal justice system may be necessary. This decision did little to address these concerns.

Zooming Out—How the Rest of the Nation Approaches this Hot Button Issue

I decided to do some more research, and I came across a brief summation of other states’ prenatal substance abuse laws, compiled and presented by the Guttmacher Institute. Since the later 1980s, the country has been arguing back and forth on how to address pregnancy and drug use. It’s been quite the heated debate thus far, with no solution seeming to solve the problem entirely.

At this time:

  • 23 states plus D.C. consider that substance abuse during pregnancy is child abuse. (Now, whether or not a state Supreme Court considered a suit for these states remains unclear, but the fact is that almost half of the U.S. states still do consider it criminal child abuse when a pregnant mom uses drugs).
  • 24 states and D.C. require that healthcare practitioners report suspected prenatal substance abuse when they witness it, and eight states even require such practitioners to test for prenatal substance abuse if they suspect it.
  • Nineteen states currently have specially created drug treatment programs set up for pregnant women, offering pregnant moms who use drugs or alcohol a way to address their habits in a monitored, specialized, treatment-based setting.
  • Ten states go as far as prohibiting drug treatment programs from discriminating against pregnant women.

Is There a Solution?

Ultimately, the solution to the problem lies in providing more education and treatment for drug and alcohol addiction. No one grows up wanting to be pregnant and addicted to drugs. However, completely removing the responsibility of an expectant mother to protect her unborn child is simply not a solution. When responsibility is entirely removed many addicts will simply never recover from addiction. This is one of the most difficult aspects of addiction. When viewed purely as a disease, the only solution is more medication. When viewed as a moral affliction the problem worsens.

If a pregnant mother refuses to seek treatment or shows no interest in handling her addiction, involvement in the criminal justice system may be the only thing left that can prevent further harm. However, this is rarely the situation we see. More often the expectant mother is confused, afraid and alone, completely unable to find help.

Pregnant mothers are simply women who fell prey to the drug addiction crisis that has had its hooks in about 23 million people, according to the National Institutes of Health. We need to help addicts overcome their habits through professional treatment and rehabilitative services. Incarceration, stereotyping, and stigmatizing addicts has never worked and never will, and it does nothing for the mother or her baby. In fact, it helps to perpetuate the problem.


Reviewed and Edited by Claire Pinelli, ICAADC, CCS, LADC, RAS, MCAP



After working in addiction treatment for several years, Ren now travels the country, studying drug trends and writing about addiction in our society. Ren is focused on using his skill as an author and counselor to promote recovery and effective solutions to the drug crisis. Connect with Ren on LinkedIn.