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Legally Speaking: Substance abuse and Pregnancy

By:  Susan L. Pollet, Esq.

How has the legal system dealt with the problem of women’s substance abuse during pregnancy?  There is no state which criminalizes drug use during pregnancy.  The Supreme Court of South Carolina is the only court which has upheld such a conviction.  It ruled in Whitner v State that a woman’s substance abuse in late pregnancy constitutes criminal child abuse.

Some states have ruled, in the civil child-welfare realm, that prenatal drug exposure can provide grounds for the termination of parental rights because of child abuse or neglect.  In its survey, the Guttmacher Institute found as follows:

  • 15 states consider substance abuse during pregnancy to be child abuse under civil child-welfare statutes, and 3 consider it grounds for civil commitment;
  • 14 states require health care professionals to report suspected prenatal drug abuse, and 4 states require them to test for prenatal drug exposure if they suspect abuse;
  • 19 states have either created or funded drug treatment programs specifically targeted to pregnant women, and 9 provide pregnant women with priority access to state-funded drug treatment programs;
  • 4 states prohibit publicly funded drug treatment programs from discriminating against pregnant women.” 

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