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State Responses to Maternal

Drug and Alcohol Use: An Update

by

Dan Steinberg

Shelly Gehshan

January 2000

Support for this report was provided by the Robert Wood Johnson Foundation.

Executive Summary

Introduction

Prevalence and Effects of Maternal Drug Abuse

"Crack" Cocaine and Pregnancy: The Good News is Bad News is Wrong

State Approaches to Maternal Drug Use

Examples of State Legislation on Maternal Substance Use

Recent Court Decisions

Conclusion

Appendix A: Statutes Affecting Women Who Use Drugs or Alcohol During Pregnancy in the 50 States (as of July 31, 1999)

Appendix B: Sources and Further Reading

Notes

Executive Summary

Each year, millions of women in the United States use alcohol or other drugs while pregnant. While not all of these incidents have health consequences, maternal drug use can lead to low birth weight and other complications, and alcohol use can cause serious birth defects. The direct and indirect costs of this problem to the states are substantial.

Key issues in addressing the problems of pregnant women who use alcohol and other drugs include:

While less attention has been devoted to the problem of maternal chemical dependency in recent years, pregnant women continue to use substances that may damage their own health and that of their newborns. Policymakers and legislators coping with this issue must grapple with many complex legal, ethical, emotional and moral issues. Because of these complexities, coordination among agencies that deal with this problem and a consensus on the best approach are difficult to achieve. Nevertheless, state legislators must consider the contributions and roles of police, courts, social services, health departments and many other agencies in addressing this problem and need to be aware of the many barriers women face in getting treatment for their addictions.

Introduction

The issue of women who use alcohol and other drugs during pregnancy has been problematical to state governments. Maternal drug use complicates pregnancies and damages the health of newborns, driving up state expenditures on obstetrical and neonatal health care. After birth, other costs may occur. Children born to drug-using mothers frequently require the attention of child protective services or juvenile courts, further increasing costs to the states. In 1996, the Journal of Substance Abuse Treatment put first-year costs to states of births affected by maternal substance use as high as $50,000 each above "usual" births. State expenses for public assistance and foster care for each year after the first can be as high as $20,000.1

Responding to media coverage of the issue, many states began to introduce relevant legislation in the mid-1980s. Bills attacked the problem on many fronts. Some affected the health profession, and required doctors to report incidents of maternal substance use to state agencies; others required social services agencies to assess families affected by alcohol or drugs for abuse and neglect; and still others required commercial vendors who sell alcohol and tobacco to post warnings about the effects of these substances on pregnant women. Some states formed interdisciplinary commissions to monitor and study the problem and report to the legislature with further suggestions. These and other innovations were designed to prevent women from using unhealthful substances while pregnant, minimize the harm that can result, or provide families with needed services.

This document highlights some ongoing problems states experience as they attempt to cope with perinatal drug use, discusses some options states have in addressing the problem, and provides an overview of some recent statutory and judicial developments. The appendix contains a compendium of state laws on the topic, and provides full citations and a brief summary for each.

The issue of maternal substance abuse produces powerful reactions and emotions in many people. One of our strongest instincts is to protect our children, and this is as true for nations and governments as it is for families and individuals. As a consequence, many states took a long time to plan their response to the problem as legislatures debated passionately about how best to approach the issue. Because no national initiative on addiction treatment for pregnant or parenting women currently exists, this paper reviews the options open to states in order to assist them in addressing this complex public health challenge.

Prevalence and Effects of Maternal Drug Use

Alcohol is the most commonly used addictive substance in the United States. One study estimated that of the approximately 4 million women who give birth each year in the United States, 2.6 million use some amount of alcohol during their pregnancy,2 and another study has estimated that up to 22,000 children per year (approximately one-half of 1 percent of all births) experience mild, moderate or severe adverse effects as a result of their mothers' alcohol ingestion.3 Among the problems children may suffer are fetal alcohol syndrome (FAS), which produces slowed growth, damage to the nervous system, facial abnormalities and mental retardation; and fetal alcohol effects (FAE), which produces a milder group of mental and behavioral problems, including short attention spans, memory problems and disorganization.

Tobacco use during pregnancy has decreased in recent years, from 18.4 percent in 1990 to 13.6 percent in 1996 (approximately 530,000 births),4 and the women who do smoke during pregnancy also smoke fewer cigarettes than they did in 1990. Smoking during pregnancy can introduce toxic chemicals-such as nicotine, hydrogen cyanide and carbon monoxide- into the fetal blood supply and can cause problems in newborns such as low birthweight, preterm delivery, slow fetal development and infant mortality. The state and federal responses to the problem have relied almost exclusively on public awareness campaigns. The federal government also requires tobacco companies to print warnings on cigarette packages and advertisements, but this approach is not available in the case of illegal drugs.

Figures on the frequency of illegal drug use among pregnant women differ, ranging from 221,0005 to 739,0006 births per year (between 5.5 percent and 18 percent of all births). In a 1992 study, the National Institute on Drug Abuse estimated the frequency of drug use by pregnant women for specific types of drugs as shown in table 1.

Source: National Institute on Drug Abuse, 1992.

Birth complications attributed to drug use include shortened gestational periods, low birthweight, smaller-than-normal head size, miscarriages, genital and urinary tract deformities, and nervous system damage. Some studies have suggested that environmental factors can significantly moderate the effects of prenatal drug use. Children also may experience fewer negative outcomes, depending on their genetic vulnerability to exposure, the type of drug to which they were exposed, the frequency and magnitude of drug use, and the quality of prenatal and postnatal medical care.7

"Crack" Cocaine and Pregnancy: The Good News is the Bad News is Wrong

The issue of perinatal substance use received heightened public attention in the mid-1980s. Although the fetal effects of cigarette smoking already were widely discussed, national media outlets began to inform the public about mothers who used "crack" cocaine-a cheap, smokable form of cocaine-during pregnancy. By the mid-1990s, the "crack baby" phenomenon had become ingrained into shared national consciousness. News outlets, no longer perceiving the need to publicize the crisis, covered the issue less frequently. By 1992, most states had crafted their responses to the health concern and public outcry, and legislatures focused on other issues.

Much of the media coverage of this phenomenon, however, was inaccurate or premature. News outlets propagated many misconceptions about the nature of cocaine use, especially by pregnant women, and never effectively retracted or corrected them. Most of the public remains unaware of the following facts.

• Addiction is an illness, requiring professional treatment. Not all drug users are addicted. An addict is a chronic user of alcohol and/or other drugs whose brain and body chemistry become dependent on alcohol or drug intake to remain stable.8 Addicts who try to stop using drugs or alcohol or who are unable to obtain them and do not receive medical treatment may experience a wide range of dangerous and painful withdrawal symptoms, depending on the type of drug and the severity of addiction. Withdrawal symptoms include anxiety, nausea and cardiac irregularities, and may be fatal in extreme cases.

• Cocaine is not the most frequently used drug during pregnancy that can negatively affect birth outcomes. According to the National Institute on Drug Abuse, more than 40 times as many women use alcohol than use crack or powder cocaine during pregnancy. Although most women who use alcohol during pregnancy do not complicate their deliveries or their fetus' long-term health, the effects of heavy or chronic alcohol use often are significant and can interfere with the child's long-term health and well-being much more than the effects of cocaine use. Also, more than 10 times as many women use cigarettes, which like crack are associated with low birthweight and preterm delivery.

• Children born to mothers who used crack during their pregnancy can recover from the physical and mental effects of prenatal cocaine exposure. Recent research suggests that most cocaine-exposed babies catch up to their peers in physical size and health status by age 2.9 Some evidence exists that intellectual and behavioral deficits remain, but studies on these observations have not been conclusive. Many of the other effects attributed to cocaine use during pregnancy-short attention spans, poor impulse control or lower intelligence-are hard to separate from the effects of poverty or family environment and may occur even in the absence of cocaine use.

• Many women who use alcohol or other drugs during pregnancy are very concerned about the health of their fetuses, but have serious barriers to treatment. Although many people perceive drug-using mothers as unemotional or uncaring toward their children, interviews with these women reveal that they frequently understand that there is a connection between drug use and the health of their fetuses, and many try to reduce or quit drug use during pregnancy. In a 1999 book, for example, authors Sheigla Murphy and Marsha Rosenbaum interviewed 120 pregnant women drug users and found that virtually all were concerned about their fetuses and the health of their pregnancies.10 Many of those women also tried to stop or reduce their drug consumption.

State Approaches to Maternal Drug Use

States have used a variety of approaches to address the problems created by perinatal alcohol and drug use, including criminal prosecution for the harm they cause or risk causing their children, civil interventions by agencies such as Child Protective Services, and public health initiatives that provide preventive education, treatment or support. Increasingly, states are combining elements of punitive and treatment options through institutions such as drug courts, which offer offenders the option of either serving jail time or committing to treatment.

At this time, no legislature has criminalized drug addiction during pregnancy per se. Such a statute would criminalize the woman's status and identity (that is, her identity as a woman who is pregnant and as a person suffering who is from drug or alcohol addiction), rather than a specific criminal act. Although district attorneys sometimes apply criminal statutes dealing with child abuse, assault, murder or drug dealing to pregnant women who use drugs, many are reluctant to pursue these cases because they believe juries will be sympathetic to drug-using mothers or because they recognize that other methods of coping with the problem are available.11

In a few states, district attorneys have tried to hold women who use drugs during pregnancy accountable under statutes forbidding the delivery of drugs to a minor.12 Prosecutors have encountered problems when applying these statutes, however, because the language of relevant statutes does not explicitly include "fetuses" or define "minors" to include fetuses. Most judges have been unwilling to interpret these statutes more broadly to include fetuses, because they believe this inclusion to be the responsibility of their state legislatures. District attorneys in Florida and Nevada, among other states, have avoided this difficulty by arguing that drug delivery takes place through the umbilical cord after the delivery of the child, but before the cord is severed. Nevertheless, judges have objected to the legal foundations of these prosecutions, and no prosecutor has yet succeeded in applying these statutes in this context.13

All states have mechanisms for intervening when parents are unable to care for their children. Sixteen states consider alcohol and drug ingestion during the perinatal period alone as child abuse or neglect, triggering at a minimum an investigation of parental fitness.14 In these states, substance use during pregnancy is confirmed through testing for the presence of cocaine, opiates, alcohol or derivatives in the child's body at birth. In cases where the screening reveals drug use, the infant may be placed in foster care and the mother is referred to treatment. Other children under the mother's care may be placed in foster care as well. If the mother fails to complete addiction treatment, child protective services may permanently remove the children from the home.

Addiction counselors warn that despite the popular perception of addicted mothers as unconcerned parents who have no emotional attachment to their children, many women report a hesitancy to seek counseling and treatment because they fear losing their children. In a 1993 survey, for example, substance using women in southern states cited fear of losing their children as their primary barrier to seeking car. Although most women in the survey were able to find child care (often provided by parents or other family members), many also expressed an unwillingness to be separated from their children during long-term or inpatient treatment.15 Although the policy goal in states that use these methods of intervention is to protect children rather than to punish the mother, many women fear losing custody or parental rights more than they fear criminal penalties. While interventions may be necessary to protect children, most agencies view removing children from their homes as a last resort, and many programs view reunification of the family as one measure of success of their programs.16

States spend a considerable amount of money on drug and alcohol addiction treatment. In 1997, states spent approximately $2 billion on treatment, and the federal government supplied states with nearly $1.5 billion more.17 Federal funds come in many forms. The Substance Abuse Prevention and Treatment (SAPT) Block Grant, for example, provided the states with nearly $1.2 billion in 1997.18 Under federal law, 5 percent of the SAPT grant must be used to improve treatment access for pregnant women unless the state can demonstrate that pregnant women already are adequately served.19 States also may use Transitional Assistance for Needy Families (TANF) funds to provide treatment if these funds are used for "non-medical" services such as those provided by counselors, psychologists and social workers. These programs served 1.8 million people in 1997. Of those served, about one person in four admitted to alcoholism treatment programs, and one person in three admitted to drug addiction treatment programs, were women.20

Men and women who suffer from addiction to alcohol or other drugs have different treatment needs. Most people suffering from addiction deny that they have a problem or deny that their drug use has negatively affected their lives. Many treatment programs respond to denial by using direct confrontation, an approach that involves a degree of harshness that may be inappropriate for female addicts. Many women who use drugs have been involved in incidents of domestic violence or childhood abuse at some point in their lives. They may respond poorly to such treatment methods, becoming more defensive, depressed, or unwilling to trust treatment counselors.21

Gender-specific treatment also can accommodate women with children. Women are more likely than men to be responsible for taking care of children,22 and many women will not enter treatment either because they fear their children will be placed in foster care if they admit to having a problem or because they do not wish to be separated from their children during treatment. Very few residential drug treatment programs provide child care, which may otherwise be unavailable or prohibitively expensive. Some residential programs may provide care for one or two children only, a policy that forces mothers with more children to delay or avoid treatment until suitable care for other children can be found. Child care is also a concern for women who are pursuing outpatient (non-residential) addiction treatment.

Studies show that, for women who are most severely affected by their addictions, the most effective treatment is residential, long-term and integrated with other services.23 Residential treatment involves establishing a community where residents live, eat, sleep and receive treatment.

For many addicts, the first step is detoxification, a process that treats the biological effects of withdrawal from alcohol or narcotics. Usually provided in an inpatient setting, detoxification is a short-term way to eliminate chemical dependence, but does not treat the more pervasive psychological and behavioral aspects of substance addiction. As well as the co-occurring emotional problems discussed above, many addicted women need to make fundamental changes in their lives in order to stop using drugs permanently. These changes can occur only over longer periods of time, during which patients receive counseling, therapy and instruction.

Integrative treatment refers to the philosophy of simultaneously coping with patients' needs in a variety of areas. In addition to needing treatment for substance addiction and the mental and emotional needs discussed above, many substance using mothers lack the parenting and professional skills necessary to provide for their children.

Treatment approaches have been found to be both fiscally and therapeutically effective. California and Oregon, for example, have found that investments in treatment programs have saved their states significant amounts of money in criminal justice, public assistance and other costs. California found that for every $1 it spent on treatment initiatives, it saved $7, while Oregon saved about $5.60.24 Although attrition from treatment programs is a concern, 75 percent of women who complete treatment successfully remain drug free.25

Although many women experience incidents of relapse, the Center for Substance Abuse Treatment advises that "chronic relapse-which often is viewed as the client's fault-should instead be viewed as a preventable part of the recovery process."26 Continued relapses may be a sign of serious psychiatric problems, which may be related to present or past incidents of sexual abuse or domestic violence. These issues also may require treatment, including therapy.

Many states are using the approach of establishing drug courts for drug offenders. A typical drug court offers its client/defendants the opportunity to contract with the court to seek treatment instead of receiving a jail sentence. Participants are referred to drug courts through the county's regular judicial system, the department of health or another government agency. Most drug courts accept only offenders who have committed nonviolent, drug-related crimes, such as theft or possession.27 Some courts do not accept drug dealers. Participants are offered the choice of seeking detoxification and treatment or an extended jail sentence. Those who agree to seek treatment receive inpatient detoxification services, and in the case of pregnant women, medical treatment to prevent injury to the fetus during withdrawal. After detoxification, participants begin a one- to two-year process of outpatient treatment and aftercare, culminating with educational, job training or work programs.

During the entire course, participants report to a case manager on a regular basis, as well as to the drug court judge. Participants often are tested for drug use at least once a week. Some courts will drop people from the program for any drug use and sentence them to jail time for the crime they originally committed. Others show leniency for relapses. Most courts will jail those who lie about their drug use or other aspects of their progress.

At this time, 195 drug courts in 43 states and territories have been in operation for at least two years. Between 50 percent and 65 percent of those who choose to participate in treatment programs instead of going to prison satisfy the terms of completion and "graduate," varying with jurisdiction.28 Although no long-term studies are yet possible, many drug courts monitor the progress of their graduates, and initial results seem promising. One drug court in Pensacola, Florida has produced 41 graduates after only slightly more than one year of existence; 22 participants terminated the program unsuccessfully. Judge John T. Parnham of Pensacola's drug court notes that success can really be measured only in the long term, after determining whether graduates remain permanently free of drug use.

Examples of State Legislation on Maternal Substance Use

Sixteen states have legislation that address substance use and its relationship to child neglect and child abuse. Of these states, South Carolina's statute is perhaps the most prescriptive: it establishes a "presumption" of abuse or neglect in the presence of a positive toxicology, and affirms a belief that " ... the child cannot be protected from further harm without being removed from the custody of the mother." California's relevant statute, in contrast, states that " ... a positive toxicology screen at the time of the delivery of an infant is not in and of itself a sufficient basis for reporting child abuse or neglect," but will trigger an assessment of the needs of the mother and child. If, after this assessment, health officials deem the child to be at risk, they are asked to file a report " ... only to county welfare departments and not to law enforcement agencies."

Several states have legislatively created advisory panels or task forces on maternal substance use. Some, like the New Hampshire Perinatal Alcohol, Tobacco and Other Drug Use Task Force were asked only to study the problem and make recommendations to the legislature on future activities. Others, like Kentucky's now-defunct Substance Abuse and Pregnancy Work Group, were asked not only to recommend courses of action but to actively " ... identify, develop, and coordinate resources available and needed for infants exposed to alcohol and drugs during pregnancy." Other states with legislatively chartered commissions include Arkansas, California and Iowa.

Other approaches to reducing maternal substance use include requiring warning signs wherever alcohol is sold (New York, Washington, D.C.); requiring that departments of health establish treatment policies specific to pregnant women (Louisiana, Oklahoma, Pennsylvania); and the establishment of alternative sentencing programs for prenatal substance users (California and Ohio).

Although most legislation on perinatal alcohol and drug use was enacted in the late 1980s, three states passed legislation in their 1999 legislative sessions. Maryland's H 62 creates a task force charged with creating a strategy to increase the funding and availability of substance abuse programs in the state. One duty of the task force will be to examine the availability of programs for women, pregnant women and women with children. Nevada's S 197 creates a fetal alcohol syndrome (FAS) advisory subcommittee of the Maternal and Child Health Advisory Board. The subcommittee is charged with identifying the most effective methods of preventing FAS and collecting information on the incidence of FAS in Nevada. Arkansas' H 163 establishes the Arkansas Prenatal and Early Childhood Nurse Home Visitation Program, one goal of which is to reduce drug use (including alcohol and nicotine use) by mothers, both during pregnancy and the first few years of their children's lives.

Recent Court Decisions

Decisions rendered recently in two court cases-one in which a state tried to prevent harm by taking custody of the fetus, another in which a state sought to punish a woman for the physical harm her baby could suffer as a result of her drug use -have refocused attention on the issue of treatment versus punishment in cases of perinatal substance use.

In 1995, Wisconsin's Waukesha County Department of Health and Human Services sought a protective custody order over the fetus of a woman known through her court case as Angela M.W. This detention, of course, necessitated the detention of Angela herself. Angela's obstetrician referred her to the department after she had repeatedly tested positive for cocaine, but she declined her doctor's advice to seek inpatient treatment for her drug use. The juvenile court granted the custody order, and the Wisconsin Court of Appeals upheld the lower court's decision, finding that Chapter 48 of Wisconsin's statutory laws-known as the Children's Code-applied to the unborn. The Wisconsin Supreme Court overturned the Appeals Court's decision, however, holding that the intent of the Legislature in drafting the Children's Code was to exclude fetuses.

The 1998 Wisconsin Legislature responded by extensively redrafting the Children's Code to include explicitly " ... children at that state of fetal development when there is a reasonable likelihood of sustained survival outside the womb, with or without artificial support." All references in the code to "child abuse or neglect" were amended to read "child abuse or neglect or unborn child abuse," and detention of expectant mothers now is permissible under the same circumstances that children may be taken into protective custody.

The effects of these changes in the code, however, have not been dramatic. In only a small number of cases, agents of the courts have used the statute to impose custody over pregnant women. Wisconsin's Legislative Fiscal Bureau, in speculating on the administrative and litigation costs of the new measures, hypothesized that district attorneys would pursue approximately 250 cases of perinatal substance use each year. In practice, far fewer were filed in the first year, and none were appealed beyond the trial level.

To date, only one state supreme court has upheld the prosecution of a mother who used drugs while pregnant. In 1992, Cornelia Whitner was tried for using cocaine during her third trimester of pregnancy. She was convicted under a child neglect statute, which states that anyone who has legal custody of a child but neglects to provide "proper care and attention" such that the caretaker compromises "the life, health or comfort" of the child is guilty of a misdemeanor. The state Supreme Court upheld the conviction, and the U.S. Supreme Court declined to hear the case. The result is that Whitner now enables South Carolina district attorneys to prosecute such cases. Also, prosecutors in other states may gain support for arguments that perinatal substance abuse is a criminal act worthy of jail time. Judges in other jurisdictions, however, may not agree to hear such cases, given that precedents from other jurisdictions are not binding.

Conclusion

Although less attention has been devoted to the problem of maternal chemical dependency in recent years, some pregnant women continue to use substances that may damage their own health and that of their newborns. Policymakers and legislators who are coping with this issue must grapple with many complex legal, ethical, emotional and moral issues.

This report documents a variety of approaches states have taken to fund treatment, protect children from abuse or neglect, and divert people convicted of drug related crimes to treatment. State district attorneys also have used several types of statutes to prosecute pregnant addicted women, and two state supreme courts have issued rulings that reflect sharply conflicting policies and practices. Few legislatures have revisited this issue in recent years, which may indicate that the current trend toward treatment, protecting children and spelling out penalties for drug-related criminal behavior are addressing this issue adequately. States that have had initiatives in place for a few years also may wish to revisit this issue to evaluate their programs' effectiveness and the status of women's drug use in their states.

Appendix A: Statutes Affecting Women Who Use Drugs or Alcohol During Pregnancy in the 50 States (as of July 31, 1999)

This overview of state legislation is not comprehensive, but is intended to provide an indication of state approaches. For a more thorough list of state legislation, see National Advocates for Pregnant Women, 1999 Overview of State Statutes Affecting Pregnant Women Who Use Drugs or Alcohol. That document is available from:

The Women's Law Project
125 South 9th Street, Suite 300
Philadelphia, PA 19107

NAPW1@aol.com

Ariz. Rev. Stat. Ann. § 13-620(B) (West 1998). Requires health professionals who have a reason to believe that a newborn has been affected by drugs or alcohol to report their findings to child protective services.

Ariz. Rev. Stat. Ann. § 36-697 (West Supp. 1998). Establishes the administration and structure of the Health Start pilot program, one goal of which is to reduce drug dependency among expectant and new parents.

Ark. Code Ann. § 20.85.101 (Michie 1997). Creates a cooperative program with the University of Arkansas for Medical Sciences called the Family Treatment and Rehabilitation Program for Addicted Women and their Children. Charges the program with "develop[ing] a statewide program of treatment, rehabilitation, prevention, intervention, and relevant research" on maternal drug use as well as "resources for local treatment and rehabilitation."

Cal. Health & Safety Code §§ 11757.50 et seq. (West 1991). Creates the Office of Perinatal Substance Abuse as well as an interagency task force on perinatal substance abuse.

Cal. Penal Code § 1174 (West 1999). Appropriated $15 million dollars in 1994 to construct alternative sentencing facilities for pregnant and parenting women convicted of drug offenses.

Cal. Penal Code § 11165.13 (West 1992). Mandates that a positive toxicology screen at the time of a child's delivery triggers a needs assessment.

Colo. Rev. Stat. § 25-1-203 (2) (g) (West Supp. 1998). Orders the Division of Alcohol and Drug Abuse (DADA) within the Department of Human Services to provide services to pregnant women through demonstration and evaluation projects.

Colo. Rev. Stat. § 25-1-212 (West Supp. 1998). Creates special treatment programs for women who abuse drugs while pregnant.

Colo. Rev. Stat. § 25-1-213 (West Supp. 1998). Lists necessary components of treatment programs for women who abuse drugs while pregnant.

Colo. Rev. Stat. § 25-1-214 (West Supp. 1998). Permits DADA to cooperate with public and private entities in providing services under § 25-1-212.

Colo. Rev. Stat. § 25-1-215 (West Supp. 1998). Requires data collection and assessment of these programs.

Colo. Rev. Stat. § 26-4-508.2 (West Supp. 1998). Encourages (but does not explicitly require) health care practitioners to report suspected incidents of substance abuse by pregnant women.

Conn. Gen. Stat. § 17a-710, 711 (West 1998). Requires the Department of Mental Health to provide care to pregnant women who are addicted to drugs or alcohol.

Del Code Ann. tit. 16, § 190, tit. 24, § 1770 (Michie 1995). Requires any professional who treats or counsels pregnant women to warn them of the dangers of abusing alcohol, cocaine, marijuana or other narcotics while pregnant.

D.C. Code Ann. § 25-147 (Michie 1996). Requires liquor stores to post notices about the dangers of consuming alcohol when pregnant.

Fla. Stat. Ann. § 39.01(30)(g) (West Supp. 1998). Includes perinatal substance use under the definition of "harm" to a child.

Fla. Stat. Ann. § 381.0045 (West Supp. 1999). Creates the Targeted Outreach for Pregnant Women Program, a two-year pilot program that involves outreach, education, and peer and cultural counseling and encourages HIV testing.

Ga. Code. Ann. § 3-1-5 (Michie 1990). Requires warnings about fetal alcohol syndrome to be posted in liquor stores.

Ga. Code. Ann. § 26-5-20 (Michie Supp. 1998). Grants drug-dependent pregnant women priority admission to drug treatment programs.

Ill. Comp. Stat. Ann. ch 325 para. 5-7.3b (West Supp 1999). Requires social workers, hospital workers and others to refer pregnant addicted women to authorities within the Department of Health.

Ill. Comp. Stat. Ann. ch. 325 para. 3-5 (West Supp. 1999). Defines neglect of a child to include prenatal substance abuse, as evidenced by a positive toxicology at birth in the bloodstream or meconium.

Ill. Comp. Stat. Ann. ch. 720 para. 570-407.2 (West Supp. 1999). Extends the prison sentence for selling drugs to twice the maximum in cases where the seller knew the woman purchasing drugs was pregnant.

Ind. Code § 31-34-1-10 (West 1999). Defines "child in need of services" to include children born to a mother using drugs or alcohol.

Ind. Code § 31-34-1-12 (West 1999). Makes an exception for mothers who use "legend" drugs (drugs that are illegal unless prescribed by a physician) in good faith.

Ind. Code § 31-34-1-13 (West 1999). Makes an exception for mothers who use controlled or prescription drugs in good faith.

Iowa Code § 232.68 (2)(f) (West 1998). Includes incidents where "an illegal drug is present in a child's body as a direct and foreseeable consequence of the acts or omissions of the person responsible for the care of the child" under the definition of "child abuse."

Iowa Code § 232.77 (2) (West 1998). Instructs attending physicians to conduct a "medically relevant test" on children they suspect have been exposed to drugs or alcohol and report their findings to the state.

Iowa Code § 235C.1(West 1994). Creates the Council on Chemically Exposed Infants and Children (CCEIC).

Iowa Code § 235C.2 (West 1994). Specifies membership of CCEIC.

Iowa Code § 235C.3 (West 1994). Sets frequency of meetings of CCEIC at twice yearly.

Kan. Stat. Ann. §§ 65-1,160 et seq. (1992). Requires the secretary of Health and Environment to publish informational materials on substance abuse during pregnancy.

Ky. Rev. Stat. Ann. § 214.160 (Michie 1995). Authorizes drawing blood from pregnant women to test for the presence of alcohol, controlled substances or listed drugs.

Ky. Rev. Stat. Ann. § 214.170 (Michie 1995). Requires results of blood test described in

§ 214.160 to be sent to the Cabinet on Human Resources within one week.

Ky. Rev. Stat. Ann. § 214.175 (Michie 1995). Requires accurate data and record-keeping on such blood testing.

Ky. Rev. Stat. Ann. § 222.021 (Michie 1995). Established the Substance Abuse and Pregnancy Work Group. Charged the group with tracking the prevalence of substance abuse among pregnant women in the state, developing and coordinating resources fro addressing the problem, and reporting to the legislature biennially. Specified that the group was to dissolve July 15, 1998.

La. Rev. Stat. Ann. § 46-2505 (West Supp. 1999). Adopts explcitly a state policy of addressing perinatal substance abuse through prevention and treatment rather than punitive measures. Instructs the Department of Health and Hospitals to structure appropriate programs and combat the public perception that substance abuse during pregnancy is a problem only among minority populations.

Md. Code Ann., Health-Gen. § 8-403.1 (Michie 1994). Requires state-operated drug abuse treatment centers to accept pregnant or postpartum women on a priority basis.

Md. Code Ann., Cts. & Jud. Proc. § 3-801 (Michie 1994). Creates the legal presumption that any child born addicted to cocaine, heroin or derivatives is not receiving "ordinary proper care and attention."

Mass. Gen. L. ch. 119, § 51A (Law. Co-op. 1986). Requires that children found to be addicted at birth be reported as abused children.

Mich. Comp. Laws § 722.623a (1998). Requires any person required to report the incidence of child abuse also to report the knowledge or reasonable suspicion of the presence of drugs or alcohol in a child's body except when ingestion occurred in the course of medical treatment.

Minn. Stat. § 253B.02 (2) (1996). Defines pregnant women who exhibit an "habitual or excessive" use of cocaine, heroin or amphetamines as "chemically dependent."

Minn. Stat. § 254B.01 (Supp. 1997). Requires treatment initiatives for pregnant women to include halfway houses, aftercare, psychiatric services and case management.

Minn. Stat. § 626.556 (2) (c) (1996). Defines prenatal substance abuse as neglect.

Mo. Rev. Stat. §§ 191.725 et seq. (West 1996). Requires doctors to be educated about the dangers of perinatal substance abuse and to counsel patients about perinatal substance abuse. Grants Pregnant women priority at drug treatment centers. Establishes a hotline on perinatal substance use. Mandates that other services addressing the issue shall be offered.

Nev. Rev. Stat. § 200.220 (Michie 1997). Defines prenatal substance abuse as manslaughter only if the mother intended to abort the fetus through drug use and the fetus was viable at the time of drug use.

N.H. Rev. Stat. Ann. § 132.19 (Michie 1996). Establishes the Perinatal Substance Abuse Task Force. In 1997, legislation was passed to amend the statute such that it did not expire of its own terms that year.

N.J. Rev. Stat. § 33:1-12a (West 1994). Requires posting of warnings to pregnant women in places where alcohol is sold.

N.M. Stat. Ann. § 60-6A-30 (Michie 1998). Requires posting of warnings to pregnant women in places where alcohol is sold.

N.M. Stat. Ann. § 66-8-101.1 (Michie Repl. 1998) . Establishes additional penalties for driving under the influence if a pregnant woman is injured.

N.Y. Alco. Bev. Cont. Law § 105-b (West Supp. 1999). Requires posting of warnings to pregnant women in places where alcohol is sold.

N.Y. Pub. Health. § 2522 1.d (West 1993). Requires the public health department to distribute information concerning alcohol, tobacco and drug use to both parents in prenatal assistance programs.

As noted under the comments to N.Y. FCA § 1012, New York has judicially defined prenatal substance abuse as child abuse. Heavy drug use is evidence of such abuse, and a newborn's positive toxicology is legal proof.

Ohio Rev. Code Ann. § 2925.11 Section (H) (Anderson 1996). Provides that prenatal substance abuse occurring before July, 1, 1996, is a crime, but alternative punishment involving treatment may be imposed. Applies only to incidents occurring before that date.

Okla. Stat. tit. 10, § 7103(A)(2) (West 1998). Requires health professionals to report the birth of children born with a dependence on drugs or alcohol to the Department of Human Services.

Okla. Stat. tit. 43A, § 3-602(2) (West Supp. 1999). Requires women entering narcotic treatment programs to receive pregnancy tests.

Okla. Stat. tit. 43A § 3-417 (West Supp. 1999). Requires alcohol and other drug abuse treatment centers to have adequate services for pregnant women, including residential treatment centers.

Or. Rev. Stat. §§ 430.900 et seq. (1997). Mandates that doctors conduct a risk assessment of women in their first trimester of pregnancy. Requires that demographic data only of these results be sent to the Department of Human Resources Advisory Committee, which will study the problem and create a statewide case management model program.

71 Pa. Cons. Stat. § 553 (West Supp. 1999). Requires the Office of Drug and Alcohol Programs, in conjunction with the Department of Health, to create a residential program for pregnant women and mothers with dependent children.

S.C. Code Ann. § 20-7-736 (G) (Law Co-op. 1998). Establishes that children are presumed to be neglected, and unable to be protected from further harm without being removed from the custody of the mother if either mother or child is found to have any amount of alcohol or controlled substances in their bodies at the time of the child's birth.

S.D. Codified Laws Ann. § 26-8A-2(a) (LEXIS Supp. 1999). Defines prenatal substance abuse for alcohol and drugs as child abuse or neglect.

S.D. Codified Laws Ann. § 34-20A-63 (3) (LEXIS Supp. 1999). Authorizes civil commitment for pregnant women using alcohol or other drugs.

S.D. Codified Laws Ann. § 34-23B-1 (Michie 1994). Requires obstetricians and gynecologists to provide education to pregnant women about alcohol and other drug abuse. Instructs the Department of Health and Human Services to provide educational materials for these purposes.

S.D. Codified Laws Ann. § 34-23B-2 (Michie 1994). Creates an educational program for obstetricians and gynecologists.

S.D. Codified Laws Ann. § 34-23B-3 (Michie 1994). Requires "age-appropriate" information about alcohol and other drug use to be taught in grades one through 12.

S.D. Codified Laws Ann. § 34-23B-4 (Michie 1994). Creates a toll-free hotline for information about drugs, alcohol and pregnancy.

S.D. Codified Laws Ann. § 34-23B-5 (Michie 1994). Requires the Department of Health and Human Services to create educational materials for distribution to OB/GYNs.

Tex. Fam. Code Ann. § 261.001(7) (West Supp. 1999). Defines "born addicted to alcohol or a controlled substance" as substance abuse. The statute describing "child abuse or neglect," however, does not explicitly include children born addicted.

Utah Code Ann. § 62A-4a-404 (1998). Requires medical professionals to report all incidents of fetal alcohol syndrome or fetal drug dependency to the Division of Child and Family Services.

Va. Code. Ann. § 37.1-182.1 (Michie 1996). Requires the Board of Mental Health, Mental Retardation and Substance Abuse to develop timely and appropriate policies for perinatal substance abusers.

Va. Code Ann. § 16.1-241.3 (Michie 1998). Establishes that a positive screen for controlled substances forms the basis for a suspicion that a child is abused or neglected.

Va. Code Ann. § 63.1-248.3 (A1) (Michie 1998). Specifies that the presence in a newborn's blood or urine of a controlled substance not prescribed for the mother by a physician is a "reason to suspect that a child is abused or neglected." That definition also includes situations in which the child was born dependent on a controlled substance and has demonstrated withdrawal symptoms.

Wash. Rev. Code. § 70.83C.005 (West Supp, 1999). Outlines the intent of the Legislature to approach perinatal substance use through legislative rather than penal means.

Wash. Rev. Code. § 70.83C.020. Outlines prenatal substance abuse prevention strategies. Requires the secretary of the Department of Social Health Services to develop a strategy for three pilot programs, to locate pregnant women using drugs, educate them about the health risks to them and their fetuses, and refer them to treatment.

Wash. Rev. Code. § 74.09.790(6). Specifies that the Maternity Care Access Program must provide services for women addicted or at risk for addiction to alcohol or other drugs.

W. Va. Code § 60-6-25 (LEXIS Supp. 1999). Requires vendors of alcohol for consumption both on and off premises to post warnings about the dangers of using alcohol while pregnant.

Wis. Stat. §§ 48.01 et seq. (West Supp. 1998). The state of Wisconsin has rewritten its entire Children's Code such that all its provisions concerning custody, child abuse, termination of parental rights, and all other provisions explicitly include unborn children and/or pregnant women where applicable. Both the code and revisions are extensive.

Wis. Stat. Ann. § 146.0255 (West 1998). Allows physicians to test any infant for exposure to controlled substances. Requires physicians to report all positive toxicology screens.

Appendix B: Sources and Further Reading

Abel, E., and B. Kintcheff. "Factors affecting the outcome of maternal alcohol exposure: I. Parity." Neurobehavioral Toxicology and Teratology 6, (1984).

Azuma, Scott D., and Ira J. Chasnoff. "Outcome of Children Prenatally Exposed to Alcohol and Other Drugs: A Path Analysis of Three-Year Data." Pediatrics 92 (1993): 396-402.

Center for Substance Abuse Treatment. Pregnant, Substance-Using Women: Treatment Improvement Protocol Series 2. Rockville, MD: DHHS, 1993.

Center for Substance Abuse Treatment. Improving Treatment for Drug-Exposed Infants: Treatment Improvement Protocol Series 5. Rockville, MD: DHHS, 1993.

Center for Substance Abuse Treatment. Practical Approaches in the Treatment of Women who Abuse Alcohol and Other Drugs. Rockville, MD: Department of Health and Human Services, 1994.

Centers for Disease Control and Prevention. National Vital Statistics Reports: Smoking During Pregnancy, 1990-1996 47, no. 10. Atlanta, Georgia: CDC, Nov. 18, 1998.

Frank, Deborah, and Barry Zuckerman. "Children Exposed to Cocaine Prenatally: Pieces of the Puzzle." Neurotoxicology and Teratology 15 (1993): 298-300.

Gehshan, Shelly. A Step toward Recovery: Improving Access to Substance Abuse Treatment for Pregnant & Parenting Women. Southern Regional Project on Infant Mortality, An Initiative of the Southern Governors' Association, 1993.

Gomby, D., and P. Shiono. "Estimating the number of substance-exposed infants: The future of children." 1991.

Gomez, Laura E. Misconceiving Mothers: Legislators, Prosecutors, and the Politics of Prenatal Drug Exposure. Philadelphia: Temple University Press, 1997.

Hunt, Christine. "Criminalizing Prenatal Drug Abuse: A Preventive Means of Ensuring the Birth of a Drug-Free Child." Idaho Law Review 33 (1997): 451-480.

Kendell, Nicole, and Tracy Delaney. Issue Brief: Substance Abuse Treatment: A Look at Specific Populations. Washington, D.C.: National Conference of State Legislatures, October 1999.

Klein, Dorie, and Elaine Zahnd. "Perspectives of Substance-Using Women: Findings from the California Perinatal Needs Assessment." Journal of Psychoactive Drugs 29, no. 1 (January-March 1997).

Legal Action Center. Steps to Success: Helping Women with Alcohol and Drug Problems Move from Welfare to Work. Washington, D.C.: Legal Action Center, May 1999.

Leshner, Alan I., Ph.D., Director of the National Institute on Drug Abuse. The Drug Addiction Treatment Act of 1999, statement before the House Subcommittee on Health and Environment, July 30, 1999.

Murphy, Sheigla, and Marsha Rosenbaum. Pregnant Women on Drugs: Combating Stereotypes and Stigma. New Brunswick, NJ: Rutgers University Press, 1999.

National Institute on Alcohol Abuse and Alcoholism. Alcohol Alert No. 30: Diagnostic Criteria for Alcohol Abuse and Dependence (PH359). NIAAA: October 1995.

National Institutes of Health. National Institute on Drug Abuse, National Pregnancy & Health Survey: Drug Abuse Among Women Delivering Livebirths. Rockville, MD: NIH, 1992.

National Women's Resource Center. A Reason for Hope: Substance abuse treatment during pregnancy has long-term benefits. Alexandria, VA: NWRC, September 1997.

Reinarman, Craig, and Harry G. Levine, eds. Crack in America: Demon Drugs and Social Justice. Los Angeles: University of California Press, 1997.

Schwartz, John R., and Linda Pedley Schwartz. "The Drug Court: A New Strategy for Drug Use Prevention." Obstetrics and Gynecology Clinics of North America 25, no. 1 (March 1998): 255-268.

Streissguth, A. and C. Giunta. "Mental health and health needs of infants and preschool children with fetal alcohol syndrome." International Journal of Family Psychiatry, (1988).

Young, Nancy K., Sidney L. Gardner, and Kimberly Dennis. Responding to Alcohol and Other Problems in Child Welfare: Weaving Together Practice and Policy. Washington, D.C.: CWLA Press (1998).

Notes

1. M.T. French and R.F. Martin, "The costs of drug abuse consequences: A summary of research findings,"Journal of Substance Abuse Treatment 13, no. 6 (1996).
2. Deanna Gomby and Patricia Shiono, "Estimating the number of substance-exposed infants," The Future of Children. (Spring 1991): 17. The National Institute on Drug Abuse puts the figure much lower, at about 757,000, or 18.8 percent. National Institutes of Health, National Institute on Drug Abuse, National Pregnancy & Health Survey: Drug Abuse Among Women Delivering Livebirths. Rockville, Md.: NIH, 1992.
3. Ernest Abel and Barbara Dintcheff, "Factors Affecting the Outcome of Maternal Alcohol Exposure: I. Parity,"Neurobehavioral Toxicology and Teratology 6, no. 5 (1984): 373-377. A. Streissguth and C. Giunta, "Mental health and health needs of infants and preschool children with fetal alcohol syndrome," International Journal of Family Psychiatry, (1988): 29-47.
4. Centers for Disease Control and Prevention, National Vital Statistics Reports: Smoking During Pregnancy, 1990-1996 47, no. 10 (Atlanta, Ga.: CDC, Nov. 18, 1998).
5. National Institute on Drug Abuse, supra note 1.
6. Gomby and Shiono, supra note 2. Note that many high estimates of maternal drug use have been criticized for not using typical samples or for being misinterpreted in the media or by other researchers. See, e.g., the discussion of the National Association of Perinatal Addictions Research and Education's 1989 study in Laura E. Gomez, Misconceiving Mothers: Legislators, Prosecutors, and the Politics of Prenatal Drug Exposure (Philadelphia: Temple University Press, 1997), 22.
7. Center for Substance Abuse Treatment, Improving Treatment for Drug-Exposed Infants: Treatment Improvement Protocol Series 5 (Rockville, Md.: DHHS, 1993), 3. See also Deborah Frank and Barry Zuckerman, "Children Exposed to Cocaine Prenatally: Pieces of the Puzzle." Neurotoxicology and Teratology 15 (1993): 298-300.
8. Alan I. Leshner, Ph.D., director of the National Institute on Drug Abuse, The Drug Addiction Treatment Act of 1999, statement before the House Subcommittee on Health and Environment, July 30, 1999; see also National Institute on Alcohol Abuse and Alcoholism, Alcohol Alert No. 30: Diagnostic Criteria for Alcohol Abuse and Dependence, PH359 (NIAAA: October 1995).
9. Scott D. Azuma and Ira J. Chasnoff, "Outcome of Children Prenatally Exposed to Alcohol and Other Drugs: A Path Analysis of Three-Year Data," Pediatrics 92 (1993): 396-402.
10. Sheigla Murphy and Marsha Rosenbaum, Pregnant Women on Drugs: Combating Stereotypes and Stigma (New Brunswick, N.J.: Rutgers University Press, 1999). See also Shelly Gehshan, A Step toward Recovery: Improving Access to Substance Abuse Treatment for Pregnant and Parenting Women. (Washington, D.C.: Southern Governors' Association, 1993). See also Dorie Klein and Elaine Zahnd, "Perspectives of Substance-Using Women: Findings from the California Perinatal Needs Assessment," Journal of Psychoactive Drugs 29, no. 1 (January-March 1997).
11. Gomez, Misconceiving Mothers: Legislators.
12. Christine Hunt, "Criminalizing Prenatal Drug Abuse: A Preventive Means of Ensuring the Birth of a Drug-Free Child," Idaho Law Review 33 (1997): 454 (fn. 10).
13. Ibid. at 454 (fn 10).
14. Arizona, Florida, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Oklahoma, Nevada, South Carolina, Texas, Utah, Virginia and Wisconsin. For statutory references, see appendix.
15. Gehshan, A Step toward Recovery.
16. See, e.g., National Women's Resource Center, A Reason for Hope: Substance abuse treatment during pregnancy has long-term benefits (Alexandria, Va.: NWRC, September 1997), 3.
17. National Association of State Alcohol and Drug Abuse Directors, State Resources and Services Related to Alcohol and Other Drug Problems: An Analysis of State Alcohol and Drug Abuse Profile Data for Fiscal Year 1996 and Fiscal Year 1997 (Washington, D.C.: NASADAD, 1998), 105.
18. Ibid., 103.
19. 45 C.F.R. §96.124.
20. NASADAD, State Resources and Services Related to Alcohol and Other Drug Problems.
21. Murphy and Rosenbaum, Pregnant Women on Drugs.
22. Ibid. at 21 (34 percent of pregnant, drug-using interviewees had been raised by single mothers, but only 3 percent had been raised by single fathers).
23. See, e.g., Nancy K. Young, Sidney L. Gardner, and Kimberly Dennis, Responding to Alcohol and Other Problems in Child Welfare: Weaving Together Practice and Policy (Washington, D.C.: CWLA Press, 1998), 90-103.
24. Ibid. at 89.
25. Ibid. at 90 (citing Center for Substance Abuse Treatment, Producing Results (Rockville, Md.: CSAT, 1995).
26. Center for Substance Abuse Treatment, Practical Approaches in the Treatment of Women who Abuse Alcohol and Other Drugs (Rockville, Md.: Department of Health and Human Services, 1994).
27. No state makes drug use during pregnancy alone a crime. Such a statute would be a "status crime," i.e., would punish a woman for her identity as a pregnant women and a drug user, rather than for a specific act, such as purchasing or possessing drugs. Pregnant women would be referred to a drug court for a crime related to their addiction, such as drug possession, theft, or prostitution.
28. John R. Schwartz and Linda Pedley Schwartz, "The Drug Court: A New Strategy for Drug Use Prevention," Obstetrics and Gynecology Clinics of North America 25, no.1 (March 1998): 255.

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