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Controversy has arisen when criminal statutes such as those prohibiting delivery of drugs to minors have been applied to pregnant women who use drugs. In addition, there have been both litigation and legislation regarding the accessibility of drug treatment programs to pregnant women. Lynn Paltrow, director of special litigation for the Center for Reproductive Law and Policy, provides the following update:

In the late 1980s and early 1990s, there were many attempts to prosecute women who used illicit drugs during pregnancy under state laws, including those prohibiting child abuse and delivery of drugs to a minor. The supreme courts of two states have ruled directly on these prosecutions. In 1992, the Ohio Supreme Court upheld a lower court's dismissal of child endangering charges brought against a woman who allegedly used illegal drugs during her pregnancy.¹ Also in 1992, the Florida Supreme Court, in a unanimous decision, overturned a mother's criminal conviction for delivering drugs to her infant child through the umbilical cord during the moments between the child's birth and the severing of the cord.² The court concluded that the legislature never intended the drug delivery statute to apply to this situation. The court wrote: "Criminal prosecution of mothers like Johnson will undermine Florida's express policy of 'keeping families intact' and could destroy the family by incarcerating the child's mother when alternative measures could protect the child and stabilize the family." In at least two other cases, state supreme courts have refused to review lower court opinions dismissing charges or reversing a conviction.^3,4

It is important to note that not a single criminal case based on charges of child abuse, delivery of drugs to a minor, or related charges has been upheld on appeal. Nonetheless, some prosecutors continue to initiate these cases in some states. These cases are often challenged and the charges dropped or dismissed. However, in some instances, the woman may accept a plea bargain and possibly serve jail time. Some prosecutions have also led to convictions, but post-conviction relief has been effective in those cases in which it was pursued.⁴

There have also been many attempts to apply civil child abuse and neglect laws to the pregnant woman who uses illegal drugs. Although informal estimates suggest that hundreds of women have been investigated or had their children removed from them based on a positive drug toxicology at birth, we have been able to find only 21 reported court opinions. While a majority of lower court opinions have ordered termination of parental rights or temporary loss of custody based on the mother's conduct during pregnancy, the only state supreme court to address the issue rejected prenatal behavior as a basis for taking custody of the child away from the new mother.⁵ In In re Valerie D., the Connecticut Supreme Court unanimously held that legislative history did not support applying a child abuse statute where the child was born with positive toxicology and other symptoms after the mother had injected cocaine several hours before birth. The court explicitly rejected lower court opinions that upheld the use of prenatal activity as a basis for terminating parental rights: "[W]e are unpersuaded by the reasoning of these decisions because they do not rely, as do we, on a close examination of the language, constitutional background and available legislative history of the statutory framework purporting to support a petition for termination of parental rights."

On the legislative side, in the past two years, efforts to create special crimes for pregnant women who use drugs have slowed. As of June 15, 1993, only a few states in the 1992–93 session had considered legislation that would apply special criminal sanctions to the woman who gives birth to a substance-exposed infant.⁶ None of these bills has passed.

Finally, a recent court decision expands pregnant women's access to drug treatment programs. The Elaine W. case⁷ challenged as sex discriminatory a drug treatment program's policy of categorically excluding all pregnant addicts. The highest court in New York, the court of appeals, held that such a policy violates state law prohibiting sex discrimination in public accommodations and that such a policy could be justified only if the program could prove at trial that its policy was based upon sound medical opinion, not upon generalizations associated with pregnant women.

Access to drug and alcohol treatment programs for pregnant women was recently expanded by Congress. According to Susan Galbraith of the Legal Action Center, access should increase given the recent change in requirements for jurisdictions receiving Substance Abuse Block Grants (all states and territories). Block grant recipients are now required to spend 5% of their block grant allocation for services targeted to pregnant women and women with young children. In Fiscal Years 1993 and 1994, funding must be used to increase the availability of services compared to the level provided in the previous fiscal year. Entities providing services under the women's set-aside must make prenatal and child care services available to women while in treatment. States are also required to give pregnant women priority in receiving treatment. Finally, federal legislation, S. 484, the "Medicaid Substance Abuse Treatment Act," is pending, which would increase Medicaid funding for treatment programs for pregnant women and their children.