Punitive Prenatal Substance Use Laws and What the Research Finds

States that treat substance use in pregnancy as child abuse, as grounds for civil commitment or as a crime have been studied repeatedly. The published findings run in one direction. Two peer reviewed studies, in Health Affairs and JAMA Pediatrics, found these laws associated with worse outcomes rather than better ones.

What the laws look like

State provisions in this area fall into a handful of recognisable categories, catalogued in the federal Child Welfare Information Gateway state statute series. Some states define prenatal exposure to a controlled substance as reportable child abuse or neglect. Some require a clinician to report an infant who shows evidence of exposure at birth. A smaller number make substance use in pregnancy grounds for involuntary commitment, and a smaller number still apply criminal statutes.

Cutting across all of that, many states also require treatment programmes to give pregnant applicants priority for admission. Punitive and supportive provisions routinely coexist in the same state code, which is one reason simple state league tables mislead. Exact counts shift every legislative session, so anyone citing a number should date it and check the current statute.

The Health Affairs finding: no reduction in the outcome the laws target

The most cited analysis is a 2019 study in Health Affairs by Faherty and colleagues, examining state policies against neonatal abstinence syndrome rates using data from 2000 to 2014. Its title states the conclusion plainly: policies that treat prenatal substance use as child abuse or neglect fail to achieve their intended goals.

The specifics are worth stating carefully. Policies that criminalised substance use during pregnancy, made it grounds for civil commitment, or defined it as child abuse or neglect were associated with significantly higher rates of neonatal abstinence syndrome, both in the first full year after enactment and in the period beyond that. Policies that simply required reporting of suspected prenatal substance use were not associated with any change in those rates.

An association is not proof of causation, and states do not pass these laws at random. Legislatures tend to act when a problem is already worsening, which can produce exactly this pattern without the law causing anything. What can be said with confidence is narrower and still useful: there is no evidence in this dataset that punitive policies reduced the outcome they were written to reduce.

The JAMA Pediatrics finding: less prenatal and postpartum care

A 2022 study in JAMA Pediatrics by Austin, Naumann and Simmons looked at care use rather than at birth outcomes, examining 4,155 pregnant women who reported substance use during pregnancy. Women who delivered in states with a child abuse policy, a mandated reporting policy, or both, started prenatal care later, were less likely to receive adequate prenatal care, and were less likely to attend a postpartum visit than women in states with neither policy.

In states with a child abuse policy alone, women were 17.6 percent less likely to receive adequate prenatal care. Where only a mandated reporting policy applied, the reduction was 6.4 percent, and where both applied, 5.2 percent. Across the policy groups, women were between 8.7 percent and 12.4 percent less likely to attend a postpartum health care visit in the four to six weeks after birth.

The mechanism is not mysterious

Nothing about this pattern requires a complicated explanation. If disclosing substance use to a clinician can trigger a report that leads to losing custody of a newborn, some people will avoid the clinician. Prenatal care is the setting where a substance use disorder would otherwise be identified, where medication for opioid use disorder would be started or continued, and where the pregnancy would be monitored. A policy that makes that room feel dangerous removes the main opportunity to intervene.

The clinical stakes of that avoidance are real. Untreated opioid use disorder in pregnancy carries worse outcomes than treated opioid use disorder, and stopping medication abruptly during pregnancy is not recommended. Our reference pages on oxycodone and alcohol cover the substance specific risks, and alcohol in particular carries teratogenic risk that no reporting statute addresses.

What federal law actually requires

Federal law is often blamed for state reporting practice, and the attribution is only partly accurate. The Child Abuse Prevention and Treatment Act, as amended by the Comprehensive Addiction and Recovery Act in 2016, requires states to have a policy for notifying child protective services when an infant is born affected by substance use or withdrawal, and to develop a plan of safe care addressing the health and treatment needs of both the infant and the affected caregiver.

A notification under that provision is not a finding of abuse, and a plan of safe care is not a removal. The federal text points toward the caregiver’s treatment needs. What each state builds on top of that foundation, including whether notification triggers an investigation, is a state choice.

Takeaways

• State laws in this area fall into distinct categories, and punitive and supportive provisions often exist side by side in the same state.
• A 2019 Health Affairs study covering 2000 to 2014 found punitive policies associated with higher, not lower, rates of neonatal abstinence syndrome. Reporting requirements alone showed no association either way.
• A 2022 JAMA Pediatrics study of 4,155 women found later prenatal care initiation and lower rates of adequate prenatal care and postpartum visits in states with child abuse or mandated reporting policies.
• The plausible mechanism is avoidance of care, which removes the setting in which treatment would otherwise begin.
• Federal law requires notification and a plan of safe care, which is not the same as a finding of abuse or a removal.
• If you are pregnant and using substances, do not stop a prescribed medication on your own. Our drug information library explains what withdrawal involves for each substance.

Sources

This article draws on Health Affairs, for the 2019 analysis of state prenatal substance use policies and neonatal abstinence syndrome rates; JAMA Pediatrics, for the 2022 study of prenatal and postpartum care use under state child abuse and mandated reporting policies; the Child Welfare Information Gateway, operated by the Children’s Bureau within the Administration for Children and Families, for its state statute summaries; the Child Abuse Prevention and Treatment Act as amended by the Comprehensive Addiction and Recovery Act of 2016; and Child Trends, for its review of state policy approaches to substance use during pregnancy.