Drug Use during Pregnancy Policies in the United States from 1970–2016

Abstract

As U.S. states legalize marijuana and as considerable governmental attention is paid to the “opioid crisis”, state policies pertaining to drug use during pregnancy are increasingly important. Although recent research has examined state policies on alcohol use during pregnancy, little is known about the scope of state policies targeting drug use during pregnancy, how they have evolved, and how they compare to alcohol use during pregnancy policies.

Method:

Our 46-year (1970–2016) original dataset of statutes and regulations in U.S. states covers the entirety of state-level legislating in this policy domain. Data were obtained through original legal research and from the National Institute on Alcohol Abuse and Alcoholism’s Alcohol Policy Information System. Policies were analyzed individually as well as by classification as punitive toward or supportive of women.

Results:

The number of states with drug use during pregnancy policies has increased from one in 1974 to 43 in 2016. Policies started as punitive. By the mid-to-late 1980s, supportive policies emerged, and mixed policy environments dominated in the 2000s. Overall, drug/pregnancy policy environments have become less supportive over time. Comparisons of drug laws to alcohol laws shows that states started in opposite directions at the start of the era, with drug use during pregnancy policy beginning as punitive and alcohol policy beginning as supportive. But, by 2016, the results were the same: whether via punitive-only or mixed policy environments, punitive policies were more prevalent than supportive drug use during pregnancy policy environments across states. Moreover, there is a great deal of overlap between drug use during pregnancy policies and alcohol/pregnancy policies.

Conclusion:

This study breaks new ground and lays the foundation for a wealth of future research. Among those studies should be those that explore the effects of these policies on drug and alcohol use by pregnant women and on birth outcomes.

Introduction

In 2014, Tennessee enacted the first and only law in the nation to criminalize use of narcotic drugs during pregnancy in cases in which a child was born addicted or harmed (Yu, 2017). The statute had a sunset clause, and the law expired in mid-2016 (Strutner, 2016). Currently, no state has laws that explicitly make drug use during pregnancy a crime. However, many states have laws that address pregnant women’s use of drugs. Such laws range from mandates of priority substance abuse treatment for pregnant women to laws that mandate involuntarily civil commitment of a pregnant women to treatment or to protective custody.

The first aim of this article is to examine how U.S. state laws treat pregnant women who use drugs. Using an original dataset covering the period from 1970 through 2016 (the entirety of state-level legislation in this policy domain), we explore trends in types of drug and pregnancy laws including: mandatory warning signs; priority access to substance abuse treatment for pregnant women; requirements to report evidence of drug use during pregnancy to law enforcement or child welfare agencies - or to a health authority for the purposes of data gathering and treatment; laws that define drug use during pregnancy as child abuse/child neglect; laws that limit toxicological tests as evidence in criminal prosecutions of fetal or child harm; and mandatory involuntary commitment of pregnant women to treatment or to protective custody.

We also classify each of these policies into supportive or punitive policy categories to understand drug and pregnancy policy environments in U.S. states and trends over time. Punitive policies seek to control pregnant women’s behavior; supportive policies do not use threats of sanctions or coercion against pregnant women and seek to provide information, early intervention, and treatment and services to them. Some scholars have raised questions about whether all of these policies meet this operationalization. To be consistent with prior published research on this topic, and to ensure that findings from this study can be compared to prior studies, we continue to use this categorization. Finally, we compare drug use during pregnancy laws to existing research on alcohol use during pregnancy laws so that we have a more complete picture of the policy environment pertaining to pregnant women.

Public Policy on the Use of Drugs During Pregnancy

Many government agencies and public health professional organizations view use of drugs during pregnancy as a public health concern (ACOG, 2011; AAP, 2013; CDC, 2016; ASAM 2016). Research has documented adverse effects of drug use during pregnancy, including pre-term birth, low birth weight, and Neonatal Abstinence Syndrome (Conner et al., 2016; Goldenberg et al., 2008; Jones et al., 2010; National Academies of Sciences, Engineering and Medicine, 2017). Among pregnant women from 15–44 years of age, the average rate of illicit drug use in 2012–2013 was 5.4 percent. That is lower than the rate among non-pregnant women in the same age group. Use of drugs was lowest among pregnant women from 26–44 years of age, and highest among women 15–17 years. Use was also lower in the third trimester of pregnancy than during the first or second trimesters (SAMSHA, 2014). In comparison, 10.2 percent of pregnant women in the U.S. ages 18 to 44 years reported drinking alcohol in the past 30 days, and 3.1 percent of pregnant women reported “binge drinking”. The highest rate of drinking among pregnant women overall was 18.6 percent for those aged 35–44 (Tan et al., 2015). To reduce adverse alcohol-related birth outcomes, public health objectives in the U.S. (such as Healthy People 2020) include increased abstention from any alcohol use among pregnant women to 98% and from binge drinking to 100% (Tan et al., 2015).

Crafting effective public policy to address the harms that may result to women, fetuses, and infants when pregnant women use drugs has long been debated in the media and among policymakers. One side of the discourse has focused on the concept of crisis. From the 1980s and early 90s “crack baby” scare, through the methamphetamine scare of the 2000s, to the present day opioid addict storyline, illicit drug use by pregnant women is often depicted in terms of epidemics (Knight, 2017; Krening and Hanson, 2018) Less publicized storylines include a focus on moral panics or simply as an urgent public policy priority (Omori, 2013; Armstrong, 2007).

In contrast, and less evident in public discourse, has been the perspectives of public health experts, policy professionals, and feminist analysts who have focused on: the wider environment surrounding pregnant women’s drug use; the common needs of women and fetuses; women’s independent agency; and the extent to which policies that punish women achieve the goals of reducing or eliminating drug use during pregnancy (Campbell, 2002; Jos et al., 2003; Merrick, 1993; Rosenbaum, 1981).

In terms of policy development, the crisis frame concentrates on the possibilities/probabilities of harm to a fetus or infant. An implication of this perspective can be understood via “social construction of target populations” theory (SCTP) (Schneider and Ingram, 1993). SCTP posits that policymakers are primed by value judgements about social groups that, in turn, affect the content of laws that regulate groups perceived to be less worthy. Examples are statutes and regulations that punish or restrict pregnant women who use drugs, such as those that treat drug use during pregnancy as child abuse or neglect. The legislative intent of these laws is stated as prevention of neonatal withdrawal symptoms or other adverse birth or child health outcomes. Supporters of punitive laws assert that only by restricting pregnant women’s access to drugs can healthy pregnancies and healthy infants result. Further, they assert that the state has little choice but to prevent bringing children with lifelong problems into society. If drug use does occur, the state must separate infants and children from their parents in the best interests of the children - at least until there is proof that the deleterious behaviors have ceased (Mathieu, 1995; Gomez, 1997; MacFarlane and Meier, 2001; Schroedel, 2000; Lester et al., 2004). For example, Representative Terri Lynn Weaver, a key legislator who promulgated the 2014 Tennessee law discussed in the Introduction, argues that: “These babies are born and their lives are totally destroyed” (WSMV TV, 2014).

In comparison, when crafting policy, those who favor a contextual perspective foreground the range of socio-cultural and economic circumstances that lead to drug use and the ability to reduce or terminate use. Hence, the focus is on prevention policies and policies that support pregnant drug users with substance abuse treatment and related assistance, including access to adequate nutrition and more. One example of the wider context of drug use during pregnancy is evidence that punitive laws that punish/prosecute pregnant women discourage them from seeking routine medical treatment for fear of being turned in to Child Protection Services or law enforcement. Indeed, a growing research literature suggests that such laws scare some women away from seeking prenatal health care. The problem may be worst for poor women and women of color not because they are the most likely to use drugs during pregnancy but because these populations are most vulnerable to exposure of their conditions as they seek publicly-funded services (Gehshan, 1995; Jessup et al., 2003; Roberts and Pies, 2011; Stone, 2015; Kunins et al., 2007; Roberts, 1997; Chasnoff et al., 2012; Madden, 1996; Paltrow, Cohen, and Carey, 2000; Dailard and Nash, 2000; Schroedel, 2000; Lester, 2004; Subbaraman, 2018). In Tennessee, Dr. Jessica Young, a specialist in drug addiction during pregnancy, argues that: “So now they’re [women are] making decisions on medical care out of fear rather than out of science or what is best for them and their baby’s health,” and that: “Fear makes people make rash unsafe decisions without the consultation or guidance of a physician” (Jeltsen, 2015).

Research on State Laws

A separate and serious challenge to crafting public policy that addresses the needs of pregnant women who use drugs has been the lack of longitudinal research on the effects of the range of policies promulgated across U.S. states, the specifics of those policies, and whether they accomplish their stated (or intended) purposes of reducing harm related to drug use among pregnant women. Existing work on the subject of substance abuse policy, including drugs and alcohol, has explored public policy debates about such laws (see Chavkin, 1991; Lester et al., 2004; Thomas et al., 2006; Seiler, 2016); qualitative studies to determine pregnant women’s reactions to punitive and supportive laws (Stone, 2015; Gehshan, 1995; Martin, et al., 2003; Jessup et al., 2003; Roberts and Pies, 2011; Roberts and Nuru-Jeter, 2012; Thomas et al., 2015); court decisions on substance use during pregnancy laws; and how laws that were not written with substance use during pregnancy in mind, such as fetal assault laws, chemical endangerment laws, personhood laws, and homicide laws, are being used to prosecute pregnant or postpartum women (Paltrow and Flavin, 2013; Angelotta and Appelbaum, 2017; Bishop et al., 2017; Amnesty International, 2017).

A growing body of research pertaining to state laws on drug or alcohol use or both during pregnancy focuses on: (1) the state of the law at a point in time for both supportive and punitive policies toward pregnant women (Paltrow, Cohen, and Carey, 2000; Schroedel, 2000); (2) cross-sectional, qualitative analysis of state policies on pregnant women’s decisions to seek prenatal care or substance abuse treatment (Roberts and Pies, 2011; Roberts and Nuru-Jeter, 2010; Thomas et al., 2015); and (3) trends in state alcohol and pregnancy policy (Thomas et al. 2006; Drabble et al. 2014; Roberts et al. 2017). Most relevant to the aspect of this study that compares drug policy to alcohol policy, Roberts et al. (2017) examined state laws on alcohol use during pregnancy betwen1970–2013. The authors found that the number of states with alcohol and pregnancy policies has increased since 1970, and that policies have become increasingly punitive over time.

In this study, we examine a new, original dataset on drug and pregnancy policies. Using legal data covering the period from 1970 through 2016, we: 1) explore trends in individual types of drug and pregnancy policy; 2) examine trends in the number of states that have punitive-only policy environments, supportive-only policy environments (defined as those that do not use threats of sanction or coercion of pregnant women and seek to provide information, early intervention, and treatment and services), or mixed policy environments; and 3) compare the current state of the law and trends in drug and pregnancy laws to the trends in alcohol and pregnancy laws. Understanding these trends can enhance understanding of the current drug and pregnancy policy environment in U.S. states.

Method

Our data come from two sources: 1) drug and pregnancy statutes and regulations; and 2) alcohol and pregnancy statutes and regulations. The data for both sets of laws come from original legal research and data available from the National Institute for Alcohol Abuse and Alcoholism’s (NIAAA)’s Alcohol Policy Information System (APIS) (NIAAA, 2016).

We gathered these data in several ways. Because most drug and pregnancy statutes and regulations across the states pertain to both alcohol and other drugs, we started with data available from APIS. From there, we identified relevant statutes and regulations on each of our policy topics (see Table 1). These data are available from APIS from 2003 onward for four policy topics (priority treatment, legal significance for child abuse/child neglect, reporting requirements, and mandatory warning signs), and from 1998 for the other two topics (civil commitment and prohibitions against criminal prosecution. We then performed original legal research on all the policy topics using Westlaw (www.westlaw.com) to identify additional statues and regulations pertaining to drugs only. Once all relevant statutes and regulation were identified, we compared our list with secondary sources – principally The Guttmacher Institute’s Substance Abuse During Pregnancy Fact Sheets (https://www.guttmacher.org/state-policy/explore/substance-use-during-pregnancy). Next, we identified effective dates for each individual statute and regulation in each state using Westlaw, HeinOnline (https://home.heinonline.org/), and the Bill Effective Dates resource developed by StateScape (http://www.statescape.com/resources/legislative/billeffective-dates.aspx). If definitive information was not available in Westlaw or HeinOnline, we consulted with officials in state governments. With baseline data in hand, we then performed inter-rater reliability using a standard procedure for legal data coding: each of two researchers code data from half the 51 states and then exchange the states so that one coder checked the work of the other (Tremper et al., 2010). In situations in which there were questions or different coding decisions, which was rare, the legal researchers worked together until consensus was reached. We undertook further quality control on our dataset by comparing our effective dates results to those available from the Guttmacher Institute data received via personal communication with one of the authors.

Table 1.

State-level policies related to drug use during pregnancy

Policy	Policy description
Mandatory warning signs	Require that notices about cannabis use during pregnancy are posted in medical/recreational marijuana dispensaries. The warning language must warn of the risk associated with using cannabis while pregnant.
Priority treatment	Mandate priority access to substance abuse treatment for pregnant and postpartum women who use drugs.
Prohibitions against criminal prosecution	Prohibits use of the results of medical tests, such as prenatal screenings or toxicology tests, as evidence in the criminal prosecutions of women who may have caused harm to a fetus or a child.
Reporting requirements	Mandated or discretionary reporting of suspicion of or evidence of drug use or abuse by women during pregnancy to either CPS or to a health authority. Evidence may consist of screening and/or toxicological testing of pregnant women or toxicological testing of babies after birth and reporting may be either for child abuse/neglect investigation, provision of health services or for data gathering purposes.
Child abuse/child neglect	The legal significance of a woman’s conduct prior to birth and of damage caused in utero and, in some cases, defines drug use during pregnancy as child abuse or neglect.
Civil commitment	Mandatory involuntary commitment of a pregnant woman to treatment or mandatory involuntary placement of a pregnant woman in protective custody of the state for the protection of a fetus from prenatal exposure to drugs.

Measures

Specific drug and pregnancy policy variables in our dataset include the following (see Table 1):

• Mandatory warning signs: requirements for retail cannabis establishments to post signs warning about the dangers of using cannabis during pregnancy.

• Priority treatment is divided into two policies: the first is Priority treatment for pregnant women: policies that give pregnant women (but not women with children) priority for entering substance abuse treatment programs; the second is Priority treatment for pregnant women and women with children: policies that give pregnant women and women with children priority for entering treatment.

• Prohibitions on criminal prosecution: policies that prohibit use of the results of medical tests, such as evidence from prenatal screening or toxicology tests, in criminal prosecutions of women who may have harmed a fetus or child.

• Civil commitment: mandatory involuntary commitment to treatment or the care of the state to prevent harm to a child due to a pregnant woman’s drug use.

• Reporting requirements are divided into two policies: Reporting requirements for Child Protective Services (CPS) purposes: mandatory or discretionary reporting to CPS for purposes of assessing risk of child abuse/neglect, and Reporting requirements for data and treatment purposes: mandatory or discretionary reporting for purposes of data collection/surveillance or assessing need for substance abuse treatment.

• Child Abuse/Child Neglect: statutes and/or regulations that clarify the rules for evidence of prenatal drug exposure in child welfare proceedings, such as those alleging child abuse, child neglect, child deprivation, or child dependence, or concerning termination of parental rights.

Each drug and pregnancy policy variable is dichotomous, coded as 0 if it was not in effect and 1 if it was in effect for that state/year.

Following the approach outlined in Drabble et al., (2014) and Roberts et al., (2017), we analyze individual policies as well as a four-category variable characterizing policy environments for each state and year as supportive only (one or more of warning signs, priority treatment, reporting requirements for data or treatment purposes, and limitations on criminal prosecution and no punitive policies), punitive only (one or more of civil commitment, reporting requirements for CPS purposes, and child abuse/neglect and no supportive policies), mixed supportive and punitive (one or more supportive and one or more punitive policies), or no policy. Finally, because mandatory warning sign laws may be classified as neutral rather than supportive or punitive, we explain the findings including and excluding those laws.

Data analysis is descriptive and includes graphical plotting of drug and pregnancy policy trends over time and examination of how drug/pregnancy policy environments change (that is, a state could move from no laws to punitive or punitive to supportive or supportive to mixed). For all analyses, we used drug and pregnancy policy data and alcohol and pregnancy policy data from 1970 – 2016.

Results

Trends in Individual Types of Drug and Pregnancy Policy

Overall, the number of states with at least one drug and pregnancy policy has increased dramatically since 1970. In 1970, no state had a policy; in 1980,1 state (Massachusetts) had drug and pregnancy policies; in 1990,16 states had at least one policy; in 2000, 31 states had at least one policy; and in 2010, 38 states had at least one drug/pregnancy policy. By 2016, 43 states had at least one policy (see Figure 1).

Figure 1.

Drug and Pregnanacy Policies by Year

The first two drug and pregnancy policies took effect in Massachusetts in 1974 and each was punitive (reporting requirements for CPS purposes, and defining drug use as child abuse/child neglect). The first supportive policy came into effect in 1986 when Kansas enacted a law on reporting requirements for data and treatment purposes (supportive). The first year the remaining policies appeared in a state(s) are as follows: priority treatment for pregnant women appeared in California in 1989 (supportive); priority treatment for pregnant women and women with children (supportive) appeared in 1989 in Washington and Florida. The first prohibitions on criminal prosecution, also a supportive policy, appeared in 1992 in Kentucky, Missouri, and Virginia. The first civil commitment policies (punitive) were enacted in South Dakota and Wisconsin in 1998. The first mandatory warning signs policies (supportive) became law in 2016 in Oregon and Washington. However, each of these laws deals with cannabis only, which became a legal recreational drug in those states for those 21 years of age and older. The mandates apply to cannabis dispensaries only.

In 2016, the most common drug and pregnancy policy type was child abuse/child neglect (punitive) in 25 states. The least common policy was supportive: mandatory warning signs (two states) pertaining to cannabis in Washington and Oregon. The next least common policy was civil commitment (punitive) in four states.

All policy types have increased over time, and all but one have increased steadily. Only reporting requirements for data/treatment purposes (supportive) has decreased. From 2005 – 2006, this policy was reduced from 18 to 17 states and then increased to 18 states the following year. Across all policies, there was minimal policy activity until the mid-1980s, a substantial increase in policy activity in the mid-1980s through late 1990s, and continued, through smaller, increases until 2016.

Trends in the Drug and Pregnancy Policy Environment

In the 1970s and early to mid-1980s, only Massachusetts had drug use during pregnancy policies in effect, and both were punitive. Illinois was the first state to enact a mixed policy environment in 1988 (see Figure 2). The number of states with punitive drug and pregnancy environments has increased between 1990 and 2016 from five to ten. The number of states with supportive drug and pregnancy environments increased from 8 to 12 between 1990 and 2000, decreased between 2000 and 2010, and increased again from 2010 to 2016 to its 2000 level of 12 states. The number of states with mixed drug and pregnancy policy environments has increased steadily over time, from one in 1986 to 21 in 2016. As of 2016, twenty-one states (41%) had a mixed policy environment, twelve (24%) had a supportive policy environment, 10 (20%) had a punitive policy environment, and eight (16%) had no policy on drug use during pregnancy.

Figure 2a.

Drug and Pregnanacy Policy Environments Over Time

As Figure 3 illustrates, changes in the drug and pregnancy policy environment have occurred both across states and over time. The two most common transitional patterns were moving from no drug/ pregnancy policy to supportive policy environments (47%; 24 states), and moving from no policy to punitive policy environments (24%; 12 states). Fourteen percent (seven states) had no drug/pregnancy policy in place for the entire time from 1970 – 2016. Of the 24 states that had mixed drug/pregnancy policy environments during this period, 11 became mixed after being supportive (46%), eight became mixed directly from having no policy (33%), and five became mixed after being punitive (21%).

Figure 3.

Drug Policy Environments by State over Time

Comparing Policies on Drug Use/Pregnancy with Alcohol use during Pregnancy Policies

Comparing drug use during pregnancy policy to alcohol/pregnancy policy is important for several reasons. Among them is ascertaining whether women who use one type of substance are treated similarly or differently to those who use another. Additionally, depending on the overlap of laws in a state, pregnant women may be subject to conflicting laws, or they may face a dizzying array of laws that could affect their inclinations to seek substance abuse treatment and prenatal care. Clarifying policy environments for each type of substance use can provide a more complete picture of the pattern of substance use laws pertaining to pregnant women. Thirdly, there is more robust scientific evidence of lifelong harm from use of alcohol use during pregnancy (FASD) than there is from use of other drugs including, but not limited to, cocaine, opioids, and cannabis.

To start, we updated the Roberts et al. (2017) alcohol and pregnancy data to 2016. First, we examined changes in absolute numbers by state/year in the policy environments. We found that the patterns through 2016 remain the same as those reported by Roberts et al. That is, since 1985, the number of states with punitive alcohol and pregnancy environments remained relatively steady (between three and six), while the number of states with supportive environments increased dramatically between 1985 and 1995 (one to 24), and then steadily decreased to 14 in 2016. The number of states with mixed alcohol and pregnancy policy environments increased steadily over time, from one in 1988 to 26 in 2016. As of 2016, half of the states (51% or 26 states) had mixed environments, 27% (14) had supportive environments, 6% (three) had punitive environments, and 16% (eight) had no policy.

Our analysis of transitional patterns through 2016 also remained consistent with the Roberts et al. (2017) findings. Here, the two most common transitional patterns were moving from no alcohol/pregnancy policy to supportive environments to mixed environments (15 states; 29 percent), and moving from no policy to supportive environments (14 states; 27 percent). Twelve percent (six states) had no alcohol and pregnancy policy in place for the entire time from 1970 to 2016. Of the 26 states with mixed alcohol/pregnancy policy environments in 2016, more than half became mixed after being supportive (58% or 15 states), more than a quarter became mixed directly from no policy (27% or seven states), and about one-sixth became mixed after being punitive (15% or four states).

Individual Policies on Drug Use and Alcohol Use During Pregnancy

Analyzing the drug use and alcohol use during pregnancy policy datasets through 2016 revealed that, over 43 years, meaningful differences in the emergence of the two sets of laws. First, the patterns for each individual policy type are different. As shown in Table 2, for alcohol, as of 2016, the most represented policies across states was supportive. Yet, probing the patterns more closely, among specific supportive policies, those that offer direct treatment for pregnant women appear much less frequently than more general supportive policies, such as mandatory warning signs laws. Priority treatment for pregnant women and women with children is the least represented policy, slightly lower than the most punitive alcohol policy of civil commitment. For drugs, the most frequent policies across states are punitive. In contrast, those policies offering direct treatment to women are more represented across the states than is the case for alcohol.

Table 2 -.

Comparisons of Individual Policy Frequencies – Drugs and Alcohol, 2016

Alcohol – Order of Frequency of Individual Policies	Policy	Environment	# of States	Drug – Order of Frequency of Individual Policies	Policy	Environment	# of States
	Reporting Requirements for Data/Treatment	Supportive	27		Child Abuse and Child Neglect	Punitive	25
	Mandatory Warning Signs	Supportive	24		Reporting to CPS and Reporting for Data & Treatment	Punitive and Supportive	19 for each policy topic
	Child Abuse / Child Neglect and Reporting to CPS	Punitive and Punitive	21 for each policy topic		Priority Treatment Pregnant Women	Supportive	18
	Priority Treatment for Pregnant Woman	Supportive	11		Limits on Criminal Prosecution	Supportive	6
	Limits – Criminal Prosecution	Supportive	6		Priority Treatment for Women & Children	Supportive	5
	Civil Commitment	Punitive	5		Civil Commitment	Punitive	4
	Priority Treatment for Women & Children	Supportive	4		Mandatory Warning Signs	Supportive	2

Second, by 2016, the number of states that had no policies for either drug use or alcohol use during pregnancy was the same, (eight states, 16 percent). Among states with policies, however, punitive policy environments were more present for drugs than alcohol: 10 states (23 percent) of those with policies had punitive drug policy environments compared to three states (7 percent) with punitive alcohol environments. Supportive policy environments were slightly fewer for drug use during pregnancy than for alcohol use: 12 states (28 percent) compared to 14 states (33 percent). And the mixed environments for drugs and alcohol were quite different: 21 states (49 percent) had mixed drug policy environments compared to 26 states (60 percent) with mixed alcohol/drug environments.

A third way to understand the patterns of drug/pregnancy policy is to examine the extent to which drug policy environments and alcohol policy environments overlap. In 2016, 8 percent of states had no policies on alcohol or drugs, 4 percent of states had both punitive alcohol and punitive drug policy environments, 20 percent had both supportive alcohol and drug policy environments, and 37 percent of states had mixed alcohol and mixed drug policy environments. That is, in 2016, 69 percent of states had the same policy environments for both alcohol and drugs. And across all states and years, policies overlapped 84.8 percent of the time.

Finally, Figures 4a and 4b display the overlap between alcohol and drug policies in all states/years by each individual policy type, and the overlap of alcohol and drug policies by each individual policy type in states/years that had at least one policy in effect. Figure 4a displays the data using the following categories: (1) states with drug/pregnancy policies but no alcohol/pregnancy policies; (2) states with alcohol/pregnancy policies but no drug/pregnancy policies; (3) states with both drug/pregnancy policies and alcohol/pregnancy policies; and (4) states with neither type of policy. Figure 4b displays the first three of the categories.

Figure 4a:

Overlap of alcohol and drug policies in all states/years (1970–2016)

Figure 4b:

Overlap of alcohol and drug policies in states/years that had at least one policy in effect (1970–2016)

The proportion of states with both types of policies range from 18 percent for child abuse/child neglect policies to 3 percent for civil commitment policies (we exclude mandatory warning signs policies from this comparison as only eight jurisdictions had legalized recreational cannabis at the time of our analysis, and only two states had warning signs for the legalized drug). The proportion of states with neither policy type ranges from 97 percent for civil commitment policies to 76 percent for reporting requirements for data/treatment purposes. There are few states with drug/pregnancy policies only as evidenced by the 2 percent presence each for child abuse/child neglect policies and priority treatment for pregnant women policies, 1 percent for reporting requirements for CPS referral policy, and near zero for each other individual policy. There is more range though for states with alcohol/pregnancy policies only: 23 percent of states have mandatory warning signs policies; 7 percent of states have reporting requirements for data/treatment purposes, and the rest of the policy topics range from zero to nearly two percent.

So far, the data on comparisons of individual policies may be summarized as follows: although the number of states through 2016 with no drug/pregnancy and no alcohol/pregnancy policies were the same, each of the other comparisons showed some level of difference:

• Punitive drug/pregnancy policy environments were much more present than punitive alcohol/pregnancy environments;

• Supportive policy environments were present in fewer states relative to drug use during pregnancy than alcohol use;

• Mixed environments were very different between the two with fewer policies for drug use during pregnancy than alcohol use;

• The variation in individual policies and policy environments is notable because there are meaningful differences across individual policies and policy environments. At the same time, there is a substantial amount of cumulative policy overlap between drug/pregnancy and alcohol/pregnancy policies;

• The largest individual policy overlap is a punitive policy: child abuse/child neglect.

Drug Use/Alcohol Use During Pregnancy Policy Environments

Changes in both drug/pregnancy and alcohol/pregnancy policy environments have occurred both across states and over time. The two most common transitional patterns for drugs were moving from no drug/pregnancy policy to supportive drug/pregnancy policy environments. Of the 24 states that had mixed drug/pregnancy policy environments by 2016, 11 became mixed after being supportive (thereby becoming more punitive), eight became mixed directly from having no policy, and five became mixed after being punitive (thereby becoming more supportive). Hence, these transition to mixed policy environments are primarily in the direction of becoming more punitive.

For alcohol, the most common transitional patterns were moving from no policy to supportive to mixed policy environments. Of the states that had mixed alcohol use during pregnancy policy environments, 15 became mixed after being supportive (thereby becoming more punitive), and four became mixed after being punitive (thereby becoming more supportive). Hence, these transitions to mixed policy environments are also primarily in the direction of becoming more punitive.

Summarizing the policy environment results, differences are clear relative to how states treat pregnant women who use drugs compared to how they treat pregnant women who use alcohol: states started in opposite directions at the start of the era with drug policy beginning as punitive and alcohol policy beginning as supportive. By 2016 though, the results were the same: whether through a single approach or via a mixed approach – punitive policies were more prevalent.

Discussion

Key Findings

Our study has three key findings. First, analysis of individual policies shows that the number of states with one or more drug use during pregnancy policy has increased substantially since 1970. There was minimal drug and pregnancy policy activity in the 1970s through the mid-1980s, but there was a large increase between 1985 and the early 2000s. The most widely adopted supportive drug use during pregnancy policies between 1970 and 2016 require reporting drug use during pregnancy for the purposes of aggregated data collection and/or treatment for women. On the punitive side, the most adopted drug and pregnancy policies have been reporting requirements to CPS and defining drug use during pregnancy as child abuse/child neglect. The smallest increases from 1970 to 2016 were for the supportive policy of priority treatment for pregnant women (or pregnant women and women with children) and the punitive policy of civil commitment. The emphasis on reporting policies (that typically go into effect after a woman has given birth), rather than on policies that care for or treat women during pregnancy (whether through supporting them by giving them priority treatment or punishing them through civil commitment), is striking.

As of 2016, the number of states with either punitive policy or mixed policy environments numbered 31. In those states, pregnant women may be: reported to the child welfare system, risk losing their infants either temporarily or permanently, or be involuntarily civilly committed. On the other hand, 12 states have supportive policies that may assist women with securing treatment or prevent them from being prosecuted. Eight states have no policy. In those states, women may feel exposed to less risk; yet, they cannot count on assistance with securing care.

Our second key finding is that drug use during pregnancy policy environments have become less supportive over time. Punitive drug policy enactments started in 1974 and progressed through the mid-1980s. At that point, states began enacting supportive policies, and did so through the 1990s. In the 2000s, mixed policies were enacted - mostly in states that already had supportive policies. That means that, even many states that started with supportive-only policy environments added punitive policies. Combined with the small number of states that started and stayed punitive in orientation throughout the period, few states are supportive-only only in 2016.

Our third key finding is that, by comparing drug/pregnancy policy in the states to alcohol/pregnancy policy, we find that the most frequent drug use during pregnancy policies are punitive, and the most frequent alcohol/pregnancy policies are supportive. However, examined another way, there is not much difference between the two sets of policies. One reason pertains to mandatory warnings signs laws: there are 24 states with alcohol warning signs laws, and two states with drug warning signs laws (both apply to retail cannabis establishments). Mandatory warning signs laws affect the general environment and, although they are a common policy intervention, they do not provide services or protections to pregnant women. Accounting for mandatory warning signs policy, there is not a great deal of difference between the remaining types of drug/pregnancy policies and alcohol/pregnancy policies. Additionally, for the policy that could provide the most direct services to pregnant women who use alcohol or other drugs – that is, priority treatment laws – the picture is thus: for alcohol/pregnancy policies, priority treatment for pregnant women with children is the least represented policy. For drug/pregnancy policies, only five states have priority treatment for women with children.

Concerns

Our analysis raises at least three sets of concerns for those who want to effectively address the problems of drug use or alcohol use during pregnancy. First, qualitative and ethnographic studies show that punitive policies pertaining to either drugs or alcohol or both undermine access to health and other supports for pregnant women, and that the burden falls disproportionately on low-income women and women of color (Gehshan, 1995; Jessup et al., 2003; Roberts and Pies, 2011; Stone, 2015; Kunins et al., 2007; Roberts, 1997; Chasnoff et al., 2012). More recently, a quantitative study examining the effects of alcohol/pregnancy policies over a 40-year period confirms this finding with regard to child abuse/child neglect policies. In light of the overlap between drug/pregnancy and alcohol/pregnancy policies, it may be reasonable to infer that this finding also applies to drug policies (Subbaraman, 2018). Although not confirmed by quantitative studies across states and time, this preliminary evidence suggests that punitive laws may deter women from care. In states that have either purely punitive or mixed policies that include reporting requirements for referral to CPS or child abuse/child neglect policies, the laws may not be effective for the stated purpose. To illuminate this risk, in Tennessee, the state highlighted at the opening of this article, its 2014 law was allowed to expire in 2016 explicitly because of abundant evidence that pregnant drug users were avoiding treatment. As a result, the law attracted opposition from more than 25 organizations, such as the American Congress of Obstetricians and Gynecologists (Jeltson, 2016).

Further, supportive policies fall into two categories – those that affect the general environment, such as mandatory warning signs laws – and those that provide assessment/treatment/related services or legal protections to pregnant women and pregnant women with children. Yet, policies providing direct services are not abundant in either the drug or alcohol categories. Hence, for drug use during pregnancy policy, in 2016, the number of states with no policy, punitive policies only or mixed policies was 39. The number of states with supportive policies only was 12. That leaves 39 of the 51 states with policies that may or may not (depending on the precise mix of policies) directly assist pregnant women who use drugs to obtain treatment and other support that could benefit their health, the health of fetuses, or the health of infants. For alcohol/pregnancy policies, the number of states with no policy, punitive policies, or mixed policies was 37. The number of states with supportive policies was 14. That leaves 37 of the 51 states with policies that may or may not directly offer assistance to pregnant women.

Finally, our findings speak to the effects of the dominant public discourse of “crisis” on laws pertaining to pregnant women who use drugs and/or alcohol. The most recent incarnation of this discourse involves use of opioids during pregnancy. Our research suggests a need for more evidence to inform future policymaking in this area.

Questions Arising from this Study

Because neither of the priority treatment policies are widespread across states, two questions arise from this research. The first is the need to better understand what accounts for the overlap between drug/pregnancy and alcohol/pregnancy policies. It may be that the policies have not been crafted with input from experts in substance use policy in addition to medical experts on pregnancy alone (see Roberts et al., 2017). Or it may be that policymaking in this area has prioritized efforts to control pregnant women’s behavior, as would be suggested by social construction of target populations theory (Schneider and Ingram, 1993), rather than seeking evidence for the best policy solutions to care for women and children, and to reduce harms from pregnant women’s substance use.

A second question arising from our study is whether policymaking efforts might be directed toward enhancing laws that mandate priority access to substance abuse treatment that is coordinated with prenatal care. Simply enacting laws won’t be as effective if there are insufficient treatment programs available and insufficient slots in those programs. In Tennessee, for example, only two of the state’s 177 licensed residential treatment facilities provide on-site prenatal care and allow children to stay with mothers. Allison Glass, State Director of Healthy and Free TN, observes that “Women are being turned away and waiting lists can have hundreds and even over 1000 people on them at any given time” (Jeltson, 2016). The U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) reports that only 12 percent of U.S. substance abuse treatment facilities, including public and private facilities, have programs or groups for pregnant or postpartum women (SAMHSA, 2014).

Limitations, Strengths, and Future Research

One limitation of this study is that we do not have data on why some policies and not others were enacted within and across states, on the explanations for the timing of transitions among policy types (supportive, punitive, and mixed), or on why legislators in states with no drug or alcohol use during pregnancy policies have elected not to address the issue. Clearly, there are multiple sociocultural, economic, and political factors yet to be explored. Second, we have not investigated enforcement of these statutes and regulations to determine the extent to which policy compliance has been pursued and how states may differ on this key feature of policy implementation. Third, our research contains no ethnographic or qualitative component that could enrich our policy data by attending to the lived experiences of pregnant women who use drugs, although others have conducted such work (Campbell, 2002; Jos et al., 2003; Merrick, 1993; Rosenbaum, 1981; Gehshan, 1995; Jessup et al., 2003; Roberts and Pies, 2011; Kunins et al., 2007; Chasnoff et al., 2012). Fourth, we cannot measure the interaction among policies and social environments that may also effect women. For example, we cannot assess whether or how policies intended as supportive, such as mandatory warning signs laws that are designed to educate women, may inadvertently increase social stigma directed to women who use drugs or alcohol. Finally, our data do not permit us to rate each individual policy relative to others in terms of comprehensiveness and stringency. Future research can build on our efforts to further explicate the complexity of policy efforts pertaining to pregnant women who use drugs.

This study also has strengths. First, our research used rigorous legal research methods for coding both drug/pregnancy policies and alcohol/ pregnancy policies to produce an original, comprehensive, detailed, longitudinal dataset from the years 1970 through 2016, a longer time period than any other published research on this topic and a period that covers the entirety of state-level legislative activity in this policy domain. Second, this is the first study, of which we are aware, to directly assess the relationship between drug use during pregnancy policies and alcohol use during pregnancy policies, and to employ the same method to compare the two categories of substance use during pregnancy policy.

In conclusion, state policies targeting drug and alcohol use during pregnancy have increased over time, and have become more punitive. Additionally, policies within states that address drug use during pregnancy typically, although not always, also address alcohol use during pregnancy. Our study breaks new ground and lays the foundation for a wealth of future research on this topic, including exploring the effects of policy on pregnant women’s use of drugs and alcohol and on birth outcomes.

Biographies

Sue Thomas is Senior Research Scientist at the Pacific Institute for Research and Evaluation (PIRE) who specializes in the intersection of law and social science research. Dr. Thomas serves on NIAAA’s Alcohol Policy Information System (APIS) project which provides legal data on U.S. alcohol policies, including alcohol and pregnancy, and cannabis policies. Dr. Thomas has published several articles along with colleagues on alcohol use during pregnancy which appear in Alcohol and Alcoholism, the Journal of Social Work Practice in the Addictions, Alcoholism: Clinical and Experimental Research, the Journal of Women, Politics & Policy, and the UCLA Women’s Law Journal.

Ryan Treffers is an associate research scientist at the Pacific Institute for Research and Evaluation. He conducts legal research on alcohol policy for the National Institute on Alcohol Abuse and Alcoholism-funded Alcohol Policy Information System (APIS) and The STOP Act Report to Congress on the Prevention and Reduction of Underage Drinking. His work includes contributions to public health policies and projects focused on issues including alcohol, cannabis (medical and recreational), and healthy food.

Nancy F. Berglas is a Public Health Social Scientist at Advancing New Standards in Reproductive Health (ANSIRH), Department of Obstetrics, Gynecology and Reproductive Sciences, University of California, San Francisco. Her research focuses on issues on adolescent sexual health and rights, access to reproductive health services, and the use of evidence in the development of public health programs and policies.

Laurie Drabble is a Professor at the San José State University (SJSU) School of Social Work. Dr. Drabble conducts epidemiological and qualitative research on alcohol and drug problems among marginalized populations of women. Her research is organized around three primary areas: 1) factors influencing health disparities in alcohol and drug problems among sexual minority women, 2) collaboration between addiction treatment and child welfare fields, and 3) policies related to use of alcohol or other drugs among pregnant women.

Sarah CM Roberts is an Associate Professor in the Department of Obstetrics, Gynecology, and Reproductive Sciences at the University of California, San Francisco. She studies the ways that policies and our health care system punish, rather than support, vulnerable pregnant women. She has published more than 30 peer-reviewed articles on these topics and is currently leading an NIH-funded R01 to study the impact of state-policies targeting alcohol use during pregnancy.