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Should Mothers Be Charged with Child Abuse for Using Drugs While Pregnant?

By Zachary Mushkatel on

Phoenix criminal defense attorneys discuss the effects of charging mothers whose babies are born addicted to drugs with child abuse.

A newborn infant’s death nearly 15 years ago is still causing a fierce legislative battle in Arizona and other states around the country. At issue is whether the continued drug use of a newborn’s mother is tantamount to “child abuse” that would give child protective services workers and law enforcement officers the ability to remove the child from the mother’s care – even if the mother is otherwise capable of providing for and caring for her child. Advocates on both sides of the debate clash over whether a child’s welfare is best served by leaving a drug-exposed child with the mother or by removing the child from the mother’s care soon after birth and placing the child with “clean” foster parents. The question is a difficult one without a clear or easy resolution. The Phoenix Drug Possession Lawyer at Mushkatel, Robbins & Becker make it a point to stay appraised with the latest information and case law so they are best equipped to handle these difficult cases.

The Prevalence of Drug Use in Pregnant Women

According to National Public Radio, a recent study in the Journal of Perinatology found that approximately six out of every 1,000 babies born in the U.S. in 2012 were born with neonatal abstinence syndrome (NAS), a condition caused by the mother’s use of opiates or other illicit substances during pregnancy.  Governmental agencies note that a range of detrimental effects can be seen in children exposed to drugs and/or alcohol. These include hyperactivity, fussiness, trouble sleeping, dehydration and/or fever.

How Arizona Handles Drug Abuse During Pregnancy

Arizona is among the majority of U.S. states that does not criminalize a mother’s drug abuse during pregnancy, according to ProPublica. In other words, Arizona does not have a separate law that criminalizes the act of using or abusing drugs while one is pregnant. Also, Arizona does not interpret its existing laws to permit prosecution of a mother who abuses drugs while she is pregnant. If a pregnant mother is found with drugs or illegal substances found on her person, however, she could still face prosecution on drug possession charges. According to Court Appointed Special Advocates (CASA) of Arizona, Arizona allows child protective services workers or law enforcement officers to remove a newborn exposed to illegal substances from the home if the child is:

  • Facing imminent danger of abuse or neglect
  • Suffering from a physical or mental condition that requires the diagnosis of a physician or psychologist
  • IF the child sustained a physical injury while living on the premises of a location where drugs are being manufactured.

A newborn’s mere exposure to narcotics or other illegal substances or alcohol is not, in and of itself, a sufficiently compelling reason to remove a child from his or her mother’s care, under Arizona law. Additionally, prior to removing the child from the mother’s care, a child protective services worker or law enforcement officer must consider whether mitigating circumstances exist that would justify leaving the child in the mother’s care. These mitigating circumstances include whether the mother is amenable to services or treatment for her addictions or whether social services would enable her to provide an appropriate environment for her child. Currently Tennessee is the only state that has adopted a “fetal assault” criminal statute. The law makes drug use while pregnant a crime. Additionally, South Carolina and Florida have interpreted their existing child abuse statutes to permit child abuse prosecution of a mother who uses drugs while pregnant.

What Should States Do About Addicted Infants?

Should drug-exposed newborn infants be considered abused and/or neglected and subject to removal from their mothers? This is a question without a clear “yes” or “no” answer.

Proponents of Charging Women For Drug Use During Pregnancy

Advocates in favor of designating these newborns as “abused and/or neglected” argue that state authorities should not have to wait until a child is injured or endangered before they can take action. Advocates might point to a 2003 article published on the National Advocates for Pregnant Women website which claims that up to 10 percent, or 8,000 babies, are born in Arizona each year that have been prenatally exposed to drugs and/or alcohol. They would further argue these babies could be saved from death or serious health problems if government agencies were permitted to intervene quickly and remove the child to a drug- and alcohol-free environment.

Opponents of Charging Women For Drug Use During Pregnancy

Proponents of this position would also likely suggest that increasing the penalties or consequences for mothers who use drugs while pregnant – whether these consequences consist of criminal penalties or the threat of having their child removed from their care – will increase the likelihood that addicted mothers will seek out assistance from treatment facilities. On the other hand, opponents might argue that separating a child from a drug-dependent but otherwise capable mother would do more harm than good. Opponents may also wish to cite evidence contained in the National Public Radio article cited above, which found that the existence of criminal sanctions or other penalties for using drugs while pregnant does not increase the number of pregnant women or new mothers who seek treatment. Those with strong feelings one way or another are encouraged to share their views on social media and by contacting the appropriate advocacy groups. Contacting your local state representative and/or senators can also help to ensure the laws you wish to see passed are advanced through the state legislature.

Seek Experienced Assistance if You Are Facing Drug Possession Charges

If you are facing drug possession charges in Arizona, you need the assistance of a knowledgeable and aggressive Arizona criminal defense attorney. A drug-related conviction can lead to fines, incarceration and potentially the loss of one’s child (if other factors are present). Contact the criminal defense lawyers of Mushkatel, Robbins & Becker, PLLC, right away for help with your charges. We aggressively protect the rights of our clients in Phoenix, Scottsdale, Sun City, Peoria and surrounding communities in Arizona. Our goal will be to pursue the best outcome possible for you and your family in your criminal case. Simply reach us by phone or contact us online today.