New Research: Drug Use While Pregnant – How Some State Laws Inadvertently Endanger Pregnant Women and Their Children

Over the past three decades, as opioid use has climbed nationwide, more parents have struggled with opioid use disorder (OUD)—including pregnant women. Consequently, the number of children who have been removed from their families and placed in foster care due to parental substance use has nearly doubled. At the same time, state and federal lawmakers have attempted to address drug use by enacting a growing number of policies penalizing people for using substances—including those prescribed by a healthcare professional—during pregnancy. Unfortunately, some of these laws create more problems than they solve.

First, it is crucial to understand the urgency of this issue for pregnant women. Roughly 16 percent of pregnancy-associated deaths between 2017 and 2020 were the result of a drug overdose—a tragedy that has been on the rise in recent years. In addition, untreated OUD is associated with a lack of prenatal care as well as an increased risk of stillbirth, preterm labor, neonatal opioid withdrawal syndrome, and other complications.

Thankfully, medications for opioid use disorder (MOUDs) methadone and buprenorphine are considered to be gold-standard treatments for OUD—including during pregnancy. They curb cravings and withdrawal symptoms, dramatically reducing the use of illicit drugs and improving treatment retention. They also decrease overdose risk by up to 80 percent compared to non-medication treatments. These benefits extend to both pregnant women taking MOUDs and to newborns who were exposed to substances in utero. Specifically, taking MOUDs during pregnancy is associated with reductions in overdose, preterm birth, and low birth weight.

Unfortunately, taking MOUDs during pregnancy is in and of itself a risk factor for punitive legal action that can lead to surveillance, criminalization, and even custody loss. For example, a 2024 investigation of eight states and Washington, D.C. found that nearly 3,700 women had been reported to child protective services since 2016 for taking MOUD as prescribed while pregnant. This makes this recovery option complicated and distressing for pregnant women and their families: Either quit the gold-standard treatment for OUD, or risk losing a child.

Policies that criminalize expectant mothers who take MOUDs, or that mandate reporting to and surveillance by child welfare services, can create more harm than safeguards. They can also negatively affect parents in active recovery who rely on MOUDs. For those taking a MOUD during pregnancy, this can have the additional unintended consequence of discouraging prenatal care and OUD treatment.

To better understand the scope of this issue, R Street Institute Resident Senior Fellow in Integrated Harm Reduction, Stacey McKenna and Resident Fellow and Senior Manager in the Project for Women and Families, Courtney Joslin conducted a 50-state analysis of child welfare laws and their inclusion/exclusion of MOUD use during pregnancy. They identified specific public policy reforms that can help ensure individuals are not punished for taking MOUDs while pregnant:

1. Clarify definitions in federal law to explicitly exclude MOUDs and other prescribed medications from guidelines and definitions related to the reporting of substance-affected infants.
2. Eliminating vagueness on prenatal substance use in state law to explicitly exclude taking prescribed MOUDs from prenatal substance use reporting and child maltreatment penalties.
3. Reduce the threat of punitive measures in healthcare settings by adding language that discourages healthcare providers from reporting parents solely for taking medications as prescribed during pregnancy and ensures that family separation is a last resort.

“To improve outcomes for mothers in recovery from OUD and their children, policymakers must ensure that laws do not penalize women for taking MOUDs during pregnancy. Unfortunately, our analysis of current laws found that federal law and a majority of state laws do not offer sufficiently clear or explicit protections that would allow women to take MOUDs during pregnancy without fear of repercussions,” the authors argue.

They conclude, “[p]olicymakers have an opportunity to be part of the solution when it comes to protecting and improving the health and well-being of families. By crafting legislation that is explicit and specific in providing protections for women who are using MOUD during pregnancy, lawmakers can help reduce the likelihood that recovery trajectories will be disrupted, improve the health outcomes for children in-utero whose mothers are in treatment for OUD, and prevent the removal of children from loving homes.”