Running head: HEALTH CARE ISSUE ANALYSIS
Health Care Issue Analysis
Hilary J. Edmondson
Ferris State University
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Abstract
The purpose of this paper is to look at a health care issue and policy that is trending among our
country which has a huge impact on a certain population of pregnant women. According to the
2013 National Survey on Drug Use and Health, among pregnant women ages 15 to 44, 5.4
percent were current illicit drug users based on data averaged across 2012 and 2013 (Substance
Abuse and Mental Health Services Administration, 2014). Substance abuse during pregnancy
can cause a lot of negative effects on the unborn fetus. Should the pregnant woman who is
abusing narcotics and illegal drugs be reported to authorities and face legal consequences?
Should a baby who is born to a mother addicted to illegal substance face the possibility of her
baby being taken away by Child Protective Services (CPS)? Throughout this paper, we will
explore the different perspectives of this matter and what health care policies are in place.
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Health Care Issue Analysis Paper
It is difficult to actually measure the prevalence of substance abuse among pregnant
women due to the inconsistency of screening and drug testing by providers, inadequate reporting
systems, as well as women not wanting to admit their addictions. “Studies of prenatal screening
suggest that as many as one-fifth of infants born in the United States each year are prenatally
exposed to alcohol, tobacco, or other drugs, and 75-90% of them go undetected” (Carpenter,
2012). This reported increase in substance abuse among pregnant women has focused attention
on this problem and what needs to be done legally.
Health Care Policy
Law makers have debated for decades on how society needs to deal with this issue of
substance abuse during pregnancy. These health care issues of prenatal exposure to illegal
substances vary from state to state. This also includes a variation in the ways women are
screened, child welfare laws, and the reporting requirements and results.
Screening
While health care policies vary between states, many pregnant women are initially
screened for drugs upon their first prenatal visit. The provider must first gain consent from the
pregnant patient, allowing her to be screened for substances. This one consent is then good for
the remainder of the pregnancy and a new consent is not needed for subsequent screens. The
United States Supreme Court ruled on March 21, 2001, that drug testing pregnant women
without consent was unconstitutional (Tantibanchachai, 2015). The court reported that testing
without consent violates a pregnant woman’s protections under the Fourth Amendment to the
U.S. Constitution. Although a pregnant woman has the right to refuse testing, suspicion will
then arise among the women’s providers as to why she is refusing and what she is hiding.
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Michigan is one of the states (as well as Iowa, Kentucky, Minnesota, and North Dakota), where
drug testing is required of pregnant women (Guttmacher Institute, 2015).
Reporting
The threat of incarceration and legal consequences can often deter women from seeking
prenatal care, which is contradictory to the welfare of the mother and fetus. According to the
American College of Obstetricians and Gynecologists (ACOG), “Legal actions and policies
including the criminalization of substance abuse during pregnancy when it is believed to be
associated with fetal harm or adverse outcomes is disturbing” (ACOG, 2011). Legally
mandated testing puts stress upon the provider-patient relationship, which can cause a breakdown
in the trust factor in future prenatal visits. ACOG stands strong in believing that the use of the
legal system to address perinatal alcohol and substance abuse is inappropriate. “Policy makers,
legislators, and physicians should work together to retract punitive legislation and identify and
implement evidence-based strategies outside the legal system to address the needs of women
with addictions” (ACOG, 2011). Their goals look at comprehensive treatment services for both
the pregnant women and her family.
Mandatory reporting varies from state to state. Fifteen states (Alaska, Arizona, Illinois,
Iowa, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, North Dakota,
Oklahoma, Rhode Island, Utah, and Virginia) require health care professionals to report
suspected prenatal drug abuse (Guttmacher Institute, 2015).
Legal Consequences
When substance abuse is suspected, testing is done, and the results are reported, what
should happen next? Should the pregnant woman’s substance abuse in pregnancy constitute
criminal child abuse? Could prenatal exposure to drugs provide a reason for the courts to
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terminate a parent’s rights and call it child abuse or neglect? These answers vary depending on
which state the pregnant women resides in. “Tennessee is the only state that allows assault
charges to be filed against a pregnant woman who uses certain substances. 18 states consider
substance abuse during pregnancy to be child abuse under civil child-welfare statutes, and three
of these states consider it grounds for civil commitment” (Guttmacher Institute, 2015). Should
other states follow in Tennessee’s lead to allow a woman to be prosecuted for assault by the
illegal use of narcotics?
In July of 2014, a Tennessee woman was the first to be charged under their state law that
specifically states to take drugs during pregnancy is a crime. According to an ABC World News
Report, Mallory Loyola was arrested and then later released on a $2,000 bail and was charged
with a misdemeanor. She was then committed to enter a treatment program before birth of her
newborn baby and ensure successful completion of abstinence following delivery” (Mohoney,
2014). Controversy has arose to challenge this law. Legal directors and physicians have shown
opposition of this law, stating concern that pregnant women will not seek prenatal care, due to
fear of being charged with a crime.
Key Stakeholders
Our nation has maintained that legal consequences for substance abuse among pregnant
women will vary from state to state, as well as institution to institution.
Tennessee
Tennessee Governor Bill Haslam, was the first person to sign a bill that would allow
assault charges to be filed against a pregnant woman who are abusing drugs. Governor Haslam
has become a leader among a controversial topic. Haslam had reported in 2011, shortly after
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signing the bill, “The intent of the law is to give enforcement and district attorneys a tool to
address illicit drug use among pregnant women through treatment programs” (Mohney, 2014).
Michigan
In Michigan it is required for providers to report substance abuse among pregnant
women. However, that is about where it ends in regards to drug-addicted pregnant women in
Michigan. According to the Michigan Department of Human Services, “It is the policy that
substance abuse or addiction of the parent-caretaker or adult living in the home to alcohol or
drugs does not in and of itself constitute credible evidence of abuse or neglect of the child”
(Michigan.gov, 2015). At this present time, Michigan’s Children’s Protective Services (CPS)
does not define a fetus as a child. Thus, the prenatal exposure of the fetus to narcotics and
alcohol cannot be reported to CPS. “Parents use drugs to varying degrees and many remain able
to care for their children without harming them, when drug abuse interferes with a person’s
ability to meet parental responsibilities, these failures of parental duty provide reasons for
investigation” (Michigan.gov, 2015).
Alabama
In Alabama, substance abuse during pregnancy can lead to a charge of child abuse. In
2006, Alabama passed a “chemical endangerment law”, where people are prohibited from
exposing children to controlled substances. Alabama’s Chief Justices Moore and Parker have
been key role players in legally recognizing the unborn fetus as a member of the human family
and derives from the laws of nature. According to Chief Justice Parker, “There are rights of the
unborn which apply to life at every point in time and in every respect, including a life free from
harmful effects from chemicals at all stages of development” (Brown, 2014).
New York
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In New York, any positive drug screening can be turned over to child protective services.
Pregnant women in New York, who may only have one positive drug test may face the
possibility of having her child taken away, regardless of whether that newborn displays
symptoms of exposure and withdrawal. “The zero tolerance policy has resulted in select
investigations and even temporary removal of the child for positive drug tests stemming from
narcotic abuse, medical marijuana, and even prescription opioids” (Brown, 2014).
Colorado
In 2012, legislators in Colorado passed a law allowing marijuana to be legal for
recreational use. Colorado and Washington are the only two states in the nation where
recreational marijuana is allowed. However, Colorado, maintains strict child-care laws, and use
of marijuana or any other substances while pregnant can result in a charge of child abuse.
Political Strategies
ACOG
ACOG is against the possibility of pregnant women being criminally charged due to
substance abuse. While the screening, reporting, and legal consequences may vary, ACOG
maintains that their focus is on the welfare of the mother and fetus. “Incarceration and the threat
of incarceration have proved to be ineffective in reducing the incidence of alcohol and drug
abuse” (ACOG, 2011). Their stance is to work with state legislators to retract legislation that
punishes women for substance abuse and pregnancy.
American Nurses Association (ANA)
The political stance maintained by the ANA, is that substance abuse is a treatable illness
and nurses need to be committed to prevention and treatment (American Nurses Association,
2015). Their goal is to maintain a mother-child relationship and ensure that they are bonding and
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growing together instead of them being separated due to charges of child abuse or incarceration.
I had emailed the ANA in regards to information on this topic, and they uphold that their focus is
on getting the mother help by treatment programs and keeping the mother and child together.
Ray Franz
In January of 2015, I contacted Michigan Representative Ray Franz in regards to his
stance on substance abuse in pregnancy. I initially had emailed Representative Franz and then he
did call me back approximately one week later. He was actually unaware of this being an issue
and that Tennessee is the only state in the country where it is considered a criminal act when a
pregnant women uses illegal substances. I had asked him if he thinks that Michigan should
follow in Tennessee’s lead and he stated that he was very interested in looking into this and
would get into contact with legislators from Tennessee to look at the details of this law.
Personal Reflection
My view on this health care policy is that more needs to be done in regards to ensuring
our unborn children are growing in a healthy environment. Taking action during pregnancy can
help to promise that newborns and children are being raised in a safe and healthy family. I can
see the stances that ACOG and the ANA hold, but personally believe that the problems of
substance abuse are getting worse and something needs to be done, especially prenatally. As I
had voiced my concerns with Representative Franz, it used to seem like smoking cigarettes while
pregnant was a big deal and then marijuana, now if someone does Methadone while pregnant,
are there really any consequences? Michigan needs to step up to look out for the unborn and the
homes that our children are being raised in.
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Conclusion
There has become a growing trend of substance abuse in pregnancy. There appears to be
little agreement among states as to whether prenatal substance abuse exposure should be grounds
for child abuse or neglect. The majority of states have developed legislation that looks at
prevention, treatment, and education rather than criminal charges and removing the child from
their parents. It will be interesting to know if other states will follow in Tennessee’s lead and
increase the tightness on these laws to help protect the unborn child from harmful substances.
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References
American College of Obstetricians and Gynecologists. (2011, January). Substance abuse
reporting and pregnancy: The role of the obstetrician and gynecologist. Women's Health
Care Physicians. 473. Retrieved from: http://www.acog.org/Resources-AndPublications/Committee-Opinions/Committee-on-Health-Care-for-UnderservedWomen/Substance-Abuse-Reporting-and-Pregnancy.
American Nurses Association. (2015). Non-punitive alcohol and drug treatment for pregnant
and breast-feeding women and their exposed children. Nursing World. Retrieved from:
http:// http://www.nursingworld.org/MainMenuCategories/EthicsStandards/EthicsPosition-Statements/Non-punitive-Alcohol-and-Drug-Treatment-for-Pregnant-andBreast-feeding-Women-and-the-Exposed-Childr.pdf
Brown, E. (2014, May). Pregnant women increasingly face criminal prosecution for positive
drug tests. Retrieved from: http://www.reason.com/archives/2014/05/16/prosecutingpregnant-wmen-for-drug-use.
Carpenter, L. (2010, June). Nature of the problem and state of the field. Presentation at the
National AIA Resource Center Substance Exposed Newborns Conference, Alexandria,
VA.
Guttmacher Institute. (2015, March). Substance abuse during pregnancy. State Policies in
Brief. Retrieved from: http://www.guttmacher.org/statecenter/spibs/spid_SADP.pdf
Michigan Department of Human Services. (2015). Making the right connection. Child Abuse
(C). Retrieved from: http://www.misd.net/connection/childabuse.htm.
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Mohoney, G. (2014, July). First woman charged on controversial law that criminalizes drug use
during pregnancy. Retrieved from: http://www.abcnews.go.com/US/woman-chargedcontroversial-law-criminalizes-drug-pregnancy/story
Tantibanchachai, C. (2015, January). Ferguson v. City of Charleston. The Embryo Project
Encyclopedia. Retrieved from: http://www.embryo.asu.edu/pages/ferguson-v-citycharleston-2001