Healthy families start with compassionate policy: Addressing drug use during pregnancy

Reason Foundation’s new model legislation gives states a roadmap to stop punishing mothers simply for seeking help. Thousands of women across the country risk losing custody of their children—not because of abuse or neglect, but because they tested positive for drugs or sought treatment during pregnancy. That’s because current policies often require hospitals and child welfare agencies to treat a positive drug test as a cause for investigation, even when no harm has occurred. Shifting to voluntary, evidence-based care leads to better outcomes for families—without growing government power or cost.

Compelled by mandatory reporting laws and concerns about personal liability, medical providers are increasingly being co-opted into acting as law enforcement rather than caregivers. The result is that nearly 40 percent of child welfare removals cite parental substance use as the reason, though most cases involve no imminent danger. Instead of support that might help families remain together safely, these families are subject to surveillance and punishment.  

Soon-to-be mothers are also at risk when they seek prenatal or other forms of care if they disclose drug use or are even suspected of it. Prosecutors in 45 states have filed charges related to prenatal drug use, relying on general child welfare or endangerment statutes because no state explicitly defines prenatal substance use as a standalone crime. This is especially concerning because the law doesn’t distinguish between illicit drug use and prescribed treatment, like methadone or buprenorphine, despite clear medical evidence that these treatments are appropriate for opioid use disorder during pregnancy. 

Between 2006 and 2022, over 1,379 women were arrested or detained for drug use during pregnancy. These prosecutions spiked following the Dobbs v. Jackson decision by the Supreme Court, which rolled back federal protections for reproductive rights. In the year post-Dobbs, prosecutors charged more than 200 people with alleged drug use during pregnancy, an 88% increase from the 25 cases the year before. More than 100 of those cases were in Alabama alone. Some states, like South Carolina, use “fetal personhood” laws to interpret child endangerment or neglect laws in ways that criminalize people for drug use during pregnancy, even when no harm to the baby occurred.

This punitive approach to mothers struggling with substance use disorders has backfired spectacularly. States that criminalize maternal substance use see 41% higher rates of Neonatal Abstinence Syndrome—where infants experience drug withdrawal—and worse health outcomes for both mothers and infants. Why? Because fear pushes pregnant people away from care and proper management of their substance use, putting both mother and child at extreme risk. States that offer voluntary treatment without the threat of legal punishment, by contrast, see higher engagement in treatment, better recovery outcomes, and healthier births. These policy differences aren’t just bureaucratic; they can determine whether families stay together or are torn apart and traumatized.

State-level approaches to maternal substance use tend to fall into two camps: punitive responses that involve criminal or child welfare systems and passive approaches that offer little to no support for pregnant people seeking treatment. While a handful of states protect pregnant people seeking drug treatment from prosecution, 24 states and the District of Columbia define prenatal drug exposure as child abuse or neglect under civil child welfare statutes. In 25 states, healthcare providers are forced to act as informants due to laws that require them to report suspected maternal drug use to child protective services, regardless of actual harm or context. 

Some states go even further by mandating drug testing for pregnant patients suspected of drug use or authorizing involuntary commitment for “pregnant drug abusers.” While the federal Child Abuse Prevention and Treatment Act (CAPTA) requires states to have procedures to address substance-exposed newborns, it does not mandate punitive responses. Yet many states interpret CAPTA in ways that prioritize surveillance and removal over support and care, deepening the legal and health disparities faced by pregnant individuals with substance use disorders.

Criminalizing pregnant substance users isn’t just cruel; it’s expensive. Incarcerating a single person costs states an average of $33,000 annually (and more than $70,000 in California and New York). If incarceration results in children in need of foster care placement, that costs taxpayers an additional $25,000 annually per child. Taxpayers must bear these expenses while the underlying policies fail to improve outcomes for substance use or maternal and infant health. 

In contrast, voluntary treatment-based approaches to substance use during pregnancy are far more likely to improve maternal and infant health and are also significantly more cost-effective. Care-based interventions, such as medication-assisted treatment, harm reduction services, parenting support, and housing assistance, encourage ongoing care throughout pregnancy. As a result, both mothers and infants have improved outcomes, with a reduction in costs associated with emergency services and hospitalizations.

A few states have passed legislation to protect pregnant women’s access to medications for opioid use disorder. For example, Louisiana passed a law in 2022 requiring licensed drug treatment facilities that serve pregnant women to offer at least one FDA-approved opioid agonist therapy (such as methadone or buprenorphine). Meanwhile, Maine and Pennsylvania have allocated funds to create family-based recovery housing, allowing mothers to stay with their children. This approach has been shown to increase treatment completion rates to as high as 81%, increasing the likelihood of long-term recovery and saving taxpayers from the costs associated with foster care placement. 

Keeping mothers and babies together, wherever it is safe to do so, eases the burden on overextended foster systems and allows taxpayer resources to be directed toward long-term wellness rather than short-term punishment. Especially in a time of stretched budgets and growing need, treatment-focused care provides a more effective and fiscally responsible path forward.

The legislative path forward: Evidence, dignity, and autonomy

Reason Foundation drafted model legislation to give states a clear and actionable roadmap for protecting families and improving maternal health outcomes. Titled “An Act to Protect Individual Liberty in Health, Recovery, and Harm Reduction Access,” the bill responds directly to the failures of punitive policies that treat substance use during pregnancy as a crime. Drawing on decades of clinical research and public health guidance, the legislation includes protections against non-consensual drug testing, safeguards for maternal privacy, and expanded access to peer recovery support. The proposed model legislation reflects what the evidence bears out:

• No one should be prosecuted or penalized simply for being pregnant and struggling with substance use.
• Drug testing during pregnancy must require informed consent, and positive results alone must not justify family separation.
• States should prioritize voluntary, trauma-informed services, such as medication-assisted treatment, prenatal care integrated with addiction support, and peer mentoring that help families stay together and healthy without relying on coercion or punishment.

Reason Foundation’s model legislation protects civil liberties by requiring informed consent for drug testing, prohibiting automatic reporting based on positive tests alone, and ensuring that substance use during pregnancy is not treated as grounds for criminal charges or automatic family separation.

The punishment of drug use during pregnancy has failed to reduce substance use, hasn’t improved outcomes for children, and violates the rights and dignity of those most in need of care. This legislative model provides states with a practical and evidence-based alternative, grounded in compassion, respect for human dignity, and the belief that every family deserves to thrive.

Full Model Legislation: An Act to Protect Individual Liberty in Health, Recovery, and Harm Reduction Access

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Source: https://reason.org/commentary/healthy-families-start-with-compassionate-policy-addressing-drug-use-during-pregnancy/