Study shows pregnant women with substance use disorder fear felony charges in Oklahoma if they seek medical help or prenatal care 

OKLAHOMA CITY – At least 113 criminal charges have been filed, most in the last five years, against Oklahoma women for having a substance use disorder while pregnant. 

Of the total, the vast majority were felony child abuse, neglect and endangerment charges, which carry a potential life sentence.

The charges are primarily based on a positive test for a controlled or illegal substance; there is no requirement to show fetal harm or distress. Charges are also being filed against women who have already given birth to a healthy child but either the mother or the child tested positively.

Rep. Meloyde Blancett, D-Tulsa said during her interim study this week pregnant women with substance use disorder need prenatal care and mental health access “first and foremost if we want them to deliver a healthy baby and be solid, capable parents.”

Rep. Blancett’s interim study explored Oklahoma’s criminal legal system and its interpretations and enforcement of Oklahoma’s laws regarding pregnant women and new mothers with substance use disorder.

“Not only do these women fear seeking prenatal care or substance use treatment, if they overcome that fear and seek help, there is a profound lack of resources available when you get outside the metro areas, particularly if you are poor,” she said.

Nine in 10 of women charged were deemed “indigent” by the court.

Having a baby, even without a substance use disorder, can be dangerous in Oklahoma. Oklahoma ranks 40th in the nation in maternal mortality and 43rd for preterm births. According to March of Dimes, one in eight babies was born premature in 2021.

“Having a substance use disorder while pregnant is looked on as a horrible, irresponsible action,” Blancett said. “I’m, a mom. I understand how we can think that, but here are the facts: substance use disorder across this state is a serious problem for males and females. When women get pregnant while having a substance use disorder, we need them to seek prenatal care and be able to be honest with their care providers and we need to provide adequate access to resources that lead to a healthy mother and child. These women are choosing childbirth and helping them get clean and be solid parents is smart, cost-effective policy.”

Policy recommendations from the interim study include:
1. Get legal clarification around what exact circumstances a provider of care – whether primary care physician/staff or hospital staff – is required to report pregnant or postpartum women with a substance use disorder and to whom the reporting should be submitted — law enforcement or the Oklahoma Department of Human Services or both. Also determine to what degree health care providers are exposed to liability if they do not report and outline clear guidance.

2. Obtain a defined hierarchy of action for DHS and law enforcement if a report is made. Get clarification on when DHS should only provide a defined “Plan of Safe Care” as outlined by the federal Child Abuse Prevention & Treatment Act (CAPTA) and when more intense action should be taken through a law enforcement channel. A positive test for substance use should not automatically require a criminal legal action if a “plan of safe care” would sufficiently lead the mother and child to a healthy outcome. Note: Current prevailing opinion is that substance use in and of itself is extremely harmful to the fetus, but scientific research has shown other behaviors to be more harmful — see below — so the question becomes, which behaviors constitute endangerment.

3. Consider statutory changes so there is clarity around what exactly constitutes felony negligence and child endangerment based on scientific facts. Assumptions not based on scientific fact have led to the belief that substance use automatically triggers criminal child endangerment when in most cases accessing early prenatal care and mental health/substance use disorder treatment leads to better, most cost-effective outcomes. Moreover, there are many other care responsibilities that if neglected by a pregnant woman, such as those related to diabetes, nutrition and others, can lead to more harm to the child. A more medically-based approach is needed to illuminate the most prudent course of action for the well-being of the child.

4. Ensure pregnant people have access to addiction treatment services. This includes forbidding state-funded treatment centers to refuse access to patients who are pregnant and do not have the ability to pay.

5. Help both law enforcement and women by establishing new rural and expanding existing prison diversion programs that support pregnant and postpartum women. These diversion programs have multi-disciplinary teams that use evidence-based treatment and programming to provide individualized, wraparound services for mothers and their families. These programs have been proven to save the state substantial money over the cost of incarceration of the mother and foster care for the child. They often also provide skills training that help mothers with employment.

6. Promote early prenatal and postpartum care by promoting early pregnancy detection and assisting pregnant women with locating an available OB/GYN.

7. Remove stigma around substance use disorder, especially during pregnancy by expanding current statewide substance use awareness campaigns like Tough As A Mother, to include anti-stigma messaging and promote care coordination.

“Ultimately, we must recognize addiction as a substance use disorder that is a chronic, but treatable, medical condition, not a moral failure,” Rep. Blancett said. “Absolutely, there are cases where mothers have shown gross negligence and should be charged, but the facts show that most pregnant and postpartum women with a substance use disorder want to have healthy babies and be good parents. They just need help to get there.”

Those providing factual testimony at the interim study were:

• Dana Sussman, Deputy Executive Director, Pregnancy Justice
• Caitlin Beasley, Policy Engagement Manager, Metriarch
• Eliza Washington, Data and Policy Research Coordinator, Metriarch
• Dr. Stephanie Pierce, OB Medical Director, Oklahoma Mothers and Newborns Affect by Opioids (OMNO)
• Kaushiki Chowdhury, Family Defense Practice Lead, Still She Rises
• Dr. Angela Hawkins, Chair, Oklahoma Section of American College of Obstetrics and Gynecology
• Bonnie Campo, Oklahoma Department of Mental Health and Substance Abuse Services regarding the department’s Tough As A Mother campaign

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