It is no secret that marijuana legalization in Colorado and Washington ushered in internationally unprecedented progressive drug policy in the United States. What is lesser understood, however, is that these new “experimental” reforms do not necessarily peel back all of the many, punitive layers of drug war enforcement. Despite the prevailing notion that the consequences of marijuana prohibition are determined in criminal courts for crimes like possession and sale, some of the harshest punishments are steeped in ever-complicated family law and Child Protective Services (CPS).
Well-intentioned marijuana policy reform thus often leaves women, who are more likely to be their children’s primary caretakers, behind. The effects of enforcing anti-drug family law go so far, in fact, as to punish women for child abuse and neglect crimes ostensibly committed on their fetuses—even in states where marijuana is explicitly legal for all adults 21 and older.
“Drug endangered children”—the term used to describe various programs, tactics, and other efforts to address child abuse via drug use—represents “the new way drug warriors are trying to continue their war on marijuana, and has become a multi-agency federal, state, and local tool, which the states and agencies may use to get even more funds,” Sara Arnold, marijuana policy activist and founder of the Family Law Cannabis Alliance, told RH Reality Check. “Many cannabis [decriminalization] laws actually run the risk of making parents second-class citizens, because they end up being the only ones left who will face penalties for their cannabis use.”
For Colorado mother Amber Buster, marijuana use was a seemingly legal, effective treatment for debilitating side effects of pregnancy. Buster was expecting her third child when she experienced “morning” sickness so severe that her nausea and vomiting lasted throughout the day.
“I couldn’t even drink water or eat crackers,” Buster said. She worried nutritional deficiencies might affect her pregnancy. Familiar with medical marijuana because her mother and spouse are state-licensed users, Buster found that smoking a little weed improved her appetite enough that she could keep some food and liquids down.
Unbeknownst to her, however, Colorado’s marijuana law need not explicitly state exceptions to legalized adult marijuana use for such exceptions to exist. The complicated, incentive-based relationship between federal and state child abuse laws obscures parents’ protections under legalization.
“As long as cannabis is a scheduled controlled substance under federal law, it will be included in laws regarding child abuse/neglect and come into conflict with state laws—and leave it up to CPS departments to decide which policy they follow, unless they are specifically stopped from doing so,” Arnold explained in an email, adding that professionals, like doctors, who are tasked with reporting child abuse also have wide discretion. “Keep in mind that both mandated reporters [of child abuse] and CPS workers have qualified immunity; what this means is that they cannot be sued by parents who are wronged if they report or investigate a parent when they shouldn’t, as long as it was in good faith (and it is always presumed to be so unless there is clear proof it was malicious).”
The Child Abuse Prevention and Treatment Act (CAPTA) requires states receiving federal grants to meet a series of standards. It mandates, for example, that states address the needs of infants “affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure,” and that “health care providers involved in the delivery or care of” drug-exposed infants notify CPS, regardless of whether the baby’s health is threatened.
CAPTA’s failure to further define terms like “affected by an illegal substance” leaves hospital staff incredible discretion in determining which mothers they perceive as potential addicts whose children should be tested, which babies are “affected,” and even which drugs are “illegal.”
This discretion, in turn, allows for an unpredictable system often guided by confusion and biases from individual reporters of abuse and neglect.
Buster informed her primary physician that she was using marijuana for nausea because she had been taught that doctors are “supposed to have the truth in case anything happens.” The doctor thought of her marijuana use as the equivalent of smoking a cigarette, she said, and nonchalantly made a note of it. But nurses in the hospital where Buster gave birth were more concerned, and after discovering the note in her file, they notified the new mother that, despite an uncomplicated delivery and healthy infant, they were “required” to drug-test the baby. (There is no law explicitly requiring them to do so.)
The infant tested positive for THC, prompting three CPS visits to Buster’s home followed by a notice indicating an official finding of child abuse and neglect, all thanks to a well-intended note neither she nor her physician expected to cause such a kerfuffle. To Buster, the entire ordeal was shocking proof that marijuana in Colorado is only legal for some.
Indra Lusero, a Colorado attorney focusing on civil rights related to childbirth, took on Buster’s case. She argued that Buster’s marijuana use was legal under Amendment 64, and that CPS agents failed to find additional evidence of an unfit environment. She won her appeal and had the child abuse finding expunged before Buster went to trial. “The positive test for drug exposure basically became a de facto finding of abuse,” said Lusero. Moreover, she said that she doubts Buster is alone.
“I am confident there are other women who are facing charges [similar to Buster’s] and don’t have access to legal help,” said Lusero. “I am also confident that marijuana use is a factor in some complex cases where there are other variables related to abuse, and if parents had better access to legal help, marijuana use could be mitigated as an influential factor.”
One such example is custody battles, during which marijuana use could be presented as evidence of an unfit parent.
In two marijuana-related child abuse and neglect cases Lusero successfully fought, drug tests at birth were the primary cause of investigation. The law here is fuzzy: Colorado considers a positive drug test for a Schedule I or II controlled substance (as defined by the state’s Controlled Substance Act) an automatic finding of abuse or neglect, unless the Schedule II substance was taken legally as prescribed by a doctor. In Colorado, however, marijuana does not appear in the Schedule I or II category, creating a discrepancy between state and federal law (which does categorize marijuana as Schedule I) that individuals tasked with reporting child abuse have the leisure to define.
You see, CAPTA instructs states receiving funding to establish “mandatory reporters” of child abuse and neglect. In Colorado, these reporters range from marriage counselors to dental hygienists to clergy, all of whom are legally required to report maltreatment given “reasonable cause to know or suspect child abuse or neglect” or having observed “a child being subjected to circumstances or conditions that would reasonably result in abuse or neglect.” At the same time, they are tasked with interpreting the laws and making decisions about home lives that, though often requiring a wealth of intimate knowledge, are based on the individual reporter’s preconceived notions about drugs and who use them, including a host of race- and class-based biases.
“It would be nice to have some kind of policy—even if I could have expected that on my delivery date I would be harassed and forced to get involved in CPS,” said Buster. “It would be nice if maybe doctors would be required to tell you up-front that this could happen, that if you smoke marijuana and they end up testing your baby there’s a lot of things that could happen. At the time, I thought patient confidentiality applied, that it would only be brought up in the case of an emergency.”
Colorado legislators just introduced but failed to pass two bills tasked with “clarifying” the law in terms of drug-related child abuse and neglect, though not necessarily in a way that would have protected Buster.
The bills, SB 14-177 and SB 14-178, sought to define instances of a “drug-endangered child” while treating drug-endangerment as an automatic, punishable finding of child abuse and neglect. Concerning to Colorado legislators and marijuana policy activists alike, however, was that the bills were too sweeping to delicately address a complicated, yet exponentially important, issue. Critics’ amendments significantly reduced the bills’ oversight so that, by the time they reached the finish line, proponents argued the new legislation more narrowly defined drug-related child abuse than existing codes did.
Indeed, the new legislation added via amendments that de facto child abuse findings from drug endangerment can occur “ONLY” when a child’s welfare or health is threatened—a much-needed adjustment.
Still, the bills also expanded the existing code’s de facto finding of child abuse in several ways. SB 14-177, for example, introduced to state law two new definitions by which parental drug use could legally endanger and abuse/neglect children: a child’s “unrestricted access” to a controlled substance (including marijuana) and a parent’s “impairment” due to use of a controlled substance or legal substance capable of causing impairment. Under these new de facto child abuse findings, mandatory reporters would be tasked with judging proper marijuana storage, not to mention acceptable levels of highs, both of which leave the door to discretion wide open.
SB 14-177 and SB 14-178 also tried to broaden the law’s “manufacturing” focus on children near meth labs to consider parents who cultivated, produced, possessed, used, distributed, or obtained a controlled substance—such as voter-approved pot—where a child is present or resides, an automatic finding of child abuse. Amendments adding that abuse “ONLY” exists amid threat of injury soothed but did not eradicate concerns that state-sanctioned home grows might be treated by some individual reporters as de facto child abuse.
Even in their amended state, however, these laws fail to acknowledge that, even when legislative language mandates evidence of a safety risk, linking drug use to abuse ignites a judgement of parenting that is difficult to reverse.
Buster, for example, says her marijuana use was treated as illegal “because they just presumed I was getting my baby high instead of [treating nausea].”
This notion—that a person who smokes marijuana while pregnant is causing abuse to her fetus—is one scientists have repeatedly rejected. In an affidavit related to a similar case, Dr. Peter Fried, a psychology professor at Carleton University in Canada who has dedicated much of his career to studying the effects of prenatal marijuana exposure on infants, wrote:
Based on my 30 plus years of experience examining the newborn, infants, toddlers, children, adolescents and young adults born to women who used marihuana during pregnancy it is important to emphasize that to characterize an infant born to a woman who used marihuana during pregnancy as being ‘physically abused’ and/or ‘neglected’ is contrary to all scientific evidence (both mine and subsequent work by other researchers). The use of marijuana during pregnancy … has not been shown by any objective research to result in abuse or neglect.
Indeed, the legislative push to punish women for marijuana use during pregnancy is based not on science suggesting harm from which to protect children, but the notion of fetal rights.
Dorothy Roberts, University of Pennsylvania professor and author of Killing the Black Body, told RH Reality Check, “Punishing or monitoring a pregnant women for drug use relies on a view of the fetus as not just a separate person apart from the mother, but as if their interests are in conflict,” thus promoting the concept of fetal “personhood.”
Roberts also explained that the “very discretionary, very discriminatory” practices of Child Protective Services are rooted in racial stereotypes about drug use and mothering that continue to affect the outcome of CPS cases today.
“Drug use during pregnancy became a crime because it was targeted at Black women,” she said, acknowledging that “it has since moved to punish other women as well, but the conception of a public health problem as a crime relies on the vilification of Black women and their children.”
It began during the crack era, says Roberts, along with which came anti-drug hysteria including “the myth of the pregnant crack addict, who was thought to have no maternal instinct, and the myth of the ‘crack baby,’ who was supposed to be destined to be a criminal, a welfare dependent, a drug addict, and every anti-social behavior imaginable.”
The myth of the “crack baby,” too, has been debunked in several well-regarded studies. One found, for example, that doctors could not tell the difference between babies born crack-exposed from those born poverty-stricken.
The science is clear: Drug-related accusations of child abuse and neglect for crimes committed against a fetus are unsubstantiated.
Fighting against this trend in Child Protective Services will require more than just marijuana legalization. But to move the drug policy reform conversation in a direction that benefits women, there will need to be more women in positions of authority in the marijuana legalization movement—which is often overwhelmingly represented by men.
To offer resources like model legislation, female drug policy reformers are stepping up and organizing their own women-led groups, like the NORML Women’s Alliance and Sara Arnold’s Family Law Cannabis Alliance. As we usher in a new tide of marijuana policy reform, their work is paramount to ensuring marijuana legalization remain dedicated to social and racial justice for men, women, and parents alike.
“This is the next major battle in the long fight of marijuana reform,” said Arnold. “There is still some stigma about this issue even from marijuana reformers, and that has to change. The full might of marijuana reform needs to get behind this.”