A mixed-methods report on pregnancy and substance use in Oklahoma
Our children and families are our future, and it is the responsibility of every Oklahoman to do what is necessary to see our community thrive and flourish.
— Oklahoma Child Welfare Task Force, 2023
Nevertheless, by the time her son had reached two months old, Aguilar was facing a charge of felony child neglect134Alex B. Cox, “Prioritizing Oklahoma Mothers: Recommending Rehabilitation and Recovery Rather than Punishment for Pregnancy,” OKLAHOMA LAW REVIEW 76 (2024). https://digitalcommons.law.ou.edu/olr/vol76/iss2/5 brought by the Kay County District Attorney. She was arrested.
The drawn-out legal battle impacted the daily lives of Aguilar, her infant son, and her four additional children. She had to put plans to go back to school on hold. “At least at the end of the day, I will say that I fought this all the way,” she told The Frontier in February 2024. “That is why I’m doing this. You don’t get to call me a bad mom.”135Brianna Bailey, “Medical Marijuana Is Legal, But Oklahoma Is Charging Women for Using It While Pregnant,” The Marshall Project, February 14, 2024. https://www.themarshallproject.org/2024/02/14/oklahoma-pregnant-women-marijuana-child-abuse
Presiding Judge Rowland of the Oklahoma Court of Criminal Appeals said in the majority opinion of the case that, “while every other drug listed in Schedule I is likely an ‘illegal drug’ as that term is used in the child neglect statute, marijuana may or may not be, depending upon whether the particular user has a medical marijuana card.”136The State of Oklahoma v Amanda camp Aguilar, No. Case No. S-2023-575 (The Court of Criminal Appeals of the State of Oklahoma 2024). Which Aguilar did have.
In his dissent, Judge Lumpkin argued that the Aguilar’s then-unborn child did not have their own marijuana license, thus the substance “became an illegal drug as soon as it crossed the placental barrier from the mother.”137Ibid.
Better known as “CAPTA,” this landmark federal legislation addressed child abuse by providing funding and assistance to states and authorizing government-funded research.
1974Established Oklahoma’s first reporting and record-keeping requirements on infants exposed to alcohol and other harmful substances.
1994Prohibits state-funded treatment facilities from refusing to treat pregnant women. Requires facilities prioritize their admission, if there is space and staff expertise.
2000Federal revision of CAPTA in response to the opioid crisis; requires states to develop policies and procedures to address the needs of infants born affected by illegal substance use or withdrawal symptoms resulting from prenatal drug exposure.
2003Requires prenatal classes to cover the risks of drug or alcohol use during pregnancy, information on screening, and referrals for treatment; requires medical providers to provide access to screening, assessment, intervention, and referrals for treatment of substance use disorder.
2008Established the definition of “drug-endangered child,” which initially included newborns who test positive for a “controlled dangerous substance,” except when prescribed by a physician; required OKDHS to conduct an investigation when a drug-endangered child was identified.
2012Federal legislation requiring states to remove “illegal” as applied to substance-exposed infants and to establish policies and procedures for reporting infant drug exposure to DHS; mandates Plans of Care be developed for all babies born exposed to substances, inclusive of caregiver(s) needs.
2016Modifies reporting procedures for substance-exposed newborns, removing them from the definition of “drug-endangered child.” Providers are still required to submit a report to OKDHS, who must then develop a Plan of Care and need only conduct a child abuse/neglect investigation if the referral is accepted.
2018The Oklahoma Court of Criminal Appeals establishes that pregnant individuals who use substances can be criminally charged under the state’s definition of felony child neglect.
2020The Oklahoma Court of Criminal Appeals rules women with physician-issued marijuana cards whose newborns test positive for THC cannot be criminally charged under the state’s child neglect statute.
2024PLANS OF SAFE CARE / FAMILY CARE PLANS
Plans of (Safe) Care (PSCs) are intended to improve the health and safety of infants impacted by familial (prenatal) substance use, as well as the recovery outcomes of their caregiver(s). Generally developed by social service, medical, and mental health treatment providers in partnership with caregiver(s), plans are tailored to identify and address the unique risk factors and needs of a family. They can also help with care coordination, ensuring providers in different settings are in communication with one another.
“CARA requires a plan of safe care to not only be developed for the affected infants, but also that the plan of safe care includes the needs of both the infant and the family or caregiver for that infant. These changes emphasize a family centered approach, underscoring the understanding that in order to truly serve infants with prenatal substance exposure, we must serve the whole family.”145Latonya Adjei-Tabi, “A Family Centered Approach to Implementing Plans of Safe Care for Infants and Families Affected by Prenatal Substance Exposure,” National Center for Substance Abuse and Child Welfare, 2023.
Some organizations and institutions – the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) included – have taken the PSC further in the form of Family Care Plans (FCPs).146See Oklahoma Department of Mental Health and Substance Abuse Services, “Family Care Plan Provider Toolkit,” 2022. The agency is in the process of updating and expanding FCP-related resources. This more robust, trauma-informed and family-centered intervention is less agency-driven and is ideally initiated in the pre-pregnancy or prenatal period.
Importantly, CAPTA does not require a report to a child welfare agency when an infant tests positive for a controlled dangerous substance. It does require a notification. According to the Federal Bureau of Justice Assistance, this distinction is important: “Notification allows time to plan how to address affected infants, with the intent to keep the family unit together, whereas reports can lead to a child protection investigation or an in-depth assessment process.”147Bureau of Justice Assistance (BJA) and Comprehensive Opioid, Stimulant, and Substance Abuse Program (COSSAP), “Substance Use and Pregnancy—Part 1: Current State Policies on Mandatory Reporting and Implementing Plans of Safe Care to Support Pregnant Persons With Substance Use Disorders,” March 2023.
This was the spirit of a 2018 bill that ushered in the most recent update to Oklahoma law around reporting requirements when prenatal substance use is suspected. HB 3104 restructured the way state law defines “drug-endangered child,” “substance-exposed newborn,” and the reporting and investigation protocol for the latter, to better align with guidance from the federal government and scientific community.
Drug-endangered children, as defined in Oklahoma law, are at risk of harm due to their caregiver(s) substance involvement.14810A O.S. § 1-1-105 (OSCN 2024) If the Oklahoma Department of Human Services (OKDHS) determines a child concerning whom they have received a referral may fit this definition, the agency is required to conduct an investigation. Regardless of whether or not the danger is substantiated, OKDHS must then send a report of their findings to law enforcement for a separate determination of whether or not criminal charges are warranted.14910A O.S. § 1-2-102 (OSCN 2024)
Though healthcare providers are still required to make an OKDHS referral when a newborn tests positive for controlled substances and/or is diagnosed with Fetal Alcohol Spectrum Disorder (FASD) or Neonatal Abstinence Syndrome (NAS), HB 3104 removed these infants from the state’s definition of a drug-endangered child.
In other words, Oklahoma law no longer supports the assumption that prenatal substance exposure alone means an infant is at risk of further harm due to their mother’s drug use. Instead, the state gives OKDHS the authority to evaluate an infant’s safety before accepting or rejecting a referral for investigation.150Ibid. And agency rules are clear that parental substance use alone does not constitute child abuse or neglect.151OAC 340:75-3-450
It’s a complex but important distinction that the bill’s authors clearly understood. In response to a question about why substance-exposed newborns had been removed from the definition of drug-endangered child during the bill’s Health & Human Services committee hearing, Senate author A.J. Griffin explained:152Senate Health and Human Services, “Senate Health & Human Services 4-9-18 – YouTube,” accessed October 16, 2024. https://www.youtube.com/embed/DBA4AK_svkc?start=5203&modestbranding=1&rel=0&autoplay=1
“We still acknowledge that some [of these] children are endangered… [but] we’re going to treat women who give birth to a child who tests positive in the way that is known to be the best based on the research. There will be a referral made and investigation conducted, but that child might not necessarily, be immediately removed from the mother. Neonatologists tell us that while that might be our instinct, it in fact does the opposite many times. [...] It represents a significant shift in how we approach treatment to both mother and child, and based on research that indicates we will get a much better outcome if we make this shift.”
HB 3104 passed unanimously in the House and Senate and was signed into law by Gov. Mary Fallin on May 8, 2018.153Ownbey, Griffin, and Pittman, “HB 3104,” Pub. L. No. 3104 (2018). http://www.oklegislature.gov/BillInfo.aspx?Bill=HB3104&Session=1800
In direct contrast to the legislature’s goals in 2018, the Oklahoma Court of Criminal Appeals established in Oklahoma v. Green (2020) that pregnant women who use substances could be criminally charged under the state’s child neglect laws. Less than nine months later, the same court extended criminal liability further to include the father of a fetus exposed to substances in-utero.154STATE v. GREEN, No. S-2019-308 (Oklahoma Court of Criminal Appeals 2020). 155Alex B. Cox, “Prioritizing Oklahoma Mothers: Recommending Rehabilitation and Recovery Rather than Punishment for Pregnancy,” OKLAHOMA LAW REVIEW 76 (2024). https://digitalcommons.law.ou.edu/olr/vol76/iss2/5/
Further complicating matters, Oklahomans overwhelmingly voted to legalize medical marijuana in 2018.156Oklahoma State Question Number 788, Initiative Petition Number 412,” April 11, 2016, Oklahoma Secretary of State Office. https://www.sos.ok.gov/documents/questions/788.pdf The legislature’s first comprehensive attempt to regulate the new industry – 2021’s Oklahoma Medical Marijuana and Patient Protection Act – explicitly forbids “presumption of neglect or endangerment… unless the behavior of the person creates an unreasonable danger to the safety of a minor child.” Pregnant users issued cards by licensed medical professionals are not mentioned.15763 O.S. § 425 (OSCN 2024); CLOUDI MORNINGS, LLC. v. CITY OF BROKEN ARROW (2018). https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=483204
Since 2020 and likely due to both the Green ruling and the legalization of medical marijuana, Oklahoma has seen a dramatic increase in the number of women charged with felony child neglect for using substances during their pregnancies. These charges are being brought even in cases where birth outcomes are positive and when OKDHS investigations have found no evidence of child abuse or neglect.158Pregnancy Justice, “The Rise of Pregnancy Criminalization,” 2023. https://www.pregnancyjusticeus.org/wp-content/uploads/2023/09/9-2023-Criminalization-report.pdf
In a similarly disturbing trend, the majority of child neglect charges where a woman’s substance use during her pregnancy forms the basis of the state’s case are concentrated in a few, largely rural counties.159For more on where filings are concentrated and what those officials’ motivations may be, see Alex B Cox, “Prioritizing Oklahoma Mothers: Recommending Rehabilitation and Recovery Rather than Punishment for Pregnancy,” OKLAHOMA LAW REVIEW 76 (2024). This means that not only are a handful of officials using their prosecutorial discretion to undermine the intent of the legislature; but rural families struggling with substance use, who already have more limited access to mental health support, are being criminalized for something their urban counterparts are not.
In July 2024, the Court of Criminal Appeals once again weighed in, this time addressing ambiguity around whether or not licensed medical marijuana use while pregnant meets the state’s definition of child neglect. In a 3-2 decision, the court held:
“…an expectant mother’s licensed possession and use of medical marijuana would not trigger an automatic finding of neglect for failure to protect her unborn child from exposure to illegal drugs because as to her, marijuana is not an illegal drug.”160The State of Oklahoma v Amanda camp Aguilar, No. Case No. S-2023-575 (The Court of Criminal Appeals of the State of Oklahoma 2024).
The majority opinion goes on to call for clarification from the legislature on “when, if ever, the licensed use of marijuana may constitute child neglect.”
The entire bench was in alignment on neither the legislature nor Oklahomans having knowingly green-lit marijuana use during pregnancy. But majority opinion author Judge Scott Rowland spoke to the nuance and potential consequences of criminalizing controlled but not always illegal substances for only pregnant individuals, a key consideration for policymakers hoping to tackle the issue responsibly.
If these charges were to stand, he argued, an expectant mother prescribed any drug in Schedules II-V by her doctor would be subject to criminal prosecution. Put simply, this precedent would “make it unlawful for any expectant mother to ever be prescribed any controlled dangerous substance by any doctor.”161The State of Oklahoma v Amanda camp Aguilar, No. Case No. S-2023-575 (The Court of Criminal Appeals of the State of Oklahoma 2024).
These are weighty questions – ones our legislature would do well to consider before acting on the court’s recommendation that it address what is clearly a challenging area of the law. Having spoken to many healthcare, social service, and mental health treatment providers, as well as Oklahomans who have struggled with substance use during their pregnancies, it is our hope in issuing this report that they also consider what we have learned from years of attempting to address the problem.
Oklahoma’s legal and medical landscape has seen major changes in the last several years – some aligned with public health and medical best practice, some not. Through the conversations we had with women who have been pregnant while struggling with substance use and the people who serve them, we identified ample opportunities for both lawmakers and treatment providers to co-create a more effective and compassionate statewide approach to the issue.
In order to bring Oklahoma into closer alignment with proven, evidence-based policies and best practices surrounding substance use during pregnancy, we recommend the following:
Study after study indicates that when women struggling with SUD worry their providers will treat them poorly, are concerned they may lose custody of current or future children, or fear prison time for their drug use, they are far less likely to seek treatment.162See Mina Dixon Davis, “‘Bad Moms’ and Powerful Prosecutors: Why a Public Health Approach to Maternal Drug Use Is Necessary to Lessen the Hardship Borne by Women in the South,” Georgetown Journal on Poverty Law and Policy 15, no. 2 (2018); Laura J. Faherty et al., “Association of Punitive and Reporting State Policies Related to Substance Use in Pregnancy With Rates of Neonatal Abstinence Syndrome,” JAMA Network Open 2, no. 11 (November 13, 2019).
Because our other recommendations rely on women establishing honest and trusting relationships with treatment, medical, and social service providers, it is critical that the state take action to eliminate the primary reasons pregnant women struggling with substance use avoid prenatal and mental healthcare.
Keeping women who are struggling with substance use out of the carceral system and with their families should be the priority. It is not only better for everyone’s long-term health; it is more cost-effective for the state.177See Alex B Cox, “Prioritizing Oklahoma Mothers: Recommending Rehabilitation and Recovery Rather than Punishment for Pregnancy,” OKLAHOMA LAW REVIEW 76 (2024).
The earlier a woman knows she is pregnant, the sooner she may consider seeking prenatal care. The sooner she does that, the more quickly any health conditions she has – including substance use disorder – can be identified and treated.