Paths to Recovery

Paths to Recovery

A mixed-methods report on pregnancy and substance use in Oklahoma

Clearing the Path

A Blueprint for Better Supporting Families Impacted by Substance Use Disorder

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.

Pregnancy criminalization, which refers to legal punishments that are made possible (or worsened) due to a person’s pregnancy status or outcome, is on the rise across the nation. 
 
According to a 2024 report by research and advocacy organization Pregnancy Justice, over 90% of pregnancy criminalization cases in the United States involve alleged substance use by the pregnant person. Oklahoma ranks second in the nation for pregnancy-related arrest and incarceration. 
 
When pregnant people struggling with substance use disorder receive timely, non-judgmental care, outcomes are better for parents, babies, and communities. Oklahoma is one of many states contending with the challenge of aligning proven best practices with care and social service provision. Unfortunately, policies and procedures surrounding this issue are inconsistent, confusing, and at times carried out in discriminatory and harmful ways. 
 
Through data collection and analysis, this portion of Paths to Recovery identifies and contextualizes Oklahoma’s approach to substance use disorder among pregnant people, pinpoints opportunities for closer alignment with best practices, and outlines programs, tools, and resources to better support those working with pregnant and/or substance-involved people. 
 
Primary data used to write this report comes from interviews with field and lived-experience experts, observations, legal and legislative research, and stakeholder contributions. It is fortified using the cited secondary data.
 

Introduction

During the beginning months of her pregnancy, Amanda Aguilar struggled with acute nausea.128Brianna Bailey, “Oklahoma Is Prosecuting Pregnant Women for Using Medical Marijuana,” The Marshall Project, September 13, 2022. https://www.themarshallproject.org/2022/09/13/oklahoma-is-prosecuting-pregnant-women-for-using-medical-marijuana It made it difficult for her to keep food down.129Morning sickness is common during pregnancy, and symptoms can range from mild to extreme. Near the extreme end, pregnant people may struggle to keep any food down resulting in weight-loss and malnutrition. See Lindsey K. Jennings and Heba Mahdy, “Hyperemesis Gravidarum,” in StatPearls (Treasure Island (FL): StatPearls Publishing, 2024).
 
To manage this pregnancy symptom, Aguilar began using her previously-granted medical marijuana card. The use of medical marijuana helped her to eat and relieve her nausea. The effectiveness of marijuana in treating these symptoms outside of pregnancy is well-documented.130Sarah S. Stith et al., “The Effectiveness of Common Cannabis Products for Treatment of Nausea,” Journal of Clinical Gastroenterology 56, no. 4 (April 2022): 331.  https://doi.org/10.1097/MCG.0000000000001534. However, there are concerns from medical experts131 Phoebe Dodge et al., “The Impact of Timing of in Utero Marijuana Exposure on Fetal Growth,” Frontiers in Pediatrics 11 (May 16, 2023): 1103749. https://doi.org/10.3389/fped.2023.1103749 about the impact of the substance on fetal development.
 
Aguilar stopped using marijuana around three months into her pregnancy. 
 
At the time of her delivery in late 2020, Aguilar tested negative for substance use; however, a stool sample of her newborn found traces of marijuana.132Brianna Bailey, “Oklahoma Is Prosecuting Pregnant Women for Using Medical Marijuana,” The Marshall Project, September 13, 2022; The State of Oklahoma v Amanda camp Aguilar, No. Case No. S-2023-575 (The Court of Criminal Appeals of the State of Oklahoma 2024). 133The 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 baby was otherwise healthy.
 

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. 

Afterward and despite the risk of a life sentence, Aguilar contested the arrest and charges brought against her. The proceedings lasted almost two years before finally concluding in July 2024. 
 

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.

In the final ruling, it was determined that there was insufficient evidence to charge Aguilar with a crime because there was no law that shifted her legal use of medical marijuana to illegal through fetal exposure. 
 
The Oklahoma legislature, judiciary, and voters have collectively been setting the stage for Oklahoma v. Aguilar for years. Yet the legal consequences of using substances while pregnant, as the Court of Criminal Appeals articulated, have not been sufficiently laid out by the state legislature. And when they have been cleared up by the judiciary, medical practitioners and advocates have raised concerns about the long-term consequences a punitive approach will have on Oklahoma women, children, and families.138Kaitor Kay, “More than 30 Oklahoma doctors call for end to criminalization of drug use during pregnancy,” KFOR, December 22, 2021. https://kfor.com/news/local/more-than-30-doctors-call-for-end-to-criminalization-of-drug-use-during-pregnancy/
 
Judge Rowland’s final arguments in Oklahoma v. Aguilar urged lawmakers to resolve the legislative ambiguity and criminalize conduct that is not currently illegal. This report aims to support forthcoming legislative endeavors by providing a detailed history of the issue, spotlighting expert opinion (including lived-experience experts), and offering clear and comprehensive policy recommendations. 
 

Substance use, child abuse prevention, and pregnancy

A legislative history

CHILD ABUSE PREVENTION ACT

Better known as “CAPTA,” this landmark federal legislation addressed child abuse by providing funding and assistance to states and authorizing government-funded research.

1974

OKLAHOMA HOUSE BILL 2495

Established Oklahoma’s first reporting and record-keeping requirements on infants exposed to alcohol and other harmful substances.

1994

OKLAHOMA PRENATAL ADDICTION & TREATMENT ACT

Prohibits state-funded treatment facilities from refusing to treat pregnant women. Requires facilities prioritize their admission, if there is space and staff expertise.

2000

KEEPING CHILDREN & FAMILIES SAFE ACT

Federal 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.

2003

OKLAHOMA HOUSE BILL 2705

Requires 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.

2008

OKLAHOMA HOUSE BILL 2251

Established 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.

2012

COMPREHENSIVE ADDICTION & RECOVERY ACT

Federal 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.

2016

OKLAHOMA HOUSE BILL 3104

Modifies 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.

2018

OKLAHOMA V. GREEN

The 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.

2020

OKLAHOMA V. AGUILAR

The 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.

2024
Prior to the mid-20th century, the placenta, what can or cannot cross it, and how that ultimately impacts birth outcomes occupied less space in the collective imagination. That began to change in the 1970s when studies describing the negative effects of alcohol and opiates on fetal development began appearing in academic journals.139KennethL. Jones and DavidW. Smith, “RECOGNITION OF THE FETAL ALCOHOL SYNDROME IN EARLY INFANCY,” The Lancet vol. 2, iss. 7836, 302, no. 7836 (November 3, 1973): 999–1001. https://doi.org/10.1016/S0140-6736(73)91092-1 At the same time, newsrooms were dominated by the horrors of the crack cocaine epidemic. 
 
Driven by a concern shared by the research community, medical providers, and the general public, the nation’s first policy interventions intended to reduce substance use during pregnancy emerged in the mid-80s.140Barry M. Lester, Lynne Andreozzi, and Lindsey Appiah, “Substance Use during Pregnancy: Time for Policy to Catch up with Research,” Harm Reduction Journal 1, no. 1 (April 20, 2004): 5. https://doi.org/10.1186/1477-7517-1-5

They have since taken two forms: 
 
    1. punishment for a crime and/or 
    2. prevention, education, and treatment for a mental health issue.
Much research and subsequent policy changes erred toward the first category, not understanding addiction as a disease that needed medical intervention while simultaneously failing to account for the ways poverty and other environmental factors play into how fetal substance exposure affects the health of mothers and babies. 
 
This is the primary reason pregnant and parenting women and, by extension, Oklahoma families, became unintentional casualties of the War on Drugs, as Alex Cox recently summarized:
 
“As droves of women have been swept into the criminal justice system over the past four decades, America’s children have been left to fend for themselves, posing a significant threat to the future health, safety, and wellbeing of our nation as a whole. Pregnant women are no exception to this War: an estimated 58,000 expectant mothers are arrested and incarcerated each year.”141Cox, “Prioritizing Oklahoma Mothers,” 2024. https://digitalcommons.law.ou.edu/olr/vol76/iss2/5/
 
States began charging women with crimes related to substance use during their pregnancies in the mid-70s, primarily under child abuse and neglect laws.142Lester, Andreozzi, and Appiah, “Substance Use during Pregnancy,” 2004. https://doi.org/10.1186/1477-7517-1-5

 
But as the early 2000s approached, most of these cases had been overturned by the courts.143Ibid.

The tide was turning toward the second approach – treating substance use disorders as mental health issues, in pregnant individuals and beyond.
 
Oklahoma followed suit. The first state legislation of this era made its way across the Governor’s desk in 2000 in the form of House Bill 2487, also known as the Prenatal Addiction and Treatment Act. It not only prohibited state-funded treatment facilities from refusing to treat pregnant women; it mandated they be given priority access to admission, given there was space and staff expertise available.
 
Senate author Bernest Cain made it clear he had no interest in a punitive approach. “I am not wanting to lock up pregnant women in jail,” he told a Tulsa World reporter in March of 2001.144Brian Ford,” Group talks turkey,” Tulsa World, March 20, 2001. https://tulsaworld.com/archive/group-talks-turkey/article_ffd6cad3-cda9-5fe0-b772-40a5cecce284.html “Most other states have thrown out this idea of mandatory treatment of the fetus by how you treat the mother.”
 
Efforts to ensure Oklahomans were aware of how substance use could affect pregnancy and had support seeking treatment continued into the 2010s. In 2008, HB 2705 required prenatal classes to cover the risks of drug or alcohol use during pregnancy and that medical practitioners provide screening and referrals for treatment for pregnant patients. 
 
But in 2012, the tide once again began to turn from treatment to institutional involvement. The Oklahoma Bureau of Narcotics requested that the state establish a definition for “drug-endangered child” and require that when one was identified, an investigation by the Department of Human Services (DHS) was instigated.
 
Then, in 2016, the bipartisan Comprehensive Addiction and Recovery Act (CARA) was signed into federal law. In addition to funneling significant resources into addressing the opioid epidemic, it required states to remove the term “illegal” as applied to substance use affecting infants, establish policies for providers to alert child protective services of an infant drug exposure, and mandate that states provide Plans of Care for all babies born exposed to substances. The plans were required to also address the treatment needs of an infant’s caregiver(s).
 
While Oklahoma already had the first two provisions in place, there was – and still is – much work to be done in regards to the rest. 


PLANS 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.

Policy recommendations

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:

ENSURE WOMEN WITH SUBSTANCE USE DISORDER (SUD) FEEL SAFE SEEKING HELP.

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.

    • Clarify private and public entities’ roles in responding to the discovery of a substance-exposed newborn and/or suspicion of prenatal substance use, ensuring that inter-organizational alert and referral protocols allow for appropriate agency control over how individual cases are addressed.
        • Clarify that evidence of substance use (through an interview, self-report, clinical observation, or toxicology screen) is not by itself a sufficient basis to report child abuse or neglect to the Oklahoma Department of Human Services (OKDHS)163Per 10A O.S. § 1-2-101, “Every physician, surgeon, or other health care professional including doctors of medicine, licensed osteopathic physicians, residents and interns, or any other health care professional or midwife involved in the prenatal care of expectant mothers or the delivery or care of infants shall promptly report to the Department instances in which an infant tests positive for alcohol or a controlled dangerous substance. This shall include infants who are diagnosed with Neonatal Abstinence Syndrome or Fetal Alcohol Spectrum Disorder.”
        • Reassert and continue training OKDHS staff on current Child Welfare Services (CWS) rules, which state that substance use alone does not constitute child abuse or neglect.164Per OAC 340:75-3-450, “Addiction to and misuse of alcohol and controlled dangerous substances, including prescription medication may impact the person responsible for the child’s (PRFC’s) ability to provide child safety. Substance use alone does not directly determine child abuse or neglect; however, it is a factor considered when safety determinations and intervention strategies are considered.”
        • Establish that OKDHS and any law enforcement officer assisting in a multidisciplinary child welfare investigation should only refer reports of child abuse or neglect to law enforcement for the purposes of a criminal investigation if the claim is substantiated following an OKDHS assessment and/or investigation.165See OAC 340:75-3-200 for current OKDHS procedure.
        • Prohibit law enforcement agencies from bringing criminal child abuse or neglect charges based on prenatal substance use in cases where an OKDHS or multidisciplinary investigation found insufficient evidence of abuse or neglect. 
        • Prohibit the admission in a criminal proceeding of any evidence relating to substance use obtained during a pregnancy screening, prenatal/postpartum care, or behavioral health treatment.166Colorado is one state that has established such protections in recent years. See C.R.S. § 13-25-136.
        • Permit courts to critically evaluate charges brought against a pregnant or parenting woman with SUD, with special consideration given to whether or not a Plan of Safe Care/Family Care Plan was developed, coordinated, and followed.
        • Expand current “Good Samaritan” laws to provide safe harbor for pregnant individuals seeking prenatal care or substance use treatment, shielding them from shielding them from criminal liability related to seeking a healthy pregnancy.167See 76 O.S. § 5 and 63 O.S. § 2-413.1. Many states have stronger protections, including Maryland, Michigan, New York, and West Virginia. Montana passed one such measure in 2019 that provided safe harbor for pregnant women from both criminal charges and child welfare involvement if they are seeking or undergoing treatment. See 50-32-609, MCA.
    • Update patient educational materials to include harm reduction-informed language and up-to-date referral information.

ENSURE PREGNANT WOMEN HAVE ACCESS TO TAILORED MENTAL HEALTH TREATMENT SERVICES AND MEDICATIONS.

Disordered substance use is often preceded by trauma, frequently beginning in childhood, and almost always exists alongside other mental and physical health conditions. Due to these complexities and the ways an individual’s environment and social supports affect sustained engagement with treatment, results are better when customized treatment options are available and affordable.  This is especially important for pregnant women. Not only are they more likely to consider making a major change in the way they manage stress and any mental health issues; research has shown that health outcomes are better for women and babies when soon-to-be and new mothers are able to undergo treatment that works for them without familial separation.168See 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 SouthGeorgetown Journal on Poverty Law and Policy 15, no. 2 (2018); Kaylin A. Klie et al., “Integrated Care for Pregnant and Parenting People With Substance Use,” Clinical Obstetrics & Gynecology 67, no. 1 (March 2024). Mom really is the best medicine.
    • Ensure social service and medical providers throughout the chain of care identify substance use issues, respond with compassion, and provide appropriate referrals.
      • Promote the routine use of Screening, Brief Intervention, and Referral to Treatment (SBIRT), an evidence-based and integrated model for providing early intervention and treatment for individuals at risk or struggling with substance use disorder. 169See “Screening, Brief Intervention, and Referral to Treatment (SBIRT) for Pregnant and Postpartum Women: Opportunities for State MCH Programs,” Association of Maternal & Child Health Programs, October 2020. https://amchp.org/resources/screening-brief-intervention-and-referral-to-treatment-sbirt-for-pregnant-and-postpartum-women-opportunities-for-state-mch-programs/
      • Improve the referral pipeline for substance use treatment services by:
        • Providing prenatal touch points (primary care, obstetric services) with information on nearby treatment options for suspected or confirmed substance use disorder.
        • Expanding the Tough As A Mother provider map. This geographical database is a fantastic resource that could be strengthened through the addition of details on rooming-in, in vs. outpatient treatment, and medications for opioid use disorder (MOUD) availability if detox is needed before treatment.
      • Reassert, expand, and enforce current requirements that substance use disorder treatment and recovery service providers that receive state funding must:
        • Prioritize pregnant women seeking assistance for treatment resources and program admission when resources and capacity are available.170This has been a statutory requirement since the enactment of HB 2487 (2000). See O.S. 63 § 1-546.4.
        • Be prohibited from refusing treatment to patients who are pregnant as long as the provider’s services are appropriate for pregnant women.171This has been a statutory requirement since the enactment of HB 2487 (2000). See O.S. 63 § 1-546.4.
        • Make a good-faith effort to direct a pregnant person to an appropriate facility that is able to accept new patients.
        • Be prohibited from refusing pregnant patients treatment due to their ability to pay.172Currently, this is only the case for facilities that accept SoonerCare/SoonerSelect or contract with the Oklahoma Department of Mental Health and Substance Abuse Services (ODHMSAS), per O.S. 63 § 1-546.4 and OAC § 317:30-3-2.
      • Establish and expand treatment programs that address the unique needs of pregnant and parenting women with SUD who are most at-risk. Programs should be incentivized to:
          • Accept SoonerCare and SoonerSelect.
          • Prioritize keeping women with their children, providing or arranging for childcare.
          • Prioritize community-building and peer support in programming.
          • Hire and maintain staff with appropriate medical training to ensure that clients are able to safely detox.
          • Provide referrals and case management support to address other barriers to remaining in treatment, including: housing and food security; justice and child welfare involvement; transportation; parenting and career skills; job placement; childcare; rooming-in of newborn/young children.
        • Make it easier for pregnant and parenting women with SUD who are most at-risk to find a treatment option that works for them by:
          • Expanding Tough As A Mother’s provider network map for pregnant and postpartum women with SUD. This geographical database is a fantastic resource that could be strengthened through the addition of details on rooming-in, in vs. outpatient treatment, and medications for opioid use disorder (MOUD) availability if detox is needed before treatment.
          • Continuing to fund and expand statewide substance use awareness campaigns, particularly Tough As a Mother, to include anti-stigma messaging and promote care coordination.
          • Expanding information in the Oklahoma Department of Mental Health and Substance Abuse Services Network of Care provider directory to include services for pregnant women with SUD.
        • Increase the number of active, licensed, and listed providers who are educated on and willing to support pregnant women with SUD with MOUD by:
        • Expand implementation of Plans of (Safe) Care and, ideally, Family Care Plans, especially in the prenatal period,175Current federal and state laws only require the development of Plans of Safe Care after a substance-exposed newborn is identified. Research indicates, however, that interventions during the prenatal period lead to better outcomes for both mother and child. See Legislative Analysis and Public Policy Association, “Model Substance Use During Pregnancy and Family Care Plans Act,” LAPPA, March 7, 2023. by:
          • Continuing to support and enforce federal and state laws that require the development of Care Plans upon identification of a substance-exposed newborn.
          • Continuing and expanding training on Care Plans for OKDHS staff, medical and mental health treatment providers, social service providers, advocates, birth workers (especially doulas and midwives), and women of reproductive age who are struggling with SUD.
          • Continuing and expanding requirements that any medical or mental health treatment providers that contract with the state include the development of Family Care Plans in their practice and programming.
        • Guarantee that pregnant and postpartum women in treatment for mental health issues have access to continuous coverage under their health benefit plan.176As of January 1, 2023, Oklahoma extended and expanded the state Medicaid program to better serve pregnant and postpartum women, making this already the case for those who qualify for SoonerCare and SoonerSelect. Pregnant Oklahomans now benefit from continuous coverage during and for 12 months after the conclusion of a pregnancy, and the income threshold for pregnant women to qualify for full-scope benefits increased from 138% to 205% of the Federal Poverty Level (FPL). See Metriarch, “Women Enrolled in Medicaid/SoonerCare,” 2024.
        • Encourage and support public, private, nonprofit, faith-based, and cross-sector collaboratives in applying for funding to establish and expand treatment centers that serve pregnant and parenting women and bolster care coordination.

ESTABLISH AND EXPAND EARLY INTERVENTION AND PRISON DIVERSION PROGRAMS THAT PRIORITIZE OR SPECIALIZE IN SERVING PREGNANT AND POSTPARTUM WOMEN AND THEIR CHILDREN — ESPECIALLY IN RURAL AREAS.

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).

PROMOTE EARLY PREGNANCY DETECTION AND CULTURALLY COMPETENT, HARM REDUCTION-INFORMED PRENATAL AND POSTPARTUM HEALTHCARE FOR MOTHER AND CHILD.

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.

    • Develop an awareness campaign to promote early pregnancy detection and assist pregnant women with locating an available OB/GYN or qualified prenatal medical provider.

    • Invest in SoonerCare and SoonerSelect application assistance.
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    • Address the increasingly-urgent information gap around the neonatal impact of marijuana use during pregnancy through provider training and public education/awareness campaigns.