Punitive legal responses to prenatal drug use in the United States: A survey of state policies and systematic review of their public health impacts

Background: Punitive legal responses to prenatal drug use may be associated with unintended adverse health consequences. However, in a rapidly shifting policy climate, current information has not been summarized. We conducted a survey of U.S. state policies that utilize criminal or civil legal system penalties to address prenatal drug use. We then systematically identified empirical studies evaluating these policies and summarized their potential public health impacts.

Methods: Using existing databases and original statutory research, we surveyed current U.S. state-level prenatal drug use policies authorizing explicit criminalization, involuntary commitment, civil child abuse substantiation, and parental rights termination. Next, we systematically identified quantitative associations between these policies and health outcomes, restricting to U.S.-based peer-reviewed research, published January 2000-December 2022. Results described study characteristics and synthesized the evidence on health-related harms and benefits associated with punitive policies. Validity threats were described narratively.

Results: By 2022, two states had adopted policies explicitly authorizing criminal prosecution, and five states allowed pregnancy-specific and drug use-related involuntary civil commitment. Prenatal drug use was grounds for substantiating civil child abuse and terminating parental rights in 22 and five states, respectively. Of the 16 review-identified articles, most evaluated associations between punitive policies generally (k = 12), or civil child abuse policies specifically (k = 2), and multiple outcomes, including drug treatment utilization (k = 6), maltreatment reporting and foster care entry (k = 5), neonatal drug withdrawal syndrome (NDWS, k = 4) and other pregnancy and birth-related outcomes (k = 3). Most included studies reported null associations or suggested increases in adverse outcome following punitive policy adoption.

Conclusions: Nearly half of U.S. states have adopted policies that respond to prenatal drug use with legal system penalties. While additional research is needed to clarify whether such approaches engender overt health harms, current evidence indicates that punitive policies are not associated with public health benefits, and therefore constitute ineffective policy.