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Pregnancy and Drugs

Priority Treatment

Laws mandating priority access to public and private substance abuse treatment for pregnant and postpartum women who abuse drugs.

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About This Policy: Pregnancy and Drugs: Priority Treatment

Introduction:

The data for the Pregnancy and Drug Use policy topics were developed as part of a research project headed by Dr. Sarah CM Roberts, Professor, Department of Obstetrics, Gynecology, and Reproductive Sciences at the University of California, San Francisco. The project was funded by grants from the National Institute on Alcohol Abuse and Alcoholism (#R01AA023267) and the University of California, San Francisco, California Preterm Birth Initiative, funded by Marc and Lynne Benioff.

The Pregnancy and Drug Use Policy Dataset consists of six policy topics that mirror the Pregnancy and Alcohol policy topics on APIS:

  • Civil commitment policies pertain to mandatory involuntary commitment of a pregnant woman to treatment or mandatory involuntary placement in protective custody of the state for the protection of a fetus from prenatal exposure to drugs.
  • Mandatory warning signs require that notices about cannabis use during pregnancy are posted in medical/recreational marijuana dispensaries. The warning language must warn of the risk associated with using cannabis while pregnant.
  • Priority treatment mandates priority access to substance abuse treatment for pregnant and postpartum women who use drugs.
  • Prohibitions against criminal prosecution prohibits use of the results of medical tests, such as prenatal screenings or toxicology tests, as evidence in the criminal prosecutions of women who may have caused harm to a fetus or an infant.
  • Reporting requirements are mandated or discretionary reporting of suspicion of or evidence of drug use or abuse by women during pregnancy to agencies such as law enforcement, social services, and health services. Evidence may consist of screening and/or toxicological testing of pregnant women or toxicological testing of infants after birth, and reporting may be for child abuse/neglect investigation, provision of health services, or for data gathering purposes.
  • Child abuse/child neglect refers to the legal significance of a woman’s conduct prior to birth and of damage caused in utero and, in some cases, defines drug use during pregnancy as child abuse or neglect.

 

Data Gathering Process:

The “Roberts” data range from 1968–2017. Data were gathered in a two-step research process as follows:

  • Because pregnancy and alcohol statutes and regulations across U.S. jurisdiction overlap substantially (although not completely; see Thomas et al., 2018), project staff started the Pregnancy and Drug dataset with all relevant citation data (statutes and regulations that addressed both alcohol and drugs) from all six APIS Pregnancy and Alcohol policy topics in 2017 and traced each citation back to its original effective date. Data for all amendments or recodifications to statutes and regulations that occurred from 1968 to 2017 were also gathered and included in the dataset.
  • Using, Westlaw1, HeinOnline2, and StateScape3, additional searches for statutes and regulations pertaining to the six Pregnancy and Drug Use policy topics were run for all 51 jurisdictions (50 States and the District of Columbia). That is, searches were conducted to locate statutes and regulations pertaining to drugs, but not to alcohol. This original round of drug-specific research sought to identify policies in effect as of January 1, 2017. Each identified statute and regulation was tracked back in time to the effective date for that policy in that jurisdiction – and any changes that occurred within the 49-year time frame.

1 Westlaw is an online legal research tool that features information on state and federal statutes, administrative codes (regulations), case law, law journals and other legal resources.

2 HeinOnline is a legal database containing titles of historical and government documents.

3 StateScape provides information on effective dates practices in all jurisdictions. So, for example, if a statute notes that its effective date is 30 days after the end of a legislative session, StateScape displays information on the beginning and end of legislative sessions per jurisdiction. These data allow legal policy researchers to calculate effective dates when they are not directly provided in statutes.  

 

Additional Legal Research Context:

1. The legal research protocol used by staff members on the Roberts project was as follows: one legal researcher performed the research work on States with names in the first half of the alphabet as the other legal researcher performed legal research on the second half of the alphabet. Then, the researchers exchanged the data and performed independent quality control steps to validate the coding. Researchers worked together to reach consensus when independent findings diverged. When available, secondary sources were used to compare the original data collection to the data from other sources. In this case, publicly-available Guttmacher data were the most useful secondary data collections. See: https://www.guttmacher.org/state-policy/explore/substance-use-during-pr… .

2. For data gathering on statutes and their original effective dates as well as all amendments to statutes within the 49 year time frame, staff members used the online legal research tools:  Westlaw, HeinOnline, and Statescape. For data gathering on regulations, staff relied on Westlaw as well as general internet searches, as other legal research tools do not address regulatory enactments. This means that tracking original effective dates of regulations is more difficult than for statutes. Still, using all available methods, staff were able to locate original effective dates for all but a very small number of regulations.            

3. One important caveat to this research process is that there is a possibility that a jurisdiction may have enacted a statute or regulation on drug use during pregnancy and then repealed it before 1/1/2017. If this is the case, then it is possible that any such statute or regulation would not be included in this dataset.

 

Substantive References:

Drug Use During Pregnancy Policies in the United States From 1970 to 2016. Contemporary Drug Problems. 2018 Dec 1; 45(4):441-459. Sue Thomas, Ryan Treffers, Nancy F. Berglas, Laurie Drabble, Sarah C. M. Roberts.

Forty Years of State Alcohol and Pregnancy Policies in the USA: Best Practices for Public Health or Efforts to Restrict Women's Reproductive Rights? Alcohol Alcohol. 2017 Nov 01; 52(6):715-721. Roberts SCM, Thomas S, Treffers R, Drabble L. PMID: 29016712.

Associations Between State-Level Policies Regarding Alcohol Use Among Pregnant Women, Adverse Birth Outcomes, and Prenatal Care Utilization: Results from 1972 to 2013 Vital Statistics. Alcohol Clin Exp Res. 2018 Jun 18. Subbaraman MS, Thomas S, Treffers R, Delucchi K, Kerr WC, Martinez P, Roberts SCM. PMID: 29912478.

Differential Effects of Pregnancy-Specific Alcohol Policies on Drinking Among Pregnant Women by Race/Ethnicity. Health Equity. 2018; 2(1):356-365. Roberts SCM, Mericle AA, Subbaraman MS, Thomas S, Treffers RD, Delucchi KL, Kerr WC. PMID: 30560228.

Estimating the Prevalence of United States Women with Alcohol-exposed Pregnancies and Births. Women’s Health Issues. 2019 Mar - Apr; 29(2):188-193. Roberts SCM, Thompson KM. PMID: 30651200.

State Policies Targeting Alcohol Use during Pregnancy and Alcohol Use among Pregnant Women 1985-2016: Evidence from the Behavioral Risk Factor Surveillance System. Women’s Health Issues. 2019 May - Jun; 29(3):213-221. Roberts SCM, Mericle AA, Subbaraman MS, Thomas S, Treffers RD, Delucchi KL, Kerr WC. PMID: 30876695.

"Alcohol During Pregnancy? Nobody Does That Anymore": State Legislators' Use of Evidence in Making Policy on Alcohol Use in Pregnancy. J Stud Alcohol Drugs. 2019 05; 80(3):380-388. Woodruff K, Roberts SCM. PMID: 31250804.

Racial differences in the relationship between alcohol/pregnancy policies and birth outcomes and prenatal care utilization: A legal epidemiology study. Drug Alcohol Depend. 2019 08 01; 201:244-252. Roberts SCM, Berglas NF, Subbaraman MS, Mericle A, Thomas S, Kerr WC. PMID: 31255852.

Variations by Education Status in Relationships Between Alcohol/Pregnancy Policies and Birth Outcomes and Prenatal Care Utilization: A Legal Epidemiology Study. J Public Health Manag Pract. 2020 Mar/Apr; 26 Suppl 2, Advancing Legal Epidemiology:S71-S83. Roberts SCM, Mericle AA, Subbaraman MS, Thomas S, Kerr W, Berglas NF. PMID: 32004225.

Costs Associated with Policies Regarding Alcohol Use during Pregnancy: Results from 1972-2015 Vital Statistics. (2019). PloS one, 14(5), Subbaraman, M. S., & Roberts, S. C. e0215670.

 

Methodological References (How to collect legal data for use in social science research):

Anderson, E.D., Thomas, S., Treffers, R.D., & Wagenaar, A.C. (2023). Measuring Statutory Law and Regulations for Empirical Research. In Alexander C. Wagenaar, Rosalie Licardo Pacula, Scott Burris (Eds.): Legal Epidemiology: Theory and Methods, 2nd Edition. Jossey-Bass.

Tremper, C., Thomas, S., & Wagenaar, A.C. (2010). Measuring Law for Evaluation Research. Evaluation Review, 34:242-66.

Period Covered: 1/1/1968 through 1/1/2025

This policy topic covers laws mandating priority access to public and private substance abuse treatment for pregnant and postpartum women who abuse drugs.

Scientific research has shown that many drugs, both licit and illicit, when consumed during pregnancy, may result in miscarriage, premature birth, low birth weight, and behavioral and cognitive problems in infants. An infant may also be born dependent on certain drugs (Wendell, 2013).

State and Federal governments have established various policies in response to the risks associated with drug use during pregnancy. Among these are various arrangements to increase access to substance abuse treatment by pregnant and postpartum women. Such arrangements include State-run treatment services, funding for private providers, and mandates that such women receive priority for available treatment. This section of APIS addresses statutes and regulations mandating priority access to substance abuse treatment for pregnant and postpartum women who abuse drugs. Other measures designed to facilitate access to treatment by pregnant and post-partum women are beyond the current scope of APIS.

Explanatory Notes and Limitations Specifically Applicable to Pregnancy and Drugs: Priority Treatment

  1. Confidentiality of all types of medical records may be assured in Federal and State statutory, regulatory, and constitutional provisions separate from statutes and regulations related to priority access to treatment. APIS has coded only those confidentiality mandates that appear in connection with priority access to treatment provisions.
  2. APIS coding within the category "women with minor children" was based strictly on the wording of each individual statute and regulation for which this category is applicable. APIS did not make inferences that the mention of one subcategory of the variable (e.g. pregnant women, postpartum women, women with minor children) included any other subcategories.
  3. APIS collects legal provisions that either specifically refer to "prenatal substance abuse," "prenatal drug abuse" or to a condition that reasonably may be interpreted as referring to drug abuse (e.g., "substance abuse," "addictive drug," "drug of abuse").
  4. There is a possibility a jurisdiction may have enacted a statute or regulation on drug use during pregnancy and then repealed it before 1/1/2017. If this is the case, then it is possible that any such statute or regulation would not be included in this dataset. (Please see the "Overview of Pregnancy and Drugs Policy Topics," above, for more information.)

Explanatory Notes and Limitations Applicable to All APIS Policy Topics

  1. State law may permit local jurisdictions to impose requirements in addition to those mandated by State law. Alternatively, State law may prohibit local legislation on this topic, thereby preempting local powers. For more information on the preemption doctrine, see the About Alcohol Policy page. APIS does not document policies established by local governments.
  2. In addition to statutes and regulations, judicial decisions (case law) also may affect alcohol-related policies. APIS does not review case law except to determine whether judicial decisions have invalidated statutes or regulations that would otherwise affect the data presented in the comparison tables.
  3. APIS reviews published administrative regulations. However, administrative decisions or directives that are not included in a State's published regulatory codes may have an impact on implementation. This possibility has not been addressed by the APIS research.
  4. Statutes and regulations cited in tables on this policy topic may have been amended or repealed after the specific date or time period specified by the site user's search criteria.
  5. The operation or enforcement of statutes or regulations affecting the policies addressed on APIS may have been suspended or modified by executive or administrative orders issued in response to the COVID-19 pandemic. With the exception of the COVID-19 Digest and Dataset, APIS research does not address these orders or the effects they may have on the policies covered by APIS.
  6. Policy changes in APIS are presented as of the date these changes take effect as law. Users should be aware that in some situations there may be a delay between the effective date of a law and the time a corresponding policy change occurs in practice. Because APIS research is based entirely on primary legal source materials (codified statutes and regulations and, on rare occasions, published court opinions), APIS is unable to accurately determine when policy changes may appear in practice.
  7. If a conflict exists between a statute and a regulation addressing the same legal issue, APIS coding relies on the statute.
  8. A comprehensive understanding of the data presented in the comparison tables for this policy topic requires examination of the applicable Row Notes and Jurisdiction Notes, which can be accessed from the body of the table via links in the Jurisdiction column.

(Policies in effect on: 1/1/2025)

Our research identified Federal statutes and regulations that provide formula grants to States for substance abuse prevention and treatment. The grants include specific directives mandating priority services to pregnant women, including the minimum proportion of the grant allocation that must be used for these types of services.

It is important to note that the Federal formula grant funding to the States is passed through to counties; it is only facilities within counties that accept formula grant money that are required by Federal law to provide priority treatment to pregnant women. In addition, some States have enacted separate statutes and regulations mandating priority treatment to pregnant women in their States that supplement the Federal mandates. The specifics of those State statutes and regulations vary with regard to those who are mandated to provide priority treatment to pregnant women. These provisions are the focus of this APIS policy topic.

Federal provisions are excerpted below. The State provisions are available in the tabs for Data on a Specific Date and Changes Over Time as well as the Timeline of Changes, Maps and Charts, and Variables tabs.

 

FEDERAL CITATIONS AND RELEVANT TEXT EXCERPTS

42 U.S.C. § 300x–21

United States Code

Title 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 6A - PUBLIC HEALTH SERVICE

SUBCHAPTER XVII - BLOCK GRANTS

Part B - Block Grants Regarding Mental Health and Substance Abuse

Subpart ii - block grants for prevention and treatment of substance abuse

§ 300x–21. Formula grants to States

  • (a) In general
  • For the purpose described in subsection (b) of this section, the Secretary, acting through the Center for Substance Abuse Treatment, shall make an allotment each fiscal year for each State in an amount determined in accordance with section 300x–33 of this title. The Secretary shall make a grant to the State of the allotment made for the State for the fiscal year if the State submits to the Secretary an application in accordance with section 300x–32 of this title.
  • (b) Authorized activities
  • A funding agreement for a grant under subsection (a) of this section is that, subject to section 300x–31 of this title, the State involved will expend the grant only for the purpose of carrying out the plan developed in accordance with section 300x-32(b) of this title and for planning, carrying out, and evaluating activities to prevent, treat, and provide recovery support services for substance use disorders and for related activities authorized in section 300x–24 of this title.

42 U.S.C. § 300x–22

United States Code

Title 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 6A - PUBLIC HEALTH SERVICE

SUBCHAPTER XVII - BLOCK GRANTS

Part B - Block Grants Regarding Mental Health and Substance Abuse

Subpart ii - block grants for prevention and treatment of substance abuse

§ 300x–22. Certain allocations

* * *

  • (b) Allocations regarding women
    • (1) In general
    • Subject to paragraph (2), a funding agreement for a grant under section 300x–21 of this title for a fiscal year is that—
      • (A) in the case of a grant for fiscal year 1993, the State involved will expend not less than 5 percent of the grant to increase (relative to fiscal year 1992) the availability of treatment services designed for pregnant women and women with dependent children (either by establishing new programs or expanding the capacity of existing programs);
      • (B) in the case of a grant for fiscal year 1994, the State will expend not less than 5 percent of the grant to so increase (relative to fiscal year 1993) the availability of such services for such women; and
      • (C) in the case of a grant for any subsequent fiscal year, the State will expend for such services for such women not less than an amount equal to the amount expended by the State for fiscal year 1994.
    • (2) Waiver
      • (A) Upon the request of a State, the Secretary may provide to the State a waiver of all or part of the requirement established in paragraph (1) if the Secretary determines that the State is providing an adequate level of treatments services for women described in such paragraph, as indicated by a comparison of the number of such women seeking the services with the availability in the State of the services.
  • * * *
    • (C) Any waiver provided by the Secretary under subparagraph (A) shall be applicable only to the fiscal year involved.
    • (3) Childcare and prenatal care
    • A funding agreement for a grant under section 300x–21 of this title for a State is that each entity providing treatment services with amounts reserved under paragraph (1) by the State will, directly or through arrangements with other public or nonprofit private entities, make available prenatal care to women receiving such services and, while the women are receiving the services, childcare.

42 U.S.C. § 300x–27

United States Code

Title 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 6A - PUBLIC HEALTH SERVICE

SUBCHAPTER XVII - BLOCK GRANTS

Part B - Block Grants Regarding Mental Health and Substance Abuse

Subpart ii - block grants for prevention and treatment of substance abuse

§ 300x–27. Treatment services for pregnant women

(a) In general

  • A funding agreement for a grant under section 300x–21 of this title is that the State involved—
    • (1) will ensure that each pregnant woman in the State who seeks or is referred for and would benefit from such services is given preference in admissions to treatment facilities receiving funds pursuant to the grant; and
    • (2) will, in carrying out paragraph (1), publicize the availability to such women of services from the facilities and the fact that the women receive such preference.
  • (b) Referrals regarding States
  • A funding agreement for a grant under section 300x–21 of this title is that, in carrying out subsection (a)(1) of this section—
    • (1) the State involved will require that, in the event that a treatment facility has insufficient capacity to provide treatment services to any woman described in such subsection who seeks the services from the facility, the facility refer the woman to the State; and
    • (2) the State, in the case of each woman for whom a referral under paragraph (1) is made to the State—
      • (A) will refer the woman to a treatment facility that has the capacity to provide treatment services to the woman; or
      • (B) will, if no treatment facility has the capacity to admit the woman, make interim services available to the woman not later than 48 hours after the women 1 seeks the treatment services.

42 U.S.C. § 300x–31

United States Code

Title 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 6A - PUBLIC HEALTH SERVICE

SUBCHAPTER XVII - BLOCK GRANTS

Part B - Block Grants Regarding Mental Health and Substance Abuse

Subpart ii - block grants for prevention and treatment of substance abuse

§ 300x–31. Restrictions on expenditure of grant

  • (a) In general
    • (1) Certain restrictions
    • A funding agreement for a grant under section 300x–21 of this title is that the State involved will not expend the grant—
      • (A) to provide inpatient hospital services, except as provided in subsection (b) of this section;
      • (B) to make cash payments to intended recipients of health services;
      • (C) to purchase or improve land, purchase, construct, or permanently improve (other than minor remodeling) any building or other facility, or purchase major medical equipment;
      • (D) to satisfy any requirement for the expenditure of non-Federal funds as a condition for the receipt of Federal funds;
      • (E) to provide financial assistance to any entity other than a public or nonprofit private entity; or
      • (F) to carry out any program prohibited by section 300ee–5 of this title.
    • (2) Limitation on administrative expenses
    • A funding agreement for a grant under section 300x–21 of this title is that the State involved will not expend more than 5 percent of the grant to pay the costs of administering the grant.
    • (3) Limitation regarding penal and correctional institutions
    • A funding agreement for a State for a grant under section 300x–21 of this title is that, in expending the grant for the purpose of providing treatment services in penal or correctional institutions of the State, the State will not expend more than an amount equal to the amount expended for such purpose by the State from the grant made under section 300x–1a 1 of this title to the State for fiscal year 1991 (as section 300x–1a 1 of this title was in effect for such fiscal year).
  • (b) Exception regarding inpatient hospital services
    • (1) Medical necessity as precondition
    • With respect to compliance with the agreement made under subsection (a) of this section, a State may expend a grant under section 300x–21 of this title to provide inpatient hospital services as treatment for substance use disorders only if it has been determined, in accordance with guidelines issued by the Secretary, that such treatment is a medical necessity for the individual involved, and that the individual cannot be effectively treated in a community-based, nonhospital, residential program of treatment.
  • * * *
    • (4) Matching funds
    • The Secretary may grant a waiver under paragraph (1) only if the State agrees, with respect to the costs to be incurred by the State in carrying out the purpose of the waiver, to make available non-Federal contributions in cash toward such costs in an amount equal to not less than $1 for each $1 of Federal funds provided under section 300x–21 of this title.

* * *

42 U.S.C. § 300x–34

United States Code

Title 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 6A - PUBLIC HEALTH SERVICE

SUBCHAPTER XVII - BLOCK GRANTS

Part B - Block Grants Regarding Mental Health and Substance Abuse

Subpart ii - block grants for prevention and treatment of substance abuse

§ 300x–34. Definitions

For purposes of this subpart:

  • (1) The term “authorized activities”, subject to section 300x–31 of this title, means the activities described in section 300x–21(b) of this title.
  • (2) The term “funding agreement”, with respect to a grant under section 300x–21 of this title to a State, means that the Secretary may make such a grant only if the State makes the agreement involved.
  • (3) The term “prevention activities”, subject to section 300x–31 of this title, means activities to prevent substance use disorders.
  • (4) The term “substance use disorder” means the recurrent use of alcohol or other drugs that causes clinically significant impairment.
  • (5) The term “treatment activities” means treatment services and, subject to section 300x–31 of this title, authorized activities that are related to treatment services.
  • (6) The term “treatment facility” means an entity that provides treatment services.
  • (7) The term “treatment services”, subject to section 300x–31 of this title, means treatment for substance use disorders.

42 U.S.C. § 300x–53

United States Code

Title 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 6A - PUBLIC HEALTH SERVICE

SUBCHAPTER XVII - BLOCK GRANTS

Part B - Block Grants Regarding Mental Health and Substance Abuse

Subpart iii - general provisions

§ 300x–53. Additional requirements

* * *

  • (b) Patient records
  • The Secretary may make a grant under section 300x or 300x–21 of this title only if the State involved has in effect a system to protect from inappropriate disclosure patient records maintained by the State in connection with an activity funded under the program involved or by any entity which is receiving amounts from the grant.

45 C.F.R. § 96.131

Code of Federal Regulations

Title 45 - PUBLIC WELFARE

Subtitle A. Department of Health and Human Services

Subchapter A. General Administration

Part 96. Block Grants

Subpart L. Substance Abuse Prevention and Treatment Block Grant

§ 96.131. Treatment services for pregnant women

  • (a) The State is required to, in accordance with this section, ensure that each pregnant woman in the State who seeks or is referred for and would benefit from such services is given preference in admissions to treatment facilities receiving funds pursuant to the grant. In carrying out this section, the State shall require all entities that serve women and who receive such funds to provide preference to pregnant women. Programs which serve an injecting drug abuse population and who receive Block Grant funds shall give preference to treatment as follows:
    • (1) Pregnant injecting drug users;
    • (2) Pregnant substance abusers;
    • (3) Injecting drug users; and
    • (4) All others.
  • (b) The State will, in carrying out this provision publicize the availability to such women of services from the facilities and the fact that pregnant women receive such preference. This may be done by means of street outreach programs, ongoing public service announcements (radio/television), regular advertisements in local/regional print media, posters placed in targeted areas, and frequent notification of availability of such treatment distributed to the network of community based organizations, health care providers, and social service agencies.
  • (c) The State shall in carrying out paragraph (a) of this section require that, in the event that a treatment facility has insufficient capacity to provide treatment services to any such pregnant woman who seeks the services from the facility, the facility refer the woman to the State. This may be accomplished by establishing a capacity management program, utilizing a toll-free number, an automated reporting system and/or other mechanisms to ensure that pregnant women in need of such services are referred as appropriate. The State shall maintain a continually updated system to identify treatment capacity for any such pregnant women and will establish a mechanism for matching the women in need of such services with a treatment facility that has the capacity to treat the woman.
  • (d) The State, in the case of each pregnant woman for whom a referral under paragraph (a) of this section is made to the State—
    • (1) will refer the woman to a treatment facility that has the capacity to provide treatment services to the woman; or
    • (2) will, if no treatment facility has the capacity to admit the woman, make available interim services, including a referral for prenatal care, available to the woman not later than 48 hours after the woman seeks the treatment services.
  • (e) Procedures for the implementation of this section shall be developed in consultation with the State Medical Director for Substance Abuse Services.
  • (f) The State shall develop effective strategies for monitoring programs compliance with this section. States shall report under the requirements of § 96.122(g) on the specific strategies to be used to identify compliance problems and corrective actions to be taken to address those problems.

 

Source for all citations on this page: www.govinfo.gov/, a service of the U.S. Government Publishing Office (GPO). Excerpts from the United States Code are current as of 2024. Excerpts from the Code of Federal Regulations are current as of 2025. Excerpts from Public Laws of Congress are current as of the year of enactment. The GPO’s Public Domain & Copyright Notice is available at https://www.govinfo.gov/about/policies#copyright .

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