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Pregnancy and Drugs

Reporting Requirements

Laws addressing requirements to report indicators or evidence, such as results from screening or toxicological testing of women or infants, of drug use or abuse by women during pregnancy.

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About This Policy: Pregnancy and Drugs: Reporting Requirements

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 addressing requirements to report indicators or evidence, such as results from screening or toxicological testing of women or infants, of drug use or abuse by women during pregnancy.

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. This section of APIS addresses State and Federal laws concerning requirements to report suspicion or evidence of drug use or abuse by women during pregnancy. Evidence may consist of results from screening and/or toxicological testing of pregnant women or toxicological testing of infants after birth. Jurisdictions with reporting requirements differ with respect to whether reporting is mandatory or discretionary. Jurisdictions also vary based on who must report and the purpose of reporting. With respect to the latter, some jurisdictions require reporting for data-gathering purposes. Others use the information to refer women for assessment and treatment of drug problems or to refer cases to child welfare agencies for determination of the best interests of children born to women who used or abused drugs during pregnancy.

One jurisdiction takes a different approach to reporting the results of medical tests during pregnancy. As of July 1, 2016, Indiana mandates that, unless ordered by a court, no physician, physician assistant, certified direct entry midwife, or advanced practice nurse may release the results of a pregnant woman’s medical tests to a law enforcement agency. This statute includes the results of urine tests, blood tests, or verbal screening or questioning about drug abuse.

As a result of the Federal Child Abuse Prevention and Treatment Act (CAPTA) and its amendment, the Comprehensive Addiction and Recovery Act of 2016 (CARA), both discussed below, jurisdictions that have received Federal grant funding under CAPTA and CARA have, in the last several years, added statutes and regulations to bring their codes into compliance with the mandates of the Federal law.

Explanatory Notes and Limitations Specifically Applicable to Pregnancy and Drugs: Reporting Requirements

  1. 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").
  2. If a State law provides for a report or notification that could lead to an investigation by the State’s child protection or child welfare agency resulting in a child welfare proceeding, the law is collected for purposes of the Referral to Child Welfare Agency variable.
  3. If a State law provides for a report or notification to a State department for purposes of assessment or treatment of the infant, the infants' parents, or immediate caregivers (e.g. as part of a Plan of Safe Care), the law is collected for purposes of the Referral for Assessment and/or Treatment variable, as long as the law can reasonably be interpreted as applying to the woman’s conduct during pregnancy (for this purpose, references to terms such as “infant”, “newborn,” or “child born affected by” are sufficient). If the law relates only to treatment for the woman/mother/parent/caregiver, or the infant, and the context does not apply to the woman’s conduct during pregnancy, the law is not collected.
  4. APIS does not code legal provisions that impose no affirmative duty to report a woman who uses drugs during pregnancy but nevertheless imposes a duty on relevant governmental agencies or personnel to conduct an investigation into a woman's drug use or abuse if a report is received.
  5. With respect to the Data Gathering variables (presented for both Mandatory and Discretionary provisions), a check mark is used for States that require or allow collection of statistical data on drug use or misuse during pregnancy for inclusion in aggregate statistical datasets. A checkmark is not given for provisions that allow or require data collection for other purposes (e.g., reports of individual data for the purpose of referring individual women to social services or to criminal or civil legal proceedings), or where the context does not specifically apply to the mother’s drug use during pregnancy.
  6. 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)

On December 20, 2010, the President signed a law (amending 42 U.S.C. § 5106a), that reauthorized and amended the Child Abuse Prevention and Treatment Act (CAPTA), codified at 42 U.S.C. ch. 67, subchapters I, III, V. This law, as amended by the Comprehensive Addiction and Recovery Act of 2016 (CARA) (PL 114-198, July 22, 2016, 130 Stat 695), provides Federal grant money to improve State child protection services. Under the law, States that seek CAPTA funding are required to submit a plan that contains requirements relating to health care workers’ duty to report to child welfare agencies infants born with substance abuse or withdrawal symptoms resulting from prenatal drug exposure for purposes of referral for assessment and/or treatment.

Relevant portions of these statutes appear below.

 

FEDERAL CITATIONS AND RELEVANT TEXT EXCERPTS

42 U.S.C. § 706

United States Code

Title 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 7 - SOCIAL SECURITY

SUBCHAPTER V - MATERNAL AND CHILD HEALTH SERVICES BLOCK GRANT

§ 706. Administrative and fiscal accountability

  • (a) Annual reporting requirements; form, etc.
    • (1) Each State shall prepare and submit to the Secretary annual reports on its activities under this subchapter. Each such report shall be prepared by, or in consultation with, the State maternal and child health agency. In order properly to evaluate and to compare the performance of different States assisted under this subchapter and to assure the proper expenditure of funds under this subchapter, such reports shall be in such standardized form and contain such information * * * as the Secretary determines (after consultation with the States) to be necessary * * * . Copies of the report shall be provided, upon request, to any interested public agency, and each such agency may provide its views on these reports to the Congress.
    • (2) Each annual report under paragraph (1) shall include the following information:
    • * * *
      • (B) Information on the status of maternal and child health in the State, including—
      • * * *
        • (ii) information (on a State-wide basis) on—
        • * * *
          • (VI) the proportion of infants born with drug dependency,
  • * * *
    • (3) The Secretary shall annually transmit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Finance of the Senate a report that includes—
    • * * *
      • (C) based on information described in paragraph (2)(B) supplied by the States under paragraph (1), a compilation of the following measures of maternal and child health in the United States and in each State:
      • * * *
        • (ii) Information on—
        • * * *
          • (V) the proportion of infants born with drug dependency,

* * *

42 U.S.C. § 5106a

United States Code

Title 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 67 - CHILD ABUSE PREVENTION AND TREATMENT AND ADOPTION REFORM

SUBCHAPTER I - GENERAL PROGRAM

§ 5106a. Grants to States for child abuse or neglect prevention and treatment programs

* * *

  • (b) Eligibility requirements
  • * * *
  • (2) Contents
  • A State plan * * * shall contain a description of the activities that the State will carry out using amounts received under the grant to achieve the objectives of this subchapter, including--
  • * * *
  • (B) an assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes--
  • * * *
  • (ii) policies and procedures (including appropriate referrals to child protection service systems and for other appropriate services) to address the needs of infants born with and identified as being affected by substance abuse or withdrawal symptoms resulting from prenatal drug exposure, or a Fetal Alcohol Spectrum Disorder, including a requirement that health care providers involved in the delivery or care of such infants notify the child protective services system of the occurrence of such condition in such infants, except that such notification shall not be construed to--
  • (I) establish a definition under Federal law of what constitutes child abuse or neglect; or
  • (II) require prosecution for any illegal action;
  • (iii) the development of a plan of safe care for the infant born and identified as being affected by substance abuse or withdrawal symptoms, or a Fetal Alcohol Spectrum Disorder to ensure the safety and well-being of such infant following release from the care of health care providers, including through-- (I) addressing the health and substance use disorder treatment needs of the infant and affected family or caregiver; and (II) the development and implementation by the State of monitoring systems regarding the implementation of such plans to determine whether and in what manner local entities are providing, in accordance with State requirements, referrals to and delivery of appropriate services for the infant and affected family or caregiver;
  • (iv) procedures for the immediate screening, risk and safety assessment, and prompt investigation of such reports; * * *

* * *

 

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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