Lawmakers narrowly reject criminal penalties for drug use while pregnant; experts prefer Plans of Safe Care

A local lawmaker’s attempt to criminalize controlled substance use while pregnant was narrowly defeated this month after a state committee heard overwhelming testimony against it.

Wyoming Rep. Ember Oakley, R-Riverton, had reintroduced the legislation in May after it failed to pass in the Wyoming Legislature during this year’s session.

When the Joint Judiciary Committee considered the proposal as a bill draft this month, five people spoke strongly against it, including a Fremont County physician and a representative from the Northern Arapaho Tribe.

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Opposition

Louisa Mook, a pediatrician for Indian Health Services in Fort Washakie and SageWest Health Care at Lander, said the criminalization bill would end up harming babies, because it would keep pregnant people from seeking prenatal care.

“It will stop them from going to the doctor, because they will be afraid of going to jail or being fined,” Mook said.

They won’t seek addiction treatment either, clinical social worker Laura Schmid-Pizzato said, citing a study from Vanderbilt University’s Center for Child Health Policy that says “states (with) the most restrictive, punitive policies for mothers during their pregnancies … actually will have more infants born with drug withdrawal symptoms than states that don’t have those same policies.”

If the goal is to see babies born “safe and not addicted,” with “moms who are going to take care of (them),” then the criminalization bill is “doing the opposite of what it’s intending to do,” Schimd-Pizzato said.

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Northern Arapaho Business Council representative Travis McNiven pointed out that the criminal charges themselves also create “challenges” related to “education, employment and housing opportunities down the road, when hopefully better decisions are being made.”

“The Northern Arapaho Tribe is opposed (to this bill),” he said. “(It’s) a barrier to prenatal health.”

A similar law was implemented in Tennessee in 2014, but it was allowed to “sunset” two years later “because it was proven to cause significant harm to families” – including an increase in fetal and infant deaths, according to Lauren Wranosky with the National Advocates for Pregnant Women.

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Plans of Safe Care

Instead of criminalizing pregnant people, Mook suggested Wyoming focus on improving its Plans of Safe Care.

The program is part of the federal Comprehensive Addiction Recovery Act, which was passed in 2016 in response to a “substantial increase” in substance use nationwide, Wyoming Department of Family Services director Korin Schmidt said.

The federal law requires states to “look at developing policies and procedures” to help identify parents who are “pregnant and using,” Schmidt said, then “intervene with those parents so we can get them into the services they need.”

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Currently, she explained, physicians in Wyoming are not required to notify DFS when infants are born exposed to controlled substances, so doctors only tend to call the agency “if they have concerns of abuse or neglect or maltreatment or immediate harm.”

“So, you could potentially have a parent that has been suspected to have smoked marijuana or ingested marijuana, (and) the child may turn out to be positive for marijuana – but that in and of itself may not result in a DFS action,” Schmidt said.

Under Plans of Safe Care, by contrast, physicians are directed to notify DFS whenever infants test positive for drugs so the agency can offer resources to families on a voluntary basis, even in cases where the doctor hasn’t deemed it necessary to take protective custody of the child.

Some committee members wondered whether new parents struggling with addiction would agree to voluntary treatment, but Mook reiterated that Plans of Safe Care are alternatives to protective custody in cases of drug-exposed babies – and “every time I’ve even discussed taking protective custody of an infant, the mother is full of remorse, grief and shame and is very willing to enter (the program) if it means keeping her baby.”

“With addiction … people say that until (they’ve) hit rock bottom they’re not going to be actually ready to make change,” Mook said. “When they’re about to have their baby taken from them, that’s a rock-bottom moment. (It) can be a huge wakeup call for women struggling with addiction.”

Close vote

When public comment on the criminalization bill was closed, the committee was silent, with no one making a motion to vote on the bill.

After about 15 seconds, the meeting chair said, “Going once, going twice.”

Another 15 seconds passed after that before Wyoming Rep. Rachel Rodriguez-Williams, R-Cody, finally moved the bill, with a second from Oakley.

The roll call vote began with Wyoming Sen. Ed Cooper, R-Ten Sleep, who voted “no” along with four other committee members.

Oakley and six other lawmakers voted “yes,” so the overall tally was 7-5 for the bill – but the majority of senators on the committee did not vote in favor, so the legislation failed to progress.

The Judiciary Committee’s next meeting is scheduled to take place Nov. 10 in Cheyenne.

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