When a pregnant woman abuses drugs or alcohol, it could endanger her, her pregnancy, or her baby. Some states have decided that the best way to prevent this danger is to pass laws that make prenatal substance abuse the same as criminal child abuse. This can result in loss of parental rights and loss of child custody. 
The belief behind these laws is that punishment will make women less likely to use drugs or alcohol and unborn children will be protected. Legal punishment is also based on the belief that substance abuse is a moral failing.  Unfortunately, there is no evidence to support any of these beliefs. In fact, there is a lot of evidence that these laws put woman and babies at greater risk. That has not stopped lawmakers from trying. [2,3]
As of 2018, 24 states consider prenatal substance use to be child abuse. Twenty-three states require health care professionals to report suspected prenatal drug use. Three states (Minnesota, South Dakota, and Wisconsin) mandate involuntary commitment to a mental health facility or treatment center. 
The Case Making Prenatal Substance Use a Crime
The first point is that these laws do not work. They do not reduce prenatal substance use. [2,3] Second, according to every major medical society, substance abuse is not a moral choice, it is a long-term, relapsing, biological disease, just like high blood pressure or diabetes. [2,3] Here are the other reasons why criminalizing prenatal drug abuse is a truly bad idea: [2,3]
- Women may avoid prenatal care because they are afraid of being reported and punished. They may not trust their caregivers if they know that their caregivers are required to report them to child protective services. A mountain of evidence shows that prenatal care prevents the harm that can occur from substance abuse. It reduces the risk of premature birth and low-birthweight.
- These laws are discriminatory and unevenly applied. They are more likely to be used against low income and pregnant women of color. In Indiana, mandatory reporting only applies to women on Medicaid. Some states include alcohol and some don’t. Some states don’t include other drugs like marijuana or amphetamines.
- All studies show that the safest thing for a pregnant woman addicted to an opioid drug is not to suddenly stop the drug. Withdrawal can cause loss of the pregnancy. The safest thing for the baby and the mother is to maintain the mother on methadone right through pregnancy. This can’t happen if the woman is afraid to report her drug use and maintain her prenatal care.
If you are pregnant and you are using drugs or alcohol, you need to let your health care provider know. Prenatal substance abuse treatment can keep you and your baby safe. The good news is that while some states have tried to legislate against prenatal substance abuse, 19 states have created state-funded drug treatment programs for pregnant women. [1,2]
In almost every case, your health care provider is on your side.  If you are afraid to ask for help because of your states laws, you can get information and support from the Substance Abuse and Mental Health Services Administration (SAMHSA). The SAMHSA National Helpline is 1-800-662-HELP. Their website is https://www.samhsa.gov/find-help/national-helpline.
The American College of Obstetricians and Gynecologists committee opinion on legal system involvement in prenatal substance abuse is very clear. They urge their members to work with any state legislators to repeal laws that criminalize prenatal drug abuse. They state that these laws do not work, deter women from seeking prenatal care, and are contrary to the health of both mother and baby. 
These statements are echoed by the American Psychiatric Association, American Academy of Addiction Psychiatry, and the American Medical Association.  This is not a close call. It is not a matter for debate. Making drug use or alcohol use during pregnancy a crime is just a really bad idea. [2,3]
- Guttmacher Institute, Substance Use During Pregnancy.
- American College of Obstetricians and Gynecologists, Committee Opinion.
- American Journal of Psychiatry, Perinatal Substance Abuse: At the Clinical Crossroads of Policy and Practice.