What If I Fail a Drug Test While Pregnant? Drug Use & Pregnancy Laws

Drug abuse during pregnancy is a common occurrence, even in a first-world country like the United States. More than half of pregnant women take drugs in one form or another during their gestation. Beyond women who take street drugs while pregnant, this figure includes those who take social drugs like tobacco and alcohol, prescription medication, and over-the-counter cures. 

Women reliant on illicit substances need to seek addiction treatment right away; smoking marijuana or tobacco, using pain relievers, or using illegal drugs while pregnant increases the risk for stillbirth. According to estimates, approximately five percent of pregnant people use at least one addictive substance.

What’s more, regularly using certain drugs can lead to NAS or neonatal abstinence syndrome, a group of symptoms that manifest when the baby goes into withdrawal because of the drugs it had been exposed to before birth. 

Opioids, barbiturates, benzodiazepines, alcohol, and caffeine have all been shown to cause withdrawal symptoms. The severity of the infant’s symptoms depends on several factors. These include the type of drug, the mother’s metabolic rate, how long and how often the mother used, and whether the infant was born full-term or prematurely.

Drug Testing During Pregnancy

According to the American College of Obstetricians and Gynecologists (ACOG), the first prenatal visit should include a universal drug screen. However, it’s common for women not to give honest answers about their drug use, even while pregnant—there are plenty of risks related to full disclosure. 

According to the ACOG, “Urine drug testing has also been used to detect or confirm suspected substance use, but should be performed only with the patient’s consent and in compliance with state laws.” No hospital can test a patient for drug use without her agreement. However, newborn infants can be tested without the mother’s consent.

When a Pregnant Woman Fails a Drug Screen

In many states, the use of marijuana has been decriminalized, and more women report using it during gestation. Hospitals and healthcare workers have differing opinions on the use of cannabis while pregnant. This issue isn’t new—it’s been around since at least the late 1980s. 

Different states have different methods of dealing with prenatal substance use. For example, the Alabama and South Carolina Supreme Courts have ruled that substance abuse during pregnancy is criminal child abuse. What’s more, other states consider prenatal drug exposure as grounds for terminating parental rights due to child abuse.

In some states, pregnant women who use drugs undergo mandatory inpatient treatment and drug rehabilitation. In a number, healthcare professionals are required to report or test for prenatal drug exposure, and the findings of these tests can be included as evidence in child welfare hearings. Read on to know more about how certain states treat drug and substance abuse cases.

substance abuse during pregnancy laws
Drug Use During Pregnancy

California’s Laws on Drug Use during Pregnancy

In California, pregnant women do not get prosecuted for drug abuse while pregnant. However, they’re not entirely in the clear—in 2019, for example, a woman from the Hanford area was charged with murder because her stillborn child tested positive for methamphetamine.

Pregnant women with a history of substance abuse need to seek help from addiction recovery centers immediately. Substance abuse is neither grounds for civil commitment nor considered child abuse in California. Women addicted to drugs cannot be charged with child abuse or made to enter rehab against their will. However, the law requires doctors and licensed nurses to report positive drug test results in pregnant women and newborns.

According to Article 4 of the state’s Health and Safety Code, new mothers experiencing substance abuse should receive support and intervention. The hospital where the mother and child are admitted must perform a needs assessment before releasing both from the hospital and determine the level of risk to the newborn if released to the mother’s home.

Indiana’s Laws on Drug Use during Pregnancy

According to Indiana’s current statutes, feticide—the willful killing of a fetus—is a crime, and drug use during pregnancy could be considered feticide. This law has been in effect since 1979, and in 1992, the state amended it to include the killing of a fetus at any stage of gestation while committing another crime, such as domestic violence.

Substance abuse itself is not a crime in the state. Still, Indiana Code 35-42-1-5 says that “a person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide, a Level 3 felony.” 

In the state, women have been prosecuted for drug abuse during their pregnancy since it is considered an act of child abuse. A woman who tests positive for drug use while pregnant could also be committed for psychiatric evaluation. 

Women who fail a drug test or whose child tests positive at birth won’t automatically have their baby taken away from them—Indiana courts will look at other mitigating circumstances before factoring in the drug abuse.

Florida’s Laws on Drug Use during Pregnancy

In Florida, women have been persecuted for drug use while pregnant—women can be charged with child abuse because of their drug use. However, even if women can be charged with child abuse because of their substance abuse, they cannot be committed to a hospital or sent to an addiction treatment center against their will. 

There’s also no requirement for women to take a drug test while pregnant, and doctors and nurses are not bound by law to report a woman they suspect is taking drugs. That said, if a newborn baby does test positive, the state could remove custody from their parents.

New York’s Laws on Drug Use during Pregnancy

In New York, it is not a crime to use drugs while pregnant, though women have faced prosecution in the state due to substance abuse. State law does not consider drug use as child abuse, and in most cases, the state upholds the belief that pregnant women’s choices about their bodies should not have legal consequences.

What’s more, if healthcare workers suspect that a woman uses drugs while pregnant, they aren’t required to report it or take legal action. In New York, pregnant women struggling with addiction have the option to enter treatment programs designed for them, but they aren’t forced to enter these centers.

Texas’s Laws on Drug Use during Pregnancy

In Texas, pregnancy drug laws are not as cut-and-dry as in other states. The state considers drug use during pregnancy as child abuse—Section 22.041 of Chapter 22 of the state’s Penal Code discusses drug use and child abandonment or endangerment. However, according to Section 22.12, the laws in Chapter 22 do not apply to “an unborn child” and if “committed by the mother of the unborn child.”

What’s more, civil commitment is not mandatory for pregnant women, according to Texas law. This rule applies to medication, therapy, or treatment—however, parents or legal guardians can commit minors. Commitment is also possible if a court rules that patients cannot decide for themselves or handle their affairs.


Generally speaking, pregnant people should not use any type of drug unless necessary because these substances could harm the fetus. Many substances can pass through the placenta, so any drugs the woman takes will also reach the fetus. Women who are addicted to drugs and are pregnant should seek treatment immediately.