Pregnancy: New Mexico Supreme Court Strikes Down Law Criminalizing Drug Use By Mothers-To-Be

In a case that pitted hard-nosed legislators and prosecutors against an array of women's rights, public health, medical, and drug reform groups, the New Mexico Supreme Court ruled May 11 that a state law expanding criminal child abuse laws to include drug use by pregnant women was unconstitutional. In a summary opinion, the state high court upheld a state Court of Appeals decision that reached the same conclusion.

The ruling came in the case of Cynthia Martinez, who was charged with felony child abuse in 2003 after her newborn child tested positive for cocaine. Under the law in question, she was charged with "permitting a child under 18 years of age to be placed in a situation that may endanger the child's life or health" by ingesting illicit drugs while pregnant.

While the state argued that a pregnant woman who is addicted to drugs should be sent to jail as a felony child abuser, both the appeals court and the state Supreme Court disagreed. During oral arguments, the justices appeared to be particularly concerned about issues raised in an amicus curiae brief submitted by the Drug Policy Alliance and National Advocates for Pregnant Women on behalf of nearly three dozen other leading medical and public health organizations, physicians, and scientific researchers. The justices repeatedly mentioned the DPA/NAPW brief and expressed grave concerns about the deterrent effect such prosecutions would have on women seeking prenatal care.

Such rulings are critical to avoid criminalizing poor women, said NAPW staff attorney Tiloma Jayasinghe. "Making child abuse laws applicable to pregnant women and fetuses would, by definition, make every woman who is low-income, uninsured, has health problems, and/or is battered who becomes pregnant a felony child abuser," she explained. "In oral argument, the state's attorney conceded that the law could potentially be applied to pregnant women who smoked."

Szczepanski said, "I hope that this case serves as a reminder that pregnant women who are struggling with drug use should be offered prenatal care and drug treatment, not prosecution. There are better ways to protect our children in New Mexico, and ensure that future generations will be safe and healthy."

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How about a link to the

How about a link to the ruling?

New Mexico Has a long way to go...

I am currently living in New Mexico. I just gave birth to a healthy but premature baby. The hospital she's still staying at in Albuquerque wants to drug test me for marijuana. The head nurse told me that marijuana kills brain cells and who knows what it could do to a rapidly growing brain such as my daughters. They have even threatened to drug test her. The head nurse also said that should I come up positive for marijuana that I would be reported to CYFD. Strangly enough, The Recommended Guidelines for a Community Standard of Neonatal Drug Testing, is against drug testing infants unless they show signs of neonatal abstinence syndrome, neonatal seizures, and a few other reasons that would suggest the child's life or health was in serious jeapordy. My child has none of these issues, in fact, my child has no issues at all. Also, the guidelines suggest that CYFD not be contacted unless the parents seem uncapable of raising their child. All of my nurses have commented on what a great mother I am. How does any of this make sense? Check out "Prenatal Marijuana Exposure and Neonatal Outcomes in Jamaica: An Ethnographic Study." This study shows that infants exposed to heavy marijuana usage actually do better by one month of age than infants not exposed to marijuana. It would seem that regardless of fact, propaganda is much more readily used by those in the healthcare field.


I am a nurse licensed here in New Mexico, I believe that there is medicaid available to women who are pregnant providing them with access to prenatal care free of charge. In fact many addicted mothers have prenatal care, but many do not choose to receive it. I don't believe the issue is whether there is prenatal care available to this women but rather the well-being of the children that are born addicted. Only a person who has seen a newborn child withdraw soon after birth truly understands why these women should be charged with some sort of child abuse. I think that one solution to this issue is giving women an incentive to get birth control such as an IUD or even to have a tubal ligation. Too many times women who give birth to one addicted child come back and have 3 or 4 more addicted children. Also, too frequently these children go home with their parents only to be exposed again to the same drugs they were exposed to while in the uterus. Unless you work in the medical field delivering babies or you're a social worker for CYFD, you do not understand this. This is a fact that I have experienced over and over again. I believe that something needs to be done and that includes charging women who deliver babies and are positive for drugs with child abuse.

There is a big difference

There is a big difference between marijuana and cocaine.

Pregnancy and Drug Use

"Only a person who has seen a newborn child withdraw soon after birth truly understands why these women should be charged with some sort of child abuse."

I am also a nurse licensed here in New Mexico. The withdrawal symptoms experienced by a newborn that was habitually exposed to certain drugs occur because of physical dependence. Only certain drugs can cause physical dependence period. Marijuana is not one of those drugs. Drugs that can cause dependence in humans and withdrawal symptoms in the newborn are: opioids, alcohol, barbiturates, benzodiazepines, methamphetamine, and cocaine.


"Studies conducted by the Substance Abuse Epidemiology Unit of the New Mexico Department of Health from 1990-1996 demonstrated that among women submitting a urine specimen for pregnancy testing, 20% indicated use of marijuana in the four weeks before presenting to the clinic. 2.8% had used methamphetamine, 3% cocaine, and 0.9% opiate drugs. For legal drug use, 40% had used ethanol and 45% had used tobacco."


The supreme court's ruling just prevents women from being charged with child abuse based on a positive drug test alone. It does not provide immunity for these women from being charged with abuse or neglect if there is evidence of abuse or neglect, it simply does not allow a drug test alone to suffice for evidence of abuse/neglect. Any case where the mother tests positive for drugs and the newborn suffers actual newborn withdrawal symptoms is carefully monitored and quickly referred to CYFD who will conduct an investigation.

pregnancy and drug use

what if the father is not using drugs and they were never married? will he have a chance to get custody later. Will it help his case if the mother and newborn tested positive at delivery? for example my friend had a daughter with his x and she used heroine during her whole pregnancy and for almost a year after, she finally got on methadone. one day she just deserted him and moved in with her mother. he started documenting the money he gave her, saving copies of the checks and made sure the said child support on them. one day he received a summons. the mother applied for food stamps and lied, saying she wasn't receiving child support. He agreed to pay, but now she wont let him see his daughter. he filed for joint custody and she wants him to be drug tested and refuses to let him see his little girl, who turns 4 tomorrow.

Testing positive during pregnancy

What are the consequences of someone who tested positive once for weed during pregnancy?

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