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HB 12-1100 Pregnancy and Evidence of Substance Abuse
HB 12-1100 Pregnancy and Evidence of Substance Abuse
Mike Johnston
Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864
C.R.S. 19-3-304. Colorado Department of Health and Environment: Provider Requirements, available at http://www.cdphe.state.co.us/pp/womens/PNPlusManual/Sections/Section6ProviderRequirements.pdf. 3 Ferguson v. City of Charleston, 532 U.S. 67 (U.S.S.C. 2001).
unresolved: Is a policy like the one used by the Charleston hospital unconstitutional per se, or could such a policy be modified so as to make it Constitutionally acceptable? For example, a less discriminatory policy that required all pregnant patients, or all pregnant patients having certain indisputable indicators of cocaine use, to be less problematic.4 In short, with approximately 1 million children each year are exposed to legal or illegal substances during gestation, 5 states have been under considerable pressure to develop constitutionally acceptable procedures for testing, and potentially prosecuting, pregnant women for drug use. The following is an overview of the national approach to screening pregnant woman for substance use: 6 - 15 states consider substance abuse during pregnancy to be child abuse under civil child-welfare statutes, and 3 consider it grounds for civil commitment. - 14 states require health care professionals to report suspected prenatal drug abuse, and 4 states require them to test for prenatal drug exposure if they suspect abuse. - 19 states have either created or funded drug treatment programs specifically targeted to pregnant women, and 9 provide pregnant women with priority access to state-funded drug treatment programs. - Only the South Carolina Supreme Court has upheld a conviction for child abuse when substance abuse occurs late in pregnancy. Bill Provisions: - Prohibits a court in a criminal proceeding from admitting information obtained as part of test to determine pregnancy or provide prenatal care, unless it is otherwise required under the mandatory reporting statutes. - Not intended to prohibit prosecution of any action related to substance abuse based on evidence obtained through methods other than screening or testing. Fiscal Impact: There is no fiscal impact associated with this legislation. 7
Brian H. Bornstein, Pregnancy, Drug Testing and the Fourth Amendment: Legal and Behavioral Implications, available at http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1187&context=psychfacpub&seiredir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dprenatal%2520screeni ng%2520drug%2520use%2520criminal%26source%3Dweb%26cd%3D3%26ved%3D0CDoQFjAC%26url%3Dhttp%25 3A%252F%252Fdigitalcommons.unl.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1187%2526context%2 53Dpsychfacpub%26ei%3D24k8T4HqAcje2AWDou2gCA%26usg%3DAFQjCNHl5LJDmMZm2LGnRahw4_sxujHS3A#s earch=%22prenatal%20screening%20drug%20use%20criminal%22 5 Chasnoff IJ, Anson A, Hatcher R, Stenson H: Prenatal exposure to cocaine and other drugs. Outcome at four to six years, The New York Academy of Sciences, 335-340 (1998). 6 Guttmacher Institute: State Polices in Brief, available at http://www.guttmacher.org/statecenter/spibs/spib_SADP.pdf. 7 Fiscal note, Ron Kirk (Jan. 17, 2012), available at http://www.leg.state.co.us/CLICS/CLICS2012A/csl.nsf/BillFoldersHouse?openFrameset.