Lawmakers reject bill to criminalize drug use while pregnant

The Wyoming Legislature’s Joint Judiciary Committee will not sponsor legislation to make some kinds of drug use while pregnant a felony. The bill was modeled after failed legislation from the 2022 session that classifies methamphetamine or certain narcotic drug use by a pregnant woman as child endangerment. 

The original bill was intended to ensure both the safety of the parent and the fetus, according to committee member Rep. Ember Oakley (R-Riverton), who sponsored the bill last session. 

However, most of those who spoke at Monday’s committee meeting opposed the bill, arguing that such a punitive approach will only discourage prenatal care. 

“Criminalizing these moms has been shown to not make babies safer, but rather it harms babies,” Dr. Louisa Mook with Indian Health Services told lawmakers. “The research backing this up is so strong that every medical society with expertise in maternal child health explicitly recommends against any policy that criminalizes moms for substance use.”

Others said better data is needed to find an effective solution. Wyoming is among the small number of states that does not require hospitals to report when infants are exposed to controlled substances, so no comprehensive data is available. 

That data gap concerned lawmakers during the 2022 session and contributed to the measure’s failure in the Senate. It continued to plague lawmakers at Monday’s committee meeting. Despite most of the committee voting in favor of sponsoring the bill — 7-5 with two excused — it failed due to the joint rules of the House and Senate. 

In order for a joint standing committee to sponsor legislation, the bill must be supported by a majority of each chamber’s committee members. All but three of the committee’s House members — Reps. Karlee Provenza (D-Laramie), Mike Yin (D-Jackson) and Dan Zwonitzer (R-Cheyenne) supported it. However, only one of the committee’s five senators voted in favor. Sens. John Cooper (R-Ten Sleep) and R.J. Kost (R-Powell) voted against it, while Sens. Tim French (R-Powell) and Tara Nethercott (R-Cheyenne) were excused. French was absent from the entire meeting and Nethercott was not present for the vote. 

While the bill will not have the support of the committee during the upcoming session, an individual or a group of lawmakers could still introduce it. Committee-sponsored bills historically have higher chances of passage.

The bill and its precursors 

Oakley works as a prosecutor in the Fremont County Attorney’s office and said a 2005 case from her jurisdiction inspired the original bill. In that case a district court judge dismissed charges against a woman whose newborn child had tested positive for methamphetamine because the state’s child endangerment laws do not apply to a fetus. 

The bill would change that by creating a new child endangerment felony and would be the only of its kind in the country. 

Tennessee passed a similar law in 2014, but the state allowed it to sunset two years later when it was proven to cause significant harm to families, according to Lauren Wranosky with the National Advocates for Pregnant Women, who testified remotely at the committee meeting. 

Wranosky pointed lawmakers to one study that found the Tennessee law resulted in an additional 20 fetal deaths and 60 infant deaths during the year following its enactment, partly because it discouraged prenatal care.  

Current requirements and options

Without a statutory requirement to report in Wyoming, it is up to hospitals and doctors to decide whether to report exposed or addicted infants, according to Korin Schmidt, director of the Wyoming Department of Family Services. When such a report is made, removal authority lies with law enforcement or medical professionals, who may consult with DFS. 

In 2021, there were 113 known cases involving 115 infants being born in Wyoming with some degree of exposure to controlled substances, according to Schmidt. Of those, 57% involved marijuana, 47% involved meth and 8% involved opioids. Thirty-seven of those cases resulted in children being placed in foster care. 

The bill considered only concerns methamphetamine and narcotic use while pregnant, but Dr. Mook told the committee heavy alcohol use is a bigger concern. Mook is a pediatrician at Indian Health Services in Ft. Washakie and also sees patients at SageWest Lander Hospital. Most of her hospital work is newborn nursery care, which involves high risk deliveries and stabilizing sick infants.

“I worry most about my alcohol-exposed patients. Alcohol impacts or ‘pickles’ the entire brain,” she said. “There are decades of research supporting this and even a medical diagnosis called fetal alcohol spectrum disorder.” The long term impact of opiate and methamphetamine exposure in utero is less clear, she added.

While Mook opposed the bill, she told lawmakers she would support mandatory reporting that would involve notifying DFS in the case of a known exposure. 

Currently, another option available after a report is made is a “plan of safe care,” which is a written post-discharge plan meant to ensure the safety of the infant by addressing the health and substance use treatment needs of both the infant and its parent or caregiver. 

A 2016 federal mandate requires the state to establish policies and procedures for identifying infants with prenatal substance exposure on a local level, according to Schmidt. The mandate also requires the state to develop plans of safe care and to report infants with prenatal substance exposure data. 

The pandemic delayed that work, according to Stefan Johansson, director of the Wyoming Department of Health, but there’s been a “renewed conversation.” 

“I’m committed to making sure that the Department of Health, Public Health Nursing is at the table. I know my folks in those offices want to do this work. It does come down to some capacity issues and some policy decisions on my part of how to operationalize it,” Johansson said. 

The Joint Labor, Health and Social Services Committee is also considering how to address substance abuse among parents. In August, that committee moved forward with a bill to extend postpartum medicaid coverage from approximately 60 days to a year, which advocates say could ensure new mothers receive substance use treatment.