Hennepin County Attorney Mary Moriarty today announced a new policy that would end the criminalization of pregnancy for people struggling with substance use.
Under the new policy, the Hennepin County Attorney’s Office will no longer criminally charge people who engage in drug use during pregnancy. Any pending cases will be dismissed. While state law doesn’t currently allow prosecutor-led expungement in these cases, the HCAO will support a petition for expungement made by people who were previously charged. This new policy is effective immediately.
“Drug use during pregnancy is a serious concern. But criminalizing pregnancy makes no sense because it causes the very harm it seeks to prevent. Instead of stopping people who struggle with addiction from using drugs, punitive policies make them afraid to seek the crucial prenatal care, health care, and drug treatment they need,” said Hennepin County Attorney Mary Moriarty. "This office is changing the way we handle these cases to treat addiction as a health issue to encourage people to seek care and keep infants and parents safe.”
“Drug addiction is not a crime, but it is criminalized when a person is pregnant. Pregnant people shouldn’t be treated differently under the law,” said Deputy Hennepin County Attorney Sarah Davis, who directs the HCAO’s Children and Families Division.
“In my clinical role caring for pregnant people with substance use disorders, this change will be instrumental in optimizing care for patients and their pregnancies. I very much support reducing criminalization of a medical condition in pregnancy, and I know that this allows more patients to feel comfortable coming to prenatal care appointments, which reduces the chance of adverse outcomes for the birthing person and the pregnancy,” said Dr. Cresta Jones, an associate professor at the University of Minnesota Medical School who specializes in high-risk pregnancy care, and also co-chairs the Minnesota Maternal Mortality Committee.
“We applaud the Hennepin County Attorney's Office for this crucial step towards dismantling racial disparities in our justice system,” said the chair of the Minnesota House Black Maternal Health Caucus, Rep. Esther Agbaje (DFL-Minneapolis). “According to the National Library of Medicine, in the last five decades, the number of women behind bars in the United States has risen exponentially. It is now estimated that there are nearly 58,000 pregnant people — disproportionately women of color — sent to jails and prisons each year.
“This policy prioritizes the health and well-being of birthing people and their newborns. By focusing on harm reduction and treatment rather than punishment, we can create a safer environment for all families. We urge other counties to follow Hennepin County's lead and implement similar progressive policies,” Agbaje said.
Research shows:
- Pregnant people who fear charges and incarceration are less likely to seek substance abuse treatment and prenatal care, which can lead to poor outcomes. Untreated opioid use disorder can destabilize a pregnancy and lead to complications such as low birth weight, preterm labor, fetal distress, and death.
- A 2019 study shows that states with punitive policies have higher rates of neonatal abstinence syndrome (NAS - problems associated with withdrawal). NAS went up significantly within a year after these state laws were enacted, and even more after that.
- Criminalizing pregnancy has a disproportionate impact on low-income communities, particularly people of color, who areless likely to receive medication for opioid use disorder. Factors impeding access to care include stigmatization by providers, punitive policies, lack of childcare, employment and transportation.
- Separating an infant and parent carries a high cost for both. States with policies criminalizing substance use during pregnancy have higher rates of foster care, and families are less likely to reunify. Minnesota has a shortage of treatment beds that allow a parent to stay with their newborn, and we need to increase those services across the state.
- It's impossible to separate poor outcomes related to prenatal substance abuse from poor nutrition, health care, domestic violence, trauma and more.
“In our work to improve pregnancy outcomes and parental health at the Legislature, we know that receiving prenatal care is one of the most important aspects of a healthy pregnancy, for parent and baby,” said Sen. Lindsey Port, founder and co-chair of the Reproductive Freedom Caucus (DFL-Burnsville). “I'm pleased that HCAO will no longer be criminalizing addiction during pregnancy, which will increase the likelihood that pregnant people will access the care they need to have safe, healthy pregnancies. We must work together at all levels of government to create better health outcomes for Minnesotans, including pregnancy and addiction, and I'm grateful for County Attorney Moriarty's partnership.”
Gender Justice Legal Director Jess Braverman: “Punitive measures and coercion only serve to strip pregnant people of their bodily autonomy, jeopardize pregnancy outcomes, and make families less safe. The Hennepin County Attorney’s Office is taking a positive step towards decriminalizing pregnancy and dismantling the health care to prison pipeline.”
Rebecca Shlafer, associate professor, University of Minnesota Medical School, Division of General Pediatrics and Adolescent Health: "Pregnant people who use drugs need care and treatment. This policy rightly shifts the focus away from criminalization and punishment to treatment and support - this is simply better policy for parent and baby,”
The American College of Obstetricians and Gynecologists (ACOG), the National Perinatal Association, the American Society of Addiction Medicine and the American Nurses Association (ANA) are among the prominent medical organizations that oppose criminal legal action against pregnant people because of substance use disorders.
Hennepin County Attorney Mary Moriarty serves as chief executive of Minnesota’s largest public law office. Moriarty manages a staff of more than 500 people, setting policies and priorities for prosecuting criminal cases, overseeing child protection and child support cases, and providing legal advice and representation to county government. The office is dedicated to protecting public safety and creating a more just and equitable system through transparency and accountability.
*Sources
Improving Access to Care for Pregnant and Postpartum People with Opioid Use Disorder: Recommendations for Policymakers, AMA and Manatt Health, https://end-overdose-epidemic.org/wp-content/uploads/2024/02/AMA-Manatt-2024-Improving-Access-to-Care-Pregnant-Parenting-People-with-SUD.pdf
The Criminalization of Pregnancy Outcomes: Fetal Personhood and Substance Use During Pregnancy – University of Cincinnati Law Review Blog (uclawreview.org)
Association of Punitive and Reporting State Policies Related to Substance Use in Pregnancy With Rates of Neonatal Abstinence Syndrome | Pediatrics | JAMA Network Open | JAMA Network (November 13, 2019, JAMA Network)
Substance Use and Substance Use Disorder Among Pregnant and Postpartum People (asam.org)
Pregnant People With Substance Use Disorders Need Treatment, Not Criminalization | National Institute on Drug Abuse (NIDA) (nih.gov)
5 keys to prevent opioid overdoses during pregnancy and postpartum | American Medical Association (ama-assn.org)
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