Courts are set to decide if using the drug during pregnancy is a crime, even as a growing number of women in the state face prosecution.
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Amanda Aguilar’s ordeal seemed to be over.
The criminal case against her began after she delivered her youngest child in Ponca City, Oklahoma, a small town near the Kansas border, in 2020, and the baby tested positive for marijuana. Aguilar had been taking the drug to treat severe morning sickness during pregnancy. Medical marijuana is legal in Oklahoma, and she had a doctor-approved state license to use it. Her son was healthy at birth. But the hospital reported her to child welfare workers, who handed over her baby’s drug test results to police. Aguilar, whose case was featured in a 2022 story by The Marshall Project and The Frontier, was charged with felony child neglect.
This article was published in partnership with The Frontier.
In June, a judge in Kay County tossed out the charges against Aguilar, ruling there was no evidence that she broke state law. And that might have been the end of it.
But the local prosecutor was undeterred. He filed an appeal to reinstate the charges, arguing that Aguilar broke the law because the fetus growing inside her did not have its own, separate license to use medical marijuana. The Oklahoma Court of Criminal Appeals is expected to hear the arguments later this year in a case that could set a new legal precedent in Oklahoma on whether using medical marijuana during pregnancy is a crime — and potentially opening the door for more criminal cases.
The attorney for another woman charged with child neglect for using medical marijuana has asked for her trial to be delayed pending the Court of Criminal Appeals’ decision. The Oklahoma Supreme Court declined to hear a challenge to the charges against her. Her attorneys had argued that state law grants medical marijuana users immunity from prosecution.
A state lawmaker has proposed legislation to address a growing number of women in Oklahoma who face criminal charges for substance use during pregnancy. The bills would set up a new alternative court program for pregnant and postpartum people, and provide more government funding for treatment.
While judges and lawmakers debate the legality of medical marijuana use during pregnancy, more people in Oklahoma could find themselves subject to prosecution.
Voters in the state approved medical marijuana in 2018. In the six years since, the number of infants who tested positive for marijuana at birth climbed 78%, from 386 to 689 for the year ending in June 2023, according to data collected by state child welfare officials.
Oklahoma has a history of criminally charging women for using drugs during pregnancy. The Frontier reviewed hundreds of pages of police and court records to document more than 150 cases of women who were prosecuted in connection with drug use during their pregnancies over the past decade. Women have been charged even after giving birth to healthy babies.
Most of the cases The Frontier found involved women who took illegal drugs during their pregnancies. However, 17 women were prosecuted for marijuana, even though they had a state medical license to use it.
Nearly all the women charged with felony child neglect for medical marijuana accepted plea deals in exchange for probation with the possibility of having their cases eventually dismissed.
But in the rare instances when women have challenged the charges against them, the cases have collapsed. Judges in Kay County — which has had the most prosecutions for marijuana use during pregnancy — dismissed cases of at least five women in the past year after defense attorneys argued that medical marijuana is legal in Oklahoma and that the women hadn’t committed a crime.
The lawyers also argued that the drug tests the criminal charges hinged on were inadmissible in court because testimony about the results came from a child welfare worker instead of an expert from the toxicology laboratory that performed them. The child welfare worker who testified in Aguilar’s case couldn’t answer some basic questions about the test, such as who gathered samples and the chain of custody for those samples.
The prosecutor, Kay County District Attorney Brian Hermanson, did not respond to requests for comment. In court, he has argued that Oklahoma law gives a fetus the same rights as any other person.
“While you have a license to smoke marijuana, you don’t have a license to give marijuana to a third person,” Hermanson said at a hearing in Aguilar’s case in June. “This child is a third person.”
A detective from the local police department testified in Aguilar’s case in August 2022, though he had never questioned her. He got a statement from the child welfare caseworker and looked over the positive drug test and a copy of the state medical marijuana license that she emailed him. But didn’t gather any other evidence, according to his testimony in court, because he said the records indicated that Aguilar had committed a crime.
“I didn't feel there was a need,” he testified.
State law stipulates that health care workers treat every infant exposed to drugs in the womb as a case of potential abuse or neglect and report positive drug tests to child welfare authorities.
In Aguilar’s case and three others that were later dismissed, child welfare workers closed their investigations without removing children from the home, according to court records. In two of the cases, the caseworkers also testified the children were found to be healthy and not in danger. But they still reported the positive drug tests to law enforcement because they believed the mothers may have committed crimes by taking drugs during pregnancy, even if there was no longer a need for the child welfare system to intervene.
Aguilar kept custody of her son. He has since grown into an energetic, bright preschooler who argues with his brothers and sisters over whose turn it is to play video games, she said. Aguilar says he’s strong-willed like her.
The prosecutor in Aguilar’s case told The Frontier and The Marshall Project in previous interviews that he wanted to use criminal charges to “stop the cycle” of drug use through court-ordered parenting classes and requiring mothers to undergo screenings for substance-use disorder.
But criminal charges are not an effective way of connecting mothers to drug treatment, and end up punishing the poorest mothers, said Wendy Bach, a law professor at the University of Tennessee, who has studied women who were prosecuted for substance use during pregnancy.
“The idea is to scare people straight,” Bach said. “But over and over and over again, not only does it fail, the system itself harms children and families.”
Because most women plead guilty in exchange for lighter sentences, the state rarely has to prove these neglect cases before a judge or jury. Child neglect carries a potential life sentence in Oklahoma. Women charged for using illegal drugs like methamphetamine have been sentenced to prison time.
Most of the women who face criminal charges are poor. In about 70% of the cases The Frontier examined, the women were appointed a public defender because they couldn’t afford a lawyer.
Women who don’t accept plea deals are taking a risk, said Aguilar’s court-appointed attorney, Thomas Griesedieck.
“I would have to sit down with anybody and say, ‘If this goes in front of a jury, they could sentence you to life in prison,’” he said.
But Aguilar refused to back down. She said she never considered accepting a plea agreement and instead asked Griesedieck to challenge the charge.
“I'm going to fight this simply because I didn't do anything wrong,” she said. “I didn't harm my son.”
In her small city in mostly rural northern Oklahoma, the local police department doesn’t collect its own samples to send to the state crime laboratory before women are charged. The cases hinge on stool gathered from newborns by workers at the local hospital in Ponca City and sent to a private toxicology laboratory in Minnesota. Traces of marijuana can show up in a newborn’s first stool months after a mother’s last use.
It’s common for child welfare workers to share newborn drug test results with the Ponca City Police Department, which often sends those reports to the local district attorney’s office without any additional investigation by officers, said Don Bohon, who was chief of police until mid-February, when he became deputy city manager.
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The caseworkers sometimes also share information gathered from their interviews with mothers, Bohon said. Aguilar admitted to a child welfare caseworker that she used medical marijuana during her pregnancy, and said she was unaware that information would be used in a criminal case against her.
Oklahoma Human Services, the state’s child welfare agency, can refer cases to law enforcement but doesn’t have the authority to investigate crimes, the agency said in written responses to questions.
Hermanson, who has prosecuted dozens of women in Kay County, wants to review every report of a positive drug test to determine whether criminal charges are warranted, Bohon said.
Medical experts, including the American Academy of Pediatrics, advise against using marijuana during pregnancy. Research is limited, but some studies have shown links between cannabis and low birth weight and effects on children’s attention span, memory and problem-solving skills later in life. Other studies have found a lack of definitive evidence that marijuana can cause development problems, because women who use marijuana during pregnancy are also more likely to smoke cigarettes or drink alcohol.
Some doctors say marijuana poses little risk to a fetus. Dr. Peter Sinton, a Kay County pediatrician, said he believes Oklahoma's mandatory reporting requirements for health care providers are too broad and that women shouldn’t be prosecuted for using marijuana during their pregnancies.
“I take care of lots of these little babies. Some of them are now three years old since medical marijuana has been around, and they're all fine,” he said. “There's no issue. It's all wasted time and money.”
A 2016 federal law, the Comprehensive Addiction and Recovery Act, directs states to ensure that health care workers notify child protective services about newborns affected by prenatal substance exposure, including legal drugs. The federal law requires states to develop plans to keep the infants safe and connect families to services. But there is no requirement for states to open child abuse investigations in every case or report to law enforcement, according to federal officials.
Some states have wrongly interpreted the federal law to mean that health care workers must report all drug-exposed newborns to child protective services as abuse or neglect, said Margaret Lloyd Sieger, professor of social work at the University of Connecticut.
“It’s inconsistent with the spirit of the policy, which is really about supporting the health and treatment needs of these families and not entangling them with the child protection system if there’s no safety issue,” she said.
Caseworkers use the referrals from health care workers to evaluate children’s safety and help connect parents to treatment and other services, Oklahoma Human Services said in response to questions.
The criminal cases can impose heavy burdens on families. Aguilar is a single mom who cares for her five biological children and her youngest son’s half-brother in a three-bedroom home in Ponca City.
She said the criminal charge was emotionally devastating and made it hard for her to find work to support her family.
Aguilar previously had a license to work as a certified nursing assistant. She wanted to go back to school to become a registered nurse, but the criminal case put those plans on hold, she said.
She cleaned houses and eventually found work at a medical marijuana dispensary.
She is still waiting for an appeals court to rule on her case.
“At least at the end of the day, I will say that I fought this all the way,” Aguilar said. “That is why I'm doing this. You don't get to call me a bad mom.”
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