DRAFT 2/19/2012 9:13 PM For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

Office of Sen. Mike Johnston Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM HB 12-1100

Pregnancy and Evidence of Substance Use Rep. Summers & Rep. Aguilar

Staff Name: Kate Hennessy What the Bill Does: Under current Colorado Law, there are a number of designated professions whose members are mandated by law to file a report when there is reasonable cause to know or suspect that a child has been subjected to abuse. 1 However, because Colorado defines a child as someone who has been born, maternal substance abuse does not fit the definition of child abuse, and there is no mandatory reporting requirement. However, a referral may be made prenatally to the County Department of Health and Human Services and a needs assessment is encouraged in order to help the woman get access to counseling and treatment services. 2 HB 12-1100 prohibits a court in a criminal proceeding from admitting information obtained as part of tests to determine pregnancy or provide prenatal care, unless it is otherwise required under the mandatory reporting statute, C.R.S. 19-3-304. HB 12-1100 is not intended to prohibit prosecution of any action related to substance abuse based on evidence obtained through methods other than screening or testing. In short, under HB 12-1100 woman with substance abuse issues could seek prenatal care and treatment, but the test results would not be admissible in criminal proceedings against them. Colorado Context: According to HB 12-1100, among pregnant women 15 to 44 years of age, 4.4% reported current illicit drug use and 10.8% reported current alcohol use. In Colorado, an estimated 14.5% of pregnant women use alcohol during the third trimester of pregnancy. Across substances, use rates are highest among pregnant women 15 to 17 years of age, with approximately 15% reporting illicit substance use. National Context: In 2011 the U.S. Supreme Court held that it was unconstitutional for a public hospital in Charleston to use nine criteria to identify, target, test and report pregnant women for substance abuse. More specifically, the Court held that urine tests were “searches” within the meaning of Fourth Amendment, and that, as such, testing and reporting of positive test results for cocaine to police, were unreasonable searches absent the expectant mother’s consent. 3 However, this opinion left an important issue

1 C.R.S. § 19-3-304.

2 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).

DRAFT 2/19/2012 9:13 PM For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

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

4 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&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dprenatal%2520screening%2520drug%2520use%2520criminal%26source%3Dweb%26cd%3D3%26ved%3D0CDoQFjAC%26url%3Dhttp%253A%252F%252Fdigitalcommons.unl.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1187%2526context%253Dpsychfacpub%26ei%3D24k8T4HqAcje2AWDou2gCA%26usg%3DAFQjCNHl5LJDmMZm2LGnRahw4_sxujHS3A#search=%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.