Pregnancy and Cannabis Use: Protecting Cannamoms

The question I keep getting from clients is how they can continue using cannabis medicinally while pregnant? The answer is far more complex than one would imagine. Here we are, growing legalization and sweeping the nation with gradual normalization of cannabis usage. More and more people are being prescribed cannabis for an entire host of health problems. Obesity, anorexia, emesis, hyperemesis gravidarum, pain, opioid addiction, multiple sclerosis, glaucoma, anxiety, depression & neuroprotection, to name a few. However, when it comes to maternal use, the laws have not gotten the memo.

Many states require health professionals to report maternal use (Alabama, Alaska, Arizona, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Montana, North Dakota, Oklahoma, Rhode Island, South Carolina, & Virginia). Maternal use is considered child abuse in many states (Alabama, Arkansas, Colorado, Florida, Illinois, Indiana, Iowa, Louisiana, Minnesota, Nevada, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia & Wisconsin) Several states have no laws at all regarding usage. While that may seem better, it's not. It means that healthcare providers can make the call whenever they see fit. Cannabis legality of the state has no bearing on the laws regarding maternal usage, even if you have a medical marijuana card. So many birthing persons may continue use thinking that what they are doing is legal and their newborn is tested upon birth, prompting a CPS investigation. Many would say "well don't tell your doctor, then." Unfortunately, it's not that simple. Source

Pregnant individuals are often drug tested during pregnancy without even knowing a test was performed. The consent to drug test may be hidden in their fine print for treatment, they may coerce you into a test with a false sense of security (why should you distrust your provider, after all?), or they may drug test you without your consent. This, in fact, is illegal. The supreme court ruled that hospital workers could not test pregnant women for illicit drugs without their informed consent or a valid warrant. This was after a 10 year legal battle by some women in Charleston. The Supreme Court ruled that the facts of the women's pregnancy and of possible danger to their fetuses through use of illegal drugs did not change their basic constitutional rights. Justice John Paul Stevens said for the court majority that the hospital's test to get evidence of a patient's criminal conduct was an unreasonable search if the patient had not consented. Source

It is important to know more about what "informed consent" is. For this, we will examine the Pregnant Person's Bill of Rights.

"Many pregnant clients are not fully aware of their right of informed consent or of the obstetricians' legal obligation to obtain their patient's informed consent before treatment. The American College of Obstetricians and Gynecologists (ACOG) first publicly acknowledged the physician's legal obligation to obtain his or their pregnant patient's informed consent in its 1974 publication, Standards for Obstetric Gynecologic Services, (pg. 66-67)

which reads:

"It is important to note the distinction between 'consent' and 'informed con-

sent.' Many physicians, because they do not realize there is a difference,

believe they are free from liability if the patient consents to treatment. This

is not true. The physician may still be liable if the patient's consent was not

informed. In addition, the usual consent obtained by a hospital does not, in

any way, release the physician from his legal duty of obtaining an informed

consent from his patient.

"Most courts consider that the patient is 'informed' if the following infor-

mation is given:

• The processes contemplated by the physician as treatment, including

whether the treatment is new or unusual.

• The risks and hazards of the treatment,

• The chances for recovery after treatment.

• The necessity of the treatment.

• The feasibility of alternative methods of treatment.

"One point on which courts do agree is that explanations must be given in

such a way that the patient understands them. A physician cannot claim as a defense that he explained the procedure to the patient when he knew the patient did not understand. The physician has a duty to act with due care under the circumstances; this means he must be sure the patient understands what she is told."

Read the entire Pregnant Patient's Bill of Rights here

Newborns are not protected under this bill and may be tested for THC upon birth via cord testing, meconium testing, or urine testing; completely without the mother's consent. Their newborn is more likely to be tested if they are considered "at risk", reported use to their provider, or the mother tested positive during pregnancy. Testing can trace back up to 24 weeks gestation. "At risk" can mean anything from maternal history of smoking cigarettes to racial bias of the provider.

So, as you can see, the ways in which many birthing persons end up drug tested during pregnancy VIOLATE their bill of rights and federal laws. Therefore, the situation only gets stickier. Medical providers violate our autonomies all the time, so what can we do? Who do you report these violations to? Who is willing to fight for your rights? Who will a judge side with? Will they consider you drug a addict and dismiss? Cannabis is still federally illegal, so will you be reprimanded in reporting these violations against you? The questions remain. Medical professionals largely do not get held accountable for breeching the rights of patients. Most complaints go in and out the other of the ears of those who can do anything about it.

So, how do you protect yourself from a visit from CPS?

One thing you can do is find a cannabis friendly doula. A cannabis friendly doula can help you find providers that are judgment free or cannabis friendly. It is important to have a healthy support system when choosing medicinal use of cannabis during pregnancy and postpartum.

Another way to protect yourself is refuse drug testing while pregnant. You can inform your provider that you do not consent to any unnecessary testing such as drug testing. You should request that all tests being performed on you be reported to you via writing. It is important to note this is not a method that is fool proof. Providers may violate these promises or test on the basis of "risk". It should be noted that some states have a law for "risk based newborn testing".

You may decide to discontinue use no later than 24 weeks. Meconium and cord testing can trace back to 24 weeks gestation. Urine testing can trace back to 32 weeks gestation. This method is very good in case the you are tested positive during pregnancy (with or without consent), if you reported use to their provider, or if you were considered "at risk" by the medical staff. This way, if the newborn is tested, they will not test positive.

A great way to avoid the majority of the obstacles is having a home birth. You can continue having prenatal check ups with whatever provider you prefer and avoid newborn testing all together if you birth at home. Not all birthing persons are good candidates for home births, so you should be sure to check with your provider that you are not considered "high risk". This method is also a good way to avoid unnecessary interventions and hospital violations against your rights. Home births can be done with a home birth midwife or they can be unassisted. With COVID-19, more and more parents are opting for home births to avoid separation between you and baby, exposure to COVID, and restrictions on guests.

A cannabis friendly birthing center may be a good option if you want to avoid a hospital but are not keen on a home birth. I recommend you anonymously call ahead and ask what their drug testing policies are. You can also check with your cannabis friendly doula to see if they have experiences with your local birth center regarding newborn drug testing and cannabis tolerance policies. Birth centers are generally more open minded about alternative medicines and birth choices.

The final method I recommend is CBD. CBD has lots of medicinal benefits similar to THC. CBD, however, is federally legal and does not show up on a drug test because it is not something they are screening for. CBD is not as powerful as good ole THC, but it may be a good alternative for anxiety, depression, appetite stimulation, and hyperemesis.

Not down for any of the recommendations I provided? That's totally okay! You can opt not to continue cannabis consumption at first finding out you are pregnant. There is not nearly enough testing to distinguish the potential outcomes of maternal use, so it's totally understandable that you may choose this avenue. After all, it's your body, your choice.