Medical Cannabis Use While Pregnant Doesn’t Constitute Child Neglect, Appellate Court Rules
Authorized patients who consume medical cannabis while pregnant cannot be criminally prosecuted for child neglect, according to a ruling handed down last week by the Oklahoma Court of Criminal Appeals.
The Court’s majority determined that the felony crime of child neglect only applies to instances where a child is exposed to “illegal drugs.” Justices opined that the use of cannabis, when authorized by state-licensed physicians, does not meet the statutory definition of an illegal drug.
The medical use of cannabis has been legal in Oklahoma since 2018.
“The terms ‘controlled dangerous substance’ and illegal drugs are not synonymous,” justices wrote. “The former includes hundreds of prescription drugs which, like marijuana, are lawful to possess only with a prescription or other legal authorization. … It is undisputed that [the defendant] had one. … Hence, … an expectant mother’s licensed possession and use of medical marijuana would not trigger an automatic finding of neglect for failure to protect her unborn child from exposure to illegal drugs because to her, marijuana, is not an illegal drug.”
They concluded: “Like it or not, in Oklahoma, marijuana, like all of these other controlled substances, may now be either a legal or an illegal drug, depending upon whether a person has legal authorization to possess and use it. … For us to find that [the defendant’s] marijuana use, fully authorized by her medical marijuana card, became illegal due to her pregnancy, would require us to rewrite the statute in a way we simply do not think is appropriate for courts to do.”
Two justices dissented in the case.
The majority’s opinion is consistent with that of a recent Arizona Appellate Court ruling, which similarly determined that a pregnant mother’s physician-authorized use of marijuana did not meet the statutory definition of child neglect. That decision was ultimately upheld by the Arizona Supreme Court.
In recent years, prosecutors in Alabama and Oklahoma have pursued criminal prosecutions of several women for engaging in the use of cannabis during their pregnancy.
