It’s called the Central Registry and Lindsay R.’s name will be on it for up to 25 years, along with countless Arizona parents accused of abusing or neglecting their children. Her addition to the list cost her a social work job and could disqualify her from getting dozens of others.
Her offense? She used medical marijuana with a prescription, in a state where it’s legal, while she was pregnant—to counter the effects of a dangerous condition that causes excessive vomiting.
“At the beginning [I was fighting] for personal reasons: I want to keep my job; I don’t want it on there that I neglected him,” Lindsay told The Daily Beast as she battles to clear her name. “Now it’s become a fight for everyone else, so no one else has to go through this shit again. Because no one should have to.”
The criminalization of drug use during pregnancy is not a new issue: The nonprofit National Advocates for Pregnant Women has documented more than 1,000 arrests of women for drug use during their pregnancy between 2006 and 2020. But the rapid expansion of legal marijuana has created a legal gray area in which women like Lindsay can face consequences for using a drug that is entirely legal in their state.
The NAPW is currently investigating several cases in which pregnant women were charged with felonies for using marijuana in a state where it is legal, according to Executive Director Lynn Paltrow.
“We are definitely seeing cases, in both the criminal and civil context, in which pregnancy is the excuse to override approval of access to marijuana,” Paltrow said. “We don’t know at this point whether we can say there is an increase, but we are certainly seeing too much of it.”
Lindsay told The Daily Beast she’d been using medical marijuana to treat her chronic irritable bowel syndrome since 2010, when it was legalized in Arizona. When she became pregnant in 2018, she says her OBGYN advised her to wean off of it. And Lindsay tried, she says, until she developed hyperemesis gravidarum—a rare condition that causes severe nausea, vomiting, weight loss, and, in extreme cases, pregnancy loss. Most days, Lindsay says she was so nauseated she struggled to keep three square meals down; she was twice admitted to the emergency room for emergency hydration. She was afraid she would miscarry because she couldn’t keep her developing fetus fed. So, she says, she “went to the medication that I knew helped me.”
The science on marijuana use during pregnancy is mixed. Major health-care groups like the American Council of Obstetricians and Gynecologists caution against it, saying it could cause a disruption in brain development and premature birth, among other issues. But a recent review of 40 studies on the subject concluded that the current evidence “does not support an association between prenatal cannabis exposure and clinically relevant cognitive deficits.” A major study on the health effects of cannabis published by the National Academies of Sciences, Engineering, and Medicine in 2017 found a link between cannabis use and low birth weights, but “limited, insufficient, or no evidence” for other, more severe outcomes.
Arizona law, meanwhile, does not specifically bar pregnant women from using cannabis. In fact, when legislators introduced a bill doing so in 2016, it was shot down by local activist groups. Arizona child neglect statutes also exempt newborns who are born exposed to substances like marijuana if the substance was prescribed to the mother as part of a medical treatment. And the 2010 Arizona Medical Marijuana Act specifically states that medical marijuana use should not be taken as evidence of child neglect, unless its use presents an “unreasonable danger to the safety of the minor.”
At the time of her pregnancy, Lindsay worked at the Department of Child Services, where she says she was trained to treat medical marijuana just like any other prescription drug. (DCS declined to comment on the specifics of this case.) She said she had several friends who used cannabis during their pregnancies without issue, and she successfully renewed her medical marijuana card even after disclosing her pregnancy. (Paperwork her doctor signed during the visit asserted that he had “addressed the potential dangers to fetuses caused by smoking or ingesting marijuana while pregnant.”)
But Lindsay had a difficult delivery, and her baby was admitted to the NICU for several days due to “jitteriness,” strep throat, and bleeding in his brain. While he was there, someone ordered a substance exposure test. It came back positive for cannabis, triggering an emergency call to DCS.
The tests also came back positive for Buspar—Lindsay’s prescribed anti-anxiety medication—Benadryl, and caffeine. A DCS specialist assigned to review the case admitted she did not talk to Lindsay’s doctors about whether the other substances may have caused his health problems, nor did she know the possible side effects of any of them on a fetus. Investigators found Lindsay “polite, calm, and cooperative,” and noted that she “express[ed] love and empathy to her child.” Despite some clutter in her home and concerns about Lindsay’s mental health, the investigator found “no current assessment of impending danger.” Both Lindsay and her husband agreed to regular drug testing, and Lindsay says she did not smoke for three months after.
Still, shortly after returning from the hospital, Lindsay learned that DCS would be entering a finding of neglect in her case, based on the fact that she “prenatally exposed the child to marijuana.” For 25 years, the department told her, she would be listed in its Central Registry—a confidential list of Arizonans known to have mistreated children. Inclusion on the list can show up on background checks and disqualify applicants for jobs with children and vulnerable adults—exactly the kind of job Lindsay, a social worker, wanted to land. On top of all that, DCS told Lindsay it had no choice but to fire her due to the findings in her case.
“That was pretty emotional to deal with,” Lindsay recalled. “I found out my case was going to be substantiated and then I lost my job immediately.”
In court filings, DCS said Lindsay’s procurement of a medical marijuana card was not enough to prove the substance was a medical treatment administered to her by a doctor, as local child abuse law requires. Investigators also noted that Lindsay did not tell several of her doctors or the hospital she was smoking pot—something Lindsay readily admits to, saying she was worried about the stigma her drug use carried.
That’s the problem with policies that penalize mothers for drug use, according to Samantha Lee, a staff attorney for NAPW: They tend to backfire. Punitive drug use policies can make pregnant people wary of seeking out medical help—for both themselves and their children. A study released in February found Tennessee’s “fetal endangerment” law had a “statistically significant, negative impact on fetal and infant health,” while a 2019 study found that policies meant to prevent pregnant women from drinking alcohol actually led to an increase in low birth weights and preterm births. Threatening a new mother’s employment—say, by putting them on a child neglect registry—can lead to economic instability, which is widely known to have negative health effects on children.
Cases like Lindsay’s, Lee said, “really exacerbate the harm down the line—not only for this family, but for families that will see this case and be afraid to take advantage of their health care for fear of this type of longstanding impact on their family stability."
That hasn’t stopped many states from penalizing—and even prosecuting—mothers for using cannabis while pregnant. A 2015 investigation by ProPublica found nearly 500 new and expectant mothers were prosecuted under Alabama’s “chemical endangerment” law between 2006 and 2015; 20 percent of them had only used marijuana. The trend continues even when weed is legalized: Lee said the NAPW is currently investigating several cases in which mothers were accused of felony child abuse in Oklahoma, where medical marijuana was legalized in 2018.
To women’s rights advocates, the laws are not only bad public health policy, but an attack on pregnant people’s fundamental freedoms. By policing things like legal drug use, they argue, we make pregnant women a separate class of citizen with less autonomy over their own bodies.
“This is about the ability to make your own decisions during one of the most intimate, private moments of your life,” said Julie Gunnigle, an attorney with Arizona NORML who is representing Lindsay in her case. “The state has criminalized so much of pregnancy and reproduction... We will see women likely jailed in the near future if we don't fight back on this issue.”
Lindsay is fighting back in her own way, by appealing the DCS’s decision as many ways as she can. An administrative law judge sided with her in February of last year, but was overruled by DCS. The Arizona Superior Court sided with the department when Lindsay appealed that decision last year. Now, with Gunnigle’s help, she’s taking her case to the Arizona Court of Appeals—the last stop before the state Supreme Court.
Despite the backing of the NAPW and more than 40 other medical groups, experts, and advocates, Lindsay’s case will likely be long and grueling. One couple profiled by a local Arizona newspaper spent three years and more than $21,000 trying to get their names scrubbed from the DCS registry after their baby rolled off the bed while her father was fixing her bottle.
Gunnigle said she warned her client the case would be long and hard, and that COVID-related delays would make it even longer. But Lindsay didn’t even blink.
“She just said, ‘I’m down,’” Gunnigle recalled. “‘I don’t want this to ever happen to another mama ever again.’”