Cannabis Rescheduling & Pregnancy: Legal Risks Remain Despite Federal Shift

The landscape of cannabis legality in the United States shifted significantly in December with President Trump’s executive order to reschedule the drug from Schedule I to Schedule III under the Controlled Substances Act. This reclassification, acknowledging a currently accepted medical utilize and lower potential for abuse, signals a major departure from decades of strict prohibition. However, this evolving legal status presents a complex and often precarious situation for pregnant people, who may face scrutiny and even legal repercussions for cannabis use despite its increasing acceptance elsewhere.

Currently, the majority of Americans – approximately 74% – reside in a state where cannabis is legal for either medical or recreational purposes. Pew Research Center data shows this widespread availability. Yet, a troubling contradiction exists: even in these states, pregnant individuals are disproportionately reported to Child Protective Services (CPS) and may face criminal charges for using cannabis. As of 2024, 24 states legally define substance use during pregnancy as child abuse or neglect. A recent analysis details the varying state laws on this issue. Cases have emerged, such as one in New York, where newborns were removed from their mothers based solely on reported cannabis use. The New York Times reported on this case, highlighting the legal challenges faced by pregnant people.

The Disparity in Legal and Medical Approaches

This discrepancy is particularly stark when compared to alcohol use during pregnancy. Although the risks of alcohol exposure to a developing fetus are well-established and consistently tested for, cannabis use often draws more immediate and punitive attention from legal authorities. This difference isn’t necessarily rooted in a greater understanding of the risks posed by cannabis; rather, it reflects a complex interplay of legal frameworks, societal biases, and evolving perceptions of drug use.

Research indicates that these punitive policies disproportionately impact women of color, leading to delays in prenatal care and potentially worse outcomes for both mother and baby. A report from the Office of National Drug Control Policy details these disparities. Studies have also shown that fear of legal repercussions can cause pregnant people to avoid seeking necessary medical attention. Research published in JAMA Pediatrics supports this finding, demonstrating a link between punitive policies and reduced prenatal care. These policies can ultimately lead to poorer health outcomes for infants. A study in JAMA Network Open found a correlation between punitive policies and adverse infant health outcomes.

Uncertainty Surrounding Cannabis and Pregnancy

The scientific understanding of cannabis use during pregnancy remains incomplete. Some studies suggest potential risks, including lower birth weight and developmental issues, while others discover little to no significant effect. A study in JAMA Pediatrics explored these potential risks. These mixed results are likely due to variations in study design, cannabis potency, frequency of use, and other confounding factors. It’s crucial to recognize that correlation does not equal causation; observing an association between cannabis use and adverse outcomes doesn’t necessarily prove that cannabis *caused* those outcomes.

The reclassification of cannabis to Schedule III, as directed by President Trump’s executive order, may inadvertently exacerbate this situation. While intended to facilitate research and broaden access to medical cannabis, it could also lead to increased rates of cannabis use during pregnancy. Without a concurrent reevaluation of punitive policies, more pregnant people may find themselves subject to legal scrutiny and intervention.

Fetal Personhood Laws and Expanding Criminalization

The growing trend of states enacting fetal personhood laws further complicates the legal landscape. These laws grant legal rights to a fetus, potentially allowing state officials to interpret cannabis use during pregnancy as harm to a legal person, even if the substance is legally permissible for others. Pregnancy Justice US provides a comprehensive overview of fetal personhood legislation across the country. This could mean that even in states where cannabis is legal, pregnant people could face criminal or civil liability.

Clinicians, researchers, and professional organizations have increasingly questioned the ethics of mandated reporting and criminalization of pregnant people for substance use. Many argue that a public health approach focused on treatment and support is more effective than punitive measures. A recent publication in PubMed highlights the growing consensus among experts on this issue.

What Comes Next: Reforming Punitive Policies

The rescheduling of cannabis presents an opportunity to reevaluate and reform current drug laws and policies. A shift towards a more evidence-based approach, prioritizing stigma-free counseling and treatment over punitive measures, is essential. However, simply rescheduling cannabis without addressing the underlying legal and social inequities will likely result in a Pyrrhic victory – a win on paper that fails to deliver meaningful benefits in practice. State mandatory reporting laws that equate substance use with child abuse or neglect are not evidence-based and can cause real harm to pregnant people and their families. Without reform, expanded cannabis legality may paradoxically increase legal consequences for those who are pregnant, undermining the very public health goals rescheduling is meant to advance.

Lauren Micalizzi, Ph.D., is a maternal-child health researcher and assistant professor of behavioral and social sciences at Brown University School of Public Health. Elizabeth Tobin-Tyler, J.D., M.A., is a lawyer and professor of health services, policy, and practice at the Brown University School of Public Health and professor of family medicine and medical science at the Warren Alpert Medical School of Brown.