Ohio Court Overturns Conviction of Pregnant Woman for Drug Use

The Ohio case is part of a growing nationwide movement to manipulate the law to punish pregnant women for personal drug use.

Hundreds of people in Dayton, Ohio, marched on May 14, 2022, two weeks after the Supreme Court decision that eventually overturned Roe v. Wade was leaked. (Whitney Saleski / SOPA Images / LightRocket via Getty Images)

An Ohio court of appeals unanimously overturned a pregnant woman’s conviction under the state’s “Corrupting Another with Drugs” law earlier this month, in a rare post-Dobbs win for the rights of pregnant people.

Extensive evidence shows criminalizing pregnant women for substance abuse endangers them and jeopardizes their babies’ well-being. Even still, prosecutors in Ohio—and elsewhere—have increasingly sought to “protect” fetuses by prosecuting pregnant women for their actions, manipulating state laws initially passed to protect pregnant people themselves from harm.

The Ohio case involved Tara Hollingshead, who voluntarily admitted to using fentanyl while in labor at an Ohio hospital. Prosecutors took the aggressive step of charging Hollingshead under an Ohio law that dictates no person shall “by any means, furnish or administer a controlled substance to a pregnant woman or induce or cause a pregnant woman to use a controlled substance, when the offender knows that the woman is pregnant or is reckless in that regard.”

The move marks the first time that Ohio prosecutors used this law to prosecute a pregnant person for the personal use of controlled substances. Prosecutors made the novel argument that, even though the law is entitled “Corrupting Another with Drugs,” the law was applicable to pregnant people who administered the drugs to themselves. A jury had previously convicted Hollingshead of a first-degree felony in April 2022, sentencing her to a mandatory eight to 12 years in prison.

Hollingshead appealed her conviction, arguing that the law was misapplied to criminalize pregnant people who were never intended to be covered under the law. The three-judge panel agreed, holding that personal drug use was outside the scope of the law and that the prosecutor’s interpretation of the statute was unreasonable, as it requires “use of the terms administer, furnish, induce and cause in ways that are inconsistent with common usage.” Further, the prosecutor’s interpretation would make Hollingshead both an offender and simultaneously a victim, thus entitled to restitution from herself, which the court acknowledged would be an “absurd result.”

Prosecutor Ron Welch vowed to appeal the ruling: “We were hoping that by use of this law we could be able to limit some of the mothers that continually have drug-addicted babies.” He also called on lawmakers to “untie” law enforcement’s hands, since the “laws that we have in place right now just are not good enough.”

Mahathi Vemireddy—a legal fellow at Pregnancy Justice, a nonprofit organization dedicated to defending pregnant people against criminalization and other deprivations of their rights—sees the case differently.

“The local prosecutors have twisted the plain language of the Ohio law to brazenly criminalize a pregnant person,” she said. “The only purpose of these prosecutions is to punish and shame people for their drug use and assert control over them through incarceration and family separation. They’re unfortunately set on perpetuating stigma that is reminiscent of the racist, misogynistic and completely unfounded panic surrounding the so-called ‘crack baby epidemic.’ If unchallenged, this blatant misapplication of the law will lead to worse health outcomes for pregnant people, postpartum people, and their babies.”

The medical community unequivocally agrees that the criminalization of pregnancy harms pregnant people and their babies. Several state and national organizations, including the American Medical Association, and maternal, fetal and neonatal health experts, urged an overturn of Hollingshead’s conviction, arguing that the misapplication of the criminal code went against evidence-based scientific research and public health recommendations. Research shows that fear of arrest and imprisonment can deter pregnant people from disclosing information about drug use to healthcare providers or pursuing prenatal care, which leads to unhealthier pregnancies. Treating substance use as a medical condition, not as grounds for imprisonment, improves pregnancy outcomes and helps to protect babies.

Whether someone faces poverty, racism, or lacks healthcare access is a far better indicator of their pregnancy outcome than anything a pregnant woman does or does not do during pregnancy.

Mahathi Vemireddy

The Ohio case is part of a growing nationwide movement to use the law to punish pregnant women for personal drug use. Over 50 women have been prosecuted for child neglect and manslaughter for using drugs while pregnant since 1999. Fetal homicide laws, passed in 38 states to punish those who commit acts of violence against pregnant people, are used to establish fetal personhood and prosecute or otherwise deprive pregnant people of their rights. And Alabama’s chemical endangerment laws are being used to arrest and imprison pregnant women and could be used to target people for medication abortions.

“This push to shame and criminalize drives pregnant people away from seeking compassionate, evidence-based medical care,” said Vemireddy. “It’s irresponsible to continue to perpetuate stigma against pregnant people dealing with substance use disorders and their children. There is no scientific evidence that prenatal exposure to opioids is associated with birth defects or other long-term adverse health outcomes for the child. The idea that prenatal exposure to drugs will forever harm children is inaccurate and harmful to those children. Whether someone faces poverty, racism, or lacks healthcare access is a far better indicator of their pregnancy outcome than anything a pregnant woman does or does not do during pregnancy.”

Though prosecutors have vowed to appeal the ruling vacating Hollingshead’s conviction, the Ohio court’s decision could help slow the march towards criminalizing pregnant people. At a minimum, it puts the four similar prosecutions in Ohio on hold until the matter is thoroughly adjudicated. But if authorities in Ohio truly want to secure improved pregnancy outcomes and healthier babies, time and money would be better spent providing medical and other support for pregnant people—drug-addicted or otherwise—rather than on criminal justice interventions.

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Michelle Onello is an international human rights lawyer and senior legal advisor at the Global Justice Center, a nonprofit organization that uses international law to advocate for gender equality and reproductive rights.