Since Dobbs, Idaho mothers increasingly accused of child abuse while pregnant • Idaho Capital Sun

Idaho has not prosecuted anyone under its near-total abortion ban, passed by state lawmakers in 2020 and enacted just two months after the Dobbs decision took away the constitutional right to abortion in June 2022. But public records show that Idaho officials are deploying Dobbs and state policy protecting “preborn children” as legal rationales to allege that mothers abused or neglected their children before giving birth. 

Attorneys, physicians and pregnant patients worry that this interpretation of state and federal law, along with prosecutors’ use of personal medical information, is previewing the ways Idaho may decide to more vigorously enforce its abortion laws. Though the Biden administration has taken steps to protect abortion access and medical privacy, including suing Idaho over its abortion law regarding medical emergencies, a second Donald Trump presidency could put those federal efforts at risk. 

200+ women faced criminal charges over pregnancy in year after Dobbs, report finds

“To me, it looks like they’re testing the waters in terms of, ‘What are the legal challenges going to look like?’” said Jay Logsdon, the state’s head public defender for North Idaho. “The main thing has been going after moms for using drugs while they were pregnant.”

While charging mothers and putting them on the registry for substance use while pregnant has been happening in Idaho for well over a decade, Logsdon said he’s seen more prosecutors seeking prison time in these cases in Kootenai County. That’s something he said would almost “never happen” before. Research indicates that prosecuting people for using drugs while pregnant is not an effective way to improve the health of mothers and babies.

Pre-Dobbs, from 2006 to June 2022, at least five Idaho mothers were convicted of crimes relating to substance use during pregnancy, according to data provided by Pregnancy Justice, a national nonprofit that provides legal defense for pregnant people. 

In less than two and a half years following Dobbs, at least another five mothers have already been convicted of misdemeanor or felony injury to child for using illegal drugs while pregnant, according to an InvestigateWest review of Department of Health and Welfare reports, court records and over 50 police reports from across the state. 

One case was in Kootenai County and four were in Bannock County, after mothers gave birth at the Portneuf Medical Center in Pocatello and tested positive for drugs including methamphetamines, amphetamines and fentanyl. Idaho authorities’ interpretation of the same “injury to child” statute has long been controversial, but for a different reason: It has protected parents who use “faith healing” instead of medical treatment on children, even if it results in a child’s death.

In the last several years, Idaho has added hundreds of women like Calli to its central registry for using drugs while pregnant, sometimes even when child welfare workers noted that the baby appeared healthy and the parents were attentive. The number of people on the registry for prenatal substance use grew 45% between March 2021 and 2024, from 1,955 to 2,843, according to Idaho Department of Health and Welfare records released in an ongoing federal lawsuit.

Those mothers are designated as posing a medium to high risk to children, and are put on the registry for a minimum of 10 years. They must petition to remove their names once those years are up. Only 26 people were removed from the list during that time period, according to the department’s records. 

While the registry is confidential, records indicate that many of these mothers were likely added due to marijuana use. In over half of the 27 intake reports that the Department of Health and Welfare sent to InvestigateWest involving mothers whose umbilical cord testing came back positive for drugs since 2021, marijuana, cannabinoids or THC — the main psychoactive chemical in cannabis — was the only substance that came back positive. Mothers’ medical records and conversations with their health care providers were often used by police and social workers to build cases against them.

“I think what Dobbs did was it really lifted the veil and emboldened state actors who want to upend and roll back the rights of pregnant people to be able to have the clearance to do so,” said Kulsoom Ijaz, a Pregnancy Justice senior staff attorney.

In March 2023, another Idaho mother who had been added to the child protection registry for using marijuana during pregnancy, Keeva Rossow, filed a class-action complaint in federal court against the director of the Idaho Department of Health and Welfare. Rossow argued that placement on the registry violated her constitutional rights to due process, in part because there was nothing to show that an “existing” child had been abused, neglected or abandoned.

“Our claim is that the state of Idaho violated due process when it defined the fetus as a ‘child’ within the mother’s womb,” said Rossow’s attorney, Richard Hearn. “The pregnant woman is not, until the fetus is born, the mother of a child, and therefore is not abusing her child.”  

The department director’s attorneys with the Idaho Attorney General’s Office fired back, using the Dobbs decision to strengthen their contention that someone who is pregnant while using illegal substances is, in fact, abusing a child. 

“The premise of this argument — that a child who is not yet born does not exist — is one that Idaho law emphatically rejects,” the attorneys wrote in support of the director’s motion to dismiss. “Under Dobbs, Idaho is entitled to do so. And because the State has done so, the Court must therefore reject Plaintiffs’ claims to the contrary.”

The Department of Health and Welfare and the Idaho Attorney General’s Office declined to comment on the lawsuit due to the pending litigation, though the welfare department did talk about how it responds to instances of prenatal substance use.

Under a 2016 federal law, medical professionals are required to notify child protective agencies when newborns are affected by prenatal drug exposure. Almost half of U.S. states and the District of Columbia have passed laws that consider substance use during pregnancy to be child abuse or neglect, or to count as evidence of it.

Idaho is not among those states, according to a June 2024 analysis by the Legislative Analysis and Public Policy Association. Yet, in effect, some attorneys are interpreting Idaho law in this way by drawing on Dobbs and existing statutes like the state’s 2021 “fetal heartbeat” law, which declares that the life, health and well-being of “preborn children” should be protected.

“It would be an odd construction of the law to forbid providing controlled substances to a child out of the womb, yet to allow them to be given to an unborn child,” the director’s attorneys argued in the lawsuit. “And that is especially true because Idaho recognizes and protects life beginning at conception.”

Rather than passing a law that explicitly addresses this issue, Idaho tucked a new section into its administrative code in 2007 — which, the state argues, allows it to add pregnant patients to the child protection registry since it specifies that child abuse or neglect can be based on prenatal substance use. Though the administrative code is approved by the Legislature, Hearn notes that lawmakers never voted specifically on the issue.

“Politicians that are going to run for re-election did not have to vote on an issue that says ‘a fetus is a child,’” Hearn said. “They would have had to do that if they came out with a change in the criminal law. So they’re doing it under the table.”

In Idaho, when a health care provider notifies the Department of Health and Welfare that a newborn has been affected by illegal substances, a department worker is assigned to respond, according to Autum Ferris, the department’s child welfare program specialist. These instances are typically categorized as “Priority I,” which also requires department workers to request that law enforcement come with them.

The worker then assesses the safety of the infant and develops a safety plan if needed. If a baby is determined to be unsafe and the family doesn’t cooperate with the safety plan, the baby might be taken into state custody. In some instances, law enforcement sends the case to prosecutors. When it comes to adding mothers to the registry, it doesn’t matter which illegal drug the mother took — marijuana is treated the same as harder drugs like fentanyl under state policy.

“We have to follow the federal and state guidelines that have been put in place for us,” Ferris said. “The intention is really to work together so that we can keep that child in the home, get all the services that might be needed to ensure their safety.”

In the first year after the Dobbs decision, at least three people in Idaho faced criminal charges for conduct related to their pregnancies, according to a recent Pregnancy Justice report. Idaho was one of 12 states that saw such charges that year, totaling at least 210 criminal cases nationwide — the largest number identified in a single year since the organization published its first national report on pregnancy-related arrests in 2013. 

The majority of charges involved substance use during pregnancy and didn’t require any proof that the pregnant person actually harmed the fetus. Nearly half of the cases were in Alabama, the first state to include a “fetal personhood” clause in its constitution granting unborn children the right to life. And in nearly 60% of cases, information was obtained or disclosed in a medical setting.

Prosecutors who charge women for using illegal drugs argue it’s necessary for the protection of vulnerable children and adults.

“One of the many goals is to protect the public,” Kootenai County Prosecutor Stanley Mortensen said. “If this person isn’t going to be able to control themselves and stop using drugs on their own, they’re going to continue to put this child at risk and themselves at risk.”

Opioid use among pregnant women is a growing public health concern recognized by the U.S. Centers for Disease Control and Prevention. It’s been linked with preterm births, stillbirths and neonatal opioid withdrawal syndrome among infants. Opioid-related overdoses are a leading cause of death for pregnant and postpartum people, with one study finding an 81% increase in overdose deaths from 2017 to 2020.

The CDC also advises against cannabis use during pregnancy, as some research shows that it can cause lower birth weight and abnormal neurological development for newborns, but notes that more research is needed to better understand how cannabis can affect a baby’s health. 

“We don’t want dead babies, and we don’t want dead moms. And unfortunately, sometimes the only way to make somebody stop is to lock them up,” Mortensen said.

Yet research shows that punitive approaches to prenatal substance use — like prison time for using drugs while pregnant — don’t improve the health of mothers or their babies.

“In fact, there is some evidence that the opposite is happening,” said Angelica Meinhofer, an assistant professor at Weill Cornell Medicine’s Department of Population Health Sciences who co-published research on the impacts of prenatal substance use policies in 2022.

Rather than deterring women from using substances during pregnancy, punitive policies have been shown to deter women from seeking substance use treatment and prenatal care, Meinhofer said. She added that more supportive policies that increase access to treatment, on the other hand, are more effective at improving prenatal and birth outcomes.

In Kootenai County, Mortensen said that “injury to child” is typically prosecutors’ go-to charge for cases involving prenatal substance use. It can be charged as either a misdemeanor or a felony — felony charges might be filed if the baby suffered from symptoms of withdrawal or other medical issues relating to the drug use. He noted that he doesn’t view the Dobbs decision as having an influence on these charges because mothers aren’t prosecuted until after the baby is born.

“We’re charging these after birth,” he said. “It’s not an unborn fetus or a clump of cells, or whatever we want to talk about, anymore. This is a living, breathing child that’s been born.”

But court records show that some Idaho prosecutors are finding ways to charge people for actions that occurred before the baby was born.

In May, for example, prosecutors charged a Kootenai County mother with “delivery of a controlled substance” after her baby’s urine analysis came back positive for amphetamines and fentanyl. Her public defender moved to dismiss the charge, arguing that it would be an “absurd application” of Idaho law to conclude that “the passive act of allowing blood to flow through one’s own body and coincidentally to an in-utero fetus” constitutes the delivery of a controlled substance.

The mother ended up pleading guilty to felony injury to child and drug possession charges. 

The judge sentenced her to a “rider,” which gives her a year to complete a treatment program. The court will then decide whether to put her on probation or have her serve a prison term of 12 to 17 years.

In another high-profile case in Bannock County last year, a mother and son were charged with second-degree kidnapping after allegedly driving a teenage girl to Oregon for an abortion without her parents’ consent. Pocatello police used their cellphone records to show that the devices associated with all three phone numbers had traveled together to Oregon, according to the police report. Some reproductive rights advocates argued that the case was tied to Idaho’s 2023 “abortion trafficking” law that makes it a crime to help minors get out-of-state abortions without their parents’ permission. The Bannock County Prosecutor’s Office has stated that the case had nothing to do with the law, which can’t currently be enforced due to an ongoing lawsuit challenging its constitutionality. 

“Dobbs was never about abortion any more than Roe was ever about abortion,” said Jamila Perritt, president and CEO of Physicians for Reproductive Health, a national nonprofit of medical providers that advocate for reproductive rights. “This is about power. It’s about control. And so we have to start understanding and talking about it that way, because if we are very fixated on the impact of this one particular kind of care, then we are missing the bigger picture.”