Yesterday the New Jersey Supreme Court struck a blow against irrational pharmacological prejudice, unanimously ruling that illegal drug use during pregnancy does not by itself amount to child abuse or neglect under state law. The case involved a woman, identified in court documents as "A.L.," who tested positive for cocaine on the day she gave birth to her son "A.D." Although the baby was healthy and there was no evidence that his home environment was unsafe, the New Jersey Division of Child Protection and Permanency concluded that A.L. was guilty of neglect, a finding that threatened her custody of A.D. and his 5-year-old brother. A judge and an appeals court upheld the finding of neglect, saying A.L. had jeopardized her baby's health, even though he was not in fact injured by her drug use. The New Jersey Supreme Court disagreed, saying the state had "failed to show actual harm or demonstrate imminent danger or a substantial risk of harm to the newborn child."

In reaching that conclusion, the court noted "dozens of published academic studies and reports" cited in "a comprehensive submission" from National Advocates for Pregnant Women (NAPW). The amicus brief, backed by an impressive list of experts and medical organizations, describes "a broad scientific consensus that evidence of prenatal drug exposure, on its own, does not in fact establish harm or substantial risk of harm after birth." The brief notes that "the use of illegal drugs during pregnancy cannot, as a matter of science, be singled out from innumerable other actions, inactions, and exposures that pose potential risks to a fetus or to a child once born." The "crack baby" panic of the 1990s was largely due to conflation of all those factors, and today it is clear that "harms from prenatal exposure to cocaine have been wildly overstated." Despite common beliefs to the contrary, says the NAPW brief, "Research has consistently found no detectable or consistent increase in the rate or severity of birth defects associated with cocaine use during pregnancy."

The brief notes that "numerous other substances, conditions, and circumstances"—including various drugs that are prescribed for pregnant women, fertility treatments that result in multiple fetuses, and bearing children at age 35 or older—pose risks similar to or greater than the risk posed by prenatal cocaine use. To take two even closer examples, the evidence that prenatal cocaine use causes lasting harm to children is much weaker than the evidence that smoking or heavy drinking does. Yet women who smoke or drink during pregnancy are not automatically in danger of losing their children to the state. That sort of double standard can be explained only by the arbitrary distinctions enshrined in our drug laws.

The court's decision is here.