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Medical Cannabis Opinion Policy

If Marijuana Is Legal, So Is Using It While Pregnant. Case In Point:

Pregnant women can use marijuana in recreational states
Written by Sarah Friedman

In New York, marijuana is legal for use by pregnant women, and is not a reason for a child to be taken away by the state

Marijuana use while pregnant in a legal state, is not a crime. A recent story highlights this point, and the inanity of treating weed users like criminals.

Drugs and pregnancy

Automatically this is a controversial topic, although some aspects of it, are not. Very few people actually believe that it’s good, or even not dangerous, to subject a fetus to a lot of chemicals (synthetic or natural). But which of these chemicals are okay, and which are not, is not agreed on. While this story centers on a case in which a woman’s child was taken away based solely on a positive weed test; let’s remember that pregnant women get jabbed with all kinds of needles during their pregnancies, by their own doctors. And not with vitamins.

The reality is that pregnant women are subjected to tons of chemicals; some of which we know are bad. Thimerosal (mercury) was legally limited in vaccines for kids. This should indicate to the general public that its understood heavy metal exposure is bad for fetuses/children; but unfortunately this doesn’t stop its use altogether. This is not an issue of vaccines, for those confused (and many seem to be); but of heavy metal exposure to babies and children. Unfortunately, due the issue of preservatives, nearly any vaccine automatically means a heavy metal injection into a baby’s arm.

So pregnant women are not only exposed to some chemicals, they’re practically forced others. Or very much pressured to use them so long as they’re deemed ‘medicine.’ Well, isn’t weed ‘medicine’ too? Whereas weed is not associated with the damage of standard medicines given to pregnant women, its culturally still taboo to use it while pregnant. Even when that use doesn’t involve smoking it; which eliminates issues of smoke damage.

Pregnant women are given tons of chemical substances
Pregnant women are given tons of chemical substances

But whats taboo, and what’s illegal, don’t always match. And sometimes, old habits and negative opinions, die hard. A recent story out of New York highlights both the continuing racial injustices that go on in the US, as well as the continued treatment of weed as a hardcore drug, even in places with legalization laws.

Its common policy for government agencies to remove an infant from its mother’s custody if the mother or baby come up positive on a drug test. However, different states have different drug policies, and respond differently to the use of different drugs. As of yet, nothing links marijuana to any definitive damage in pregnant women or newborn babies. This sort of ‘proof’ doesn’t exist; even with the thousands of years weed has been used. Current studies on the matter, are so lacking – often not accounting for the act of smoking itself; that they fundamentally can’t be used to gain information.

New mother has child taken for positive marijuana test while pregnant

As per the New York Times, Chanetto Rivers, a resident of New York, came up positive for weed in a drug test she was given without consent. If that last part sounds weird since the ability to consent would certainly hinder the drug testing process; it is the case. In 2020, New York updated policy concerning drug testing for pregnant women and new mothers; specifically because of how many issues it caused in taking infants away from their mothers. According to the original New York Times article, the public hospitals of New York now require informed consent in writing for toxicology tests on pregnant women.

Rivers gave birth in August 2021, and was promptly separated from her child, and unable to bring it home. The infant was kept in the hospital, and she only had visitation rights to it. Within a day of having the child, she was investigated by ACS, and then told her child would be put in foster care. All of which was based on a positive marijuana test that was given to Rivers while she was still pregnant, and about to give birth. Nothing else.

Rivers filed a case against New York’s child welfare agency Administration for Children’s Services (ACS), on the grounds that the entire ordeal was based on the fact that she’s black. According to Rivers in a press statement, via the Imprint, “I didn’t just bring this lawsuit for myself, but for every Black family that ACS has ripped apart. They know what they did was wrong.” 

In New York, cannabis is legal for recreational use. When Rivers gave birth in 2021, the Marijuana Regulation and Taxation Act was already in effect, and the plant had been legal for recreational use for six months. To make this more clear, the Marijuana Regulation and Taxation Act specifically states that a baby cannot be taken from its mother, based on a positive cannabis test alone. Even so, ACS actually ordered the hospital not to release the child to its mother.

Should a child get taken away solely for mother's positive marijuana test?
Should a child get taken away solely for mother’s positive marijuana test?

One of the big points of Rivers’ lawsuit, was that none of this was done to protect her child, since her child wasn’t hurt, and not in danger; and ACS never said it was. Her case alleged that this treatment was because Rivers is a black woman. Once it became a lawsuit, ACS settled the case very quickly, and Rivers was awarded $75,000, plus attorney fees.

ACS went against its own policy

The state of New York passed legislation for legal recreational cannabis. A part of that law states that cannabis cannot be the sole reason a child is removed from parent custody. But this is not the only place such a policy shows up. The government agency – ACS – that removed the child, has its own policy on the matter.

According to ACS policy from 2019, “Positive marijuana toxicology of an infant or the mother at the time of birth is not sufficient, in and of itself, to support a determination that the child is maltreated, nor is such evidence alone sufficient for ACS to take protective custody of (remove) a child or file a case in Family Court.”

Yet that’s exactly what ACS went and did. Took nothing more than a positive marijuana test, and used it to keep a mother from her child. As in, even according to its own laws, ACS never had a right to do what it did. Research has found that black women are disproportionately more likely to get tested for drugs, compared to white women, in birth situations. In this case, its not just that Rivers was tested without consent; but that a New York GOVERNMENT agency broke its own laws, and state cannabis laws, to go after her.

What does this say about weed and weed laws?

It says quite a bit, that despite the fear tactic lines, and riff raff in the news; that New York hasn’t found enough damage linked to newborns testing positive for weed, that it will take a child from its parents because of it. And this was decided before New York became a legal state for recreational use. This points to the idea that New York (including its medical, legal, and anti-drug communities) can’t identify with verifiable evidence, that there is enough danger to make this law.

As the dangers of weed don’t change from state to state; if New York can’t make a case to take children under these circumstances, then there isn’t another place that can. However, in any place where its still illegal, women can have their babies taken away due to weed being a schedule I drug. Considering New York wasn’t allowed to do such a thing, and still tried; this doesn’t give a lot of hope for pregnant weed users in other states, particularly minorities. Such racial prejudice is unfortunately standard when it comes to cannabis in general.

New York law does not back up ACS
New York law does not back up ACS

Beyond the racism factor of this case; there’s also a factor of general cannabis discrimination. This happened without prohibition measures still in place. What does it mean that a state agency breaks its own rules to go after someone for use of something, which isn’t illegal? Let’s be honest, its not illegal to smoke cigarettes or drink alcohol, while pregnant; and we have surefire proof of the damage of both. Why would this agency try so hard, when there isn’t a law to back it up? And if ACS was willing to do this in New York, can we really expect the government agencies in other states to be better?

Even with law after law passing to legalize cannabis for recreational use, its still being treated like a dangerous drug. So much so that an actual government agency had to be attacked legally, to back off from breaking its own laws in going after a new mom, and separating her from her newborn child.

No articles that covered Rivers and her case mentioned any injury to the child, or reason to fear for the child’s safety. As this would have been verified early on, its quite difficult to understand what this government agency was doing; if it already ruled these things out. In fact, ACS never technically came to its senses. It took two judges to remind the agency that a positive marijuana test while pregnant, is not grounds for removal; and to order the child be turned over to his mother.


For those concerned that marijuana is dangerous for pregnant women, this is a valid concern. There is concern about a fetus coming into contact with anything it doesn’t need. But I implore you to investigate the topic well, if you really want to understand it…headlines can often be misleading. Keep in mind, there is so little backing up that marijuana causes damage in fetuses, that New York can’t justify removing a child for testing positive. And this decision was made before the recreational legalization.

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About the author

Sarah Friedman

I look stuff up and and write stuff down, in order to make sense of the world around. And I travel a lot too.