A Fetus Doesn't Need Its Own Medical Marijuana License, Oklahoma Court Says

The ruling means it's not child neglect for a pregnant woman prescribed medical marijuana to use it. But some judges say it should be.

Oklahoma resident Amanda Aguilar was arrested after using marijuana while pregnant. Though Aguilar had a medical marijuana prescription, prosecutors reasoned that her fetus did not. They charged the mother of five with child neglect, a felony.

Now, the state's highest criminal court says prosecutors had no basis to do that.

The ruling should be good news for women who use marijuana to help with morning sickness and other pregnancy ailments. But the opinions in this case make clear that some Oklahoma judges would like to see pregnant marijuana users criminalized.

"The baby has no medical marijuana license," wrote Judge Gary L. Lumpkin in a dissenting opinion.

Even Judge Scott Rowland, who wrote the majority's opinion, stressed that the court does not "condone marijuana use by an expectant mother" and urged Oklahoma lawmakers "to consider an addition to the law making clear when, if ever, the licensed use of marijuana may constitute child neglect."

Aguilar's Arrest Is Not an Isolated Incident

Aguilar isn't the only Oklahoma mother who has been charged for exposing a fetus to marijuana that she was using legally. According to the nonprofit Pregnancy Justice, "at least eight women have been charged under this theory since 2019."

Another Oklahoma mother, Brittany Gunsolus, is one such woman. After her son tested positive for marijuana at birth, she—like Aguilar—was charged with felony child neglect, despite the fact that she also had a medical marijuana prescription and that child welfare workers investigated and deemed her fit.

Gunsolus' lawyers argued that using prescription marijuana while pregnant should be treated just like taking any other prescription drug during pregnancy. But Comanche County prosecutors apparently disagreed. "At a court hearing in Comanche County in August [2023], a prosecutor argued Gunsolus broke the law because her unborn child did not have its own, separate state license to use medical marijuana," The Frontier reported.

With the help of Pregnancy Justice, Gunsolus asked the Oklahoma Supreme Court to hear her case and rule that pregnant marijuana users with a valid medical marijuana license cannot be criminally charged. The Court declined.

Charged With 'a Crime Which Does Not Exist'

Aguilar's case got its day in court thanks to an overzealous Kay County prosecutor.

After being charged with child neglect, Aguilar filed a motion to quash for insufficient evidence, arguing that using medical marijuana while pregnant is not illegal. "There's so many moms that are going to take these charges just because they're terrified," Aguilar told The Frontier. Not her.

A judge granted Aguilar's motion and the case against her was dismissed. But Kay County District Attorney Brian Hermanson pressed on, appealing to Oklahoma's highest criminal court.

On July 18, the Oklahoma Criminal Court of Appeals ruled in favor of Aguilar.

"For us to find that Aguilar's marijuana use, fully authorized by her medical marijuana card, became illegal due to her pregnancy, would require us to rewrite the statutes in a way we simply do not think is appropriate for courts to do," Rowland wrote in the court's opinion, affirming the lower court's granting of Aguilar's motion to quash.

Oklahoma law includes in its definition of child neglect "the failure or omission to protect a child from exposure to…the use, possession, sale, or manufacture of illegal drugs." In Aguilar's charging documents, police say she was guilty of exposing a child to "controlled dangerous substances."

"Thus, the charging document accuses Aguilar of a crime which does not exist," Rowland writes. He points out that controlled dangerous substances and illegal drugs are not synonymous terms, since many controlled substances are legal to possess and use with a prescription. In this case, Aguilar had a prescription for marijuana, which means that she was not possessing or using it illegally.

Under the Influence of Fetal Personhood

In a dissenting opinion, Lumpkin argued that Aguilar's marijuana use should have been illegal because "only [she] has a permit to use it, not her baby." Thus, "the baby's exposure to [Aguilar's] use and possession of marijuana, a Schedule I drug, is illegal."

Judge David B. Lewis takes up a similar theme in his dissent, writing that "a medical marijuana license is certainly not a legal authorization to share, transfer, or distribute marijuana to others who have no license, especially those for whom its use or possession is unauthorized by law." And "who could really doubt that a licensed marijuana consumer would face legal consequences for willfully sharing, distributing, or permitting the unlicensed ingestion of marijuana by children for whose welfare they are responsible?"

Rowland rejects these assertions. By this logic, it would be "unlawful for any expectant mother to ever be prescribed any controlled dangerous substance by any doctor," he points out.

But the majority does not seem convinced that it should be legal for pregnant women to use marijuana with a prescription. "We understand [Lumpkin's] obvious desire to discourage marijuana use by pregnant women," Rowland writes at one point, asking the Legislature "to address the problem."

And both the majority and dissenting opinions are steeped in the language of fetal personhood, a concept that sees the fetus as a person with legal rights separate from the mother carrying it.

Fetal personhood is most often invoked as a justification for banning abortion. But it also can be used to justify all sorts of restrictions on pregnant women or criminal penalties for those who do anything that the state says isn't in a fetus' best interests. It's grounds for everything from charges against women who do drugs while pregnant (something Rowland generally endorses, writing that "an expectant mother who exposes her unborn child to illegal methamphetamine could be convicted of child neglect") to punishing a pregnant woman for getting shot because she put herself in harms' way.

It also paves the way to more closely monitoring all pregnant women and regulating a broad range of their activities.

Those who want to criminalize all pregnant drug users are not only waxing that slippery slope but also failing to act in the best interest of children. Fear of arrest generally isn't going to stop someone who's addicted to drugs from using, but it might stop them from seeking substance abuse treatment, receiving proper prenatal care, or delivering in a hospital—things that might compound any ill effects of prenatal drug exposure.

And the matter gets even more murky when we're looking specifically at marijuana.

Unlike the ill effect of excessive alcohol during pregnancy—which is well documented—the effect of the use of marijuana during pregnancy is much less certain. There's no clear evidence that it produces any negative effects, and many studies purporting to find as much suffer from serious flaws (like marijuana-using mothers in their sample also using other drugs, including cocaine.) Meanwhile, many women report that using marijuana while pregnant helps with morning sickness and other pregnancy maladies.

As with so many issues concerning women's bodies, decisions about marijuana use during pregnancy are best left up to pregnant women and their doctors.

Let's hope Oklahoma legislators agree.