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Colorado voters made headlines at the polls two years ago when the passage of ballot initiative Amendment 64 made recreational marijuana legal for adults over the age of 21. The vote heralded a new era in cannabis law reform, and was an important step towards rectifying the profound damage created by marijuana prohibition.
Although there’s no drug policy initiative on this year’s ballot, supporters of legalization must turn out to vote down a proposal threatening to undo the progress we’ve made. 2014’s “personhood” initiative, Amendment 67, has far-reaching consequences for those of us who care about ending cannabis prohibition.
What does an amendment seemingly about abortion have to do with marijuana, you ask? For years, abortion prohibitionists have mounted a campaign to establish legal rights for fertilized eggs, embryos, and fetuses, and they’ve done it by advocating for the arrests and prosecutions of pregnant women and new mothers who use controlled substances, including cannabis.
By characterizing fertilized eggs, embryos, and fetuses as “children” in need of protection from their own mothers, prosecutors around the country have argued (with troubling success) that child abuse, assault, and even homicide laws permit the state to arrest and incarcerate women who give birth to babies who test positive for drugs, masking this as an interest in “protecting” the unborn. We’ve seen the damage that such changes have wrought in other states.
For example, Alabama’s felony “chemical endangerment of a child” statute has been interpreted to apply to pregnant women in relation to their own pregnancies from the moment of conception. It has resulted in the arrest and prosecution of more than 130 women. In 20% of known cases, the only drug to which the fetus was exposed was marijuana—yet court documents refer to these as cases involving “torture of a child.”
Despite the fact that prenatal marijuana exposure has not been specifically linked to negative pregnancy outcomes or problems at birth and is generally less harmful than cigarettes, widespread unsubstantiated assumptions and stigma have fueled punitive responses in both the criminal justice and child welfare systems. In the civil child welfare context, some health care providers erroneously believe that child abuse and neglect reporting laws require doctors to test newborns at birth and report any positive result to the authorities.
Although Amendment 64 did “legalize” cannabis use for adults in Colorado, its impact on the child welfare system falls into a legal grey area that leaves parenting and pregnant cannabis users at risk for civil abuse and neglect findings, and even loss of custody. Activists and organizations like National Advocates for Pregnant Women, Drug Policy Alliance, Colorado-based Elephant Circle, and my own organization, Family Law & Cannabis Alliance, are working to reform this two-tiered system that still allows for the punishment of some marijuana users even in states like Colorado and Washington, but Amendment 67 would deal a tremendous blow to those efforts. It would also, unquestionably, open the door to criminal prosecutions of women who become pregnant and use any amount of cannabis.
If passed, Amendment 67 would alter Colorado’s Criminal Code to provide that every crime against a “person” or “child” covers the unborn. Beyond transforming abortion into first-degree murder, this change would allow prosecutors to bring reckless endangerment charges against someone who “creates a substantial risk of serious bodily injury” to a fetus, including the woman carrying the pregnancy. Because a fetus would be a “child,” new moms who used cannabis during pregnancy could be charged with felony child abuse for “permit[ting] a child to be placed in a situation that poses a threat of injury.” The risk of investigation by Child Protective Services is bad enough for families, but Amendment 67 would magnify that risk, subjecting pregnant women and new mothers to criminal penalties like those seen in Alabama.
The legalization era is upon us, but we still live in an age of selective prosecution and unequal enforcement of the laws. Those of us who believe that pregnant and parenting people are no less deserving of their civil rights than anyone else, who want to keep Colorado families intact and know that prohibition, in the long run, is bound to fail, must take a stand this Tuesday in Colorado and vote No on Amendment 67.
For previous Ladybud Magazine articles about the Family Law and Cannabis Alliance, click here. The Family Law & Cannabis Alliance can be followed on Facebook here.
Photo Credit: Tatiana VDB under (CC BY 2.0) via Flickr