TESTED | Part 1: Where This Started

In South Carolina, a positive drug test at birth can turn a new mom into a felony defendant. Even when the product was legal. Here's how it started, and why the science isn't there.

She'd been a mother for less than a day.

Her newborn was asleep on her chest. She was sore, wrung out, running on the kind of no-sleep that only a delivery room gives you. And then someone told her she might be charged with a felony.

Not because she hurt her baby. Because she tested positive for THC when she gave birth.

That's not a hypothetical. It happens in South Carolina, and I've been in the room for it more times than I'd like. Let me tell you how this started for me.

Here's the plain version. In South Carolina, hospitals drug test a lot of new mothers, and sometimes their babies, right after delivery. If that test comes back positive for THC, it can get reported to the Department of Social Services, and from there it can land with law enforcement. Some of these women get charged with unlawful conduct toward a child. 

That's a felony. It carries up to ten years. All of it can start with one positive test on the day she gives birth.

Read that again. Ten years. Off a drug test.

The first case like this crossed my desk in 2021. I was appalled. I dug in, I fought it, and I got that charge dismissed. I figured it was a one-off. Some strange overreach that wouldn't happen twice.

I was wrong.

I saw another. Then another. Same story, different mom. A positive THC test at birth, and a felony waiting for a woman who was, in most cases, trying to survive a brutal pregnancy.

So I started asking the seemingly obvious question. Where's the proof?

Most people assume that if the state is charging you with a crime, the science must be settled. It isn't. There is no solid scientific evidence that a mother having THC in her system harms her baby. 

Maybe it does. Maybe it doesn't. I am not here to tell you THC is safe in pregnancy. I am telling you the evidence to justify a criminal charge is not there.

Ask an OBGYN and they'll tell you there's no safe level of THC in pregnancy. Fair. But that's because it hasn't been studied, not because we have proof of harm. Those are two very different things. And it's a long way from "we haven't studied this" to "we're charging you with a felony."

The few studies that do exist looked at women smoking it. The green leafy stuff. That is not how most people consume THC now. There are gummies, tinctures, creams, lotions, a dozen ways a woman might reach for something when morning sickness has her nauseous around the clock. We are charging people over research that doesn't match how anyone actually lives.

Now here's the part that should stop you cold. CBD is legal in South Carolina. Legal. And using a legal CBD product can make you test positive for THC.

So we have women arrested and charged with a felony because they used a legal product to manage nausea or pain while pregnant. They followed the rules. They bought something off a shelf. And they ended up in handcuffs on one of the most vulnerable days of their lives. That is not justice. That is a system running on a bad test and a worse assumption.

For a long time I thought this was a South Carolina problem. Maybe even a Grand Strand and Pee Dee problem, something I was seeing because of where I practice. It's not.

I worked with Shoshana Walter, an investigative reporter with The Marshall Project, on a year-long investigation into exactly this. The reporting found more than 70,000 cases across 21 states where parents were referred to law enforcement over allegations of substance use during pregnancy. 

Tens of thousands. And that figure is considered an undercount. 

The investigation ran in partnership with CBS News, Mother Jones, and Reveal. Some of the women I've represented were part of that story.

This is happening at scale, mostly out of view, to women who in many cases did nothing but try to feel human while growing a person.

I'm not going to stop talking about this. So I'm making it a series. Over the next two parts, I'll get into the piece worth understanding:: how the testing itself works, and how much it gets wrong. 

Then the question I hear every time someone learns a charge got dismissed. If it went away, what's the harm? Best believe there's harm. I'll show you.

For now, this is the part I want you to hear. If this happened to you, or to someone you love, you are not a criminal for trying to get through a pregnancy. It's worth a conversation. That's what I'm here for.

Common Questions

Can you be charged with a crime for using THC while pregnant in South Carolina?

Yes. Some mothers in South Carolina have been charged with unlawful conduct toward a child, a felony that carries up to ten years, after testing positive for THC at the time they give birth. The charge can start from a single positive drug test.

Can legal CBD cause a positive THC test?

It can. CBD products are legal in South Carolina, but using them can still produce a positive result for THC. That means a woman can use a legal product to manage nausea or pain and still end up facing a charge.

Is there scientific proof that THC harms a baby?

No solid evidence exists that a mother having THC in her system harms her baby. Doctors will say there's no known safe level in pregnancy, but that's because it hasn't been studied, not because harm has been proven. That's a long way from justifying a felony.

Every case is unique, and prior results do not guarantee future outcomes.