TESTED | Part 4: What Got Cut

Erin Bailey took this fight to CBS Sunday Morning. But one argument didn't make the edit. The chilling effect THC arrests have on prenatal care in South Carolina, and why it should matter to everyone.

I told y'all I was never gonna stop talking about this.

Women are still getting arrested in South Carolina when they or their baby or their cord blood tests positive for THC at birth. I've written about it in Part 1, Part 2, and Part 3 of this series. 

And this month, I sat down with Erin Moriarty for a CBS Sunday Morning investigation, reported in partnership with The Marshall Project, that took this issue national.

I'm grateful they told this story. It matters that people outside South Carolina are seeing it.

But television has time limits. Hour-long interviews get edited down. And there's one argument I made that didn't make the final cut. 

So I'm making the argument here, in full.

The thing nobody's talking about

When we arrest women who test positive for THC at the birth of their child, here's the impact of what we're doing. We're discouraging women from seeking prenatal care. 

And when they do seek prenatal care, we're discouraging them from being honest with their doctors.

That's it. That's the argument. It's simple, and it should worry everyone, no matter what you think about marijuana.

What the law calls this

In the law, we have a name for this kind of problem. It's called a policy consideration.

A policy consideration is the effect that a law, or the enforcement of a law, has out in the real world. Outside the courtroom. Courts weigh these effects when they interpret laws. Legislators are supposed to weigh them when they write laws. It's a basic part of how the legal system is meant to work.

And there's a very real policy consideration here. The chilling effect this practice has on prenatal care, on medical care at birth, and on the ability of women to be honest with their medical providers.

A chilling effect means people stop doing something lawful and beneficial because they're afraid of what might happen if they do. That's exactly what this is.

Play it forward

Ask yourself two questions.

Do we really want women who used a substance during pregnancy to lie to their doctors about it? Because that's what fear produces. A doctor who doesn't know the truth can't provide the right care.

Do we really want women avoiding prenatal visits altogether because they're worried about what a test might show? Because that's the other thing fear produces. And skipped prenatal care carries real risks for real babies.

This isn't hypothetical. When arrest is a possible outcome of a hospital visit, the hospital becomes a place some women are afraid to be honest in. Or afraid to be in at all.

Who this reaches

This unfair and unjust policy doesn't stop at the women who get arrested or who end up under a DSS investigation. It reaches every pregnant woman weighing whether to tell her doctor the whole truth. It reaches society at large, because it discourages medical care for the very children this enforcement claims to protect.

Where this goes from here

This series isn't over, because the practice isn't over. I'll keep writing, and I'll keep talking, as long as women in South Carolina are being treated this way.

If you or someone you love is facing charges or a DSS investigation over a positive test at birth, it's worth a conversation. You don't have to figure this out alone.

Common Questions

Can you be arrested in South Carolina if your baby tests positive for THC?

Yes. In South Carolina, a newborn's positive THC test is reported to the Department of Social Services and can be referred to law enforcement. Some mothers have faced felony charges, even in cases involving legal CBD or hemp products.

What is a "chilling effect" in law?

A chilling effect happens when fear of legal consequences discourages people from doing something lawful or beneficial. Here, fear of arrest or investigation can discourage pregnant women from seeking prenatal care or speaking honestly with their doctors.

Does a DSS investigation mean I'll lose custody of my baby?

No. An investigation is not a finding, and many investigations close without any removal or charge. But the process is serious, and having an attorney early can make a significant difference in how it unfolds.