Twenty-First Century Illicit Drugs and Their Discontents: The Potential Risks that Cannabis Use by Pregnant and Nursing Women Pose to Their Children

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Twenty-First Century Illicit Drugs and Their Discontents: The Potential Risks that Cannabis Use by Pregnant and Nursing Women Pose to Their Children

December 8, 2022 About an hour read Download Report

Summary

The absence of proof that maternal cannabis use will harm a child is not the same as proof that it won’t. That proposition is directly applicable here. Congress and state legislators should adopt flat rules against the sale of cannabis to pregnant or breastfeeding women and make any business breaking that law subject to the criminal and forfeiture laws. Private cannabis businesses cannot be trusted to protect women and their children against the damaging effects of cannabis use. Only by taking the actions recommended here can the government help to protect the “two different individuals” who “may experience the potential adverse effects of cannabis” from the improvident decision of one of them or someone else living in the same home.

Key Takeaways

Evidence reveals that perhaps 7 percent to 60 percent of women have used cannabis while pregnant or nursing, possibly thinking that maternal use is safe.

That belief is mistaken. There is no conclusive proof that cannabis use during pregnancy or nursing is “safe”—the standard for FDA approval of a drug.

Further research and education are necessary, but Congress and the states should prohibit cannabis use by pregnant or nursing women until it is proved safe.

Advocates for legalization of medical-use cannabis claim that it can alleviate the suffering of the dying, particularly individuals undergoing the end stage of cancer, or the disabling symptoms of horrific maladies, such as multiple sclerosis, that might leave some people wishing that the end were nigh.REF In a parallel manner, advocates for legalization of recreational-use cannabis maintain that it contains an ingredient that creates a mildly euphoric feeling not entirely dissimilar to the one resulting from the use of alcohol, a drug that is and has been socially approved and legally available for centuries.REF Numerous “stoner films” have helped to make the latter point, portraying users as young, attractive, harmless, care-free, fun-loving people motivated by a “Que sera, sera!”–like attitude toward life, interested only in having a good time while imposing no collateral burden on anyone else. Think Cheech and Chong or Harold and Kumar.REF

What we do not see portrayed in such films are claims that smoking botanical cannabis is a legitimate medical therapy or safe recreational divertissement for pregnant or nursing women and their prenatal or postnatal children. That scenario, however, is a reality. Numerous women use cannabis while pregnant or nursing,REF and THC rapidly crosses the placenta, becoming present in a child in utero (albeit in a lower quantity).REF Accordingly, “two different individuals may experience the potential adverse effects of cannabis,” but only one has any say in the matter.REF

Congress and the states are aware of this problem, yet no one has taken any steps to address it. In particular, despite the medical community’s recommendations against maternal cannabis use, no state with a medical or recreational cannabis program makes it a crime to sell cannabis to pregnant or nursing women.REF That omission is quite troubling.

This Legal Memorandum is the fourth in a series of Heritage Foundation studies published under the overall title “Twenty-First Century Illicit Drugs and Their Discontents.” This paper highlights the need to consider the effect of cannabis use by pregnant and nursing women. It also proposes some remedies for the problem. Nowadays, politicians spout the word “existential” in policy arguments more often than philosophy professors mention it when explicating Jean-Paul Sartre’s Being and Nothingness. Concern about whether drug use by this generation will affect the next one and, if so, how truly is an existential topic—particularly for a child in utero. It is worthy of legislative consideration, and it is about time for elected officials to address this problem. If nothing else, it brings the subject to the attention of our elected officials in the (non-Quixotic) hope that they will act on it.

The Prevalence of Cannabis Use Among Pregnant Women

Cannabis is an illicit drug that women often use,REF and its use is on the rise.REF A 2018 article in the Journal of the American Medical Association concluded that marijuana use among pregnant females using the Kaiser Permanente Northern California Health Care System increased from 4.2 percent to 7.1 percent from 2009 to 2016.REF That overall increase reflected an individual increase in each of four age groups considered—below 18, 18–24, 25–34, and above 34 years old—with the greatest increase—12.5 to 21.8 percent—in women in the 18–24 age group.REF Because a higher number of women tested positive for cannabis use than admitted to having used the drug, the study suggested that self-reported surveys underestimate use.REF

The National Institute on Drug Abuse (NIDA) found that article persuasive, concluding in 2020 that “women were about twice as likely to screen positive for marijuana use via a drug test than they state in self-reported measures.”REF Also, a survey of clients of the Colorado Women’s Infant and Child Program found that “[o]f all marijuana users (past, ever, current), 35.8% said that they used at some point during pregnancy, 41% since the baby was born, and 18% while breastfeeding.”REF Finally, a 2017 Committee Opinion by the American College of Obstetricians and Gynecologists (ACOG) found that 34–60% of marijuana users continue use during pregnancy” and “18.1% of pregnant women reporting marijuana use in the past year met criteria for marijuana abuse, or dependence, or both.”REF What is more, maternal cannabis use might have increased during the Covid-19 pandemic as women used it to relieve the stresses that event caused, whether or not they knew they were pregnant.REF

One explanation for the increase might be that the cannabis industry’s model for financial success rests on people overusing cannabis. Like alcohol, cannabis follows what is called the 80/20 Rule (or Pareto’s Rule): 80 percent of cannabis is consumed by 20 percent of its users.REF Daily cannabis users consume more than 50 percent of the amount used nationwide, an average of three to four joints daily.REF The result is that “the average gram of marijuana is consumed by someone who is under the influence of marijuana more than half of their waking hours.”REF According to late New York University Professor Mark Kleiman, an expert on all things cannabis, “from the perspective of cannabis vendors, drug abuse isn’t the problem; it’s the target demographic.”REF That is a disturbing prospect if users are pregnant or nursing.REF

In 2017, the ACOG found that “many women” believe that cannabis is “relatively safe to use during pregnancy.”REF Even worse, a 2022 report found that approximately 70 percent of American women believe that “consumption of cannabis once or twice per week is harmless.”REF The prevalence of that opinion might be attributable to the fact that cannabis retailers promote cannabinoids, the biologically active ingredients in the plant, as “safe, natural and effective ways to manage common daily ailments, including in pregnancy, such as insomnia, pain, and morning sickness.”REF That marketing message is troubling, although “shocking” or “scary” and “infuriating” would be more accurate terms. But it is not surprising. “Since we can expect the legal cannabis industry to be financially dependent on dependent customers,” writes Kleiman, “we can also expect that the industry’s marketing practices and lobbying agenda will be dedicated to creating and sustaining problem drug use patterns.”REF That scenario is especially worrisome given that we have witnessed “significant increases over the last decade in the number of pregnant women seeking substance use disorder treatment for marijuana use.”REF

It is bad enough that some Internet sources offer medical advice to pregnant women by touting cannabis as a treatment for the nausea that women can have during pregnancy.REF It is worse when the “ganjapreneurs” in states selling cannabis permit uneducated and unlicensed “budtenders” in their employ to engage in the practice of medicine by recommending its use to pregnant women in person. That is not a hypothetical; there is evidence that at places of business selling this product in one or more of its various forms,REF this is happening: Budtenders offer their “medical” opinions about the value of cannabis use during pregnancy.REF A 2018 study of Colorado cannabis dispensaries found that 69 percent of them recommended cannabis use to treat morning sickness.REF A majority of dispensaries in urban (71 percent) and non-urban (63 percent) areas had an employee offer such advice.REF While 81.5 percent of Colorado dispensaries ultimately recommended that a customer consult with a health care provider, only 31.8 percent offered that recommendation without prompting.REF

Recommendations like those are ignorant of or disregard the opinions of the relevant federal health care agencies and professional medical organizations. That is problematic for women who lack prenatal medical care, because they will not learn those professional recommendations from an obstetrician. It is also likely that most women who lack prenatal care also do not read The New England Journal of Medicine or stay current with NIDA’s reports, so they might not be aware of the recommendations noted above against maternal cannabis use. Atop that, Colorado law bars a physician who recommends medical cannabis for patients from being employed by a dispensary.REF As a result, untutored suggestions by budtenders likely contribute to the misperception that cannabis use during pregnancy is perfectly safe, even though that might not be the case.

The Potentially Adverse Effects of Cannabis Use on Prenatal and Postnatal Development

There is a considerable body of research discussing the adverse effects of maternal alcohol use and cigarette smoking on fetal development.REF By contrast, there are fewer studies of the effect of maternal cannabis use on a developing child.REF Nonetheless, the evidence that does exist gives reason for concern.

A 2022 article in the American Journal of Obstetrics and Gynecology concluded that “the available evidence suggests an adverse effect from cannabis exposure on male and female reproductive health, pregnancy and fetal outcomes, and longer-term offspring health and developmental trajectories.”REF Some physicians and researchers have found that cannabis use, whether by a pregnant woman or by someone else living in the same home, poses various different types of risks to a child in utero and after birth.REF Among these risks are increased placement in a neonatal intensive care unit (NICU); cancer (e.g., neuroblastoma);REF adverse neurodevelopment (e.g., reduced neuroplasticity—the growth, maturation, and movement of neurons during lifeREF—as well as the genesis and migration of axons and dendrites, axonal pathfinding, and synaptic transmission and pruning); impaired higher-order executive functioning (e.g., impulse control, reduced visual memory, attention) during the school-age years; autism spectrum disorder; lower birth weight (which is associated with an increase in infant morbidity and mortality, as well as long-lasting consequences such as neurosensory impairments, decreased height, and lower IQ and educational achievement); shorter gestation; spontaneous preterm birth; hyperactivity in children; and psychopathology in adolescents.REF

Yet those studies do not stand alone. The same and other researchers have found no material association between in utero cannabis use and such outcomes as fetal mortality; fetal malformations; preterm birth; newborn Apgar scores; cancer (e.g., acute myeloid leukemia); Sudden Infant Death Syndrome (SIDS); intelligence; and height or weight.REF Given those mixed results, the upshot is that there is no conclusive proof that cannabis use will or will not cause the harms noted above.REF There is a consensus that additional research is necessary.REF

The risk from maternal cannabis use does not end at birth, because a nursing mother can transfer THC to her infant.REF Nonetheless, as with cannabis use by pregnant women, there are only estimates of the number of breastfeeding women using cannabis, and there are few data establishing the effect of THC on neonates and infants.REF At present, it is uncertain precisely what amount of THC a nursing mother passes on to her child, what effect that amount has, and whether the benefits of breastfeeding—such as the transfer of nutrition and immune protective factors—outweigh the potential risk of exposing a newborn to THC.REF Atop that, as in the case of maternal use during pregnancy, a number of factors, such the use of cigarettes, alcohol, and other drugs, confound the analyses.REF Finally, it is difficult to differentiate the effects of cannabis use during pregnancy from those occurring while nursing.REF

There are several reasons why we do not yet know the answers to these questions. The available research relies largely on reports of cannabis use by women, and those reports might underestimate the amount of their use because of their authors’ fear of legal repercussions.REF There also are a series of potentially confounding factors that complicate the interpretation of survey results. Among them are maternal use of alcohol, cigarettes, or illicit drugs other than cannabis; poor maternal nutrition; and limited prenatal care.REF

The bottom line is this: We don’t know as much as we would like to know regarding the long-term effects of maternal cannabis use during pregnancy or breastfeeding on fetal and childhood developmental outcomes. The question then becomes this: What do we do in the face of this uncertainty?

The Past Regulation of Cannabis Use by Pregnant and Nursing Women

Until 1996, cannabis was contraband under federal and state law, so the effect of legalized cannabis use on pregnant and nursing women was not a prominent public policy issue.REF That changed in 1996 when California adopted a lawREF allowing physicians to recommendREF to patients that cannabis might be useful in treating certain maladies.REF Other states followed suit. Today, 40-plus American jurisdictions permit cannabis to be used for medical or recreational purposes under state law.REF Federal law still treats cannabis as contraband, however, despite several efforts by Members of Congress to repeal or revise the federal drug laws.REF

That creates the oddity (call it absurdity if you like) that because the states cannot exempt themselves from federal law, their cannabis regulatory schemes are handing out licenses to commit federal crimes.REF Adding to the chaos, in 2009, President Barack Obama, ostensibly exercising his discretion to decide when and how to enforce federal law,REF effectively gave the state-based cannabis industry a “Get Out of Jail Free” card by almost guaranteeing businesses immunity from federal prosecution if they complied with state lawREF—and thereafter studiously ignored whether they were compliant.REF As a direct result of the Obama Administration’s approval, the cannabis business experienced tremendous growth.REF Cannabis has become a quasi-legal commodity widely available across the land.REF

Also relevant is what has not occurred during this period: “[C]annabis policy has raced ahead of cannabis science,”REF and “medical marijuana in the United States has bypassed the usual process of scientific rigor that is required to make medicine available and has created a political controversy among the American public.”REF The states did not wait for scientific proof to show that cannabis use was harmless (or nearly so) before abandoning their long-standing restraints on its sale.

The Need to Prevent or Reduce Maternal Cannabis Given Uncertainty as to Its Prenatal and Postnatal Effects

Given what we currently do and do not know, the question for society is this: How should we proceed in the face of—call it a troubling uncertainty or a well-grounded fear—that maternal cannabis use might harm a woman’s developing or nursing child? Elementary principles of tort law require everyone to act on the basis of a reasonable person’s judgment of the potential benefits and costs of action or inaction.REF A powerful case can be made that because we do not know the long-term effect of maternal highly potent cannabis use on a child in utero and because there is no explicit or implicit constitutional right to use cannabis,REF society should not accept the risk that use by pregnant or nursing women would harm their children. The federal and state governments may regulate the public health, including the use of drugs, for legitimate reasons, and the protection of both a mother and her child is a legitimate ground for legislation.REF The argument that society should prevent or limit maternal cannabis use is rather straightforward.

First, we don’t know for certain that maternal cannabis use is harmless for a developing child. According to the U.S. Substance Abuse and Mental Health Services Agency (SAMHSA), “[n]o amount of marijuana has been proven safe to use during pregnancy or while breastfeeding,”REF let alone the hyper-potent cannabis available in states today.REF There is no conclusive proof that cannabis is safe for a child in the womb or in a cradle. In fact, no one would seriously dispute that point.

Second, the Federal Food, Drug, and Cosmetic Act of 1938 (FDCA)REF prohibits the distribution of any “new” drug”REF in interstate commerce unless and until the U.S. Food and Drug Administration (FDA) has found that it is “safe” and “effective” for its intended use.REF That has been the law for the 80-plus years that the FDCA has been on the books, and there is no good reason to exempt cannabis from it. The FDA has deemed cannabis a “new drug”REF but has never found that it passes the FDCA’s test.REF Federal agencies cannot disregard limits on their statutory authority,REF so the FDA could not approve the distribution of cannabis without making the findings required by the FDCA. To enable the FDA to do so, an applicant would need to conduct the same type of analyses—such as formal double-blind studies, the gold standard in pharmacological testing—on cannabis use by pregnant and nursing women and then submit the results to the FDA for its review. No one has done so, and without it, the FDA cannot approve botanical cannabis.REF

Third, a child is born with a labile brain that does not mature until approximately age 21.REF Throughout that period, the brain is more vulnerable to the adverse long-term effects of exposure to THC than an adult would be.REF Consequently, “[f]rom prenatal exposure to unintentional childhood exposures to concerns of adolescent abuse, marijuana potentially affects pediatric patients at every stage in childhood.”REF It therefore is critical to determine what those effects might be and whether to prevent nascent harms.REF

Fourth, although there is no conclusive proof that maternal cannabis use causes severe and irremediable damage to a prenatal or postnatal child’s developing brain, what we do know about the potential effects is quite troubling. As one scholar puts it, “[a]dult recreational and medical use of marijuana impacts the entire pediatric population, from prenatal through adolescents and young adulthood.”REF Some studies have found an association between maternal cannabis use and serious, irreversible maladies. Moreover, many of the studies finding no adverse effect were conducted before the high-potency cannabis currently being sold became available, which renders earlier studies of dubious value today.REF That combination of factors should lead us to use a red stop sign, or at least a yellow warning symbol, when deciding whether to legalize cannabis.

Fifth, there is a public health consensus on the proper answer to this problem. Several federal agencies devoted to protecting the public health—the Office of the U.S. Surgeon General, the FDA, the NIDA, and the SAMHSA—recommend that women not use cannabis while pregnant or nursing.REF As the SAMHSA has explained, “marijuana use during pregnancy is not safe and comes with serious, potentially deadly risks,” in part because “[w]hether smoked, eaten in food (edibles), or vaped, marijuana is stronger than ever before, which makes use during pregnancy especially risky for a developing baby’s health.”REF The agency therefore recommends that “[a]voiding marijuana during pregnancy and breastfeeding can give your baby a healthier start in life.”REF Respected private professional medical associations with the same public health mission—the ACOG and the American Academy of Pediatrics (AAP)—also recommend against maternal cannabis use.REF In fact, even some private experts who believe that botanical cannabis has therapeutic uses nonetheless recommend against its regular use by pregnant or nursing women.REF That medical consensus is a powerful argument against maternal cannabis use.REF

A reader might ask, “If all of the above is true, how were the states able to approve the sale of medical-use or recreational use cannabis, as many have done, and why did they do so?” Each question should be answered separately.

The answer to the first question stems from the federalist system of American government. The states are free to revise or repeal their own penal laws because there is no federal constitutional requirement that they prohibit the distribution of cannabis or even have a criminal code at all.REF The Constitution tells the states what types of laws they cannot enact, such as ex post facto laws or bills of attainder, but it does not demand that they outlaw any particular conduct, even murder.REF Moreover, the earliest medical cannabis laws came into effect pursuant to citizen-based initiatives, which allow voters to bypass the legislature and adopt a law directly.REF The first medical marijuana law—California’s Proposition 215, also known as the Compassionate Use Act—became a law in just that manner in 1996.REF Since then, no state has even attempted to assemble the type of proof that the FDA demands before it could legalize cannabis under federal law.REF That is important because, in the 80-plus years that the FDCA has been in effect, the nation has consistently reaffirmed, as a bedrock tenet of public health law, the principle that we do not approve drugs by plebiscite.REF What that means is this: Despite the widespread prevalence of contemporary state cannabis legalization régimes, because we lack the type of scientific proof that the FDA demands before deciding whether any new drug is safe and effective, there is no reason to believe that cannabis use is harmless.REF In sum, the states are under no obligation to have their own version of the FDCA; they can free ride on what the federal government does under that law.

As for the second question, several explanations come to mind. On the one hand, state voters were beguiled by the argument that people suffering from end-stage cancer, multiple sclerosis, or other horrific maladies were unable to obtain relief without resort to botanical cannabis. In addition, state voters saw cannabis as a physical intoxicant and social lubricant that is no more damaging than the alcohol that any adult could easily purchase or the weed that their parents and grandparents smoked at Woodstock. On the other hand, state legislators were seduced by the prospect of securing a new tax basis to underwrite yearned-for expenditures. State legislators—who often serve for only a few months without any staff to speak of—might have been oblivious to (or willfully defiant of) the nation’s 80-year judgment that drugs must be proved safe and effective before being marketed. Perhaps state legislators were desirous of satisfying the demands of a pro-cannabis interest group, or willing to engage in log-rolling with their colleagues to secure passage of their own pet bills, or some combination of all that.

Whatever the reason might be, before adopting medical or recreational cannabis initiatives, no state conducted the type of review that the FDA would have demanded to learn whether botanical cannabis is “safe” and “effective” for its intended use. Instead, states decided “to boldly go” where the federal government has not gone before, because the FDA and other allied federal health care agencies have consistently found that botanical cannabis is not a legitimate medication.REF The result is that states decided to take the law into their own hands without also shouldering the burden that federal law places on the FDA to ensure that only safe and effective drugs can be sold.

Where does that leave us? With this: While there is no conclusive proof that cannabis use will or will not invariably damage a child in utero or later, an all-star lineup of federal public health care agencies and private medical organizations has strongly recommended against maternal cannabis use while pregnant or nursing. Federal and state legislators should follow those recommendations. The question is: How?

Potential Responses

Research. Additional research is necessary not only because there is a consensus that we do not yet know as much as we need to know in order to make an informed public health decision, but also because the cannabis available today is far different from the cannabis that was available when the debate over cannabis began in earnest late in the twentieth century. It is important to recognize that many of the studies finding no or minimal adverse results from maternal cannabis use did not consider the enhanced potency of cannabis that is available today. The cannabis used in the 1960s and 1970s had a THC content or 3 percent–6 percent. Today, cannabis is available in forms reflecting a fifteenfold to thirtyfold increase in potency.REF

The effective legalization of recreational-use cannabis spurred by the Obama Administration in 2009 has led businesses to develop products, including “edibles,”REF with extremely high potency; some forms contain a 90 percent THC concentration. That is a critical fact. Pharmaceutical companies spend considerable time and resources to determine what effect a particular concentration of the active ingredient in a drug will have on a patient and what the range defining the minimum and maximum therapeutic dose may be: Too little and the drug will be ineffective; too much and it could approach the minimum fatal dose.

No reputable drug company or physician would assume that the increase from a 3 percent to a 90-plus percent active-ingredient concentration would not pose a health risk for a patient. Yet that is what ganjapreneurs do on a regular basis. Society should not make the assumption that the results of studies on women using low-potency cannabis provide a basis for making a medical judgment about the effect of today’s high-potency cannabis on maternal, fetal, or neonate health. Making that assumption, in fact, would be reckless.

Research, however, takes time, and children today can’t wait for years-long studies to be completed and their results to be published even later. Those data might prove what we can only reasonably infer now, but “[s]adly, [they] will only be available after the damage has been done.”REF The results will come too late for the generation of children in utero today and tomorrow who wind up being damaged by maternal cannabis use. The question, then, is what should we do in the meantime? How do we address this problem?

Education. One step is to ensure that every pregnant or breastfeeding woman is educated about the risks posed by cannabis use. Women who receive prenatal care are likely to learn about cannabis’s adverse effect from their physicians.REF Not every woman seeks prenatal care, however, and the ones who do not won’t hear the necessary advice in person from a medical professional. States that have legalized medical or recreational cannabis use should use other avenues to ensure that every woman of childbearing age is informed about the risks of cannabis (and illicit drug) use. One study has found that education about those risks materially decreased cannabis use by pregnant women.REF

The Criminal and Forfeiture Laws. Some states have required cannabis dispensaries to post signs recommending against cannabis use during the first trimester of pregnancy. That step is worthwhile but not likely to have a serious effect on this problem. In truth, it is but a pittance, a token, an attempt by cannabis dispensaries to give the appearance of compliance without actually making sure that no one in the business’s employ sells cannabis to a pregnant or nursing mother. It is not likely to have any more influence on employee behavior than the restroom sign ordering employees to wash their hands before returning to work. That undesirable outcome is particularly likely if the cannabis dispensary signs are located in the same places that Caligula posted the laws: places where no one could easily read them.

In any event, we know that simple admonitions, or even legal requirements not backed up by the criminal law and rigorous enforcement, won’t do the trick. How do we know that? Recall the Colorado budtenders’ recommendations discussed above.REF The Colorado cannabis regulations then in effect required the packaging of cannabis products to bear a warning against use of such products by women who then were (or were contemplating becoming) pregnant or were nursing.REF (Interestingly but sadly, Colorado’s cannabis rules currently do not require a medical warning for pregnant women, which is a step backwards for the two or more people involved.REF) Budtenders who recommended that women use cannabis to fend off morning sickness did so in violation of the message that the Colorado labeling warnings sought to convey.

What reason do we have to believe that dispensaries will comply now if all that we do is once again require them to post signs and tell budtenders to direct women to speak with their physicians before purchasing or using cannabis? Are we supposed to say, “This time we really mean it”? No. If it is reasonable to presume that not all physicians will disclose the full details of an abortion procedure to their patients,REF it certainly is eminently reasonable to presume that ganjapreneurs and budtenders will not tell pregnant women about the risks of maternal cannabis use, particularly because it is not in their financial interest to do so.

In these circumstances, it is eminently sensible to make it a criminal offense knowingly to sell cannabis to a pregnant woman. The criminal law is generally society’s last resort to avoid harmful conduct, brought out when people will harm others despite the teachings of the relevant moral code to refrain from knowingly injuring someone else. It is reasonable to conclude that nothing short of criminal sanctions, including imprisonment, will prove effective here. Civil penalties will be absorbed as a cost of doing business just as a tax would be. Relying on owners to dismiss budtenders who act as if they are Dr. Doug Ross on ER is not an adequate protection. Budtenders are fungible and disposable. Owners make no serious investment in their education (anyone can be inexpensively taught to say “Great buy, dude!” when making a sale) and, without skipping a beat, can replace them with someone else who is also unlicensed to prescribe medication.REF The criminal law is necessary, and it should focus on the point-of-sale transactions that pose the problem, whether owners or their employees handle that aspect of the cannabis business.

Of course, dispensary owners might try to avoid the risk of imprisonment by not engaging in the actual sales that occur in their businesses. To address that problem, the government should use the forfeiture laws to police owners’ conduct. Forfeiting a business might be an unduly harsh penalty for an accidental mistake, but a pattern of illegal sales can and should be suppressed by forfeiture of the relevant businesses. The federal racketeering laws and some state codes authorize the forfeiture of businesses because of the roles that otherwise legitimate businesses play in racketeering operations.REF Those laws are a reasonable means of deterring criminal conduct, and they are lawful even if, as is not the case here, the conduct at issue touches on an individual’s constitutional rights.REF The federal and state governments may use the forfeiture laws to seize financial assets accumulated through repeated violations of the criminal laws even when doing so potentially burdens the exercise of a constitutional right, such as the First Amendment Free Speech Clause right to sell books, photographs, or videos.REF In fact, narcotics traffickers could attempt to evade the forfeiture and money-laundering laws by hiding the proceeds of sales of heroin and the like by making them appear as though they are the product of cannabis sales.REF Dispensaries should not be allowed to perform the role of medieval churches as sanctuaries for ill-gotten goods.

Conclusion

Peter Fried, a researcher into maternal cannabis use on prenatal and postnatal children, once wrote that it is a mistake to conclude that “the absence of effects in the baby or young child is an indicant of a lack of behavioral teratogenicity of marijuana.”REF Put more simply, the absence of proof that maternal cannabis use will harm a child is not the same as proof that it won’t.

That proposition is directly applicable here. Congress and state legislators should adopt flat rules against the sale of cannabis to pregnant or breastfeeding women and make subject to the criminal and forfeiture laws any business that breaks that law. Private cannabis businesses cannot be trusted to protect women and their children against the damaging effects of cannabis use. Only by taking the actions recommended here can the government help protect the “two different individuals” who “may experience the potential adverse effects of cannabis” from the improvident decision of one of them or someone else living in the same home.

Paul J. Larkin is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese Center III for Legal and Judicial Studies at The Heritage Foundation. The author would like to thank John G. Malcolm, Derrick Morgan, William Poole, Meaghen McManus, Luke Niforatos, and Sarah Parshall Penry for valuable comments on an earlier iteration of this Legal Memorandum. Meaghen McManus also deserves kudos for her invaluable research assistance.

Appendix

American College of Obstetricians and Gynecologists and American Academy of Pediatricians Recommendations with Respect to Maternal Cannabis Use

The American College of Obstetricians and Gynecologists has adopted the following recommendations with respect to maternal cannabis use:REF

  • Before pregnancy and in early pregnancy, all women should be asked about their use of tobacco, alcohol, and other drugs, including marijuana, and other medications used for nonmedical reasons.
  • Women reporting marijuana use should be counseled about concerns regarding potential adverse health consequences of continued use during pregnancy.
  • Women who are pregnant or contemplating pregnancy should be encouraged to discontinue marijuana use.
  • Pregnant women or women contemplating pregnancy should be encouraged to discontinue use of marijuana for medical purposes in favor of an alternative therapy for which there are better pregnancy-specific safety data.
  • There are insufficient data to evaluate the effect of marijuana use on infants during lactation and breastfeeding, and in the absence of such data, marijuana use is discouraged.

The American Academy of Pediatricians has adopted the following recommendations with respect to maternal cannabis use:REF

  • Women who are considering becoming pregnant or who are of reproductive age need to be informed about the lack of definitive research and counseled about the current concerns regarding potential adverse effects of THC use on the woman and on fetal, infant, and child development. Marijuana can be included as part of a discussion about the use of tobacco, alcohol, and other drugs and medications during pregnancy.
  • As part of routine anticipatory guidance and in addition to contraception counseling, it is important to advise all adolescents and young women that if they become pregnant, marijuana should not be used during pregnancy.
  • Pregnant women who are using marijuana or other cannabinoid-containing products to treat a medical condition or to treat nausea and vomiting during pregnancy should be counseled about the lack of safety data and the possible adverse effects of THC in these products on the developing fetus and referred to their health care provider for alternative treatments that have better pregnancy-specific safety data.
  • Women of reproductive age who are pregnant or planning to become pregnant and are identified through universal screening as using marijuana should be counseled and, as clinically indicated, receive brief intervention and be referred to treatment.
  • Although marijuana is legal in some states, pregnant women who use marijuana can be subject to child welfare investigations if they have a positive marijuana screen result. Health care providers should emphasize that the purpose of screening is to allow treatment of the woman’s substance use, not to punish or prosecute her.
  • Present data are insufficient to assess the effects of exposure of infants to maternal marijuana use during breastfeeding. As a result, maternal marijuana use while breastfeeding is discouraged. Because the potential risks of infant exposure to marijuana metabolites are unknown, women should be informed of the potential risk of exposure during lactation and encouraged to abstain from using any marijuana products while breastfeeding.
  • Pregnant or breastfeeding women should be cautioned about infant exposure to smoke from marijuana in the environment, given emerging data on the effects of passive marijuana smoke.
  • Women who have become abstinent from previous marijuana use should be encouraged to remain abstinent while pregnant and breastfeeding.
  • Further research regarding the use of and effects of marijuana during pregnancy and breastfeeding is needed.
  • Pediatricians are urged to work with their state and/or local health departments if legalization of marijuana is being considered or has occurred in their state to help with constructive, nonpunitive policy and education for families.