In January 2021, Nicole Hamann gave birth to her fourth child in Idaho, a state where marijuana is illegal. While still at the hospital, she learned that both she and her newborn tested positive for THC, the psychoactive component in marijuana. As a result, Child and Family Services began an investigation. A single positive test result for THC in a newborn is considered presumptive evidence of child abuse in Idaho.

Hamann explained that she consumed a pot-laced brownie at a relative’s house in Oregon, where marijuana is legal. Despite this, her name was added to Idaho’s child protection central registry, listing her as a child abuser for ten years, impacting her ability to work or volunteer. Hamann, along with at least a thousand other mothers in similar situations, must navigate significant challenges as a result.

Another mother, Ashley McGrath, faced similar issues. Experiencing severe nausea during her pregnancy, McGrath turned to marijuana gummies for relief after prescribed medication failed her. Despite her child being born healthy, McGrath also found herself on the child abuse registry, unable to pursue her healthcare career.

Attorney Rick Hearn has filed a federal class action suit against Idaho, arguing that these mothers are losing their ability to support their families without due process. He highlighted that no evidence is required of actual harm to the child to place a mother on the registry.

“You’re not doing anything for them other than stopping their ability to support themselves and their children.” – Rick Hearn

A joint investigation by CBS News and The Marshall Project revealed that in 21 states, new mothers were referred to law enforcement over 70,000 times for alleged substance use during pregnancy, mostly due to THC. In one instance, Ayanna Harris-Rashid was charged with “unlawful conduct towards a child” in South Carolina after her baby tested positive for THC, a charge carrying a potential ten-year penalty.

Attorney Erin Bailey defended Harris-Rashid, challenging the severity of the charges. Though charges were dropped, the experience left a lasting impact on Harris-Rashid and other mothers involved in similar cases.

A Marshall Project analysis found that mothers of Black newborns were referred to law enforcement more frequently than mothers of White babies. This disparity suggests potential racial bias in the system.

For many of these mothers, clearing their records does not erase the emotional and financial toll it takes. As Hamann said, “One test took everything away from me.” She now speaks out to help prevent this from happening to others, despite the risk of judgment from her community.

This situation underscores the complexities and controversies surrounding drug testing of new mothers, especially in states with varying cannabis laws.