Women with state medical cards who use marijuana during pregnancy can’t be prosecuted for child neglect, the Oklahoma Court of Criminal Appeals ruled Thursday.
Amanda Aguilar has been waiting nearly four years for the ruling. She was charged with felony child neglect in Kay County in 2020 after her son tested positive for marijuana at birth, but fought her charge. A single mother of five, the case has caused her endless worry and to lose job opportunities, she said.
“I might have actually laid down if this had been a fight over any other thing,” Aguilar said Thursday after learning the court had ruled in her favor. “But because it was over my kids, that was the reason I didn’t give up.”
Aguilar’s case was first featured in a 2022 story by The Frontier and The Marshall Project. She used medical marijuana to treat severe morning sickness during her pregnancy. Aguilar had a doctor- approved state license to use it and her son was born healthy. But the hospital reported her to child welfare workers, who handed over her baby’s drug test results to police.
The ruling sets a new legal precedent in Oklahoma, where a growing number of women have faced child neglect charges for using marijuana during their pregnancies, even when they have a license from the state to use it legally.
Aguilar said she’s glad the decision will make a difference in the lives of other mothers facing criminal charges. The Frontier and The Marshall Project reported earlier this year that most women who are prosecuted are too poor to afford their own attorneys and that the cases hinge mostly on information gathered by child welfare workers. Most women accept plea agreements in exchange for probation.
“There’s so many moms that are going to take these charges just because they’re terrified,” Aguilar said.
The court ruled that it does not condone marijuana use for pregnant women, but that it’s legal in Oklahoma.
“For us to find that Aguilar’s marijuana use, fully authorized by her medical marijuana card, became illegal due to her pregnancy, would require us to rewrite the statutes in a way we simply do not think is appropriate for courts to do,” Presiding Judge Scott Rowland wrote in the court’s majority opinion.
The court urged the Legislature to consider changing the law to allow women to be criminally charged.
Two judges dissented, arguing that Aguilar’s unborn son did not have his own medical marijuana license and that it was not the intent of voters or the Legislature to allow unborn children to be exposed to the drug when they passed medical marijuana laws.
Aguilar’s case was one of at least five in the past year that Kay County judges threw out after defense attorneys argued that medical marijuana is legal in Oklahoma and that the women hadn’t committed a crime. Kay County District Attorney Brian Hermanson has prosecuted dozens of women in his district for child neglect after they used drugs during pregnancy, many for using medical marijuana.
Hermanson appealed Aguilar’s and another woman’s case, arguing the mothers broke the law because their unborn children did not have their own, separate licenses to use medical marijuana. The Frontier has reached out to Hermanson’s office for comment.
