Can a mom who smoked pot while pregnant be charged with child neglect? It depends

A mother cannot be charged in Oklahoma with child neglect for using pot while pregnant if she had a medical marijuana card, a divided appeals court ruled Thursday.

Judges on the Oklahoma Court of Criminal Appeals called on the state Legislature to address the issue. "We certainly do not condone marijuana use by an expectant mother," Presiding Judge Scott Rowland wrote for the majority.

The Court of Criminal Appeals voted 3-2 to uphold a Kay County judge's decision last year throwing out the felony case against a Ponca City woman.

Amanda Camp Aguilar, now 34, was charged with child neglect in 2020 after her newborn's meconium tested positive for THC. While pregnant, she had admitted to smoking pot to deal with morning sickness.

She made the admission in September 2020 to a child welfare specialist with the Oklahoma Department of Human Services who was investigating a report two of her children lacked supervision, according to legal filings. She showed the DHS worker her medical marijuana card.

She had said the last time she smoked pot was in June 2020, according to the filings. Her boy was born on Oct. 15, 2020.

Her attorney told the appeals court that Aguilar gave birth to a healthy baby boy and that tests on her were negative for all drugs. The attorney also told the court that none of her children were ever removed from her home because the Department of Human Services concluded they were being well cared for.

Prosecutors told the appeals court the mother had said she used marijuana in the beginning for her pregnancy "because it was cheaper to smoke it than it was to buy her medication." Prosecutors also noted the back of her state-issued card says do not use pot "if you are pregnant or breastfeeding."

The maximum punishment for child neglect is life in prison. A person can be charged with child neglect for failing to protect a child from exposure to illegal drugs. The majority opinion noted that for Aguilar, "marijuana is not an illegal drug."

"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," the presiding judge wrote. "We urge the Legislature to consider an addition to the law making clear when, if ever, the licensed used of marijuana may constitute child neglect."

Agreeing in a concurring opinion was Judge Robert Hudson. He wrote that "it is not this Court's function to legislate."

In a stinging dissent, Judge Gary Lumpkin complained the majority opinion is devoid of common sense and disregards "the status of the unborn baby." He wrote that "the baby had no medical marijuana license."

Judge David Lewis was just as harsh in a separate dissent.

"Until today, who could really doubt that a licensed marijuana consumer would face legal consequences for willfully sharing, distributing or permitting the unlicensed ingestion of marijuana by children for whose welfare they are responsible?" Lewis wrote.

He also wrote that "neither the People nor the Oklahoma Legislature intended to legalize child neglect in the form of marijuana exposure by their enactment of medical marijuana laws."

The decision will affect other cases pending in Kay County and Comanche County.

An online news outlet, The Frontier, has reported finding 17 cases where women were prosecuted over their marijuana use while pregnant, even though they had state medical marijuana licenses. Most agreed to deals for probation, The Frontier reported.