Oklahoma Wants to Prosecute Woman Who Took Edibles Because Her Fetus Didn’t Have Medical Marijuana Card

And here I thought I’d seen it all when it comes to nightmare pregnancy criminalization cases...

Oklahoma Wants to Prosecute Woman Who Took Edibles Because Her Fetus Didn’t Have Medical Marijuana Card
The Oklahoma Supreme Court Photo:Wikimedia

On Thursday, Pregnancy Justice filed a lawsuit asking the Oklahoma Supreme Court to stop prosecutors from charging pregnant people in the state with felony child neglect for using medical marijuana—a legal medication—during pregnancy. Per reporting from The Frontier, since 2018—when the state voted to legalize medical marijuana use—Oklahoma has charged dozens of women with child neglect for marijuana use during pregnancy. In 17 of these cases, the women were prosecuted even though they had medical marijuana licenses. Felony child neglect charges carry a maximum sentence of life in prison in Oklahoma.

According to Pregnancy Justice’s suit, an Oklahoma mother named Brittany Gunsolus gave birth to a healthy baby in October 2020. But because Gunsolus’ infant tested positive for traces of marijuana, Kyle Cabelka, district attorney of Comanche and Cotton counties in Oklahoma, charged Gunsolus with felony child neglect in May 2021. This is despite Gunsolus having a valid medical marijuana license and an Oklahoma Department of Human Services investigation which found the allegation of child neglect against her to be “unsubstantiated.” Child welfare workers said her home was safe and loving for her child. Yet Cabelka pressed on in his case against Gunsolus, now set to go to trial in January, for a bogus reason that Pregnancy Justice highlights in the lawsuit: When Gunsolus used marijuana—in the form of edibles and salves—while she was pregnant, her then-fetus did not have its own state license to use medical marijuana.

I repeat: Gunsolus faces felony charges because her fetus did not have a medical marijuana license. And because of this, she could face life in prison. The Frontier reports that local prosecutors first made this argument at a hearing in Comanche County court back in August.

While medical experts have advised against marijuana use during pregnancy, Gunsolus’ child was born healthy. And Pregnancy Justice argues that if a non-pregnant person with a medical marijuana license wouldn’t face charges for using marijuana, pregnant people shouldn’t be treated differently. “Ms. Gunsolus engaged in legal conduct, and being pregnant doesn’t turn legal conduct into illegal conduct,” Pregnancy Justice President Lourdes A. Rivera said in a statement. “Being pregnant doesn’t automatically exclude you from the protections of laws, and prosecutors cannot rewrite laws or charge people simply because they dislike certain behaviors.”

The argument that Gunsolus’ fetus didn’t have a medical marijuana license is so absurd as to almost be comical, but it extends from the same alarming legal theory of fetal personhood that’s being weaponized to target, criminalize, and endanger pregnant people. If a fetus is a person with legal rights, Pregnancy Justice’s Dana Sussman previously told Jezebel, and the pregnant person’s “rights are secondary to the fetus or at odds with the fetus,” that “lends to an environment in which violence—whether it’s state violence like imprisonment or interpersonal violence—can be committed against pregnant people with far less accountability.”

Per a report released by Pregnancy Justice earlier this year, Oklahoma ranks among the top four states with the most criminal charges doled out against pregnant people. But criminal charges or other punitive actions for alleged substance use pose a threat to pregnant people in all states, from California, New York, and Illinois, to Alabama, where one county was said to have jailed as many as 12 pregnant or postpartum people suspected of legal and illegal substance use in a single month in 2022. One Alabama woman was jailed for allegedly using substances while pregnant until a pregnancy test that she’d initially been denied proved she wasn’t even pregnant.

Gunsolus’ case, set to go to trial within weeks, reflects the worst of legal experts’ fears of a post-Roe v. Wade world that would make all pregnancies subject to criminal suspicion. And as the timeline of Gunsolus’ case shows, this has been a harrowing legal reality for years now.

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