The Oklahoma Court of Criminal Appeals ruled this month that if a pregnant woman uses her legally prescribed medical marijuana, it doesn’t mean she’s committing neglect against the fetus.

Under Oklahoma law, failing to protect a child against exposure to illegal drugs constitutes child neglect.

In the 3-2 majority opinion, Judge Scott Rowland found that “while every other drug listed in Schedule I is likely an ’illegal drug’ as that term is used in the child neglect statute, marijuana may or may not be, depending upon whether the particular user has a medical marijuana card.”

Judge Rowland noted that the mother in the case had a medical marijuana card and that her consumption wasn’t a use of an “illegal drug” under state law.

The mother in the case, Amanda Aguilar, was charged in 2020 after her baby’s first stool tested positive for marijuana. She told the Oklahoma Department of Human Services that she had smoked pot to deal with morning sickness and showed them her medical marijuana card, according to The Oklahoman.

In a dissenting opinion, Judge Gary Lumpkin argued that the ruling “is devoid of common sense as the drug is still an illegal and unlawful drug” once a baby without a medical card is exposed, and that the majority opinion “strains a gnat’s hair to disregard the status of the unborn baby” since exposure to marijuana could still be considered harmful.

In the other dissent, Judge David Lewis said neither the voters nor the Oklahoma Legislature “intended to legalize child neglect in the form of marijuana exposure by their enactment of medical marijuana laws.”

Judge Rowland’s rejoinder was that lawmakers must clarify the situation.

Finding that Ms. Aguilar’s use of marijuana while pregnant is illegal “would require us to rewrite the statutes in a way we simply do not think is appropriate for courts to do. We urge [lawmakers] to consider an addition to the law making clear when, if ever, the licensed use of marijuana may constitute child neglect,” Judge Rowland wrote.

Ms. Aguilar is not the only Oklahoma mom charged over medical marijuana use during pregnancy.

At least 17 women with medical marijuana cards were prosecuted for using pot while pregnant over the past decade, with most taking plea deals in exchange for probation and the hopes of their cases being dismissed, according to The Frontier news site.

“There’s so many moms that are going to take these charges just because they’re terrified,” Ms. Aguilar told The Frontier.

At least five of the cases, including Ms. Aguilar’s, were dismissed when courts found their usage of cannabis was licensed and therefore legal.