Smoking while pregnant whether tobacco or cannabis is widely discouraged by medical authorities, but is it actually illegal in the United States? The short answer: in most cases, no, there is no blanket federal law that criminalizes a pregnant person’s decision to smoke. However, the legal landscape is complex, state-specific and evolving, especially when it comes to drug use during pregnancy.
1. Smoking Tobacco During Pregnancy
From a legal standpoint, smoking cigarettes or vaping nicotine while pregnant is not a crime under federal law. The U.S. Centers for Disease Control and Prevention (CDC) clearly recognize the health risks—such as low birth weight, preterm birth, and sudden infant death syndrome (SIDS) —but public-health risk does not automatically translate into criminal liability.
There is no federal statute that treats smoking tobacco during pregnancy as child abuse or criminal endangerment. The U.S. government does regulate tobacco via warning labels (for example, the Comprehensive Smoking Education Act requires warnings that smoking “may complicate pregnancy”), but that’s a public health measure, not a criminal penalty.
2. Cannabis (Marijuana) Use While Pregnant
The picture becomes more complicated when we shift to cannabis. Because marijuana remains a controlled substance at the federal level (Schedule I), its use raises potential legal issues—and yet, it still isn’t automatically a crime to smoke cannabis during pregnancy across the board.
- Medical and professional guidance: According to the American College of Obstetricians and Gynecologists (ACOG), there is “no safe level” of cannabis use during pregnancy; use has been linked to preterm birth, low birth weight, and developmental issues in children. The ACOG’s 2025 clinical consensus explicitly advises screening and counseling for cannabis use in pregnant or lactating individuals.
- Health risks: The CDC warns that THC (the primary psychoactive component of cannabis) crosses the placenta and may interfere with fetal brain development.
- Criminalization risk: While there is no universal criminal prohibition specifically for “smoking while pregnant,” some states have attempted to prosecute pregnant individuals whose substance use allegedly harms their fetus. Legal scholars have documented prosecutions under state child endangerment or child abuse statutes. These cases have involved various substances—not only marijuana but also more dangerous drugs like methamphetamine.
Importantly, not every jurisdiction treats prenatal drug use the same. Only a subset of states have laws that explicitly target substance use during pregnancy, and even fewer target smoking alone. According to advocacy and medical sources, Tennessee is among the few states with a law that criminalizes certain prenatal drug use as assault. But criminal prosecutions remain relatively rare and controversial.
3. Legal Risks Beyond Criminal Charges
Even without a criminal statute, smoking (especially of illicit substances) during pregnancy can trigger serious legal and civil consequences:
- Child welfare investigations: If a newborn tests positive for drugs or there is evidence of substance use, medical staff may report to child protective services (CPS).
- Loss of parental rights: In some states, substance use during pregnancy can be grounds for removing a child from the mother’s custody or terminating parental rights.
- Stigma and medical intervention: Pregnant individuals may also face increased monitoring, mandatory counseling, or be pressured into treatment programs.
4. Why Criminalization Is Controversial
From a legal and ethical standpoint, prosecuting women for substance use during pregnancy raises significant concerns:
- Bodily autonomy: Many attorneys argue that criminal statutes targeting prenatal behavior infringe on a woman’s rights and may conflict with established principles of medical privacy and autonomy.
- Public health trade-offs: Punitive laws can deter pregnant individuals from seeking prenatal care or addiction treatment, for fear of being reported or prosecuted.
- Unequal enforcement: Empirical reviews have shown that prosecutions disproportionately affect marginalized, low-income, or minority women.
Conclusion
Smoking while pregnant is not categorically illegal in the U.S., for either tobacco or cannabis. However, the risk isn’t zero. Particularly for cannabis and other controlled substances, state-level laws may expose a pregnant person to criminal charges or child-welfare consequences, depending on local legislation and how aggressively authorities enforce it.
