Lawsuit Says Idaho's Pregnant Pot User List is Unconstitutional

An Idaho Department of Health and Welfare policy that places women on a registry for ingesting cannabis while pregnant discriminates against them for not living up to a certain "image of pregnancy and motherhood," according to a woman fighting to remove herself from the database.

Keeva Rossow is currently on the hook for using THC while pregnant, facing 10 years on a state list of alleged child abusers. But she argued in a Monday response that the registry is illegitimate as fetuses are not yet children, with the state exceeding its authority granted under the Idaho Child Protective Act, which doesn't have to do with prenatal life.

Plus, she argued, pregnant women have a constitutional right to be free from government interference with their bodies, including during pregnancy. And the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization  does not suggest prenatal life confers personhood under the 14th Amendment, the response said.

"The leap in defendant's argument to expand current constitutional law would create not just a slippery slope, but rather an uncontrollable landslide," the response said.

"If a zygote at the moment of conception were legally recognized as a 'child,' what legal rights would it have?" it added. "Would a pregnant person have any right at all to smoke cigarettes, drink alcohol or engage in long-distance running? If a pregnant person were to lose a pregnancy due to poor nutrition, would she be liable for negligent homicide?"

In short, the response said, a woman's decision to ingest what she wants while pregnant is "no less substantial" than her right to use contraception or to carry to term. Rossow named Department of Health and Welfare Director Dave Jeppesen as the defendant.

Rossow sued in March and said she, along with other women, had been placed on the registry for 10 years because of a prenatal drug test that showed she used THC, which she used to treat severe nausea and vomiting associated with her pregnancy.

Her suit noted that while THC is considered a controlled substance under Idaho law, alcohol and cigarettes are not, and the policy does not consider whether the substance poses any risk to the unborn fetus.

Rossow said her daughter, born in December 2021, is healthy with no known medical issues. But she received a letter two weeks after her daughter's birth saying she was being placed on Level 2 of the registry, a designation that states she poses a "medium to high risk to children," her suit said.

And while Rossow exhausted the administrative process for review of her placement on the registry, that does not mean she or other pregnant women receive due process under the law, she argued.

Counsel for Rossow and the state did not immediately respond to requests for comment on Wednesday.

Rossow is represented by Emily MacMaster of MacMaster Law PLLC.

The state is represented by Lincoln Wilson of the Idaho Attorney General's Office.

The case is Rossow v. Jeppesen, case number 1:23-cv-00131, in the U.S. District Court for the District of Idaho.