Nearly 50 years ago, in the summer of 1966, Santa Barbara Municipal Court Judge Frank P. Kearney offered 21-year-old Nancy Hernandez of West Virginia an Orwellian choice.
Arrested on a misdemeanour charge, Hernandez had two options: either a six-month jail term, or probation and permanent reproductive sterilization.
Hernandez's offence was, bizarrely, unrelated to her skills as a parent. The charge on which she was found guilty? Being in a room where marijuana was present. According to Rebecca M. Luchin's book, "Fit to Be Tied: Sterilization and Reproductive Rights in America, 1950-1980," Hernandez had split with her ex - with whom she had a daughter - and was living with her boyfriend, a marijuana dealer named Joseph Sanchez. Hernandez was in the same room as Sanchez's stash when police raided the apartment, which resulted in the charge and ensuing, nightmarish sentence.
Hernandez should have been prohibited from giving birth again, Judge Kearney reasoned, " due to her propensity to live an immoral life." Charleston's Sunday Gazette Mail ran a photo of Hernandez and her toddlers: the headline screamed SHOULD THIS WOMAN BE ALLOWED TO HAVE MORE CHILDREN?
Even in 1966, the case sparked public outrage. At the time, Attorney AL. Wirin of the ACLU stated, " sterilization is a violation of constitutional rights and is additionally so when it is imposed as a condition of probation."
Nevertheless, Hernandez - already the mother of two small kids - agreed to the condition. At least, at first. Soon, conversations with a priest, a doctor, and her family persuaded her to reconsider. When Hernandez informed the judge she'd changed her mind, Kearney revoked Hernandez's probation and sentenced her to three months in jail.
The story remained national news, raising questions about the role of the state in women's reproductive health as well as the ability of judges to crack down arbitrarily on marijuana-related offences.
The Hernandez case might sound like a sad, weird historical sidebar in our (comparatively) uber-permissive 2015 climate, when 23 states have now legalized marijuana for medical use and everyone from Oprah Winfrey to Barack Obama have admitted to consuming the drug.
But evidence of cannabis use is still being deployed by law-enforcement officials as grounds for opening CPS investigations against families - sometimes with life-altering implications for all involved.
Take the case of Shawnee Anderson of Napa, California. According to Al Jazeera reports, in January 2014, police officers investigating a fight between Anderson and her partner found medical marijuana packages, cannabis oil, and burned joints in their home. As a result, Anderson and her partner, Aaron Hillyer, spent five days in jail: Anderson was charged with felony child endangerment, and her 11-month-old son was seized and put into foster care, even though both were licensed medical marijuana patients under the 1996 state medical marijuana law.
Such cases have carved out a space for organizations like the Family Law and Cannabis Alliance, which exists solely to help parents accused of abuse or neglect as a result of marijuana use to navigate the system. The FLCA's website includes sections on negotiating a visit from CPS, and overviews of marijuana and child protection laws. Their mission statement:
"...we believe that it is wrong to punish parents who use cannabis medicinally or recreationally by exposing them to CPS investigations and temporary or permanent loss of custody of their children. Marijuana use is not proof of poor parenting and should not be used to separate families or subject them to unnecessary state intervention."
The FLCA reportedly assisted 200 families in the United States last year; however, the total number of child abuse and neglect investigations related to marijuana use, medical or otherwise, is exponentially higher. At least a dozen maternity wards in NYC perform random tests on newborns for drugs, reporting positive tests to child protective services in a practice widely decried as discriminatory against low-income families of color. In some states, the law allows a child to be placed into foster care on the basis of a single positive drug test.
Marijuana laws obviously vary from state to state - as do statutes on parents using the drug. But one thing remains constant: as better information about the relative safety of marijuana becomes available, and laws continue to relax across the country, laws protecting parents who consume cannabis need to evolve as well.