M E M O R A N D U M

To: Dr. Pippa Abston

From: Emma S. Ketteringham, Director of Legal Advocacy, National Advocates for Pregnant Women

Date: March 15, 2012

Re: Analysis of Alabama SB 31

______

SB 31: Harmful to Alabama Women and Children

Introduction

Alabama Senate Bill 31 (“SB 31”) creates a new crime that is bad for mothers and infants because it will undermine maternal, fetal and child health. The law would make the state’s chemical endangerment law applicable to a pregnant woman who uses any amount of a “controlled substance,” prescribed or otherwise, at any point in her pregnancy, and whether or not she knew she was pregnant at the time of ingesting the controlled substance. It would also make women who carry their pregnancies to term and give birth at a hospital or with a physician particularly vulnerable to arrest and prosecution. The bill, as written, specifically provides that any licensed physician providing medical treatment to a “mother or child” shall not be subject to criminal liability under this section; however, a physician who prescribes medication to a woman during her pregnancy remains vulnerable to prosecution.

If passed and enacted,Alabama would be an outlier in the nation. While many states have considered bills to make it a crime for a woman to carry a pregnancy to term in spite of having used a drug, not a single state legislature in the country has passed such a criminal law. This is in large measure because leading medical, public health, and, child welfare organizations all agree that such laws are not supported by current medical information and are bad for infants because they undermine maternal, fetal, and child health. (See enclosed Medical and Public Health Statements addressing Prosecution and Punishment of Pregnant Women, National Advocates for Pregnant Women, (2011)).

In sum, this bill would cause real and devastating health consequences by deterring pregnant women from seeking prenatal care and drug treatment, by discouraging pregnant women who do seek medical treatment from disclosing critical information about their drug use to their health care providers, and by creating an incentive for pregnant women who cannot overcome a drug problem to terminate a wanted pregnancy rather than face criminal charges. Moreover, nothing in this bill creates funding for additional treatment for pregnant women or children. Rather it misleadingly suggests that imprisoning pregnant women and new mothers will be a positive, revenue-enhancing move for the state claiming that crippling poor families with debt and tearing newborns from their mothers will be a boon to the state’s economy.

Summary of Bill

SB 31 seeks to amend the state’s chemical endangerment law.[1] That law was designed to deter people who run methamphetamine laboratories from bringing children to such dangerous locations. SB 31 seeks to amend the statute so that prosecutors can treat a pregnant woman as if she is an illegal drug lab. The bill provides that the term "child" will “include but is not limited to, an unborn child in utero at any stage of development regardless of viability.”

Thus, pregnant women in relation to the fertilized eggs, embryos, and fetuses they carry and sustain would be covered by this statute. The legislature would be creating a gender-specific law punishing pregnant women for drug use. This bill would also create a “rebuttable presumption” of exposing a child to a controlled substance if both the mother and the child test positive at birth for the same controlled substance not prescribed by a physician. The bill adds nothing to the legislation that creates standards for or ensures the accuracy of drug tests performed at hospitals. Finally, the law says that venue for a prosecution will lie where the child is born.

This Bill Will Undermine Maternal, Fetal and Child Health

As written, any pregnant woman who admits to having a drug problem and any pregnant woman who seeks any kind of help for a drug problem would be subject to arrest for the crime of chemical endangerment. This bill does not contain an affirmative exception or defense for pregnant women who are in drug treatment programs or who seek help for their drug problems. Nor does the proposed law authorize increased funding for treatment or prohibitions against discrimination against pregnant women by the limited number of drug treatment programs that exist in the state.

Medical experts agree that, whether or not a pregnant woman can stop her drug use altogether, obtaining prenatal care, staying connected to the health care system, and being able to speak openly with their physicians about drug problems helps ensure healthy birth outcomes.[2] Discouraging women from getting help and from communicating with their health care providers leads to worse health outcomes for babies. Indeed, it has specifically been recognized that pregnant women who are threatened with criminal sanctions are likely to be deterred from seeking care that is critical to the health of both pregnant woman and fetus, rather than from using a drug to which they are addicted.[3] This is one reason why every leading medical organization to address this issue, including the American Medical Association, the American College of Obstetricians and Gynecologists, the American College of Nurse Midwives, the American Academy of Pediatrics, the American Public Health Association, the American Psychiatric Association, the American Academy of Family Physicians, and the March of Dimes, has concluded that the problem of alcohol and drug use during pregnancy is a health issue best addressed through education and community-based treatment, not through the criminal punishment system.[4] Even for those women who are not completely deterred from seeking care, fear of prosecution is likely to discourage them from being truthful about drug use, corroding the formation of trust that is fundamental to any health care provider-patient relationship. As the U.S. Supreme Court recognized, a “confidential relationship” is a necessary precondition for “successful [professional] treatment.”[5]

Open communication between drug-dependent pregnant women and their health care providers is especially critical.[6] Health risks to women, fetuses, and children whether from poverty, inadequate nutrition, exposure to alcohol, drugs, or other factors can be mitigated through prenatal care, counseling, and continued medical supervision. For this to be effective, however, the patient must trust her health care provider to safeguard her confidences and stand by her while she attempts to improve her health (even when those efforts are not always successful). Converting the physician’s exam room into an interrogation chamber and turning health care professionals into agents of law enforcement destroys this trust and deters the most vulnerable women from securing prenatal care.

Enacting SB 31 would send a perilous message to pregnant women with substance abuse problems, not to seek prenatal care or drug treatment, not to confide their addiction to health care professionals, not to give birth in hospitals, or not to carry the fetus to term – all in order to avoid criminal punishment. This result would undermine, not advance, the state’s objective of promoting maternal and fetal well-being.

SB 31 will Encourage Some Women to Terminate Wanted Pregnancies

SB 31will also encourage women who do not think they can overcome a drug problem in the short term of pregnancy to have abortions in order to avoid arrest. Leading medical organizations and courts have recognized this possibility.[7] In a North Dakota case, that is exactly what Martina Greywind did to avoid a prosecutor’s charge of reckless endangerment based on the claim that by inhaling paint fumes while pregnant, she was creating a substantial risk of serious bodily injury or death to a "person"—her unborn child.[8]

Incarcerating Pregnant Women Will Increase Dangers to Fetal and Child Health

While SB 31 will not increase access to treatment or care for pregnant women, it will increase the number of pregnant women and new mothers in Alabama’s jails and prisons. This increase will be detrimental to the health of their babies. In a recent state-by-state report and analysis, Alabama received a grade of “F” for the delivery of adequate prenatal care to its pregnant prisoners in jail.[9] Alabama does not adequately provide medical examinations, prenatal nutrition counseling, appropriate nutrition, screening, and treatment of women with high risk pregnancies, screening for HIV, advice on safety, or advance arrangements for birth as part of its prenatal care for women in jail.

Furthermore, SB 31 will contribute to the already existing problem of prison overcrowding in Alabama. In Julia Tutwiler Prison the inmate population remains at 200 percent of capacity, even after an expensive lawsuit. Julia Tutwiler Prison also has a history of failing to provide basic medical care, adequate hygiene, beds, ventilation, and nutrition.[10] County jails are similarly ill equipped to provide healthy environments topregnant women.[11]

SB 31 Makes Both Pregnant Women and Their Physicians Vulnerable to Criminal Investigation and Arrest

SB 31 makes a woman’s use of any controlled substance while pregnantthe crime of chemical endangerment. The bill, as written, makes it an affirmative defense that the controlled substance was provided by lawful prescription—but only if the pregnant woman’s use of that substance is discovered at the “time of birth.” The law also makes it an affirmative defense that the controlled substance was provided by lawful prescription to the child. Thus, SB 31could criminalizedoctors and emergency medical personnel who lawfully prescribed medications to women during the course of their pregnancies.

Many types of prescription drugs are schedule II, III, IV and V controlled substances that are unlawful for a pregnant woman to use under SB 31. For example, Methadone is the treatment recommended by the U.S. government for pregnant woman with opioid addictions.[12] Yet pregnant women taking therapeutic methadone prescribed by her doctor and the doctor who prescribed it could be arrested and prosecuted under this proposed law.

Exempting physicians who prescribe drugs to mothers does not cure this law.

SB 31 Will Transform Health Care Providers Into Police Agents

SB 31 makes evidence of any drug use by a pregnant woman the crime of chemical endangerment; it does not require the baby to have been born before criminal liability attaches. Converting the physician’s exam room into an interrogation chamber and turning health care professionals into agents of law enforcement destroys the trust necessary for an effective doctor-patient relationship and deters the most vulnerable women from securing prenatal care.

Evidence of drug use by a pregnant woman or new mother is often identified as a result of drug testing – but the proposed bill makes no provision to ensure the accuracy or constitutionality of such testing. In fact, SB 31 transforms drug testing into searches that facilitate criminal investigation by explicitly making a drug screen prosecutorial evidence and presumptive evidence of guilt. The Supreme Court of the United States has said that drug tests done to provide information to state criminal authorities are searches under the law and, if done without a warrant or with specific, explicit informed consent to a search for criminal justice purposes, such searches violate civil rights laws.[13] As a result some health care providers will be vulnerable to lawsuits for damages for violations of patient’s Fourth Amendment Rights.

Pregnant Women, New Mothers, and Babies Would Have Less Protection from Erroneous Drug Test Results than Hospital Employees and Job Applicants

SB 31 also makes a physician-performed drug screen presumptive evidence of criminal guilt without defining what kind of testing or even what cut-off levels would constitute a “confirmed” test. In 1993, the U.S. Department of Health and Human Services Substance Abuse Mental Health Services Administration (SAMHSA) convened an expert consensus panel to improve drug treatment for pregnant women. The SAMHSA expert panel did not recommend routine drug testing for pregnant women or newborns but clearly stated that if pregnant women are subjected to alcohol and drug testing, that testing should be done with the woman’s informed consent and in accordance with the standards used for urine drug testing in the workplace as proscribed by the federal workplace drug testing guidelines.[14]

Federal workplace drug testing guidelines provide protections such as cut off levels to establish a true positive result, guaranteed confirmatory testing, and an opportunity to challenge results and have a re-test. Without these safeguards, there is a high incidence of false (simply wrong) or innocent (positive for a prescribed drug/over the counter medication) positives among pregnant women and newborns.[15] SB 31 does not afford pregnant women, new mothers and newborns the same safeguards afforded to job applicants and employees at most hospitals.

The Assumption Underlying SB 31– That Pregnant Women Who Use Any Amount of an Illegal Drug Cause Unique and Substantial Harm to Their Newborns – Is Not Supported by Scientific Research

SB 31 singles out pregnant woman who use an illegal drug as uniquely deserving of punishment. This proposed legislation appears to be based on the assumption that pregnant women who use any amount of an illegal drug have created unique and substantial harm or risk of harm to their newborns.

Certainly, some newborns exposed prenatally to some substances and conditions do suffer adverse short or long-term consequences. These infants include those whose mothers lacked access to quality prenatal care and adequate nutrition, smoked cigarettes while pregnant, worked in certain occupations,[16] used Accutane,[17] or used fertility-enhancing medications that cause multiple births associated with prematurity and other life-threatening hazards.[18]

Sensational, inaccurate, and misleading news reports however have convinced many people of the necessity for significant and intrusive state responses to the problem of drug use and pregnancy. The belief that prenatal exposure to any amount of an illegal drug causes unique harm, however, lacks basis in scientific research.[19]

For example, dozens of carefully constructed studies establish that the impact of cocaine on newborns has been greatly exaggerated and that other factors are responsible for many of the ills previously associated with cocaine use – with poverty chief among them.[20] Based on a systematic review of all leading English-language studies of the effects of in utero cocaine exposure, leading researchers in the prestigious Journal of the American Medical Association (JAMA) concluded that:

[T]here is no convincing evidence that prenatal cocaine exposure is associated with any developmental toxicity difference in severity, scope, or kind from the sequelae of many other risk factors.[21]

Furthermore there is scant scientific evidence linking prenatal cocaine exposure with such things as sudden infant death syndrome or infant mortality in general. This is in sharp contrast to the research on prenatal exposure to cigarettes. Low birth weight, sudden infant death syndrome, spontaneous abortion, premature rupture of the membranes, and abnormal placentation and stillbirth are all well established consequences associated with prenatal tobacco exposure.[22] By contrast, cocaine – while not benign – does not cause “the frank damage found with nicotine or smoking.”[23]

Today courts and leading federal government agencies confirm that “the phenomena of ‘crack babies’ . . . is essentially a myth.”[24] As the National Institute for Drug Abuse has reported, “Many recall that ‘crack babies,’ or babies born to mothers who used crack cocaine while pregnant, were at one time written off by many as a lost generation. . . . It was later found that this was a gross exaggeration.”[25] The U.S. Sentencing Commission has similarly concluded, “research indicates that the negative effects from prenatal exposure to cocaine, in fact, are significantly less severe than previously believed” and “research on the impact of prenatal exposure to other substances, both legal and illegal, generally has reported similar negative effects.”[26]

Exaggerated concerns about newborns exposed prenatally to methamphetamine are similarly unjustified. In 2005, a national expert panel reviewed published studies about the developmental effects of prenatal exposure to methamphetamine and related drugs and concluded that, “the data regarding illicit methamphetamine are insufficient to draw conclusions concerning developmental toxicity in humans.”[27] In that same year more than 90 leading medical doctors, scientists, psychological researchers, and treatment specialists released an open letter warning that terms such as “meth babies” lack medical and scientific validity and should not be used.[28]

The American College of Obstetrics and Gynecology’s special information sheet about methamphetamine use in pregnancy notes that "the effects of maternal methamphetamine use cannot be separated from other factors” and that there "is no syndrome or disorder that can specifically be identified for babies who were exposed in utero to methamphetamine."[29]