Fetal Argument: County DA to begin prosecution of mothers who use drugs during pregnancy
by Cameron Steele
csteele@annistonstar.com
Sep 30, 2012 | 11832 views |  0 comments | 36 36 recommendations | email to a friend | print
Illustration by AnnaMaria Jacob/The Anniston Star
Illustration by AnnaMaria Jacob/The Anniston Star
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The decision to prosecute local women who give birth to babies in drug withdrawal started — perhaps unsurprisingly — with a pregnant woman.

Earlier this year, the woman was in Calhoun County’s drug court for first-time offenders, a program that requires mandatory drug-testing.

When she tested positive for illegal drugs, in spite of her pregnancy, county prosecutors began to look at what they could do about the situation, assistant district attorney Jennifer Weems said.

“We looked at: What is our county doing to address that? Is that a crime, and if so, what crime?” Weems said.

Since then, Calhoun County prosecutors have joined a handful of other district attorneys’ offices across the state in prosecuting women who use drugs during pregnancy and give birth to babies in drug withdrawal.

As a result, in the coming months, several local women will be arrested for exposing their fetuses to illegal drugs, charged under the broad language in Alabama’s law against chemical endangerment of children — a statute that has landed the state at the center of a national conversation about drug addiction, motherhood, prenatal care and the rising number of infants born into drug withdrawal.

At the heart of the debate are the law’s foremost opponents —an assortment of medical, social and civil rights organizations — who lambaste the statute’s broad interpretation for deterring pregnant women from prenatal care, putting infants at risk, and its advocates — prosecutors, including the Alabama attorney general, and some legislators — who call the criminalization of the mothers an effective way to reduce the number of infants with drug withdrawal symptoms.

“We are seeing an increase in babies addicted to drugs,” Weems said. “Different agencies in different occupations are going to do what they can do. Charging these mothers — that’s what we felt like our office could do to address that epidemic.”

Small babies, big problem

Nationally, the number of infant drug withdrawals has tripled over the past decade, according to a recent study published by the Journal of the American Medical Association. In 2000, one baby per every 1,000 hospital births suffered from drug withdrawal symptoms. By 2009, that number had risen to a little more than three per 1,000 births.

In Calhoun County, court and hospital officials say they’ve watched the number of infants born into drug withdrawal rise. Shelley Birchfield, the nurse manager of the obstetrics department at Regional Medical Center, said the hospital doesn’t keep stats on how many babies suffer from withdrawal out of the 1,400 born there each year. But, based on anecdotal evidence, she believes it’s happening more frequently.

“I can tell you we do see more babies showing symptoms of withdrawal in the last few years than we have before,” Birchfield said.

Statewide, 191 children younger than 1 year old entered foster care as a result of parental drug abuse, said Barry Spears, a spokesman for the Alabama Department of Human Resources. Of those, half were still in their first month of life.

“This would involve testing positive at birth but also includes other drug abuse issues,” Spears said.

Some Alabama prosecutors have been charging the mothers of these babies for years. An assistant district attorney in Marshall County said he’s handled between 30 and 40 such cases over the past four years.

“It’s like any other crime. The law is out there, and we enforce it,” Mitch Floyd said.

Other district attorneys’ offices waited until late 2011 to apply the law to mothers of infants born into withdrawal; at the end of that year the state Court of Criminal Appeals upheld the practice.

The appeals court decision, along with a Supreme Court civil case that referenced a wrongful death suit over the loss of an unborn child, happened around the same time the pregnant woman tested positive in Calhoun County drug court, Weems said.

In June, local prosecutors made their decision to prosecute these mothers, too.

“Our office interprets the use of drugs while pregnant as an abuse,” Weems said. “So we are addressing it as a crime.”

Challenging prosecution

Everyone agrees the rising trend of infant drug withdrawal is a serious problem. But opponents of the Alabama law — led by a New York-based reproductive rights group — say prosecuting the mothers only leads to more substantial issues and, in reality, undercuts the health problems it is meant to address.

At the root of the National Advocates for Pregnant Women’s argument against these prosecutions is this: Drug addiction should be treated as a public health concern. Not a legal one.

It’s unrealistic to expect a woman who is battling drug addiction to give up her habit just because she becomes pregnant, said Emma Ketteringham, the former legal advocacy director of the national group. The threat of prosecution does not magically cure addiction, either, she said.

Instead, fear of arrest can scare women with high-risk pregnancies and prevent them from seeking prenatal care, Alabama defense attorney Brian White said.

“They’re treating addiction as ordinary criminality as opposed to a particular kind of problem,” said White, one of the defense attorneys representing a Colbert County woman on an appeal to the state Supreme Court. “It will send women underground, especially if to seek out help is to just to simply trigger getting reported.”

By effect, some gynecologists say, prosecuting mothers harms infants more than helps them: Prenatal attention “can greatly reduce the negative effects of substance abuse during pregnancy,” according to Dr. David Garry, a New York obstetrician and member of the American Congress of Obstetricians and Gynecologists. When women aren’t getting it, that risk goes up.

“Driving people away from their doctors and into jail — if the prosecutors claim that fetal health, and moms’ and babies’ health, is their concern, then they are doing everything they can to undermine that,” said Alexa Kolbi-Molina, the staff attorney for the American Civil Liberties Union’s reproductive freedom project.

Legal history

Legislators originally passed the chemical endangerment law in 2006 as a way to protect children from meth labs, but soon after its passage, prosecutors in Covington, Colbert and Marshall counties began to apply the law to drug-addicted mothers, interpreting the definition of “child” to include viable fetuses.

In August 2011, the state Court of Criminal Appeals affirmed the law’s expansion, upholding the convictions of an Enterprise woman whose baby had tested positive for cocaine after birth and of a woman from Colbert County whose baby was born premature and died after she tested positive for meth during her pregnancy.

The National Advocates for Pregnant Women, ACLU, Planned Parenthood and several other health organizations, including the American Medical Association, filed amicus briefs in support of the women, questioning the effectiveness of prosecution.

But in the end, the court determined the term “minor child” also meant “viable fetus.”

That decision has set Alabama apart from the rest of the country, legal experts said, making it the only state aside from South Carolina to uphold this type of prosecution, and in the process attracting the attention of national media outlets like The New York Times, Slate.com and The Huffington Post.

It also encouraged more district attorneys’ offices across the state to prosecute these cases, attorneys said.

In 2006, this kind of prosecution only happened in “little pockets” in the northern and southern parts of the state, White said.

At latest count, according to the National Advocates of Pregnant Women, 60 women had been charged under the law for giving birth to babies with drug withdrawal symptoms.

In Calhoun County, Weems declined to say how many cases are under investigation, because prosecutors are still in the midst of compiling evidence to obtain warrants.

“The goal is the safety of the mom and the safety of the baby, and to get them the help that they need,” Calhoun County Circuit Judge Debra Jones said. “And to get the authorities involved.”

Prosecute moms, protect unborn

In Marshall County, Floyd feels strongly that “getting the authorities involved” helps the mothers and infants. Far from causing harm, Floyd said, prosecuting mothers who use drugs during pregnancy puts the best interests of the innocent —the infants — first.

It does that in two major ways, he said. One, the threat of punishment will deter some women from using while pregnant.

And two, arrest offers rehabilitation opportunities — in drug court or other treatment programs — for women who otherwise wouldn’t seek it.

“I feel like it’s a very, very successful way we handle these cases,” Floyd said.

Years of charging these mothers under the chemical endangerment law gives Floyd the proof he said he needs: Many of these women end up in Marshall County’s drug court as first-time felony offenders, Floyd said, and upon successful completion of the program, have the charges against them dropped. So far, none of them have re-offended, Floyd said.

“The law is not ambiguous,” Floyd said. “I think it’s rock-solid.”

Still, he and legislators from Marshall County tried several times during past sessions to firm up the law’s language. The amendments they filed sought to add specific language defining a child as a “fetus” and ensuring that women who took medicine prescribed by their doctors could not be targeted under the statute. But those amendments failed to pass.

After the Court of Criminal Appeals’ decision, Alabama Attorney General Luther Strange said the law “affirmed the value of life, including the lives of unborn children who are, after all, among the most vulnerable members of our society.”

In Calhoun County, Weems said she has built strong evidence in many of her cases.

“It’s a preventable crime,” she said. “The newborn babies have to endure extreme hardship, because of the choices the mothers are making.”

Supreme Court briefs

Meanwhile, defense attorneys like White have appealed the law to the state Supreme Court, which has yet to rule on the issue.

Again, the National Advocates for Pregnant Women and a host of others — including a pro-life group — filed briefs in support of the mothers.

State Rep. Patricia Todd, D-Birmingham, was one of those petitioners, writing that when legislators first passed the law, “it was never intended to, and does not, apply to permit prosecution of” women who expose their fetuses to drugs.

If the Supreme Court upholds this interpretation, opponents argue, what would prevent prosecutors from charging women who use other substances while pregnant — from cigarettes and alcohol to medication prescribed by a doctor?

Controlled substances “provided by lawful prescription for the child” are the only exceptions listed in the chemical endangerment law.

“So, it can apply to prescribed drugs, because a drug is only an exception in the law if it’s prescribed for a child.

“Not the mother,” Ketteringham said.

More controversially, some also argue the continued prosecution of mothers under this law could lead to a rise in abortions, because the statute requires a child to be born and women will not want to risk incarceration by carrying to term.

In fact, this fear is the underpinning of a pro-life group’s decision to join the ranks of those who disagree with the current interpretation of the Alabama law.

In May, All Our Lives signed the brief petitioning the Supreme Court to overturn the Court of Criminal Appeals’ ruling.

“One reason is that women will feel pressure to have abortions because substance abuse treatment is so difficult for them to access during pregnancy and they fear prosecution,” an online press release from the group stated.

Floyd dismisses that argument. He said his decision to prosecute a woman after her infant has tested positive for drugs following birth doesn’t have any effect on what a mother chooses to do in the first trimester of pregnancy. A woman has to have used drugs within weeks of giving birth for her baby to test positive, resulting in her arrest, he said. So ostensibly, Floyd argues, a woman could use drugs throughout her pregnancy and stop just before the birth to avoid arrest. That seems more likely to happen than an increase in abortions, he said.

“We don’t get involved in the case pre-birth,” Floyd said. “I don’t want to prosecute when someone’s three or four months along. I don’t want to get into the abortion argument.”

Comprehensive treatment

Back at RMC in Anniston, officials aren’t publicly voicing an opinion on the state’s prosecution of drug-addicted mothers who give birth.

“We’re here to treat the moms and the babies and have the best healthy outcomes that they can,” hospital spokeswoman Judy Gould said.

Still, Birchfield, the nurse manager for the OB department, acknowledged that pregnant women who are struggling with drug problems already are scared of getting help for their addictions or prenatal care, because they don’t want DHR to take away their babies.

Birchfield and Daniel Swindall, an OB nurse specializing in patient education, believe the state’s lack of resources for pregnant, drug-addicted mothers is one of the biggest problems contributing to the rise in infants born with drug withdrawal symptoms.

“A lot of drug rehab programs won’t take women while they are pregnant,” Birchfield said.

Many centers don’t want to take on the added healthcare responsibilities to treat drug-addicted women who are pregnant, the ACLU’s Kolbi-Molina agreed.

“Many of these places just don’t want to deal,” Kolbi-Molina said, noting that many of these women already have children — who usually are prohibited from living in rehab centers with their mothers.

Garry, the obstetrician with the American Congress of Obstetricians and Gynecologists, said states need to address addiction in pregnant women through the combined efforts of policymakers and healthcare providers.

“These approaches should include the development of safe, affordable, available, efficacious and comprehensive alcohol and drug treatment services for all women,” Garry said. “Especially pregnant women and their families.”

Star staff writer Cameron Steele: 256-235-3562. On Twitter @Csteele_star.
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