Texas fetus abuse law could spell legal trouble for doctors

Mandatory reporting of drug use by expectant mothers could hurt the physician-patient relationship, doctors say.

By Tanya Albert amednews correspondent — Posted Feb. 2, 2004

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Texas physicians are worried that doctors who fail to report illegal drug use by pregnant women will be punished under a new state law that aims to prevent abuse of unborn children.

"It's a real reach," said Brian J. Eades, MD, an obstetrician-gynecologist from Amarillo, Texas. "If [the law] is held up by the courts, it will have far-reaching effects."

The new pressure to report seems to be an unintended consequence of Texas' Prenatal Protection Act, which went into effect in September 2003. But not all district attorneys have the same interpretation.

The act holds people who assault or harm a pregnant woman liable for crimes against the mother and unborn child. Violators could face criminal or civil charges and potentially could do time in jail.

The law exempts doctors who are performing a "legal medical procedure," such as abortion.

But District Attorney Rebecca King, whose jurisdiction is in the Amarillo area, has linked the new act with existing laws and concluded that physicians must report pregnant women who are abusing illegal substances to the local police or to the Dept. of Protective and Regulatory Services.

The Prenatal Protection Act expanded the definition of an "individual" to include an "unborn child at every stage of gestation from fertilization until birth." Texas law already makes it a second-degree felony to give a child a controlled substance.

State law also establishes that a physician or other professional who believes or has reason to believe that a "child has been abused or neglected or may be abused or neglected" report that concern to the state.

Consequently, King wrote in a letter to physicians last year, doctors are now legally required to report a woman who has used illegal narcotics any time during the pregnancy.

"Most of these users will qualify for probation, which will allow us to legally mandate medical services that may save the mother and the unborn child future years of medical, educational and rehabilitative services," wrote King, whose district falls in Potter and Armstrong counties. "Please report any abuse of children by involuntary injection of harmful narcotics by expectant mothers. Together, we will try to help both generations and ... it is the law."

Another district attorney outside of Dallas is believed to have a similar interpretation, but others don't appear to be looking at the law that way.

For now, the Texas Medical Assn. is telling physicians to check with their local district attorneys to find out their views on the law.

"Our interpretation doesn't matter," said Lee Spangler, assistant general counsel for the TMA. "What the local district attorney says on it is going to matter."

Impact on physician practices

Before the new law, it wasn't uncommon for physicians to report mothers-to-be who tested positive for drug abuse to the protective services department.

Still, physicians had the choice of handling the situation themselves.

Because such reporting wasn't mandatory, women who abused drugs didn't worry that their doctors would turn them in if they sought prenatal care.

Doctors in Amarillo say the new law hasn't caused a climate of fear yet, but they worry that women could stop seeking prenatal care and instead show up in emergency departments when they are ready to deliver.

"We need to return to a previous approach and provide services to the mother and child," Dr. Eades said.

Like many other physicians who fall under King's jurisdiction, Dr. Eades now informs his patients that they may be tested for drugs at some point in the pregnancy and that if the result is positive, they will be reported to authorities.

He and other physicians have reported women under the new law. But when Dr. Eades called the police, they asked why he was contacting them. Instead, he was referred to the protective services department. That agency assigned a case number, but the child has not been born yet.

Raymond Moss Hampton, MD, who teaches obstetrics and gynecology at the Texas Tech University Health Sciences Center in Amarillo, said he and his colleagues were concerned when they first received King's letter because they thought they would have to get the police involved.

But for now, they have been contacting the protective services department to connect women with the help they need -- something that medical residents and others at the university had done in the past.

Still, doctors worry about the effect mandatory reporting could have on the physician-patient relationship.

"My concern is confidentiality," Dr. Hampton said. "How much truth will you get if you tell a patient upfront that you may have to report them?"

So far, no physician has been accused of any crime for not reporting a patient who was abusing drugs. At least one author of the law has said that requiring physicians to report patients was not the act's intent.

"But if you had someone who was zealous about enforcing the law, it would impact the way an ob-gyn practices to the detriment of a patient," Dr. Hampton said.

Time will tell

Many legal experts expect it will be up to the courts to decide whether the new statute triggers a reporting requirement. The courts wouldn't get involved unless a physician is accused of breaking the law and the doctor challenges a district attorney's interpretation.

King, who is not running for re-election next term, said her reading of the law leaves no question that physicians should be responsible for reporting. If a fetus is an individual under the law, she said, there is no difference between reporting the abuse of a 2-year-old child and the abuse of a fetus.

She sent the letters to doctors because she wanted to inform them about the change and not blindside them with it, she said.

"I'm not taking sides here," King said. "Doctors need to be aware of it because it could affect their practices."

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Prenatal protections

Texas joins the majority of states in recognizing certain rights for fetuses against harm. The state's Prenatal Protection Act contains provisions that:

  • Add unborn children at every state of gestation, from fertilization until birth, to the definition of an individual.
  • Establish that for purposes of the law, death includes the failure to be born alive.
  • Create criminal and civil penalties against people who take the life of unborn children.
  • Exempt abortion -- a lawful medical procedure performed by a physician -- from the law.

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Screening states

As of Dec. 1, 2003, 10 states required health professionals to report or test when they suspect substance abuse in pregnancy: Arizona, Illinois, Iowa, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Utah and Virginia.

Source: The Alan Guttmacher Institute

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External links

The Texas Legislature Online, for information on the Prenatal Protection Act (SB 319) considered in the 78th Regular Session of 2003 (link)

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