Fetal endangerment ruling could criminalize prescribing

Public health advocates say a decision by the Supreme Court of Alabama defining fetuses as “persons” for the purposes of prosecuting drug-abusing adults under state law could have dire consequences for patients dealing with addiction and doctors who order drugs for pregnant women.

Judges ruled that the plain meaning of the word “child” in the state’s chemical endangerment law includes “unborn children.” The statute imposes strict penalties on people who expose children to drugs.

The ruling will discourage women from seeking prenatal care and potentially criminalize physician prescribing of legal medications to pregnant women that expose fetuses to potential harm, said Tamar Todd, senior staff attorney with the California-based Drug Policy Alliance. Todd co-wrote a brief in opposition to a similar ruling by the Alabama Court of Criminal Appeals. The brief was joined by 44 Alabama state and national organizations, including the American Medical Association.

“The application of the law as the Supreme Court has interpreted it is just disastrous for women, fetal and child health,” she said. “Basically it tells women who are pregnant and suffer from an addiction to a controlled substance: If they seek prenatal care, they risk prosecution and losing their child, even if they seek treatment.”

Alabama Attorney General Luther Strange called the ruling a landmark win.

“The court has ratified our argument that the public policy of our state is to protect life, both born and unborn,” he said in a statement. “It is a tremendous victory that the Alabama Supreme Court has affirmed the value of all life, including those of unborn children whose lives are among the most vulnerable of all.”

The case involves the prosecution of two women charged under the state’s chemical endangerment law. Hope Ankrom and her newborn son tested positive for cocaine when the child was born in 2000. Medical records documented Ankrom’s ongoing substance abuse during her pregnancy. She was sentenced to three years in prison, which was suspended, and placed on probation for one year.

Amanda Kimbrough’s son was born premature in 2008 and died after 19 minutes. An autopsy determined his death was caused by “acute methamphetamine intoxication.” Kimbrough was sentenced to 10 years in prison.

Both women appealed their convictions to the Alabama Court of Criminal Appeals, and the cases were consolidated. The women argued that the state’s chemical endangerment law does not include fetuses. The appeals court disagreed, ruling in favor of the state, and the women appealed.

In their Jan. 11 opinion, the Alabama Supreme Court judges said the appeals court correctly held the chemical endangerment law should be applied to fetuses.

“As the definitions cited by the state indicate, the plain meaning of the world ‘child’ is broad enough to encompass all children — born and unborn — including Ankrom’s and Kimbrough’s unborn children in the cases before us,” the court said.

Justice Tom Parker, who concurred separately, added: “The decision of this court today is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law.

“Today, the only major area in which unborn children are denied legal protection is abortion, and that denial is only because of the dictates of [Roe v. Wade]. Furthermore, the decision in the present cases is consistent with the Declaration of Rights in the Alabama Constitution, which states that ‘all men are equally free and independent; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.’ ”

Attorneys for the plaintiffs could not be reached for comment by this article’s deadline. The Medical Assn. of the State of Alabama declined to comment on the ruling, but the association joined the AMA’s friend-of-the-court brief in opposition to including fetuses in the law, according to court documents.

Physicians: Addicts need treatment

Alabama’s chemical endangerment statute is well-intended, but the law will do more damage than good, said Maryland-based obstetrician-gynecologist Mishka Terplan, MD, MPH, a member of the Women’s Action Group with the American Society of Addiction Medicine.

“I completely understand the motivation on the part of public officials to maximize the health of pregnant women and their families,” he said. “However, the outcomes of laws like this are more likely to interfere with the health of pregnant women and their families than improve it.”

Women who are addicted to drugs need treatment, not jail time and separation from their relatives, Dr. Terplan said.

“That’s the definition of addiction,” he said. “It’s a persistent behavior in the face of evidence that it’s harmful. Addiction is a medical illness and needs to be treated as such. Criminalizing women for having a medical condition is completely nonproductive, and it’s harmful.”

The law also does not distinguish between exposing children to legal or illegal drugs, said Todd, with the Drug Policy Alliance. Because of this, the state Supreme Court’s ruling could mean that physicians who prescribe controlled substances to pregnant women could be exposing themselves to prosecution, she said.

“The law itself was designed to deal with the issue of meth being [present] where children might live,” she said. “It was not designed to apply to pregnant women.”

After the ruling, Todd and others said the Alabama Legislature should consider rewriting the law to exclude fetuses.