Birmingham Al. Feb 14, 2008 Shekelia T. Ward gave birth Jan. 8 at Andalusia Regional Hospital, and the next day she was arrested, jailed and charged with chemical endangerment of a child, a felony.
The reason: Ward and her newborn both tested positive for cocaine, and the hospital reported the information to authorities as evidence of possible child abuse.
Ward’s experience is the product of a new law that has some prosecutors, particularly in southeast Alabama, arresting new mothers who test positive for illicit drugs. The prosecutors began filing these charges after the state Legislature in 2006 made it illegal to “chemically endanger” a child.
The new law and how it is being applied is raising a multitude of legal, ethical and medical issues.
Gregory L. Gambril, prosecuting attorney for Covington County, said his office has charged about 10 new mothers with chemical endangerment of a child since the law was passed. Two of the cases involved deaths of newborns caused by methamphetamine abuse, he said.
Gambril said children need protection, and the new law is there to do that.
“The unborn children are not making the choice,” he said. “It’s the mothers who are making the choice to do it to them.”
But he acknowledged the law has some problems and needs clarification. It was originally proposed to prosecute parents who exposed children to toxins associated with methamphetamine production, and has no mention of pregnant women or their babies.
“It’s obviously a close call under the law,” Gambril said. “We would like the matter cleared up with a statute.”
Gambril said his prosecutors are focusing on pregnant women who are addicted to methamphetamine, but other drug exposures are being decided case by case. It’s all being done properly, he said.
We do it hand in hand with pediatricians here, the OB-GYNs here, with the doctors,” Gambril said. “Everybody seems to be consistently on board.”
He said cases are settled when mothers agree to go into treatment.
“We are doing this for the sole purpose of trying to make sure both the mother and the child have a healthy pregnancy,” he said. “We’re not trying to throw these women in jail. That’s absolutely not the goal of it.”
Still, 28-year-old Ward remained in jail this week. Her bond was set at $250,000.
“For whatever reason, Covington County is notorious for having high bonds,” said Corey Daniel Bryan, a public defender representing Ward. “With this law being fairly new, the judges have taken a hard stance.”
Bryan said Ward’s newborn is in the custody of a grandparent. “The baby’s health is fine,” he said.
He said the chemical endangerment statute is badly flawed, though the intent of the law was good – get children away from methamphetamine production. “Of course, what always happens with these type things is the Legislature writes a general, vague law, and the district attorneys grab hold of it and start charging everybody with it.”
These prosecutions are based upon the premise that a fetus is a person, something that runs contrary to federal court rulings. “That is going to have to be taken up at some point,” Bryan said. “It’s just a matter of it getting to the higher courts.”
Other lawyers raise the issue of the practicality of courts micromanaging a woman’s pregnancy, and whether doing so is in the best interest of the baby.
In Dale County, prosecutors last year charged a new mother from Daleville, Sheila Denean Cox, with chemical endangerment after a hospital reported that she and her newborn tested positive for marijuana.
Donna Coon Crooks, a Daleville defense attorney for Cox, said that was taking chemical endangerment too far, and that the law casts such a wide net that it is impossible for a reasonable person to know whether he or she has violated it. The charges were reduced to a misdemeanor, Crooks said.
Studies have found that as many as 10 percent of pregnant women test positive for some illicit drug, and that’s not counting those who drink alcohol or smoke cigarettes – behaviors that clearly put fetuses at risk.
In fact, an Arkansas legislator in 2006 suggested a law making it illegal for a pregnant woman to smoke. Then-Gov. Mike Huckabee, who is running for president, said such a law made sense from a health standpoint.
Enough already, Crooks said.
“If we allow the courts to jump in and regulate every aspect of our lives, we’re opening up a whole new can of worms,” she said. “I think the intentions are good, but my gosh, the prisons are full now. Are we going to put every pregnant mother in?”
She said health care workers, child welfare officials and prosecutors ought to consider whether a baby was seriously harmed by a chemical exposure.
“If they see something that’s wrong with the child, I can see their interest in testing the child to see what’s what,” she said. “But as long as the child seems normal, I don’t know what business it is of theirs.”
High court rules:
The new law also raises questions about patient privacy, unreasonable searches and the relationship between law enforcement officials and health care providers.
In 2004, the U.S. Supreme Court ruled in a 6-3 decision that a Charleston, S.C., hospital had violated the rights of new mothers by testing them for illicit drugs and turning the information over to prosecutors. Thus, the hospital and staff members left themselves open to lawsuits, the court ruled.
In its decision, the court noted that there was a near consensus in the medical community that these types of programs were potentially harmful to children because fear of prosecution could prevent pregnant, drug-addicted women from seeking prenatal care.
The Supreme Court said hospital workers have a duty to report possible child abuse, but they can go too far by becoming extensions of law enforcement, even if it is being done to coerce women into drug treatment.
“The court reasoned that, when physicians are acting at the behest of the state to collect evidence, they have a special obligation to inform their patients of their constitutional rights,” according to an analysis of the case published in the January issue of Virtual Mentor, American Medical Association Journal of Ethics. “The court acknowledged that the invasion of patient privacy in this case was severe due to the deceit involved in the testing and the unauthorized dissemination of confidential medical information to the third party.”
Hospitals must carefully craft drug testing and treatment policies that are constitutionally and ethically sound, the article said.
Amy Dugger, a nurse practitioner at Andalusia Regional Hospital, said there was no written policy at the hospital on drug testing new mothers. “Whatever our policy is, it’s in conjunction with Alabama state law,” she said.
She said hospital officials were bound by Department of Human Resources guidelines requiring the reporting of possible child abuse, and that new mothers testing positive for illicit drugs fell into that category.
“We just work with DHR,” she said. “We don’t call law enforcement. DHR does that.”
But no matter what the reporting requirements, she said the welfare of the mother and baby come first. “Our DA is very aggressive with this, and I commend him for that.”
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