Your Epidural is Against the Law: What Alabama Women and Doctors Need to Know

We have one more day of Alabama’s 2013 legislative session, when it is still possible to ward off the ghastly specter of Foreign Law from being forced upon us.  Colorado, that means you—stand back, with your Rocky Mountain High and your happy newly-weds.  Meanwhile, our beloved state Supreme Court has brought pregnancy and childbirth back to what they think God meant it to be—drug free.  No epidurals.  That can work well, especially if you have a midwife or a doctor skilled in normal unmedicated birth, but do women want to give up that option?  How about no spinal blocks for c-sections?  Girlfriends, better practice your breathing!  Obstetricians, addiction specialists and anesthesiologists, do I have your attention?


Our story begins back in 2006, when Alabama passed a Chemical Endangerment statute meant to protect children from harm in meth houses.  Although it said nothing whatsoever about pregnant women and was never intended to apply to women who become pregnant while addicted or who use a drug during pregnancy, that didn’t stop prosecutors from jumping right in.


I first learned of the problem when National Advocates for Pregnant Women (NAPW) contacted me about efforts to challenge the prosecutions of two Alabama women jailed under such misuse of the law. I decided to add my name to amici curiae briefs that explained to the court how dangerous these prosecutions are for maternal, fetal, and child health.  I’m proud to be listed right there with the 47 groups and individuals who co-signed, including ACOG (The American College of Obstetricians and Gynecologists), the American Medical Women’s Association, the National Perinatal Association, and NOW-Alabama.  Y’all know I’m a good progressive, but ACOG has never been accused of such.  What gives?


I know my obstetrician friends are truly concerned about the well-being of pregnant women and babies, and I’m sure that’s part of ACOG’s reason to sign on.  They must know the law puts these women in an impossible position—abort, or deliver and go to jail.  Stopping drug use before delivery is often not a safe option.  ACOG also had to be aware of risks to their professional membership.  The law as it was originally enacted and intended by the legislature says a prescription of a controlled substance is only legally given to a child if directly prescribed for the child.   If revised to include prosecution of pregnant women who take a drug, there is no exception within the statute for the many situations when physicians prescribe controlled substances to pregnant women.  A controlled substance given partly to protect a fetus (such as methadone, if a woman with addiction wants to safely continue pregnancy) is not prescribed to the fetus.  An epidural used during labor or a spinal block for a c-section contains opiates as a way to reduce the need for toxic anesthetics, but it is prescribed to the woman.  General anesthetic protocols include several types of controlled substances, again dosed for the woman.  What’s left, supposing you need your appendix out while pregnant?  Bite hard on that stick and it’ll be over soon.


Despite a well-done court challenge, Alabama’s Supreme Court couldn’t resist the chance to get back-door personhood.  In January, they decided the word “child” included fetuses and went a giant step further by adding non-viable fetuses, embryos, and fertilized eggs.  Talk about judicial activism!  We are informed that “outside the right to abortion created in Roe and upheld in Planned Parenthood, the viability distinction has no place in the laws of this State.”


You really ought to read the ruling to get the full contortionist flavor.   I’ll wait while you go wash your mouth out.  If you didn’t make it to the end, here it is:  “We conclude that Court of Criminal Appeals correctly held that the plain meaning of the word “child” in the chemical-endangerment statute includes an unborn child or fetus.  However, we expressly reject the Court of Criminal Appeals’ reasoning insofar as it limits the application of the chemical-endangerment statute to a viable unborn child.”


Applause came quickly on the anti-choice sites, such as this one quoting Liberty Council founder Mathew Staver: “The U.S. Supreme Court’s abortion cases are an aberration to law and stand on an island by themselves, and that island will one day disappear.”  We know that is the underlying intention of these prosecutions and of the Alabama Court’s decision.   What a nice bonus for them that women also get to experience pain of Biblical quality while undergoing surgery without medication!

A Senate Resolution is in the works which would affirm the Court’s interpretation of the statute as correct.  If passed, will Governor Bentley sign it?  Does he understand the consequences to his physician friends?


Here’s an interesting scenario:  let’s suppose a pregnant woman is pressured or forced to undergo c-section against her wishes and is given spinal anesthesia.  She is royally outraged, as she should be, and requests charges pressed against the obstetrician and hospital for chemically endangering the fetus.  Can the prosecutor refuse to do so?


There are two paths I can see for prosecutors to travel.  They could comply with their duty to enforce the law as interpreted, in which case physicians who care for pregnant women ought to look a mite more nervous—if not sweating and trembling or packing their bags—when I pass them in the hallway.  Or we could continue to see this law used selectively, for low-income women who are addicted.  I can tell you that at least where I practice, no one is arresting well-off mothers taking prescribed opiates during pregnancy.  Much as I’d like to, I sure haven’t seen a slow-down in c-sections either.  The law is broken many times a day, without so much as a raised eyebrow.  Huntsville, Alabama, living on the edge. . .


Without even a token effort to apply the law equitably, it seems to me the law is unconstitutional as applied.  The state must be aware it is violating Equal Protection by not defending all fetuses, only poor ones.  If so, we ought to expect at least a few arrests of women taking prescribed pain medications or methadone, and perhaps their physicians.  Who will that be? Are you quite certain it won’t be you?



Filed under addiction, Alabama Legislative Session 2013, women's healthcare

14 responses to “Your Epidural is Against the Law: What Alabama Women and Doctors Need to Know

  1. Hilary Gould

    You had me at “Epidural”…my love for my baby was great, but my tolerance for pain – very low. After much research, my choice for an epidural was a good one (for me). Thank you for keeping us aware of the “unintended consequences” and basic medical rights.

  2. bamaredneck2000

    Hi pam – pippa’s article is a fascinating example of the effect of unintended consequences (I assume the consequences were unintendend).. The cause needs quick mass calls to the legislature from state’s major religious groups – Baptist, Methodist, Presbyterian, Catholic telling senators and reps if this goes through it is unchristian. It kills, not cures. That should have been organized weeks ago. Ivan


    • Yeah, I am behind– right about the time I found out about this, our 1/2 day off at clinic got pulled and we are starting an hour earlier. I’m a morning writer, useless at night. Haven’t had any weekend time free to write until this past one! But I’m working towards a 4 am wakeup instead of 5 and hope to get back on track soon.

  3. Wheauxdat

    Sorry – maybe I’m missing something.
    This article is difficult to understand – specifically the jump from mothers abusing drugs while pregnant to the inability to get epidurals. I believe you (author) are arguing that the law is very vague/ambiguous and any anesthetic intervention could be considered “illegal” (hence your attention-grabbing headline.)
    However, I fail to follow this path. There are many flaws in your logic and some of your information is not quite correct (concerning anesthetics, etc.)
    I understand that we are not all perfect, but I have not too much sympathy for a pregnant woman who does cocaine and weed the night before she delivers (“I didn’t know I’d go into labor the next day” – like that makes it OK.) I consider that endangering their child and illegal. To attempt to induce fear by equating that to getting an epidural or having a C/Section is just unfair.

    • Did you read the links within the piece? I used those to keep it in a reasonable word count. The law as written is not ambiguous– it only excludes from prosecution the specific instance of a child being directly prescribed a medication. I am not the only one who has interpreted it that way, as you can see if you go to the links on ACOG’s response and read the amici briefs. On anesthetics– many people are not aware that drugs of abuse are not the only meds on controlled substance lists. On the Alabama Controlled substance schedule,

      you will see many anesthetic agents listed not commonly found on the street. The statute refers to all controlled substances, so they are included.
      Our state has a long history of targeted enforcement of various laws. I am not trying to create fear but to alert my fellow citizens that this particular statute is being misapplied and is at risk for further misapplication. It needs to be fixed.

      Pregnant women who break drug laws are already susceptible to the same penalties any of us would be. There is no reason for this additional step, and it is impossible to apply. If the true purpose is to prevent exposure (rather than punish women in an extra way), they have to remember a fetus cannot distinguish between Lortab from a prescription or not. It creates an impossibly twisty argument and needs to be scrapped.

    • John

      Because the law as written does not distinguish between a legally prescribed (to anyone except the child) controlled substance and an illegally used one. The fact that the drugs in question (epidurals or general anesthetics prescribed to the mother) were legally prescribed to the mother doesn’t matter. Remember, the intent of the law doesn’t matter one bit only the actual wording does.

  4. CCR

    Why am I not surprised? With all their insane, inexplicable decisions, labama’s legislature and court system are apparently supplied with water from lead pipes.

  5. Yeah, well, what’s with the shot at Colorado?
    See, you had my attention and objective curiosity until the homophobic statement.
    Please tell me how the Colorado laws might in any way affect this 11th hour crusade of yours? I’m not a rocket scientist, but it appears you could not resist the opportunity to paint yourself a gay bashing, anti marijuana pseudo medical WASP blogger?
    In any case, GO COLORADO!!
    GO Away, Pippin…Pippa or — what was your name again?

    • Oh, holy cow– I hope you are being sarcastic! I am strongly in favor of marriage equality and decriminalization of drugs of every type. Have already written about those issues in other posts.I guess you are not from here? The bill I linked to in the intro is supposed to prevent a foreign country from taking over ALabama, a ridiculous and unnecessary waste of our state legislative effort. I meant to poke fun at the tendency in our state to consider anything north of probably Tennessee as not only Yankee but foreign. You are the first person who didn’t get the joke as far as I can tell. But maybe I’m just a bad comedian. So anyone who is taking that literally, please don’t.

  6. Nellyq

    Does this also make painkillers and anesthetic usage illegal during abortion?

    • Ooh, missed that one. I’d have to say it does. The question is whether they would prosecute just that use and not other prescribed use? I don’t think so– they would be forced to include other pain relief for woen intending to deliver. See how insanely twisted up this will get?

      • Nellyq

        Yes. This all concerns me (obviously) a lot, especially the weird characterization of Roe. But this also seems to me like it would make an end-run around Roe in a lot of cases, which is particularly concerning given the already limited options available to women in Alabama (and Mississippi).

    • John

      Yes, a controlled substance is a controlled substance. It doesn’t matter whether it was legally prescribed for the mother or illegally obtained on the street according to the actual wording of the law.

  7. Pingback: Alabama Supreme Court Rules That Women Can Be Arrested For Using Drugs While Pregnant | The Cannabis Strain Directory Blog

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