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 The law as it was originally enacted and intended by the legislature says a prescription of a controlled substance is only legally given to a child if directly prescribed for the child.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?