Legislation Prevents Prosecution for Following a Physician’s Orders

Background

When the Alabama Supreme Court in 2013 interpreted a law intended to criminalize exposing children outside the womb to chemical substances to also include children in utero, it created significant new liability problems for pregnant women and their doctors. The chemical endangerment statute as passed by the Alabama Legislature was intended to criminalize the exposure of children to substances used in the production of methamphetamine and to meth itself.

The Medical Association heard concerns from a number of its members regarding the consequences of the Court’s interpretation for those caring for pregnant women and began examining the issue. That research and consultation with member physicians led the Association to begin discussions with the law enforcement community to produce mutually-supported legislation to prevent the normal practice of maternity care from being considered a crime for either the patient or her physicians. The concept for the legislation soon became part of the Association’s 2016 agenda. The legislation was proposed and passed this year, was signed by the governor and is now law.

Read Act 2016-399

Q: Why was this legislation necessary?

A: To protect pregnant women and their physicians from prosecution under the chemical endangerment law for the prescribing of legitimate medications and for recommendations for FDA-approved OTC medications. The legislation was also necessary to prevent any uncertainty of whether physicians needed to report the prescription or recommendation of such medications for pregnant women to the Department of Human Resources. Without the legislation, both a pregnant woman taking a legitimately prescribed medication or a recommended OTC medication and her physician could be considered to have violated the state’s chemical endangerment law, the state’s child abuse laws and potentially various other state laws and the physician would also technically have been required to make a report to the Department of Human Resources.

Q: Why didn’t the Medical Association stop this from going into effect?

A: Given that the setting was the Court and not the legislature or some other body empowered with rule-making authority, the Association did not have an opportunity to prevent this interpretation of the chemical endangerment law from going into effect or even to put in place exceptions for the normal practice of women’s medicine. Had these changes been proposed in the legislative or even regulatory arena, the Association would have lobbied against criminalizing normal maternity care. The Association did file an amicus brief asking the Court not to expand the purview of the law beyond those the legislature intended but that request was not honored.

Q: What changed through passage of this legislation?

A: The Association’s 2016 legislation that is now law – SB372 by Sen. Clyde Chambliss (R-Prattville) and Rep. April Weaver (R-Alabaster) – clarified that no one shall commit chemical endangerment of a child (including unborn) or any other crime for expoing a child in utero to a chemical substance if that substance was a legitimate prescription issued by a physician or a non-physician working within his/her scope of practice or for the recommendation to take an FDA approved over-the-counter medication. As well, no one is required to report such activities to any authorities. Many thanks are due to bill sponsors Sen. Chambliss and Rep. Weaver as well as leadership in the Senate and House for making passage of this important bill possible.

Q: Does this new law impose any new requirements for newborn and/or mother drug testing?

A: No, this law does not in any way place new requirements for drug testing newborns or their mothers or standardize such testing.

Q: Does this new law govern a situation in which a pregnant woman is abusing drugs?

A: Not necessarily. Under SB372, the mother of the unborn child must be taking the medication pursuant to a “lawful” prescription to be protected. If the mother is abusing drugs, by taking more than prescribed, or something not prescribed, then the woman would not be protected. The physician would be protected if he or she has a good-faith belief that the woman is taking a drug pursuant to a lawful prescription. However, there is no requirement on the physician to inquire.

Q: Do other aspects of the chemical endangerment law need to be reviewed and possibly changed?

A: Yes, this issue is a continuing discussion between physicians treating pregnant women, addiction specialists and law enforcement. The Association, along with a number of specialty medical societies including the American College of Obstetricians and Gynecologists, believe proposals should be explored that emphasize treatment in lieu of prosecution so that addicts can get the professional help and treatment they need.

Summary

The chemical endangerment problem the Association worked on this year prevents the normal provision of maternity care from being deemed a crime, both for the pregnant woman and her physicians. The Medical Association believes only physicians should establish medical standards and treatments. Each year the Association successfully pushes back against such proposals in the legislative and regulatory arenas on behalf of its members and their patients.