The Real Cost of Prisons Weblog

As many of you may know, last year, a local Texas district attorney wrote a letter to all local physicians demanding that they report pregnant women with drug problems to the DA’s office. This demand was based on a new reading of the state’s law punishing drug delivery to a minor in light of a recent statute redefining an “individual” under Texas law as “an unborn child at every stage of gestation from fertilization until birth." Even Texas legislators responsible for the new law agreed that it was never intended to be used to punish pregnant women with drug problems. Eighteen women have already been arrested.

NAPW has been working with Texas ACLU activists, local lawyers and other national advocates to challenge this interpretation. With our help, local activists persuaded a key state legislator to request a definitive interpretation of the laws from the State's Attorney General Office. This summer, we joined the Drug Policy Alliance and other organizations in a letter to the AG explaining how harmful the DA’s interpretation was to pregnant women and children. We have also been working with local counsel on the legal cases and have been organizing a public letter to the local DA from leading national and state based public health and child welfare advocates calling on him to drop the cases. We believe that all of these efforts helped to push the AG to finally issue an opinion that -- as the press below indicates -- held that doctors have no obligation under Texas law to turn in their pregnant patients. We will continue to challenge the arrests that have already happened and we have been very successful, through local organizing efforts to bring both "right to life" and pro-choice groups to the table to discuss and collectively oppose this dangerous and punitive interpretation of state law.

We also had the good news that the Missouri prosecutor dropped the charges in the Keila Lewis case. In that case a woman who admitted to smoking marijuana while pregnant was charged with child abuse. Working with the Drug Policy Alliance and local
counsel Jane Aiken at the Washington University School of Law, we submitted an amicus brief on behalf of leading public health and child welfare organizations explaining how this prosecution violated state law as well as principles of public health.

We could also tell you some bad news – including the fact that at least five states – Indiana, Idaho, Utah, Nevada, and Wyoming are all considering legislation to criminalize pregnant women with drug problems, that new arrests keep occurring around the country, and dehumanizing views of and treatment toward women and drug users continue. We would, however, rather focus on the victories and that fact that our National Educator, Wyndi Anderson, our SC Organizer, Danisha Nelson and a host of lawyers, volunteers, activists, and allies across the country are doing amazing, creative, and constructive work to stop these threats to reproductive justice and drug policy reform and to change the conversation to one that honors and supports women and families rather than destroys them

The Associated Press State & Local Wire
January 6, 2005, Thursday

DAs can't require doctors to report patient drug use, Abbott rules
By BETSY BLANEY, Associated Press Writer

Prosecutors cannot require physicians to report drug use revealed by their pregnant patients, the Texas Attorney General's Office has ruled.A Panhandle district attorney had argued that obstetricians must tell authorities about illegal drug use by pregnant women under a law designed to protect unborn children. Critics, including the legislator who authored the bill, said she was wrongly interpreting a fetal protection law by expanding it into statutes that lawmakers never intended.

Texas Attorney General Greg Abbott issued the opinion Wednesday on the law,which gives a fetus legal standing but exempts mothers and health care providers who perform a legal medical procedure.

The district attorney's requirement that physicians report drug use by
pregnant women is "inconsistent with the apparent legislative intent," the ruling states.

Rebecca King, former district attorney for Potter and Armstrong counties, did not seek re-election in November and no longer holds the office.Her successor, Randall Sims, said the opinion mean physicians "have no legal obligation" to contact authorities.
"I'm guessing the medical profession is not going to making those contacts anymore," he said.

The opinion, requested in July by state Rep. Ray Allen, R-Grand Prairie, the bill's sponsor, does not, however, address King's prosecution of two pregnant women who tested positive for methamphetamine and cocaine after the births of their children.

Hospital officials reported the two women to authorities, and they were charged with delivery of a controlled substance to a child.
Last fall, Tracy Ward and Rhonda Smith each accepted plea agreements for five years probation but retained their right to appeal. "It doesn't help us at all," said Joe Dawson, the attorney representing the mothers. "We're just going to have to go to the courts."

The women's cases are pending with the 7th Court of Appeals in Amarillo. A ruling may come later this year. Allen said the opinion "crystalizes" the law as it pertains to physicians and
indirectly addresses prosecutions against mothers under the controlled
substances act. Allen said he was pleased with Abbott's ruling and expects the court of criminal appeals to come to the same conclusion.

Sims said other cases are pending that involve mothers who tested positive for drugs but he won't proceed with them until after the appeals court rules.

He said prosecutors across the state are watching to see if they can pursue similar cases. Potter County obstetricians and gynecologists no longer will feel conflictedbecause of Abbott's opinion, said Dr. Moss Hampton, an Amarillo obstetrician and gynecologist.

"It's nice that they've kind of closed that loophole and that's not something we have to worry about," he said. The Texas Medical Association was among several groups that wrote to Abbott
supporting Allen's stance that King was extending the law.

The change gives a fetus legal standing but exempts health care providers who perform a legal medical procedure, such as an abortion, and mothers.

Lynn Paltrow, an attorney and executive director of National Advocates for regnant Women, said the ruling returns physicians to health care providers rather than policemen."We desperately hope that this opinion will turn the conversation to the more
important question of why there is so little drug treatment available to pregnant and parenting women who need and want it," she said.

Lynn M. Paltrow
Executive Director
National Advocates for Pregnant Women
153 Waverly Place, 6th Floor
New York, New York 10014
212-255-9252
917-921-7421
212-255-9253 (fax)
LMPNYC@aol.com
www.advocatesforpregnantwomen.org