Game of Thrones: Protecting Pregnant Patients

by Jacquelyn Starer, MD, FACOG, FASAM | December 12, 2014

Pregnant woman at sunsetIn the show Game of Thrones, when throngs of wildlings and a giant riding a mammoth attack the Wall, Jon Snow manages to fend off the wildlings and kill the mammoth. This seems like a victory until the giant is able to lift the outer gate of the Wall. Jon Snow has to rally more forces to hold the Wall at any cost.

Being an advocate and fighting for patients with addiction often feels like being Jon Snow at the Wall, especially when it involves trying to convince colleagues, insurers, policy makers and legislators who would simply dismiss it as a matter of bad decision-making rather than a life-threatening chronic disease.

Just when there seems to be victory, a new obstacle arises. This is what is currently happening to pregnant women with opioid dependence.

When sensationalized news reports about “addicted babies” are written, there is a knee- jerk reaction to protect the babies and punish the pregnant woman if she cannot immediately stop using drugs. The disease now has a victim, an innocent fetus or baby. Unfortunately, the disease of addiction does not suddenly disappear when the woman gets pregnant because it is usually established well before the woman gets pregnant.

A victory seemed to be at hand in Tennessee in 2013 when the state legislature passed a Safe Harbor Act guaranteeing that women would not lose custody of their children if they sought addiction treatment. While this was happening, however, a local news story titled “Drug Addicted Babies” motivated prosecutors to push legislators into hastily passing legislation that criminalized narcotic use by pregnant women before any analysis of the Safe Harbor Act was available.

On July 1, 2014 the new criminalization law went into effect in Tennessee. The law allows a pregnant woman to be charged with fetal assault if her child is born dependent on or harmed by the drug or charged with homicide if the child dies from drug exposure. Of course, proving cause and effect or lack thereof will be another matter and is likely to be wildly open to emotional manipulation of any judge or jury. In fact, the first woman to be arrested under the new law was imprisoned on the basis of a single positive drug test for methamphetamine, which is not even a narcotic as defined in the law and despite no evidence of harm to the child.

In Alabama, a child “chemical endangerment” statute was passed in 2006, intended to punish any person entrusted with the care of a minor who exposes them to environments where illicit drugs are manufactured, produced, or sold. Prosecutors soon began to use this law to charge women who had used a drug during pregnancy. When the law was challenged, the Alabama Supreme Court redefined the term “child” in the Alabama Code to include fertilized eggs, embryos, and fetuses, thus permitting punishment of pregnant women.

If society really cares about these babies, it would realize that what a child needs most is a healthy mother. While it may not be possible to return all women with addiction to health, society owes it to these women to make every effort to treat their disease and keep the mother-child dyad together. Criminalizing a disease means that these pregnant women will not seek prenatal care or drug treatment out of fear of prosecution and incarceration, which will no doubt lead to worse outcomes for their babies.

As addiction medicine professionals, it is time to step up to the plate on this issue. Physicians and other health care professionals need to lead the way again and stop ceding policy to insurers, legislators, and other public or private policy makers.

In Massachusetts, I have submitted a resolution to the state medical society opposing any such legislation or misuse of legislation to criminalize drug use by pregnant women or to interfere in the doctor-patient relationship in determining the proper management of the patient. The resolution also recognizes the autonomy of the pregnant woman, and tasks the AMA with taking a leadership role in opposing federal and state legislative interference in the physician patient relationship in regards to pregnant women using opioids.

We do not live in a fictionalized world battling mythical creatures like those on Game of Thrones. Yet some human laws do seem just as beastly and out of this world as what Jon Snow and his colleagues face beyond the safety of the Wall. The rights of pregnant women with substance use disorders are being taken away before our eyes, with devastating consequences. Treatment professionals need to take action at the local, state and federal level and with their state and national medical societies before it is too late.

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