Hidden blood tests by hospitals put mothers at risk of arrest Alabama hospitals have less-than-clear intentions as drug tests lead to arrests of pregnant moms

Will Bishop has suffered no health effects from his mother's self medication of her epilepsy with marijuana while she carried him.

(Grant Blankenship)

Although states across the country have relaxed penalties for marijuana use - new moms in Alabama still face harsh punishment for lighting up, which is often detected in hospital drug tests after birth and passed along to police.

Dozens of women have been charged with felony chemical endangerment of a child since 2006 for using marijuana during pregnancy, according to a 2015 analysis of court data by Al.com and ProPublica. Marijuana was the most common drug mentioned in court records, accounting for 20 percent of the charges against new moms and pregnant women between 2006 and 2015.

And that makes Alabama relatively unique. Although Alabama isn't the only state with laws against drug use during pregnancy, its prosecutors have been the most zealous - bringing charges against hundreds of women, even those with low levels of THC and no criminal history.

State lawmakers crafted the chemical endangerment law in 2006 to protect children from exposure to chemicals and fumes from home-based meth-labs, which can cause irritation, corrosion and burns.

Prosecutors immediately began applying it to women who used drugs during pregnancy, a practice that increased after being upheld by the Alabama State Supreme Court in 2013.

Arrested

Katie Darovitz of Russell County used marijuana to treat epilepsy during pregnancy in 2014 and first shared her story with ProPublica in 2015. Less than two weeks after giving birth, she was arrested and held in jail for six days while her family scrambled to make bond. She was strip-searched and placed on suicide watch and suffered seizures that sent her to the hospital. Her mother-in-law took emergency custody of the baby.

While now legal in 29 states for medical use, marijuana remains a federally prohibited Schedule 1 drug, alongside heroin and LSD. And any use of marijuana remains illegal in Alabama.

Darovitz and her family chose to fight the charges, ultimately winning a dismissal after her attorney discovered a key clause on the hospital toxicology report barring its use for criminal prosecution.

Debi Word, Darovitz's mother-in-law, said the ordeal opened her eyes to injustice. They struggled to find an attorney who would fight the case. Most encouraged her daughter-in-law to take a plea deal into a costly diversion program, Word said.

"I know Russell County is aware this test is not admissible in court, yet they still prosecute these women and threaten these women with 10 years in prison," she wrote in an email. "These women are so ashamed they just want it all to go away in the most silent way."

"Their theory is this woman is facing a 10 years and a felony, diversion program will be the easy way and we won't even have to go to trial. Who cares if they have evidence to charge her or not?"

$100,000 bail

Bond amounts and punishment vary from county to county.

Prosecutors in DeKalb County in the hills of northeast Alabama never brought charges against women who used drugs during pregnancy until the Alabama Supreme Court ruling in 2013. However, in 2015, law enforcement cracked down on drug use during pregnancy. Three of the nine mothers arrested that year tested positive for marijuana, and all were held on $100,000 bonds.

In Morgan County, home to Decatur, bonds rarely exceed $7,500, but arrests for marijuana use during pregnancy are far more common, totaling more than more than two dozen since 2006. Hospitals in Morgan County test all newborns for drugs. State law requires hospital employees to report positive results to child welfare authorities, who then report them to the police.

Bob Johnston, an assistant district attorney for DeKalb and Cherokee Counties, said the judge might have imposed high bonds to ensure the women were admitted to drug treatment programs.

"This is a sanction-based intervention," Johnston said. "I don't view these women as subhuman. I view this as a way to get them clean and sober."

Increased use

Alabama's crack down on pregnant marijuana users occurred alongside an increase in use across the nation and among pregnant women. Almost 4 percent of pregnant women surveyed as part of a federal study in 2014 reported using pot during the past month, compared to 2.3 percent in 2002.

Even in states like Alabama with no legal marijuana, attitudes may be changing, and marijuana use is more likely to be viewed as harmless, even during pregnancy, researchers said.

Researchers have never conducted controlled studies comparing the outcomes of infants exposed to marijuana in the womb with those who haven't, said Marian Jarlenski, a health policy expert at the University of Pittsburgh. So they have limited knowledge about how marijuana use affects fetal development.

Pre-term birth and low birth weight tend to be more common among babies exposed to marijuana in the womb, Jarlenski said. In the long term, kids may struggle with executive functions such as staying focused and managing time.

"I don't want to alarm people - but there is some evidence that there is some significant risk," Jarlenski said.

Still, Jarlenski said substance use during pregnancy is best handled as a medical issue and not a criminal justice matter. In a study on marijuana use during pregnancy, she interviewed several women who used during pregnancy. She said most received no information from doctors about the effects of marijuana use during pregnancy.

At birth

Marijuana exposure is often not evident at birth. In one of the DeKalb County cases, a test of the baby's first bowel movement showed nine nanograms of marijuana. An assessment of the child by child welfare workers showed no obvious effects.

"Worker observed him to be alert and awake and appeared healthy," according to court records. "Nurses stated that the newborn is eating, sleeping and doing very well despite the mother consuming pot while pregnant with him."

Dr. Shannon Murphy, a Birmingham pediatrician affiliated with Smart Approaches to Marijuana, wrote that doctors should advise patients to abstain from using marijuana during pregnancy. Research points to links between exposure in the womb and problems later in life, she wrote.

"Issues typically become evident as the child enters preschool or elementary school and show persistence into the adolescent years with problems in what is known as higher executive functioning (attention, memory, processing of information, problem solving, and impulsivity.)," Murphy wrote.

Many of those problems also exist in children who grow up in poverty, and it can be hard to untangle the effects of the drug exposure from the effects of low socioeconomic status. Brian White, an attorney in Decatur, said he worries that funneling so many new moms into costly court programs could hurt their ability to provide for their children.

"These court fees are taking the food right out of the baby's mouth," he said.

Chemical endangerment prosecutions aren't limited to pregnant women and new moms either. In counties across the state, law enforcement officers and prosecutors have brought the same felony charge against adults accused of possessing or storing marijuana near children. In many cases, the presence of children automatically upgrades misdemeanor possession to a potential felony - even if the child never made contact with the drug.

In Florence, a woman who allegedly left her 10-year-old and 5-year-old alone while she went to the store picked up charges for child endangerment and chemical endangerment after authorities found a bag of pot in the home with the children. She faces up to 20 years in prison if convicted.

In some chemical endangerment cases involving marijuana, the mother may lose custody of her child temporarily or permanently, sending the children into foster care or kinship care. But that doesn't always happen. Sometimes criminal cases persist long after child welfare authorities have closed their investigations.

Women may not be aware of the risks of prenatal exposure, but they are aware that drug use can lead to investigations by child welfare agencies, Jarlenski said.

"The women in our study are terrified that their children are going to be taken away from them," Jarlenski said. "They love their kids just as much as anyone does. You want people to be able to talk to their healthcare providers about marijuana without being scared of being arrested."