Fetuses, Drugs, and Rock and Roll

The NYT Sunday Magazine ran an article by Ada Calhoun, “Mommy Had To Go Away For A While”, about Alabama’s “chemical endangerment” law, which was originally intended to protect children from meth labs.  The law has been applied in a totally different way, though: to fetuses whose mothers use drugs. Holy can of worms, batman!


Nurse: The obvious issues that the article talks about is “fetal personhood”– and the associated issue, can a fetus and a pregnant woman simultaneously have full rights? I don’t see how. Do I have to put on my feminist hat now? Does a women lose rights when she becomes pregnant? (Or, and I’m looking at you, Arizona, on the last day of her menstrual period?)

Lawyer: I also think there’s something disturbing about a crime that can only be committed by women. A woman and a man take meth together, she commits a crime he didn’t commit, even though they did the same act. Equal protection? (I wonder if that’s the “constitutional issue” being appealed in the case in the article. I still haven’t read it carefully. Did it say?)

Nurse: I don’t think the article explained the specifics of the appeal, but did mention an amicus brief (see? nurse knows legal stuff!) from a reproductive-justice group which suggested that yes, applying the law to pregnant women violates equal protection, among other things. 

For me, I am really, really concerned about the issue of where we are allowing medical issues and criminal issues to overlap. First, just from a philosophical standpoint, I believe addiction needs to be treated as a medical problem, and this is an issue brought up in the article, too. That’s not universally accepted. But women who are addicted to some drugs cannot safely quit cold-turkey just because they are pregnant– that could also endanger the fetus. 

Then, why do is it OK to drug-test infants for legal, rather than health, reasons? Can they do this without the parents’ consent?

Lawyer:  On the question of consent for testing the infants, it calls to mind a controversy from about two years ago about taking blood spots from infants for a few mandatory tests, and then keeping the samples and using them for research. I believe a court ordered the state (Texas) to destroy the samples.

Many states (such as California) have a few required tests they give all newborns and I think they do it without specifically getting affirmative parental consent.  So sometimes it is considered legal for states to do testing on infants — but only for health-related reasons, and there are clearly limits on what can be done with the data. (Screening ok, research not ok.) Prosecution of the mother? It’s tough, because it is related, in some ways, to the health of the infant. But only tangentially, because one could protect the infant by ordering treatment, or even taking the child away for a while, without criminal prosecution.

Nurse: If a patient comes into the ER and the staff runs a tox-screen, they are doing it for treatment purposes and those results are not allowed to be given to law enforcement, I believe. This is so that people will not avoid treatment for fear of arrest. But that’s exactly what we are doing to pregnant women if we threaten to prosecute them for using while pregnant, isn’t it? Discouraging prenatal care, discouraging them from seeking treatment for addiction. That’s dangerous, and could really do way more harm than good.  So, while illegal drug use is already criminal, the question is why does the state get to peek into medical records, or even require tests? I think the advocates for this law make an argument that  when you harm another person, the rules change. But then, this law has been applied to pregnant women who delivered healthy babies too.

Lawyer: My other concern is that the article says this law was “originally created to protect children from potentially explosive meth labs.” So the state legislature didn’t seem to have this sort of thing in mind, and prosecutors are running wild with it. As a general matter, I think prosecutors should be doing their best to punish people as the legislature intended — not taking a loosely drafted bit of law and trying to sweep people under it because of their own moral convictions. Looking at some of the quotes from prosecutors in this article, it’s pretty clear that they’re driven by personal conviction — not by what they understand to be the intent of the law as written.

Take two of these, and hope you don’t get fired.

NYT reports today about some companies who have started including prescription drugs in their random drug testing, and dismissing employees who test positive EVEN WHEN THEY HAVE A VALID PRESCRIPTION.

Nurse: So, random drug testing at work is not news, nor is the fact that these tests often include presription drugs– but what IS significant about this case is that having a valid prescription does not get you off the hook. There are a lot of problems with that, obviously– some drugs are tested for when others are not, people with a legitimate need for a drug can be fired for using it, people who are able to perform their jobs safely are fired out of concern that they could potentially at some point be impaired, maybe others too . .. ?

Lawyer: Also some privacy concerns — your employer doesn’t have a right to know your private health information, whether or not they use that information to fire you. Might deter people from taking their prescribed drugs because they’re afraid of losing jobs.

Nurse: It seems like the entire thing could be conducted through a third-party company. . . and IF the employer was not firing people for legal precriptions they would never know about them, which makes sense. But you’re right, it seems like a privacy violation for your employer to test your urine for various substances that you have a right to use, legally speaking, and then fire you for it, especially because they cannot prove that you are using them at work. If you take a vicodin after work, your urine will test positive for hydrocodone. that’s even less your boss’ business than if you took one at work. Now, this isn’t totally screwball, because there are legitimate concerns that an employee of say, an auto plant could be a danger to herself and others if she was impaired. Many of the medications under discussion (like hydrocodone and oxycodone, which are the narctocics in vidodin and percocet) legitimately can impair your ability to operate machinery, and they are labeled as such.  So sure, I understand the concern.

Lawyer: But. . . is the situation such that one could be a danger to others without exhibiting any signs whatsoever of altered behavior? Is this an across-the-board kind of effect? Nobody can drive safely when intoxicated — but do these drugs affect everyone that way?

Nurse: Well, no, and it matters how  much you’ve taken, what your tolerance is, and your general suceptibility to those side effects. Some people will be totally safe and some will be impaired. But what troubles me is that it is widely practiced to test if there’s cause to do so– someone is behaving strangely, appears impaired,  etc. Why do employers feel this is insufficient? Do they have a leg to stand on, legally? Is it really safer to use random tests than targeted ones?

Lawyer:  I agree that this is very troublesome, especially in jobs that don’t seem to have abnormally high safety risks. The question about a leg to stand on legally is a tricky one, and the NYT article starts to get into some of the problems.

The biggest one that occurred to me on a skim-through was the Americans with Disabilities Act — which forbids employers to fire people for having any kind of disability that don’t significantly interfere with their ability to do their job and even requires the employers to make any reasonable accommodations necessary for disabled employees to work there.
So if you have an employee who needs a strong pain medication. . . you see where I’m going with this. They need a reasonable belief that the person’s condition is interfering with their job. Hence, no need for random testing. Let alone firing.  It seems like they are moving to suggest that a positive result on a random drug screen might constitute grounds for reasonable belief that the person cannot do their job. Nurse, is this feasible? (this is probably shaped by the answer to my question above.)
Nurse:I agree with you that the present standard addresses this. If they have data that shows that a high percentage of employees who are involved in accidents have tested positive for legal precription drugs, then they are adressing a problem (even if they are doing so illegally/imorally/whtever). If not, then they are not, and  this whole thing is bogus.
Lawyer: And yet, the testing is surely expensive, as is the turnover in the work force — they must be finding it somehow worthwhile.
Nurse:And again, if using certain prescription medications makes one inelligible to perform the job, that needs to be an up-front disclosure, right? Ok, so a person with epilepsy cannot be a truck driver. That makes sense. Can a person with pain then not work on an assembly line? If they are going to make that argument, they better do it loudly and before anyone is hired, or has worked there for 20 years. Do you suppose the company in the article has any data to back them up?
Lawyer: This is a good point — if someone does a job perfectly well and safely for 20 years, exhibits no change in behavior, and is fired because of a health condition, that seems pretty indefensible. Changing the rules after someone has made a real investment in signing up with you sure looks bad.
Nurse: Now, I can imagine this being somewhat more complicated among people who have access to such drugs as part of their jobs– nurses, pharmacy techs, etc. For us, a positive drug test is probably somewhat more serious even if there is a legitimate explanation because we are in a position to steal drugs. Having a prescription doesn’t mean you didn’t steal them. I’d like to think people don’t do this, but evidence does not back me up. But even if this more delicate situation, I don’t think it can be justified unless it is proven that your ability to carry out your duties safely is compromised.
Lawyer: I would add that at the very least, I would expect the employer to offer a long-time employee an alternate assignment if they believe a prescribed drug or health condition is interfering with the employee’s ability to safely perform his or her job.
Nurse: Lots of employers, especially in healthcare, offer rehab, repeat testing, etc. for use of illegal drugs or illegally used prescription drugs. That doesn’t make sense if you are talking about a legit precription, but it just goes to show you that there are more lenient pathways that don’t lead to a nation of zombie-employees showing up stoned every day.
Lawyer: Repeat testing doesn’t do the trick here. In fact, this company offered it. But then you’re in a great position: go off the meds your doc prescribed for you for a health condition so you can pass the test, or lose your job.

MJ, M.D.’s, and the coroner

Not to jump on a bandwagon, but it’s on the front page of the New York Times and the LA Times. . .So, the preliminary reports show Michael Jackson’s  death involved no trauma or foul play, and toxicology reports are pending– and in the mean time, major news outlets are reporting, the police have seized Jackson’s personal physician’s car because it could contain drugs or other evidence. Um. . . ok? How did this become a criminal investigation?

Obviously we, the public, don’t have the whole story– nor should we! I’m surprised that there’s as much on-the-record information from law enforcement, the coroner’s office, and others as there is.  (And of course, wild speculation on the blogosphere here,  here, and here, for example)

This is a line that we’ve seen toed several times recently– Brittany Spears’ hospitalization comes to mind– so I wonder, does a person’s status as a public figure ever override their right to privacy?

Strip Search Update

Lawyer: The Supreme Court took up the Savana Redding case (which we previously discussed)yesterday. We’ll certainly discuss the ruling, when it comes, but in the mean time, the New York Times gathered some kind of hilarious quotes from various justices trying to properly discuss the issue of who’s likely to put what in her underwear.

It seems a lot of debate went on, some of it uncomfortable and hilarious, and the term “crotching” was introduced, but I still want to know how they’re trying to argue that there wasn’t a Fourth Amendment violation. Where was the reasonable suspicion?  I don’t think a tip from a seventh-grade girl with a grudge counts.

Justice Souter also made the argument that, basically, the safety of the students is worth their embarrassment. If they had reasonable suspicion that she had a drug that actually has the potential to be harmful — okay. But they had a vague hunch that she had IBEUPROFEN. No one’s safety was at risk, and embarrassment is a mild word for the psychological effect of this sort of thing on a 13-year-old girl.  I can’t help but feel that Justice Souter’s comment implies that students somehow have less robust rights than other citizens. It’s embarrassing, yes, but students also have a right to a certain amount of privacy, just like everyone else. The police can’t come in your house because your neighbor whose tree you cut down says they should. A student — and especially one who is subject to compulsory school attendance at a public school — has all the same rights.

Now, granted, it’s possible to say that the school handled this particular case badly (their suspicion wasn’t well-founded; they went straight for the search without first asking her reasonable questions), but there is still a question to debate here – WOULD they have the right to conduct this search if the circumstances were more appropriate? It’s only with broad applicability that things like this get to the Supreme Court.

Are there alternatives? If the school has a true reasonable suspicion (side question: what constitutes reasonable suspicion in this context?)  that a student has, say, oxycontin tablets on her, and they’ve searched her locker, bookbag, and pockets, what are their choices? They could call her parents and/or send her home. I would say suspending a student for the afternoon and/or involving her parents is less extreme than asking her to strip.I’m sure there are other possibilities, too –any creative thinkers out there have an idea?

Bottom line right now: Drugs are scary, and the schools are trying hard to protect students from the harm they can cause, but that doesn’t give them the right to infringe on citizens’ constitutionally-granted liberties. If a liberty is protected, that’s because it was deemed important enough to be in the constitution, not just when it’s convenient. We’re not talking about national security here. Work a little harder. Be creative. Find ways to keep kids safe AND keep their liberties intact.

Stay tuned.