Legal Briefs (May 2012)

NASW’s Legal Defense Fund facilitated NASW’s participation and that of the NASW Florida Chapter in an amicus curiae (friend of the court) brief in a case that challenges Florida’s program of mandatory drug-testing for Temporary Assistance for Needy Families applicants. The case, Lebron v. Wilkins, was filed in federal court and is now before the 11th U.S. Circuit Court of Appeals.

The brief argues that Florida’s mandatory suspicionless drug testing of TANF applicants undermines the state’s goal of promoting self-sufficiency and supporting children. TANF applicant Luis Lebron has refused to take a drug test because he believes that requiring him to pay for and submit to such a test is unreasonable when there is no reason to believe he uses drugs, and therefore violates his Fourth Amendment right to be free from unreasonable searches.

The brief argues that the state cannot circumvent Fourth Amendment protections without demonstrating a special need and that Florida’s program fails to meet the requirement.

The state program is faulty in other ways, the brief says. It points out that despite “their dire straits, many would-be TANF applicants struggling with substance-abuse problems are reluctant to apply for TANF funds for fear that the State will act retributively.” It also notes that women may distrust the social services system and may believe that if they seek treatment for addictions, they will face prosecution or even risk losing custody of their children. Thus, the drug-testing scheme serves to deter eligible TANF applicants from seeking the very assistance the program was designed to provide.

NASW and the NASW Alabama Chapter, through the work of the NASW Legal Defense Fund, joined a coalition of 47 organizations in filing amicus briefs in the Alabama Supreme Court on March 13 on behalf of two women who are facing criminal prosecution for their conduct during pregnancy. Hope Ankrom and Amanda Kimbroughboth struggled with addictions and face punishment for continuing their pregnancies.

The cases are based on competing interpretations of the state’s “chemical endangerment” law that was passed to create penalties for adults who expose children to methamphetamine labs, not to address the public health issues raised by pregnant women and drug use.

Each brief asks the high court to reverse the state’s Court of Criminal Appeals’ decision to redefine the word “child” to include “viable fetus.” The expanded definition can be misused to prosecute women who are pregnant who take drugs, even legal drugs prescribed by health care providers, the briefs state, which was not the original intent of the law.

For example, among the drugs covered by the chemical endangerment statute as rewritten by the Court of Appeals is methadone, the briefs say. It is the treatment drug recommended by the U.S. government for pregnant women with opioid addictions, but it is also considered schedule II contraband under Alabama law.

The briefs note that the Court of Criminal Appeals’ decision reflects a misunderstanding of the nature of addiction. Medical groups confirm that addiction is not simply a failure of individual willpower and that the majority of drug-dependent people cannot simply decide to refrain from use or achieve long-term abstinence without appropriate treatment and support.

NASW’s policies support a public health approach to addressing the use and misuse of alcohol, tobacco and other drugs as well as providing addictions treatment tailored to the needs of specific populations, including pregnant women.

LDF briefs are available on the Amicus Brief Database