Medical marijuana use OK during pregnancy if mom is under doctor's care, court rules

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A woman who used medical marijuana during her pregnancy did not neglect her pre-born child and should not be punished by being put on a list that could limit her employment, the state Court of Appeals has ruled.

The ruling reverses a decision by Department of Child Safety Director Mike Faust to place Lindsay Ridgell, a former DCS employee, on the agency's Central Registry.

The registry is a list of people who have been deemed to have neglected or abused their children and serves as a red flag if the listed individual looks for work that involves children or other vulnerable populations.

Presiding Judge Randall Howe, writing for the court, concluded that because Ridgell had a medical marijuana card prescribed by a doctor, her use of marijuana to counteract nausea was the same as taking any other prescription under a doctor's direction. Voters made medical marijuana legal in 2010; in 2020, they legalized recreational marijuana use as well.

"Ridgell's marijuana use was protected by the AMMA (Arizona Medical Marijuana Act), and that protection extends to prenatally exposing her infant to marijuana," Howe wrote for the court.

"The extent of that protection may be unwise," Howe continued. He noted the federal government does not attribute any medical value to marijuana but added the wisdom of Arizona's medical marijuana law is not an issue in this case.

Ridgell did not immediately return a call for comment. But her attorney, Julie Gunnigle, said the decision is important because it clarifies how medical marijuana use should be regarded in child welfare cases.

"All use is presumed to be medicinal use," Gunnigle said.

DCS said it is reviewing the opinion and whether it would appeal.

Baby tests positive

The case stems from 2019, when Ridgell gave birth. The baby tested positive for marijuana, which required the hospital to notify DCS. Under state law, a parent is neglectful if a child is born substance-exposed, unless that exposure happened while the mother was under treatment by a medical professional.

DCS investigators determined that although Ridgell had a medical marijuana card, she did not tell other doctors who were involved in her pregnancy care about her marijuana use. They did not remove her child from her care but did move to place her on the Central Registry. A registry listing lasts 25 years and can compromise job prospects.

Ridgell appealed the DCS decision to a state administrative law judge, who sided with her. Director Faust, as he is allowed under law, reversed that decision, citing Ridgell's lack of communication with her other doctors and concluding that made her guilty of neglect. She was again referred to the registry.

Ridgell turned to the state appeals court. She argued the marijuana exposure resulted from a medical treatment administered by a doctor, since she received her medical marijuana card with a doctor's permission.

The court agreed, writing that "her marijuana use is the equivalent of taking any other medication under the direction of a physician."

Judges Brian Furuya and Michael Brown joined in Howe's decision.

Doctor's prescription is key

Gunnigle said as the case progressed she heard from several people in similar situations, weighing whether they should challenge a Central Registry listing. It's an expensive and time-consuming effort, Gunnigle said, and "you're fighting a battle at every turn."

In Ridgell's case, she was fighting her employer. Ridgell was a case specialist, hired in 2015, state records show.

She understood the policy that marijuana consumption during pregnancy is allowed if under a doctor's direction and in fact worked such cases, Gunnigle said.

It is unclear if Ridgell was dismissed from the agency or took a leave; Gunnigle was not sure and DCS referred a reporter to a public records request to determine Ridgell's status.

Central Registry process challenged

Gunnigle said the Central Registry process gives DCS too much power, allowing it to reject a law judge's finding that is contrary to the agency's decision.

That concept, that DCS is effectively a judge, jury and executioner in a registry referral, is being challenged in a separate case before the appeals court.

Attorneys for the New Civil Liberties Alliance, a nonprofit based in Washington D.C., argue the state's administrative appeals process is unconstitutional because it allows a state agency to investigate, prosecute and ultimately render judgment on a case. A Maricopa County Superior Court judge rejected that argument in September 2020, and the matter is on appeal.

Thousands of listings that last 25 years

The Central Registry contains the names of individuals who have been deemed to have neglected or abused children or other vulnerable populations. As of 2018, the latest year for which data was immediately available, the list contained 81,000 names. Once listed, a person's name remains on the list for 25 years.

The registry is sometimes referred to as a blacklist since it identifies people who have been alleged to have neglected or abused children.

Many people learn only after the fact that they have been listed. A Republic investigation found that people can be listed if DCS determines that a complaint is accurate, even if a follow-up investigation clears the individual of abuse or neglect.

Reach the reporter at maryjo.pitzl@arizonarepublic.com and follow her on Twitter @maryjpitzl.

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This article originally appeared on Arizona Republic: Medical marijuana use while pregnant is not neglect if under doctor's care, Arizona court rules