Have you heard the saying, “you are where you are meant to be?” Well, this is a situation of all the right people being in the right place at the right moment. All the pieces finally fit into place, making this case and ruling possible.
Pregnant medical marijuana patients in Arizona now have fewer things to stress about. The Arizona Court of Appeals concluded that medical marijuana use while pregnant is not grounds to be entered on to the central registry for “neglect.”
Medical Cannabis Use and Motherhood
Lindsay Ridgel has grown from a working mom, private about her life, into the poster child for medicinal cannabis use while pregnant. Ridgel, a former DCS employee, used her marijuana card to help with her symptoms of Hyperemesis Gravidarum. Hyperemesis Gravidarum includes severe nausea and feeling faint or dizzy when standing. It can also cause persistent vomiting, which can lead to dehydration. In black and white, it might not seem that awful. In reality, those symptoms blended with pregnancy can have detrimental effects on both mother and child.
Ridgel only gained 20 lbs. and was hospitalized twice during her pregnancy because of the condition. The only way she found to manage her condition was with medical marijuana, and she renewed her card during her pregnancy.
Ridgel’s son had complications when born and this flagged the Department of Child Safety to conduct a drug test. They found marijuana in both Ridgel and her son, because of that DCS entered her on to the Central Registry for 25 years. The Central Registry is to protect vulnerable people, such as children and elderly, from abuse. This all meant that Ridgel’s degree in social work would be meaningless, as she could not obtain a fingerprint clearance card.
Administrative court ruling
Ridgel and her lawyer argued that the Arizona Medical Marijuana Act/ AMMA, Prop 203, includes protection.
(ARS § 36-2813(D)) No person may be denied custody of or visitation or parenting time with a minor, and there is no presumption of neglect or child endangerment for conduct allowed under this chapter, unless the person’s behavior creates an unreasonable danger to the safety of the minor as established by clear and convincing evidenceArizona Revised Statue
“Although AMMA did not change the definition of ‘neglect’ in the Department’s statutes, it changed parents’ and their treating healthcare professionals’ healthcare options for alleviating the adverse maternal effects of pregnancy to make a healthy baby’s birth more likely.”Administrative Court Judge Diane Mihalsky
Judge Diane Mihalsky’s decision further points out the prejudices of the Department by explaining:
“The Department does not seek to substantiate an incident of neglect against Appellant based on her use of Celexa and Buspar during her pregnancy, even though prenatal exposure to those drugs may pose a risk to a developing fetus.”Administrative Court Judge Diane Mihalsky
Bullies Backed Into A Corner
This is the first time since the AMMA, Prop 203 existence, that DCS could no longer overlook the rights of medical marijuana patients. However, because of ARS § 41-1092.08(B), bullies do what they do when backed into a corner. ARS § 41-1092.08(B) allows the director of an agency like DCS to do three things with an Administrative Law Order: accept it, modify it, or reject it. Mike Faust, the Director of Arizona’s DCS, rejected Administrative Judge Diane Mihalsky’s ruling and modified it back to suit the needs of DCS.
Superior Court ruling
Despite the previous judge siding with Ridgel, Superior Court Judge Kiley affirmed DCS’s finding of neglect in the Central Registry, setting forth that the purpose of the Central Registry is not punishment but protection of children and vulnerable people.
Sonia Martinez, Ridgel’s attorney, is well-known in the cannabis community and industry. She practices tribal, criminal, and family law. She battled Ridgel’s fight as far as she could, as Martinez does not do appeals.
Allison Stein has a particular interest in DCS reform and knew what this meant for improving and strengthening AMMA. She was not about to let it go. Stein brought the case to the attention of Julie Gunnigle. Gunnigle, then a Board member of Arizona NORML, and Former Candidate for Maricopa County District Attorney (currently running again). This was right up her alley. She agreed to take the dispute for the public good. She only required the cost of filing fees for the Court of Appeals. With your support, we raised the money, and a little more, through a GoFundMe in under 48 hours, allowing the process to continue.
After Gunnigle picked up the argument, 49 organizations, including National Advocates For Pregnant Women, Academy Of Perinatal Harm Reduction, Americans For Safe Access Foundation, National Perinatal Association, North American Society Of Psychosocial Obstetrics And Gynecology, and Amy Schumer filed an Amicus Brief on Ridgel’s behalf.
In the brief, The American College of Obstetricians and Gynecologists (ACOG), states
“a positive drug test should not be construed as child abuse or neglect” and likewise is a “serious threat to people’s health… [by] erod [ing] trust in the medical system, making people less likely to seek help when they need it.”The American College of Obstetricians and Gynecologists (ACOG)
In a statement, Gunnigle told the Phoenix New Times:
“The response isn’t, ‘Let me reevaluate my medical choices with my doctor.’ The response instead, for a lot of people, is ‘Let me forego prenatal care,’ because they don’t want this experience,” Gunnigle said. “That is a public health nightmare, and it’s one more reason why policing these really private medical choices is terrible public policy.”Julie Gunnigle
The drug test she is referring to in Arizona is (EXPOSURE TO DRUGS, ARS § 8-201),
“A determination by a health professional that a newborn infant was exposed prenatally to a drug or substance listed in section 13-3401 and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional. This subdivision does not expand a health professional’s duty to report neglect based on prenatal exposure to a drug or substance listed in section 13-3401 beyond the requirements prescribed pursuant to section 13-3620, subsection E. The determination of the health professional shall be based on one or more of the following:Arizona Revised Statue
Clinical indicators in the prenatal period, including maternal and newborn presentation. History of substance use or abuse.
Results of a toxicology or other laboratory test on the mother or the newborn infant.”
On September, 15th, 2021, the Arizona Court of Appeals heard oral arguments in Ridgel vs. DCS. Presiding Judges Randall M. Howe, Brian Y. Furuya and Michael J. Brown all asked questions. However, Judge Randall M. Howe, was the most inventive in the hearing.
This might have led to Judge Randall M. Howe delivering the ruling, in which Judge Brian Y. Furuya and Judge Michael J. Brown cooperated. The 9-page conclusion of the court reads like legal poetry about how DCS was unlawful to admit Ridgel on to the central registry.
However, the gist of it can be summarized with this quote from Judge Howe:
“a registered qualifying patient’s authorized use of marijuana must be considered the equivalent of the use of any other medication under the direction of a physician and does not constitute the use of an illicit substance.”Judge Randall M. Howe
Howe goes on further to state:
“But marijuana’s proper role in society has been long debated, and the wisdom of legislation is not for this court to decide. See State v. Leuck, 107 Ariz. 49, 51 (1971) (“Defendant in effect questions the legislative wisdom of prohibiting possession of marijuana. It is not this Court’s function to pass judgment upon the wisdom of legislation.”). AMMA protects Ridgell’s use of medical marijuana, and the Director consequently erred in placing her on the Central Registry for neglect.”Judge Randall M. Howe
Ominous Silence From DCS
The Department of Child Safety is silent on its plans to Appeal the verdict to the Supreme Court or if this will stand as a precedent for pregnant medical marijuana patients for decades to come.
“However, if that happens, and the Department appeals this to the Supreme Court of Arizona, there will be the biggest protest.” That’s according to Allison Stein the Director of Civic Engagement and Community Liaison for Arizona NORML.
Both Gunnigle and Stein were at the April, 5th, Arizona NORML meeting to discuss the recent win. At the meeting, Gunnigle suggested we keep pressure on Arizona’s Attorney General, Mark Brnovich of the Republican Party, to NOT appeal the decision, whether that be tagging him in posts on Twitter or other ways.
Gunnigle also stated that this might be enough grounds to remove/expunge parents and mothers off the Central Registry. But that’s a whole other article. For the moment, we will bask in the glory of triumph for medical marijuana patients and their parental rights.
Editor’s note: I would like to thank Sonia Martinez for taking this argument as far as she could for medical marijuana patients in Arizona; Lindsay Ridgel for overcoming her fears and the public, and standing up for medical marijuana patients; Julie Gunnigle, for obvious reasons (she kicked ass). And lastly, myself for not giving up on this case and for bitching and complaining about it to Julie . It has been magical watching this play out for almost 2 years and it’s been healing as well.
And one more special thanks to all those that contributed to the GoFundMe. We would not have this win if not for your help!