Psychedelic drugs and the law: What’s next?


The push to legalize magic mushrooms, MDMA, LSD and other hallucinogens is likely to heighten tensions between state and federal law, drug law expert Robert Mikos say


When Oregon’s first psilocybin service center opened in June 2023, allowing those over 21 to take mind-altering mushrooms in a state-licensed facility, the psychedelic revival that had been unfolding over the past two decades entered an important new phase.

Psilocybin is still illegal on the federal level. But now, as researchers explore the therapeutic potential of psilocybin and other psychedelics, including LSD and MDMA (also known as Molly or ecstasy), legal reform efforts are spreading across the country — raising tensions between state and federal laws.

As a class, psychedelic drugs were outlawed in the United States by the Controlled Substances Act of 1970. The act designated psychedelics as Schedule I drugs — the most restrictive classification, indicating a high potential for abuse and no accepted medical use. That status limits research to federally approved scientific studies and restricts federal funding to research with “significant medical evidence of a therapeutic advantage.”

Portrait of Robert Mikos

CREDIT: JAMES PROVOST (CC BY-ND)

Legal scholar Robert Mikos

Vanderbilt University

Despite these limitations, researchers have demonstrated the potential of psychedelics in the treatment of post-traumatic stress disordermajor depressive disorderanxiety and addiction. A 2020 systematic review of recent research found that psychedelics can lessen symptoms linked to a variety of mental health conditions. While that review found no serious, long-term adverse physical or psychological effects from ingesting psychedelics, more research is needed on the latter.

Today, decades after research on the effects of hallucinogens on the brain was sidelined by the act, academic and cultural interest in psychedelics is on the rise. More than 60 percent of Americans now support regulated therapeutic use of psychedelics, while nearly half support decriminalization, and nearly 45 percent support spiritual and religious use. An estimated 5.5 million US adults use psychedelics each year.

In opening psilocybin service centers where adults can buy and consume “magic mushrooms” without a doctor’s prescription, Oregon took the biggest step yet toward expanding legal psychedelic access in the United States. In the process, it joined a growing number of states and municipalities that are carving their own paths with drug laws. Colorado legalized the use and possession of hallucinogenic mushrooms and three other psychedelics in 2022 and aims to open licensed use facilities by the end of 2024. And California’s legislature passed a bill in 2023 that would have legalized adult possession of psilocybin, the related psilocin and two other hallucinogens (dimethyltryptamine, or DMT, and mescaline), although Gov. Gavin Newsom vetoed it in October, asking for legislation that focuses on therapeutic uses.

In all, 20 states introduced psychedelic-related legislation in 2023, ranging from plans to establish research councils and working groups to proposals to legalize use and possession of certain drugs. Meanwhile, cities in California, Michigan and Massachusetts have stopped enforcement or otherwise decriminalized possession of some psychedelics, typically ones that are naturally found in plants and fungi. Washington, DC, the seat of the federal government, has also loosened its psychedelic laws.

Some of these reform efforts aim to revive research that might lead to badly needed mental health treatments; others are pushing back against what many deem unfair criminal punishments stemming from the “war on drugs.” The result is a growing patchwork of state and local laws that stand in conflict with the Controlled Substances Act.

What does the future hold? Robert Mikos, an expert on drug law at Vanderbilt University Law School in Tennessee, says the history of marijuana law reform may offer some indicators.

In 1996, California voters approved the medical use of marijuana, and today 38 states have medical marijuana programs, while 24 states and the District of Columbia have legalized recreational use. Seventy percent of Americans support marijuana legalization, up from about 25 percent when California first changed its law. And yet marijuana, which is sometimes itself considered a psychedelic, remains a Schedule I substance.

A graphic map of the US shows only three states where there is no legal use of marijuana. Many states allow legal adult recreational use; some allow medical use only and nine have a more restricted medical use policy with low-THC/high-CBD cannabis
Thirty-eight states have legalized medical use of marijuana, and 24 of those now also allow adult recreational use. Other states permit sales only of low-potency cannabis.

For marijuana, too, public perception underwent dramatic shifts as research demonstrated its relative safety and effectiveness for the treatment of pain and nausea, among other maladies.

Mikos analyzed the implications of marijuana reform history for the legal future of psychedelics in the 2022 Annual Review of Law and Social Science. In an interview with Knowable Magazine, he explored the path toward rescheduling, why different types of psychedelics need to be considered separately, and the interplay between federal and state drug laws.

This conversation has been edited for length and clarity.

What have you learned from studying the history of marijuana reform in terms of what’s now happening with psychedelics?

The biggest lesson is that you don’t have to put all your eggs in one basket and get the federal government to sign on, which is extremely difficult to do. The states provide an alternate forum for pursuing reforms. We’ve seen some small changes to federal law, but in the last 26 years or so, we’ve seen the states figure out ways around all the obstacles erected by the federal government. There are some compromises and sacrifices that have to be made to work around federal law, but you can pull this off and have meaningful reform without agreement from the federal government — even with some hostility from the federal government.

Do you think the legal journey of marijuana should inform the future for psychedelics?

There are differences here. No one even agrees on what the term psychedelics encompasses. Some people think immediately of plant-based psychedelics like psilocybin. Others would include lab-made drugs like LSD. It’s a much more diverse array of substances than marijuana. If someone wants to legalize psychedelics, they may have to pick one substance and run with it. That is a clearer path to success than saying you’re going to legalize all psychedelics. I don’t think any state would be willing to do that at this point.

Framing its use as medical helps — that was certainly true with marijuana. It’s much easier to sell the public on legalizing something for medical use rather than recreational or spiritual use. Under the Controlled Substances Act, the only lawful use of a controlled substance is medical, so there was a natural inclination to frame marijuana use as medical.

Politically, it would be easier to convince a majority of the public to support a ballot initiative to legalize some psychedelics, like psilocybin, for medical use. It would be a simpler story than saying, “Some people here want to go out and trip.”

Photo shows a woman wearing a sleeping mask, sitting in a chair in meeting room with others also wearing sleeping masks, all looking toward the front of the room.
In Oregon, psylocibin can now be taken at a state-licensed center under the guidance of people trained to facilitate users’ psychedelic experiences. Here, students in training to work as psylocibin guides wear sleep masks as part of a class exercise.CREDIT: LIZZY ACKER / THE OREGONIAN

In 2023, the US Department of Health and Human Services, which is tasked by the Drug Enforcement Administration with reviewing the medical and scientific evidence for a drug’s scheduling, recommended reclassifying marijuana from Schedule I to Schedule III, indicating federal recognition of its accepted medical use. That move would open the door to federal approval of medical marijuana but keep it criminally controlled. Could that be a path for psychedelic reform?

If the Drug Enforcement Administration does reschedule marijuana, it would show that you could get this done at the federal level — but consider that the Controlled Substances Act was passed more than 50 years ago. Marijuana could still end up moving only one rung, to Schedule II, which is very tightly controlled — cocaine is there right now. My takeaway is: Don’t hold your breath waiting for the federal government to change its laws.

And for psychedelics, it’s more complicated. You’d need to make that same demonstration to the Food and Drug Administration — that the drug has medical uses — for each and every drug you were interested in. (The FDA evaluates a drug’s safety and medical efficacy, as well as potential for abuse, among other factors, in its analysis.)

Still, there’s at least a sign, now, that you can convince the federal government to lower the controls on some of these long-forbidden substances. But given how much time it’s taken and how limited that impact would be, it suggests you need to do something else — probably going through the states again and not the federal government.

To what extent is the Controlled Substances Act dictating the trajectory of psychedelic reform?

The Controlled Substances Act privileges medical use, which is going to frame the debate around these substances. But I think people are going to shoehorn in uses that are not genuinely medical uses of the drug.

People are trying to scientifically test these drugs, but ironically, the Controlled Substances Act makes that very difficult. If a drug is on Schedule I, to move it off you need clinical trials demonstrating that it’s effective at treating some medical condition. But conducting those medical trials is really difficult because it’s Schedule I.

The federal government wants to make sure that something someone says is going to be used in a clinical research trial is not sold on the black market. So it imposes special controls, which it could relax to make it easier for universities, hospitals and scientists to test the medical efficacy of different psychedelics.

Even though psychedelics are often discussed as an entire class of drugs, they differ in their chemistry, how they’re created and how they affect individuals who take them. How will that influence the way advocates approach reform?

At the federal level, even if you conduct mountains of research demonstrating that LSD has some accepted medical use, that won’t have any effect on whether to reschedule psilocybin. Politically, it may be difficult to form alliances in that situation between people who believe strongly in legalizing psilocybin versus those who support legalizing a different psychedelic drug.

At the state level, it could get tricky. Will there be enough people out there who are willing to support an initiative targeted at just one of these psychedelics? We don’t have much public opinion research on psychedelics in general, and certainly not on individual psychedelics, which may be the route that reformers need to take.

MDMA was granted “breakthrough therapy” status in order to be studied as part of treatment for post-traumatic stress disorder, and the completion of a Phase 3 trial in fall 2023 means it could be approved by the FDA for this use as early as 2024. Would that require the drug to be rescheduled? And how would that change the trajectory for psychedelics overall at the federal level?

It would necessitate rescheduling. You can’t keep a drug on Schedule I if it has accepted medical use. Which other schedule it falls on depends on the relative harms and likelihood of abuse. But I’m not sure there are broader ramifications. The Controlled Substances Act calls for the scheduling of individual substances, rather than classes of substances, so the scheduling of MDMA has no implications for the scheduling of psilocybin.

Graphs compare the percent of PTSD patients who responded or improved to three therapy sessions either using the drug MDMA or a placebo. MDMA-assisted therapy resulted in significantly higher percentage of people who went into remission, lost their diagnosis of PTSD or responded to treatment than placebo-therapy group, which also did show some improvements.
A Phase 3 clinical trial found that MDMA-assisted therapy reduced participants’ symptoms of post-traumatic stress disorder and functional impairment better than placebo — a major advancement in efforts to show the therapeutic potential of psychedelics.

What does the tension between state and federal psychedelics law look like?

It’s a bit like a chess match. The states can liberalize their laws and allow people to use, manufacture and distribute some psychedelics, such as psilocybin in Oregon, without fear of arrest from the state government.

The federal government could try to counter the states by making it very difficult for the states to regulate psychedelics. This was true in the early days of state marijuana law reforms. The states wanted to create a safe and heavily state-regulated supply system, but the federal government was threatening to crack down on suppliers, so states didn’t try to set up regulated supply systems. In California, for example, people set up enormous collectives that served tens of thousands of patients, but those suppliers weren’t regulated to the same degree they are now.

You saw state regulation take off only around 2009 when the Obama administration announced it would stop raiding medical marijuana distributors. But that was more than 12 years into state marijuana reforms. Prior to that, states said, “We’re going to call your bluff.… We’re not going to arrest patients. Instead, we’re going to tell patients to grow it themselves, get it from a friend or the black market.”

That’s less than ideal. The states didn’t want some 70-year-old terminal cancer patient having to grow their own medicine, but they said that’s better than threatening to arrest that patient. You might see a similar tit-for-tat in the psychedelics realm.

Oregon has tried to jump the gun a little bit with psilocybin. What they’re envisioning is a tightly regulated state supply system. You can’t buy it and use it at home at your leisure — you have to use it at a state-licensed psilocybin service center.

The problem with that is that it’s much easier for the federal government to shut down state-regulated suppliers because you’ve got a list of them, so it puts those suppliers in harm’s way. They can be arrested, prosecuted, thrown in prison for long terms and have their assets seized.

But if the federal government cracks down on those psilocybin service centers, Oregon might just lift its prohibition on making and distributing this drug. And then the federal government might come back to the table, as it eventually did with medical marijuana.

It’s a back-and-forth between the states and the federal government to figure out how much the federal government will tolerate.

Photo shows a brightly painted small building with marijuana leaves in yellow, purple and green decorating the side of the building. A green cross symbol and a front sign adorn the store.
A marijuana dispensary in New Orleans, Louisiana, one of 38 states that have legalized medical use of the drug.

What lessons have we learned from the early stages of psychedelic law reform?

Oregon passed Measure 109 back in fall 2020. It took three years for the first psilocybin service center to open. It takes time to figure out how to do this, especially for early adopters. Can we actually have a system where the state is looking over your shoulder while you’re taking this drug? Or is that going to backfire and is the federal government going to use that to crack down on these centers?

As long as the sky doesn’t fall and you don’t see some disasters from these early adopters, I think other states will warm to it. But the first few years are going to be slow going.

Are there indications yet about whether psychedelics will be able to gather the same kind of political backing that helped push marijuana reform?

I am deeply skeptical. If you look at marijuana, we’ve had the majority of Americans support legalization for recreational or adult use for 10 years and we’re just now getting some tepid indications that somewhere down the line the Biden administration might change federal law governing marijuana to allow for medical use.

It’s going to take a while before you get that sort of public support for psychedelics reform, if you ever get it, and you’d need that before whoever is in federal office 10 to 20 years from now actually embraces this.

AI Might Actually Enforce All Our Stupid Laws, Expert Warns


Getty / Futurism

Image by Getty / Futurism

With artificial intelligence having already changed the way we work — or at least the way bosses think work should be done — for the worse, one computer scientist is warning that it could get much, much worse if robots begin being used to enforce the law in all its stupidity.

“If you’re not worried about the utter extinction of humanity,” AI researcher Eliezer Yudowksy wrote in a tweet, “consider this scarier prospect: An AI reads the entire legal code — which no human can know or obey — and threatens to enforce it, via police reports and lawsuits, against anyone who doesn’t comply with its orders.”

To be fair, Yudowsky is often accused of being an “AI doomer,” a meme-laden term for the type of oft-deserved expert alarmism one sees regularly in climate research but also, increasingly, in the AI space as well.

Then again, his point is salient not only because AI lawyers and algorithmic law enforcement tools have long been a thing — just recall the gross consequences of policing via facial recognition, for instance — but also because it makes a lot more sense than some of the other applications the tech’s being used for.

Whereas having AI write articles or create art is almost always going to fail the smell test because creativity is subjective and distinctly human, laws have far less heart and are purposefully strict as a means of governing humanity’s purportedly ungovernable nature (or so law lovers have been saying since time immemorial).

Some laws, of course, are undeniably good: the ones against murder, against harming children and animals, and against, say, your landlord deciding on a whim to lock you out of your house and never let you back in.

But as anyone who read Cracked.com back in the day will tell you, there are quite a few laws out there that either don’t make sense or are so antiquated, the concept of enforcing them is goofy. From the many, many sodomy laws on the books around the globe to the weird, random ones that must have funny stories behind them,

Though the concept of AI-inflected law seems particularly salient with a full year of ChatGPT mania behind us, algorithms have been used for all kinds of legal tasks for years now. Take, for instance, the many consumer-focused AI tools and products that can help simplify “legalese” into digestible English and help one figure out how to sue or be sued. One of these tools was so well-received, it won its creators an innovation award from Hofstra University last year.

On the flip side of that same coin, there is the all-too-possible prospect that AI might not only be used to help regular people navigate the law, but also help those who take it upon themselves to enforce them do so with the unflinching execution of the Terminator. That’s a genuinely terrifying thought: an AI that obstinately enforces every trivial rule you didn’t even know you broke, with the goal of drowning you in stress, paperwork, and legal bills.

When one naysayer suggested that an AI trained on the legal code would be a “net good” because “then we will simplify the law to one that makes sense and not one where literally everyone is a criminal,” Yudowsky had a pretty perfect retort: “if humanity was capable of doing that we’d have done it already.”

There is, of course, a non-zero chance that the noted researcher is just doing his doom thing and that nobody is going to feed the legal code into a legal AI that may then decide it is the arbiter for all law.

“If you think that’s a dumb scenario, by all means go back to worrying about the utter extinction of humanity!” Yudowsky exclaimed.

In a post-Dobbs world, pathologists who study pregnancy loss walk a thin line between medicine and the law


UCSD Pathologist Mana Parast in her lab at the Sanford Burnham Institute in La Jolla, CA
Perinatal pathologist Mana Parast in her lab in La Jolla, Calif., at the University of California, San Diego.

When Mana Parast examines a placenta, she knows she may never find the answers she seeks. She’s hunting for clues — strips of dead tissue that signal autoimmune disease, white blood cells in the lining of the umbilical cord that point to an infection, thickening that could suggest blood wasn’t flowing freely to the fetus.

She wants to be able to tell a parent what she thinks went wrong.

Parast is one of just a few physician-scientists in the U.S. specializing in perinatal pathology, an overlooked and underfunded field tasked with analyzing fetal tissue, placentas, and other so-called products of conception to sleuth out why a mother miscarried — and hopefully, prevent further losses.

After a miscarriage or stillbirth, placentas — the temporary organ that protects and nourishes a fetus for the duration of a pregnancy — can harbor important evidence. While the majority of pregnancy loss is the result of genetic abnormalities, tightly wound umbilical cords, placentas that suddenly stop growing, and evidence of scarring are also clues in the 100 to 120 cases Parast and her team investigate each year. But for all of perinatal pathology’s promise, every case, even the ones considered “solved,” reveals just how little modern medicine knows about pregnancy loss, and how much there is still to learn.

“I don’t think we should underestimate the utility of placenta pathology,” Parast, who serves as director of the perinatal pathology service at University of California, San Diego, said. “Having said that, it’s not a crystal ball.” It’s rare to identify a single cause for a fetal death, especially after the first trimester. And while there are a few causal explanations for pregnancy loss — conditions in which no fetus could ever survive — most are merely correlational.

Hospital pathologists like Parast are also trying to offer comfort. In the U.S., as many as 1 in 4 pregnancies end in miscarriage or stillbirth. Those who experience pregnancy loss often feel personally responsible. “When an answer or explanation for their loss was given, [parents] were less likely to blame themselves,” said Jonah Bardos, an OB-GYN at the University of Miami and the co-author of a 2015 national survey on public misconceptions of miscarriage.

But pathologists with perinatal expertise are increasingly worried about the pressure they face to produce definitive cause of death determinations from law enforcement officials. Police and prosecuting attorneys have always had an interest in investigating pregnancy loss — acting on the suspicion that some miscarriages and stillbirths are intentionally caused by, or otherwise the fault of, the mother. Between 1973 and 2020, there have been more than 1,700 cases of arrests, detentions, and “equivalent deprivations of personal liberty” of pregnant people, according to the nonprofit Pregnancy Justice. In a post-Roe era, legal experts worry similar cases may gain more traction going forward.

Pathologists hope to be prepared. Less than two weeks after the Dobbs decision was finalized, the College of American Pathologists called for a special committee to meet to discuss its implications for the field. “We wanted them to think about it from the point of, where could a pathologist get tripped up — could get in trouble — doing what they’ve always done?” said Emily Volk, a physician and president of the college.

Over the next four months, group members, including Parast, met regularly to develop new guidelines. They aim to address pressing concerns, including when a pathologist can identify evidence of an abortion (and when they cannot) and how to properly dispose of tissues. Volk expects the results to be published sometime this spring, though they will need regular refinement to keep pace with state legislation.

“We’re very much in the middle of all of that right now,” Parast said.

Michael Caplan, a forensic pathologist with more than 30 years of experience in autopsy labs in five states, knows the day will come when he’ll need the kind of guidance those groups could provide. For example, if he examines a fetus and finds no fetal or placental abnormality, will the absence of evidence be used as evidence for self-managed abortion?

“I can see it coming down,” Caplan said. “There is going to be … pressure to report these things.” He added: “We need to decide as a group how we’re going to handle these situations.”

“We need to decide as a group how we’re going to handle these situations.”

Michael Caplan, forensic pathologist

In May 2015, Susan Valoff had packed her bag for the hospital, dropped her son Peter off at day care, and put in a half day at work. That afternoon, she was scheduled to deliver her second child, a boy to be named James Owen, via C-section. But when Valoff arrived at her obstetrician’s San Diego office for her final appointment, the exam that just one week ago had revealed a steady fetal heartbeat was now eerily silent. An ultrasound confirmed James had died.

After James was delivered, Valoff and her husband, Scott, held their baby. A photographer, provided by the hospital, took the only pictures they would ever have of their son. The couple decided against an autopsy, but they did agree to share the placenta for examination by a pathologist contracted by the hospital. Six days later, Valoff received the results.

The pathologist identified inflammation in the placenta — perhaps resulting from some infection of the amniotic fluid. He hinted that this may have caused the loss. But Valoff said these findings left her with more questions than answers. Her pregnancy had been “high-risk”: She was 45 years old, conceived James using IVF, and had undergone a C-section before — all of which increased her risk of miscarriage or stillbirth. Surely that had something to do with James’ death.

Online, Valoff found a pathologist who specialized in stillbirth and infection. He had recently retired, but recommended she reach out to Parast, who worked just down the road. Parast agreed to provide a second opinion. Inflammatory cells indeed indicated infection, she concluded. But she didn’t think that was to blame. Instead, Parast suggested that James died as a result of villitis, an inflammatory condition that restricts fetal growth.

While a detailed perinatal pathology is not exactly comforting, it can offer some of the clarity that parents like Valoff crave. “That’s the story you tell yourself and everyone you know the whole rest of your life,” Valoff, now 53, said. “That story matters.”

Valoff later discovered that the first report came from a pathologist who didn’t specialize in placentas. That kind of expertise is rare: There are just 700 members of the Society for Pediatric Pathology globally, and pathologists with expertise in the placenta — what Parast calls “the diary of intrauterine life” — make up just a fraction of their ranks.

They take their work seriously. “Our only job is to provide as much information [to the patient] as possible to make the best decision possible for her and her subsequent pregnancies,” Parast said. Or at least that’s what she believed — until she heard about an incident at the U.S.-Mexico border wall.

UCSD Pathologist Mana Parast, looks over microscopic image of tissue in her lab
Parast looks over microscopic images of placental cells in her lab. Sandy Huffaker for STAT

The placenta on the examination table was like any other. But it came from a migrant woman who was 35 weeks pregnant when she fell at the border wall, Parast recalled. Her baby was stillborn. The medical examiner in San Diego was now investigating whether or not she had intentionally harmed the fetus.

Parast agreed to take a look. There was clear evidence of a placental abruption, which happens when the placenta separates from the uterine wall before birth, Parast remembers writing in her report. But Parast knew that did not indicate anything about intent. She doesn’t recall ever hearing back about the outcome of the case.

Parast had interacted with law enforcement before. In a residency rotation at the Atlanta medical examiner’s office, Parast often reviewed difficult cases, including those involving children. But she said she failed to appreciate the entwinement of medicine and the law until authorities asked her to look into the migrant woman’s miscarriage.

“That was my first aha moment of, what are you asking me?” Parast said.

In hindsight, it’s clear that reproductive medical researchers have been walking a vanishingly thin line. For decades, they have worked to unravel the mysteries of pregnancy loss to help patients who want to have children get pregnant and carry safely to term. But they’ve also been building a body of knowledge that, in the wrong hands, may be used against women who lose their pregnancies.

To many families, the work of perinatal pathologists is invaluable. Doctors now know that diagnosing and treating autoimmune conditions like lupus can help people carry a child to term. They also have a far better understanding of how to screen for the embryos with the best chance of a healthy pregnancy during the IVF process. And patients, too, are armed with the knowledge they need to monitor their own pregnancies, such as by keeping fetal movement journals that could help them recognize an issue in time to swiftly act.

“It’s the pathologist that provides the basis for all the clinical care that comes after,” Volk said.

But many losses still can’t be prevented, and some fetal deaths can not be explained. A person could do everything “wrong,” and still have a perfectly healthy live birth. And person could do everything “right,” and lose their pregnancy anyway. “The public sentiment is a little skewed by how much we’ve gotten the message that we can control things,” said Lara Freidenfelds, a science historian and author of “The Myth of the Perfect Pregnancy: A History of Miscarriage in America.”

In a courtroom, that narrative of control can have devastating consequences. Autopsy reports and related findings can form the basis of homicide, “feticide,” child abuse, and assault charges. To date, U.S. women have been investigated for everything from attempting suicide to falling down the stairs while pregnant.

Even the esoteric language of pathology may itself pose a risk. Take a term like “molar pregnancy,” which describes a tumor that develops in the uterus. Doctors know that if an embryo is present, it isn’t viable, but others might not. “That may not be clear to the patient from whom that specimen came,” Volk said, “but it also may not be clear to a district attorney or a lay policymaker or a lay state representative.”

In 2006, a 16-year-old named Rennie Gibbs delivered a stillborn daughter, who she named Samiya, at a hospital in Mississippi. Gibbs was later charged with “depraved heart murder” — which could carry a lifetime prison sentence — after a medical examiner ruled the cause of death was “cocaine toxicity.” Gibbs had used illicit substances while pregnant. But expert witnesses challenged the notion that cocaine could be said to cause a stillbirth, as it hasn’t been proven to end pregnancies. These same biomedical researchers also identified the more likely cause of Gibbs’ stillbirth: the umbilical cord wrapped around Samiya’s neck — a factor no one could control. In 2014, after years of legal proceedings, a judge finally dismissed Gibbs’ case.

These cases can happen anywhere, even in ostensibly blue states. In California, two cases of women prosecuted for using drugs while pregnant, and later losing their pregnancies, have recently captured public attention. “Prosecutors don’t have to be anti-abortion ideologues to prosecute people,” said Farah Diaz-Tello, senior counsel and legal director for If/When/How, a reproductive justice organization. Rather, “it’s an allegiance to their interpretation of law and order.”

UCSD Pathologist Mana Parast, sits next to a microscope in her lab at the Sanford Burnham Institute in La Jolla, CA
Parast at her UCSD lab.

The gap between the scientific doubt inherent to medicine and the legal certainty a court desires can leave pathologists in a bind. “There is no such thing as absolute determination,” Parast said. “If anyone said so, they’re lying.”

Caplan, the forensic pathologist, has walked this line before. He has dedicated his life to giving a voice to the dead, but he said decades of experience have only taught him how little he knows.

As a forensic pathologist working in the medical examiner’s office in the 1990s, Caplan struggled to reach definitive conclusions in cases of children who died of SIDS. So he went back to school to train in pediatric pathology. There, and in the years since, he’s learned about differences in anatomy, physiology, and responses to injury across the lifespan that help him do his job — and the shortcomings of forensic methods like the widely disproven 17th-century “float test” that some U.S. officials still use to determine if a baby was born alive.

To Caplan, being able to confront the horizon of scientific knowledge can be empowering in a difficult and delicate line of work.

“I know that my limitations aren’t from my lack of effort,” he said.

Yet Caplan worries about what might happen if other pathologists fail to stick to the scope of their expertise. “I can’t change my objective findings,” Caplan said. But, he added, pathologists should “never, ever overextend the interpretation” of those findings.

As individuals, forensic and hospital pathologists are limited in the steps they can take to advance reproductive justice, while still doing their jobs. They can push back on the use of flawed methods like the floatation test, or provide expert opinions in court that cast scientific doubt on a prosecutor’s claims.

They can even take care not to speculate about things like self-managed abortion in their autopsy reports. “I would never use that language, ever, on a fetal death certificate,” Caplan said. Without definitive evidence, he would opt for a phrase like “fetal death of undetermined cause.” While subjective musings could be incorporated in a “comment” or “opinion” section, Caplan argues “it is better to allow opinions to be expressed and expanded in legal proceedings such as depositions and trials.”

But pathologists will need support, including as they continue their research. “I think there’s a concern that fear of committing a felony will make researchers or physicians more reluctant to engage in this kind of research,” said Robert Silver, an OB-GYN at the University of Utah who specializes in pregnancy loss, “and it will also make families more reluctant to engage in this kind of research.”

Guidelines from professional organizations like the College of American Pathologists will help, as would solidarity with other medical and non-medical specialties, including reproductive justice advocates, politicians, and lawyers. For example, in September, California abolished a law that had previously required coroner’s investigations into all stillbirths. Even in states where abortion is now illegal, similar legislation could, at a minimum, shield some pregnant people from criminal charges.

Back in Parast’s lab in La Jolla, the pathologist feels a mix of fear and fierce determination to keep providing her patients answers. “As a researcher, you don’t set out and think, I want to do research at the edge of what’s controversial — especially in this area that’s so underfunded,” she said. “You’re in this area because you have a passion for women’s health.”

‘Let me keep my dead husband’s sperm’


Beth and her husband Warren

Beth and her husband Warren

  • A woman has begun a legal bid to prevent her dead husband’s frozen sperm from being destroyed.

Beth Warren, 28, has been told by the Human Fertilisation and Embryology Authority (HFEA) that the sperm cannot be stored beyond April 2015.

Her husband, Warren Brewer, a ski instructor, died of a brain tumour at the age of 32 in February 2012.

His sperm was stored before treatment, and he made it clear his wife should be allowed to use it posthumously.

“Start Quote

I do not know what will happen in the future and I would like to have the choice left open to be able to have my husband’s child as I know he would have wanted.”

Beth Warren

The couple, who were together for eight years, married in a hospice six weeks before his death. She subsequently changed her surname to Warren.

“I understand that it’s a huge decision to have a child who will never meet their father, ” said Mrs Warren, who lives in Birmingham.

“I cannot make that choice now and need more time to build my life back. I may never go ahead with treatment but I want to have the freedom to decide once I am no longer grieving.

“My brother died in a car accident just weeks before my husband’s death, so there has been a huge amount to cope with.”

Mrs Warren was initially told that her husband’s last consent form lapsed in April 2013, but has subsequently been granted two brief extensions amounting to two years. The frozen sperm is stored at the CARE fertility clinic in Northampton.

Her lawyer, James Lawford Davies said the 2009 regulations created injustice.

“Common-sense dictates that she should be allowed time to recover from the loss of her husband and brother and not be forced into making such an important reproductive choice at this point in her life.”

Mr Lawford Davies, whose firm is not charging Mrs Warren to represent her, said there were a number of inconsistencies about the regulations.

The sperm has to be used by April 2015, but if it was thawed and used to create embryos, these could be stored for a further seven years.

The time limit also means that Mrs Warren could use the sperm to create one child but not a second.

There is also no restriction on the sperm being exported, which would mean Mrs Warren could be treated abroad in the future, but not in the UK.

The case will be heard next year by a judge from the Family Division of the High Court.

Beth Warren: “I really just need more time to make a decision”

Options open

In her legal submission Mrs Warren said: “I am aware that I may decide not to use the stored samples in the event that I meet someone in the future and choose to have a family with him.

Regulations for storage of sperm and eggs in the UK

Patients about to undergo radiotherapy often have sperm or eggs (gametes) removed as the treatment can cause infertility.

Regulations which came into force in 2009 allow for gametes to be stored for up to 55 years provided that the person who provided the sperm or eggs renews their consent every ten years.

But patients who die are unable to renew their consent, setting a shorter time limit on storage.

“I do not know what will happen in the future, and I would like to have the choice left open to be able to have my husband’s child – as I know he would have wanted.”

In a statement the fertility regulator said: “The HFEA has every sympathy with Mrs Warren and the tragic circumstance in which she finds herself.

“We have been in discussions with Mrs Warren’s solicitors for some time and each time new information has been presented to us, we have reconsidered the legal situation in as responsive a way as possible.

“However, the law on the storage of gametes is clear and the HFEA has no discretion to extend the storage period beyond that to which her husband gave written consent.”

The case will renew the debate over the ethics of posthumous conception.

In 1997 Diane Blood won the right to conceive a child using sperm from her dead husband.

The Court of Appeal ruled against the HFEA and said that Mrs Blood should be allowed to seek treatment abroad.

But in that case the sperm had been removed when he was in a coma and without his written consent. Mrs Blood went on to have two sons after treatment in Belgium.

In this case Mr Brewer had his sperm stored prior to radiotherapy treatment in 2005, and in subsequent years signed several forms stating that his wife could use the samples.

Death row inmates now executed with drug cocktail used to euthanize animals.


San Quentin Prison execution chamber, US (AFP Photo)

Compounding pharmacies, which create specialized pharmaceutical product meant to fit the needs of a patient, have begun producing the drugs for state authorities.

But because of the lack of transparency around the production process – one compounding pharmacy was responsible for a fatal meningitis outbreak in 2012 because of poor hygiene – prisoners argue that risky drug cocktails put them at risk of being subjected to “cruel and unusual punishment,” which is prohibited under the US Constitution.

Earlier this month three Texas-based death row prisoners filed a lawsuit arguing this type of pharmacy is “not subject to stringent FDA regulations” and is “one of the leading sources for counterfeit drugs entering the US,” the lawsuit reads, as quoted by AFP.

“There is a significant chance that [the pentobarbital] could be contaminated, creating a grave likelihood that the lethal injection process could be extremely painful, or harm or handicap plaintiffs without actually killing them,” it adds.

“Nobody really knows the quality of the drugs, because of the lack of oversight,” Denno told AFP.

Michael Yowell, who was convicted of murdering his parents 15 years ago, was executed in Texas Wednesday. He became the first inmate to be executed in Texas with pentobarbital since European nations halted production for this purpose. His lawyers unsuccessfully tried to stop him from being killed, saying the compounded factors in pentobarbital make the drug unpredictable and there have not been enough trials to guarantee the death is painless.

The states in question may find an applicable replacement for the short-term but, Denno argued, this development could be an indication that capital punishment is on the wane.

“How many times in this country can they change the way they execute?” she said. “There were more changes in lethal injections in the last 5 years than in the 25 preceding years.”