The Sunday New York Times exposed Alabama’s unique salvo in the War on Women. Using a novel legal theory, Alabama has prosecuted approximately 60 women for child endangerment when they delivered children with drugs in their system. One was sentenced to prison for ten years. In other states, the typical response to detecting drugs in newborns is placing the child with social services for a period of time and mandating rehabilitation for the mother.
Taking advantage of a law enacted in 2006 to protect children from the dangers of exploding meth labs, officials prosecute women for drugs introduced to the “environment” of their wombs. Alabama’s statute makes it a felony for a “responsible person” to expose “a child to an environment in which he or she knowingly, recklessly or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance or drug paraphernalia.”
Note that the law refers to “a child” although prosecutors have applied it to unborn children. The Alabama Court of Criminal Appeals has upheld this interpretation. More on the ominous implications of this interpretation below:
Not all women prosecuted under this law are jailed. Some are sentenced to drug treatment along with third-party supervision or custody of their children; some get jail time. One woman who delivered a two-pound infant at 25 weeks who tested positive for methamphetamine suffered the emotional blow of the death of the baby followed six months later by prosecution under the chemical endangerment law. Her ten-year prison term is now being appealed.
Delivering a baby with street drugs in its system is a wrong state laws might reasonably address. However, the severity of Alabama’s response is disproportional and, to some degree, illogical. Experts in addiction assert that fetal exposure to meth results in short-term health effects that can be treated. On the other hand, fetal exposure to alcohol (a substance not addressed by Alabama’s prosecutors) may cause life-long disabilities.
One of the unforeseen consequences of these prosecutions is that women may forego prenatal care or addiction treatment during their pregnancies or choose to deliver at home or out of state rather than risk the fallout of their newborn’s positive drug test. Additionally, women may elect to have an abortion in response to this risk.
In addition to the inequity visited on the women prosecuted in Alabama, this law presents several very troubling possibilities. One is that other states with prohibitions on the presence of street drugs in certain environments like schools may follow Alabama’s lead and include uteruses in the category of protected environments.
Another possibility is prosecutions for a mother’s ingestion of “controlled substances” or “chemical substances” other than street drugs. Prescription drugs are controlled substances, and the presence of oxycodone in a newborn’s system has been the basis of an Alabama prosecution. Will zealous prosecutors go after women legitimately using physician-prescribed drugs that may cause fetal harm or premature birth?
Some medications known for these effects are discretionary, for example treatments for acne or rosacea, while others like anti-epileptics, are vital to a mother’s well-being. Would a mother be prosecuted if she uses a drug like antibiotics that falls somewhere in between? Perhaps her physician would be required to testify that the “chemical substance” was necessary to save the life of the mother.
This line of attack on the rights of pregnant women could broaden to include smoking – after all, nicotine is a “chemical substance” – and other materials that pregnant women are exposed to such as workplace toxins.
“Saving the life of the mother” has echoes in the abortion context. Emma Ketteringham, the director of legal advocacy at the National Advocates for Pregnant Women, calls the Alabama prosecutions “a personhood measure in disguise.”
Here is the wider evil in the Alabama prosecutions: the rights of the fetus have superseded and extinguished the rights of the mother. Ketteringham rightly argues they “violate [mothers’] constitutional guarantees of liberty, privacy, equality, due process and freedom from cruel and unusual punishment.”
This situation is eerily close to the world envisioned in Margaret Atwood’s “The Handmaid’s Tale,” a world where women have been stripped of their rights and are reduced to nothing more than their fertility. Lynn Paltrow, executive director of the National Advocates for Pregnant Women, puts it well, “there is no way to treat fertilized eggs, embryos and fetuses as separate constitutional persons without subtracting pregnant women from the community of constitutional persons.”
Children are precious, and government has a justifiable interest in the health of newborns. However, in the Alabama chemical environment prosecutions, the state has overstepped and trampled the rights of pregnant women. Use of street drugs is a health issue, not a criminal issue.