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How the "Pro-Life" Movement Puts Women Behind Bars

In Alabama, the claim that eggs, embryos and fetuses have separate legal rights has led to the jailing of 60 women.
 
 
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Numerous organizations and leaders who identify themselves as pro-life have assured the public that their efforts to re-criminalize abortion and establish the unborn as separate legal persons will not result in the prosecution and imprisonment of women. Yet, in Alabama alone, the claim that eggs, embryos and fetuses have separate legal rights has provided the basis for arresting approximately 60 women. 

These women are being prosecuted under Alabama’s 2006 law designed to provide special penalties for people who bring children into methamphetamine laboratories. Its official title is "Endangerment of Exposing a Child to an Environment in Which Controlled Substances are Produced or Distributed" and it provides that a person “commits the crime of chemical endangerment” by “exposing 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.”

This law makes no mention of pregnancy, pregnant woman, drug use, fetus, or any other words that would make it applicable to a pregnant woman who uses a controlled substance and seeks to continue her pregnancy to term. In fact, the Alabama legislature has repeatedly refused to amend this law or to create others that would address the issue of pregnancy and drug use through the criminal law.

Nevertheless prosecutors have argued, and the Alabama’s Court of Criminal Appeals has agreed, that the word “child” in the statute includes a “viable fetus” and therefore may be used to arrest and jail women who become pregnant, eschew abortion, go to term, and try to bring life into this world, despite having used a controlled substance. 

The Appeals Court decision reaches far beyond women who use illegal drugs or even drug use at all. Many prescription drugs are controlled substances and there is no defense under the law if the drug is prescribed to the pregnant woman. This means that a pregnant woman who is prescribed a controlled substance (and her doctor who prescribed it) are now potentially subject to criminal penalties as well. And, if the word “child” in one Alabama criminal laws means “viable fetus,” then surely it would have to mean the same thing in others – including the state’s child abuse and related laws. This means that women are potentially criminally liable for an unlimited range of actions, inactions or circumstances during pregnancy believed by police and prosecutors to pose a risk of harm to the fetus. (Think “personhood” measure in disguise.)

Hope Ankrom and Amanda Kimbrough are two of the 60 women who have been charged under the chemical endangering law – not for running meth labs or bringing children to them, but rather for continuing their pregnancies to term in spite of having a drug problem. Ankrom and Kimbrough have appealed their convictions to the Alabama Supreme Court. 

Forty-seven medical, public health and legal advocacy groups and individuals, including the American Medical Association, the American Psychiatric Association, the American College of Obstetricians and Gynecologists, and the American Nurses Association filed an amicus (friend of the court) brief in support of these mothers. They urge the court to reverse the lower court’s radical extension of the chemical endangering law to permit prosecution and punishment of new mothers, pregnant women, and their doctors. 

These organizations and experts explain that while they do not in any way endorse the use of illegal drugs during pregnancy, medical consensus is that illegal drug use by pregnant women does not pose risks qualitatively different or greater than a wide range of other actions, inactions, exposures, and circumstances engaged in or experienced by pregnant women, such as smoking cigarettes.

They also agree that using the criminal law to address issues of drug use during pregnancy undermines maternal and fetal health by deterring pregnant women from drug treatment, prenatal care, healthcare, and labor and delivery services during pregnancy, which are beneficial to maternal, fetal and child health. Furthermore, these experts maintain that if the lower court opinion is upheld, pregnant women who cannot overcome an addiction in the short term of pregnancy will be encouraged to have unwanted abortions to avoid criminal penalties.

It seems odd then that Marshall County Alabama prosecutor Mitch Floyd, who brings these prosecutions, which are bad for babies and pressure women to have abortions, describes himself on his Facebook campaign page as “a voice for the children, born and unborn.” It is also odd that not a single “pro-life” organization has spoken out against these arrests.

Kathlyn Jean Lopez, author of The Fictional Post-Roe Prison Rush asserts that “[p]rolife legislators and pro-life leaders do not support the prosecution of women.” According to Marjorie Dannenfelser in One Untrue Thing, the goal of laws designed to protect the unborn is the “protection” of women, “not punishment.” And Father Frank Pavone of Priests for Life has said that the “pro-life movement is not out to punish women.”  

Yet, as new mothers in Alabama are hauled off to jail and their babies denied a mother’s care, there has been no objection from any of these so called pro-life organizations or individuals. 

If it is true that those who support the re-criminalization of abortion and the rights of fertilized eggs, embryos and fetuses want to protect pregnant women, rather than prosecute them, now would be a good time to join National Advocates for Pregnant Women, the Drug Policy Alliance, the Southern Poverty Law Center, and the 47 health and human rights organizations that are speaking out against the prosecution and imprisonment of women in Alabama. 

Emma S. Ketteringham is Director of Legal Advocacy at National Advocates for Pregnant Women. Lynn Paltrow is Executive Director of National Advocates for Pregnant Women.
 
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