The State that Turns Pregnant Women Into Felons
CASEY SHEHI’S SON JAMES WAS BORN in August 2014, remarkably robust even though he was four weeks premature. But the maternity nurse at Gadsden Regional Medical Center seemed almost embarrassed, and as she took the baby from his exhausted mother’s arms, Shehi felt a prick of dread.
“She said they were going to have to take him back to the nursery to produce some urine, because I had a positive drug screen for benzodiazepines,” Shehi, 37, recalled one evening a few months ago at a cafÃ© near her mother’s home. She hadn’t been sleeping well; her brown hair hung lank past her shoulders, and her eyes were rimmed with worry. “I said: ‘That can’t be true. Can you please check it again? Run the screen again.’ ”
The nurse asked: Did she have a prescription for any form of benzo — Xanax or Klonopin or Ativan? No, Shehi insisted, there must be a mistake. Then she remembered: the Valium. One night a few weeks earlier, Shehi and her ex-husband got into a huge argument on the phone. She was in the late stages of what had been a difficult pregnancy; she was achy and bloated, and her ankles felt like they might explode. After the fight, she called her mother, Ann Sharpe, a retired teacher and guidance counselor who lived nearby. “She was really upset — ‘I’m miserable, I’m sick, I can’t sleep,’ ” Sharpe recalled. “I said, ‘Do you have something you can take?’ ”
As Shehi later told investigators, she had swallowed half of one of her boyfriend’s Valiums to calm herself down. Not long after, Shehi and her boyfriend and their various kids packed up the camper and drove 325 miles from Gadsden, in northeast Alabama, to the beach in Panama City, Florida, for one last vacation before the baby came. The weather was sweltering, the trailer — a grimy relic with an air conditioner that only worked when it wanted to — suffocating. Shehi was too keyed up to sleep, her 4-year-old son curled up beside her on the narrow bed. Finally, she reached for the other half of the tranquilizer.
As Shehi recounted the story, the maternity nurse told her, “Okay, okay.” By that night, everything really did seem all right. Excited nurses woke Shehi and handed her the baby, swaddled in a light blanket. “They told me: ‘He’s good, he’s clean. You can have him now, no worries.’ ”
Exposure to too much benzodiazepine during pregnancy can sometimes cause newborns to be fussy or floppy-limbed. But occasional, small doses of diazepam (the generic name for Valium) are considered safe. According to the lab report, James had nothing in his system. Shehi said the pediatrician reassured her, “Everything’s cool.” The next day, Shehi and the baby went home, and someone from the Department of Human Resources, the state child welfare agency, paid a visit.
In recent years, Alabama authorities have been aggressive about removing newborns from the custody of mothers who abuse drugs, typically placing a baby with a relative or foster family under a safety plan that can continue for months or years. The social worker listened to Shehi and Sharpe’s story and concluded that theirs wasn’t one of those situations. “She said: ‘I understand the pain you are in, and I understand what’s going on. I won’t take the baby away,’ ” Sharpe recalled.
But one morning a few weeks later, when Shehi was back at her job in a nursing home and the baby was with a sitter, investigators from the Etowah County Sheriff’s Office showed up at the front desk with a warrant. She had been charged with “knowingly, recklessly, or intentionally” causing her baby to be exposed to controlled substances in the womb — a felony punishable in her case by up to 10 years in prison. The investigators led her to an unmarked car, handcuffed her and took her to jail.
Shehi had run afoul of Alabama’s “chemical endangerment of a child” statute, the country’s toughest criminal law on prenatal drug use. Passed in 2006 as methamphetamine ravaged Alabama communities, the law targeted parents who turned their kitchens and garages into home-based drug labs, putting their children at peril. Within months, prosecutors and courts began applying the law to women who exposed their embryo or fetus to controlled substances in utero. A woman can be charged with chemical endangerment from the earliest weeks of pregnancy, even if her baby is born perfectly healthy, even if her goal was to protect her baby from greater harm. The penalties are exceptionally stiff: one to 10 years in prison if her baby suffers no ill effects, 10 to 20 years if her baby shows signs of exposure or harm and 10 to 99 years if her baby dies.
For this story, ProPublica and AL.com filed multiple public information requests to identify the more than 1,800 women arrested under the chemical endangerment law, then sifted through court records to find the cases related to pregnancy. The data showed that at least 479 new and expecting mothers have been prosecuted across Alabama since 2006, or more than three times the number previously identified.
Many others have been investigated in the chemical-endangerment version of stop-and-frisk, their lives turned upside down by an intrusive — and women’s advocates say, unconstitutional — dragnet of drug testing without their knowledge or, sometimes, their explicit consent. The goal of the law is to protect children by removing them from unsafe settings and mothers too impaired and unstable to provide proper care. Prosecutors contend the law has been the impetus for hundreds of women to get treatment and restart their lives, with prison as the price for those who choose not to or who fail.
Yet there’s nothing in the statute to distinguish between an addict who puts her baby at grave risk and a stressed-out single mom who takes a harmless dose of a friend’s anti-anxiety medication. There are no standards for law enforcement officials or judges to follow: Is the presence of drugs in the mother’s body cause for charges if the baby tests clean? What test results are appropriate for medical providers to report and when? Should a mother face charges even when she was using a prescription drug under a doctor’s supervision?
Local prosecutors and courts have wide discretion. Some of the most wrenching effects of the law can be seen in the area of parental rights. Chemical endangerment is considered a form of child abuse, and a woman accused of exposing her baby to drugs in utero is at risk of losing custody of all her children, not just her newborn. In Shehi’s case, social workers had determined that James, the baby she had supposedly endangered, was fine and could remain in her care, court records show. But she had an open custody case involving her preschool-age son. After the arrest, the judge overseeing those arrangements issued an emergency order granting her ex-husband sole custody. There wasn’t even a hearing.
“I was supposed to pick him up from school,” Shehi said, “and my lawyer saw the order and told me, ‘Don’t go.’ ”
Abortion Politics Meet a Meth-Lab Law
The story of how Alabama’s chemical endangerment law became the most sweeping measure deployed against pregnant women in the U.S. during the last decade begins with methamphetamine. The drug arrived in the 1990s, and by the mid-2000s it was overwhelming law enforcement and social service agencies in rural, economically depressed areas in the north of the state and along the Florida border. In Montgomery, lawmakers tried to play catch-up by targeting do-it-yourself manufacturing operations and cracking down on sales of over-the-counter cold medications used to produce the drug. Home-based labs were noxious and dangerous, with a tendency to catch fire or blow up — especially hazardous for kids.
Barry Matson, who heads the Alabama District Attorneys Association’s drug abuse task force, recalled one memorable case: “We raided the house, and they were venting the gases through a kitchen into the baby’s playpen.”
The new chemical endangerment law didn’t stop at meth labs. Parents and other responsible adults could be arrested for exposing children to virtually any type of controlled substance or drug paraphernalia in all kinds of settings: a crack pipe on a coffee table, an open bottle of pills, marijuana smoke in a car.
As the Legislature tackled that problem, hospitals were reporting another: an increase in the number of scrawny, often premature newborns who showed signs of exposure to meth in the womb. Some had withdrawal symptoms, a condition known as neonatal abstinence syndrome. When the Alabama Department of Public Health randomly screened 500 pregnant women during routine prenatal visits at clinics around the state, 13 percent were positive for a controlled substance (mostly marijuana), a figure that implied at least 8,200 live births per year by users, the state’s Maternal Drug Task Force reported.
Even that number was thought to be a significant underestimate. Marshall County, at the southern edge of the Appalachians, was one of the areas hardest hit, so awash in addiction that its most prominent landmark was nicknamed Meth Mountain. Doctors and nurses were clamoring for action, said Steve Marshall, the district attorney there since 2001. “We started holding pow-wows … from a public health standpoint, a law enforcement standpoint, what was the best way to deter women from this behavior?”
Drug abuse in pregnancy is an extraordinarily difficult problem to treat; effective programs for poor, uninsured women were exceedingly scarce. With what felt like a crisis bearing down on them, Marshall and a few of his fellow prosecutors turned to the meth-lab law. Under the statute’s flexible language, they concluded, “a child” could be a fetus, and “an environment in which controlled substances are produced or distributed” could be a womb.
In late 2006, they began charging mothers whose newborns tested positive for drugs — not just meth, but also cocaine, opioids and pot. Marshall’s goal wasn’t to throw women in prison, he said, but to use the threat of incarceration to force them into treatment. Mothers who were successful could eventually have the charges dismissed.
“We wanted to find a mechanism to get mama clean, get kid healthy and hopefully encourage a reunification of the family,” he said. “We have clearly used it [the chemical-endangerment statute] a little bit different than it was designed,” Marshall acknowledged. “That, in and of itself, doesn’t mean it’s wrong.”
It was an audacious legal experiment but not a novel idea. Since the “crack-baby” era of the 1980s, authorities in at least 44 other states have sought to hold women criminally accountable for drug use in pregnancy, according to the nonprofit National Advocates for Pregnant Women, often by repurposing statutes such as child abuse and drug distribution and trafficking laws meant for something else.
But most experts thought arresting mothers was terrible public policy: It treated addiction as a crime rather than a disease; it discouraged the women most in need of prenatal care from seeking it; and it interrupted a mother’s bond with her baby when she was particularly vulnerable, making her more likely to relapse.
“Did the war on drugs work? Do you have a reason to think a war on women using drugs during pregnancy is going to?” asked Donald Bross, a professor of pediatrics and family law at the University of Colorado School of Medicine.
Only one state supreme court — South Carolina’s, in 1997 — ended up condoning the criminalization approach. In most states, drug use in pregnancy came to be seen as a matter best handled through the civil child welfare system: Removing a child seemed like punishment enough. By the time the chemical-endangerment cases began winding their way through the Alabama courts in the late 2000s, though, the political and social landscape had transformed. Advocates for the rights of the unborn were on the ascendant. Thepersonhood movement — which seeks to establish the embryo or fetus as fully human in as many legal and medical contexts as possible — had made significant inroads.
The treatment of drug use in pregnancy as a crime against the fetus emerged as an important part of the strategy to dismantle Roe v. Wade, and the Alabama Supreme Court, possibly the most conservative high court in the country, proved especially receptive. One justice in particular, a longtime anti-abortion warrior named Tom Parker, saw an opportunity to create a whole new jurisprudence of personhood that could be ammunition for abortion opponents in their push for another showdown at the U.S. Supreme Court.
In decisions in 2013 and 2014 that were as much about abortion as drugs, Parker and his fellow justices ruled that the meth-lab statute could indeed be used to prosecute expectant and new mothers — not just from the time the fetus is viable (around 22 weeks) but from the earliest stages of pregnancy.
Attorney Rebecca Green Thomason, who represented Amanda Kimbrough, the Colbert County woman whose case became the basis for the 2013 decision, thinks abortion opponents have got it all wrong. Thomason is proudly conservative — “a right-wing crazy” is how she puts it — and unapologetically anti- abortion: “Based on what I do, it seems that women have abortions for not necessarily their own reasons. They are often coerced into it.”
One of her chief criticisms of the chemical endangerment law is that it punishes mothers in crisis who do their best to carry their babies to term; a smart woman, Thomason said, won’t even try. “From my right-wing perspective,” she said, “we are forcing women to have abortions.”
One Law, ‘Vastly Different’ Results
In 2013, a couple of weeks after the Alabama Supreme Court’s first ruling, Lynn Paltrow, the NAPW’s executive director, and Jeanne Flavin, a professor of sociology at Fordham University, published an extensive study on arrests and “forced interventions” against pregnant women in the 30 years following Roe. It was an eye-opening analysis of how the relentless battles to restrict abortion have resulted in the increasingly onerous regulation of pregnancy itself. The report compiled 413 examples across the United States, mostly arrests of drug-using mothers, but other types of detentions and prosecutions as well — a figure that struck many people as shocking.
The number of Alabama chemical-endangerment prosecutions in the ProPublica/AL.com analysis — almost certainly an undercount — dwarfs anything in that report. As a new drug panic over opiates and “oxytots” spreads through the South and Midwest, and other states contemplate their own chemical endangerment-like statutes (Tennessee passed one last year; this past spring, eight legislatures introduced bills), the Alabama example holds lessons about the kinds of inequities and overreach that can result, said NAPW’s director of legal advocacy, Sara Ainsworth.
“Alabama isn’t an aberration,” she said. “It’s a bellwether.”
In the NAPW report, arrests disproportionately affected women of color; in Alabama, 75 percent of chemical-endangerment defendants who were pregnant or new moms have been white, largely reflecting the fact that enforcement has been strongest in majority-white counties. Alabama women, like the ones in the NAPW report, are also overwhelmingly poor: only 11 percent were able to afford their own lawyers.
Most striking are the enormous disparities in the way prosecutors in the state’s 67 counties have applied the law. The normal tendency toward insularity — “each county is its own little fiefdom,” said John Gross, a professor and director of the criminal defense clinic at the University of Alabama School of Law in Tuscaloosa — is magnified by huge workloads, meager budgets, archaic technology and divergent priorities. “You get vastly different results in terms of how the cases are prosecuted.”
In Birmingham, for example, a city of 212,000 with urban-level drug problems, authorities have charged only two women with chemical endangerment of an unborn child in nine years. By contrast, in suburban Shelby County, southwest of the city, they are so aggressive that last fall they arrested a woman for smoking pot during pregnancy despite having no proof that she was actually pregnant (she wasn’t). In Marshall County, mothers whose newborns test positive for controlled substances routinely face bail of $250,000 to $500,000. Last year, a new mother with no prior drug arrests had bail set at $300,000 for exposing her fetus to pot. Across the road in Morgan County, bails rarely exceed $2,500.
In most counties, authorities use the threat of jail to push women into drug court or pretrial diversion. Calhoun County, near the Georgia border, diverts pregnant women into a treatment program in Birmingham, too. But a mother who gives birth to a drug-exposed baby — even a woman with no prior arrests — is invariably offered a standard plea deal of five to 10 years in the notorious Julia Tutwiler Prison for Women.
“It’s not a victimless crime,” said Jennifer Weems, a former prosecutor who oversaw the county’s chemical endangerment cases for years. “When children are born positive and addicted to drugs, then we treat it like [any other] crime against a child.”
Matson, of the Alabama D.A.’s association, points out that counties handle all kinds of cases differently, not just chemical endangerment prosecutions. He doesn’t think there’s anything wrong with this: “You have different populations, different expectations, different priorities,” he said. “I think that the disparity in each county is them trying to get it right.”
But critics such as the NAPW’s Ainsworth argue that the lack of consistency, amplified by abortion politics, has become a hallmark of the law. For example, this summer, in Lauderdale County, in the far northwest corner of the state, the district attorney sought to prevent a woman being held in the county jail (“Jane Doe”) from terminating her pregnancy, arguing that because she had chemically endangered her fetus, she should be stripped of her parental rights to it. The D.A. wasn’t engaging in “some kind of pro-life thing,” he maintained, but merely following the law.
According to the high court’s chemical-endangerment rulings, he said, “It is the policy of the state of Alabama to protect unborn and born children.” The American Civil Liberties Union sued on the woman’s behalf, but she finally changed her mind and decided to have the baby. Prosecutors and courts “arbitrarily twisted this statute to do something that the Legislature did not intend,” Ainsworth said. “What’s so pernicious about this law is that it is completely based on discretion, at every level of the system. It just breeds discrimination.”
The disparities begin in doctors’ offices and maternity wards. In some parts of Alabama, drug screening of pregnant women, new mothers and infants has become almost universal; in others, testing occurs on a case-by-case basis. There is no state or federal law governing such testing or specifying the type of consent women must give. Hospitals are left to decide how to proceed. Alabama law is clearer on what medical professionals are supposed to do if a new mother or baby tests positive: report them to child welfare authorities, who then are required to report them to police. Once that happens, women and their families are subject to investigations by the Department of Human Resources and law enforcement officials that can end with the temporary or permanent loss of their parental rights, or arrest, or both.
Because a child is involved, the investigations are mostly confidential. They can also be highly subjective, influenced by small-town politics, family squabbles, class and gender biases, and personal beliefs about drug use and how children ought to be raised.
Casey Shehi’s case is one example of how local differences can play out. In Etowah County, where she lives, law enforcement officials have drawn what they call “a line in the sand,” vowing to aggressively pursue all chemical-endangerment cases, starting from pregnancy (“You will be arrested,” Sheriff Todd Entrekin declared at a news conference in 2013). But if Shehi had given birth just over the border in Marshall County, authorities wouldn’t have bothered. Fearful of discouraging prenatal care, they don’t arrest pregnant women, and “if mom tests positive, that doesn’t really matter,” said D.A. Marshall. “The significant factor for us is, does the baby test positive?” If not, it likely means a prescription drug was not being abused, he said. “A therapeutic dose is much less likely to ever show up in the system of the child.”
Even within the same jurisdiction, broad discretion can lead to very different outcomes, as shown by two chemical endangerment cases detailed in Calhoun County court files. (The women didn’t respond to phone calls and emails, so we are not using their names.) The first case involved a 36-year-old African-American woman who lived on the outskirts of Anniston, the county’s largest town, and had a daughter she was putting through college. The woman had never been in trouble with the law before, according to court records, but in 2012 she gave birth to a healthy son who tested positive for cocaine.
Child welfare authorities gave temporary custody to her mother, allowing the woman to stay involved in her baby’s care while she got sober. Court records show that she used her time well, enrolling in a parenting class and a substance abuse program (“even voluntarily completing units throughout Christmas despite the death of my only grandmother,” she wrote). She continued to work, making plans to launch a publishing company and take online college courses. In another part of Alabama, authorities might have seen her as a success story. But in Calhoun County, where prosecutors have taken a harder line, she was arrested six months after her son’s birth and eventually sentenced to five years in Tutwiler.
According to District Attorney Brian McVeigh, the practice in Calhoun has been to encourage mothers accused of chemical endangerment to petition a judge for leniency if they’re unhappy with how they’ve been dealt with. That’s what the woman tried to do. Her case file contains letter after letter, neatly handwritten on lined paper, asking a judge for mercy. Her first request was to reduce the $30,000 cash-only bail that is common for chemical endangerment cases in the county. She wasn’t a flight risk, she wrote: “My family is very important to me … This is the first time I’ve ever been away from them.” She assured the judge, “Your honor, I’m not looking to deny responsibility in this very upsetting matter. Sir, I would just like the chance to continue to work on the positive progress I’m making in my life.” The judge’s one-sentence response: “BOND REDUCTION REQUEST … is hereby DENIED.”
Next, she wrote asking for permission to enter a well-regarded substance-abuse program near her home. The judge denied her again, saying any request needed to come from her public defender, whom the woman hadn’t been able to reach. Eight months later she wrote once more, hoping to get into an early release program known as Community Corrections that was designed to reduce prison overcrowding. Three days before Thanksgiving, the judge ruled again: “DENIED.”
Around the same time, court records show, another Calhoun County woman gave birth to a drug-exposed baby boy; she, too, was charged with chemical endangerment. Unlike the first woman, she had two prior felony convictions, which doubled her prison sentence to 10 years. A few months after she pleaded guilty, she filed a request — a five-paragraph form letter — asking to be transferred from Tutwiler to Community Corrections so that she could “resume a normal pattern of life.” Once again, justice moved quickly. But the second woman had drawn a get-out-of-jail card. Two days after petitioning the court for leniency, she was on her way home.
‘It’s Simply to Save a Life’
For much of the last century, Etowah County, in the iron ore-rich foothills of north Alabama, was one of state’s most important industrial centers. These days, it may be best known as the starting point of the World’s Longest Garage Sale, which begins in the front yards of Gadsden in August and continues for four days and 690 miles along Interstate 127 before petering out somewhere in Michigan.
The area’s once-booming factories have dwindled to a Goodyear tire plant and some chicken processors. The population is significantly whiter than in other parts of Alabama, but also less well-off. Residents are half as likely to have graduated from a four-year college than in the U.S. as a whole.
In a region caught between stasis and decline, cheap self-medication found a ready market. Etowah avoided the worst of the crack epidemic, Jimmie Harp Jr., who served as district attorney for a decade until his death from cancer in July, said in an interview last year. “Then we woke up one day and crystal meth came to town. And crystal meth was unlike anything I’d ever seen.” The OxyContin wave hit even harder.
By 2012, Alabama had become the No. 1 painkiller-prescribing state, according to the Centers for Disease Control and Prevention. More recently, a crackdown on opioids and benzodiazepines led to a surge in heroin use. “You start taking a cocktail of different drugs, anti-anxieties and antidepressants, and then the baby has some serious problems,” Harp said. “That brings a whole new dynamic for law enforcement.”
Etowah County shares a border with Marshall County and faces many of the same challenges. But until 2013, Etowah authorities almost never arrested women for chemical endangerment of unborn children. Harp wasn’t convinced that throwing women in jail, even to force them into treatment, was the right approach. “You had terrible [newspaper] pieces about how prosecutions invaded a woman’s right to do this and that,” he said. “My goal is certainly not to infringe on the constitutional rights of anybody. It’s simply to save a life.”
Over the past two years, however, authorities arrested at least 31 new or expectant mothers under the chemical endangerment statute, more than any other county. The change in policy shows how difficult it can be for elected officials in some areas to exercise discretion, whatever their misgivings about the law. That may be especially true in Etowah, the political birthplace of Alabama Supreme Court Chief Justice Roy Moore,scourge of gay marriage and author of some of the chemical endangerment rulings’ most forceful language on rights of the unborn.
Harp and other officials announced their new zero-tolerance approach four months after the court’s 2013 ruling. “Kids are innocent,” Harp said last year. “They have no way to protect themselves.” But it was Sheriff Entrekin who emerged as the policy’s most visible and forceful advocate, including in dealings with the medical community.
Some Etowah health care providers were pleased at first to see law enforcement take an interest in the prenatal drug problem, said Chris Retan, executive director of the Aletheia House treatment program in Birmingham. Yet when they realized the response might be to put pregnant women behind bars, “The medical people said, ‘We’re just not telling you’ ” the drug-test results, Retan recalled. “The sheriff said, ‘You will too tell me.’ ” (Gadsden Regional declined to answer questions about drug-testing policies. “We do not publicly disclose such data,” a spokeswoman said.)
This spring, Entrekin led a push to amend the chemical-endangerment law to establish deadlines for medical providers to report suspected drug use by mothers. He proposed two hours — in some cases, even before test results were back from the lab. “We have had a little bit of reluctance to notify the authorities,” Entrekin said in an interview after a legislative hearing in May. “That’s why we’re trying to give them [providers] cover that makes it legal. They want to do it, and they want to be legal.” But even the Etowah lawmaker who sponsored the bill decided it went too far, and the legislation died in committee.
Etowah’s zero-tolerance policy isn’t meant to be punitive, Entrekin insisted to lawmakers. The county has an agreement to send some pregnant women to Aletheia House, where Medicaid pays for months of intensive treatment and new mothers get to keep their babies with them.
“Medical professionals now understand that these women receive top-rated health care,” Entrekin wrote to ProPublica and AL.com in a seven-page response to questions about his office’s policies. Pregnant women who take controlled substances under a doctors’ care don’t face arrest, he said, but those who use even a small amount of an unprescribed drug do. That’s just the law, Entrekin wrote. “If [an] offense is ignored,” he asserted, “sheriff’s deputies have failed to uphold their sworn oath of office.”
‘How could you do that to your baby?’
Stop at almost any gas station or minimart in rural Alabama and you will find, stocked amid the racks of energy drinks and chips, copies of a weekly tabloid called “Just Busted.” Garish and crude, the paper consists of hundreds of police mug shots organized by county and alleged crime (“Sex Offenders,” “Drunk Tank”), interspersed with ads for bondsmen and defense lawyers. In a recent issue, three-quarters of the suspects were men, but three-quarters of those singled out on the cover were women. Mug shots from the Etowah sheriff’s office take up an entire page. They end up on Birmingham TV and all over the Internet.
Casey Shehi’s was particularly unflattering, her eyes puffy from crying, her mouth a thin grimace of disbelief. Gadsden, population 36,500, is a decent-size town by Alabama standards, but to Shehi, it has always felt like “a tiny fishbowl.” After her arrest, old acquaintances would pretend they didn’t see her at the grocery store or turn away in embarrassment. Her baby was in the same day care as the sheriff’s investigator overseeing her case.
“I feel like everywhere I go, people just kind of look at me and shame me like I’m a monster, like, ‘How could you do that to your baby?’ ”
Shehi seemed like the last person anyone would expect to get caught up in the chemical-endangerment law. She grew up middle class and graduated from Auburn University with a major in communications and a minor in wanderlust. A dancer and theater geek with a classically trained voice, she was pretty enough to compete for Miss Alabama in college (for her talent, she sang an aria from “Die Fledermaus”; for her special issue, she chose anorexia). In her 20s she worked as a performer on cruise ships in Hawaii and as a TV reporter in south Alabama.
She returned to Gadsden in the mid-2000s, married into a well-connected local family, and had her older child — “my first true love” and “my rock,” she called him — in 2010. When her marriage imploded a couple of years later, so did her world. She started dating James’s father, a high school flame with a couple of kids; her discovery that she was pregnant sent her into hyper-vigilant mode: no smoking or drinking, certainly no illicit drugs.
Still, the circumstances were less than ideal. Her boyfriend had a “horrible temper,” she said, and sometimes the stress overwhelmed her. Shehi had pregnancy-related hypertension and was in and out of Gadsden Regional with early contractions. To stop her from giving birth too soon, doctors pumped her full of medications, including painkillers, she said. That was one reason she didn’t worry about the Valium. Her mother was more concerned about Shehi’s emotional state. “I was thinking, if she can’t get herself calmed down, she’s going to miscarry this child.”
Shehi saved a medical report from one of those prenatal hospitalizations. It shows no traces of any controlled substances in her system. Except for the benzodiazepine, nothing turned up in her drug tests when she gave birth, either. The arrest left Shehi depressed and mired in debt. Between her $10,000 bond and lawyers for the chemical endangerment charge and custody case, there were a lot of bills. Every couple of weeks, she had to take a drug test at $75 a pop, money she could barely afford. Her attorney was sure that the charges would be dropped. “He told me, just sit tight.” But she couldn’t — as long as the case was pending, she’d never regain custody rights to her older son. Months passed with no word from the D.A.’s office. “It’s like you get pushed to the bottom — ‘We’re going to take care of everything but your case because it’s not important.’ ”
In the interim, her situation with James’ father dangerously deteriorated. At some point, he became abusive, Shehi said in court documents. She grabbed her 3-month-old son, fled to her mother’s house and took out a restraining order. In court documents, the ex-boyfriend denied the abuse allegations and countered by demanding full custody of James. Shehi, he said, was “not fit to have the care, custody and control” of their son. As evidence, he cited her arrest for chemical endangerment. Then, in April, he was arrested and charged with violating the protective order and carrying a concealed gun, according to court records. His bail for allegedly having a dangerous weapon around Shehi and his baby son: $1,000 — one-tenth of Shehi’s bail for swallowing two halves of a tranquilizer.
Under a Doctor’s Care, Yet Charged
Describing the threat from drug abuse during pregnancy, Jimmie Harp recalled an anecdote that’s become part of Alabama law enforcement lore. “You [have] mamas … smoking meth on the way to the hospital,” he said in an interview last year. But the chemical endangerment prosecutions reviewed by ProPublica and AL.com suggest a far more nuanced picture.
The most common drug identified in the court records wasn’t meth but marijuana, followed by cocaine (meth was No. 3). About 20 percent of the cases involved only pot. Although most of the women had a history of drug use and other arrests, about one-quarter appeared to have no prior adult criminal record in searches of Alabama’s court database. The types of harm alleged by prosecutors didn’t fit the stereotypes, either. In eight out of 10 cases, women were charged with Class C felonies, the lowest category that applies when there is only exposure but not physical harm.
No. 4 on the list of substances: opioid painkillers. Here the chemical endangerment law presents especially thorny issues for pregnant women. Long-term prenatal exposure to opioids can lead to neonatal abstinence syndrome, or NAS, a cluster of withdrawal symptoms ranging from fussiness to seizures. As opioid addiction has spread nationwide, so has NAS: The incidence nearly doubled from 2009 to 2012 to 5.8 cases per 1,000 births.
The region including Alabama, Mississippi, Tennessee and Kentucky has the highest rate, with 16.2 cases per 1,000. But reducing a mother’s dosage of opiates is perilous. In the first trimester, it can cause miscarriage; in the third trimester, premature labor or stillbirth. NAS, on the other hand, is highly treatable, said Dr. Stephen Patrick, assistant professor of pediatrics at Vanderbilt University medical school and a leading researcher in the field. “These babies do not appear to be devastated by any means,” Patrick said.
Keeping a woman on opioids during pregnancy, ideally methadone, is thus the standard of care. But a lot of people, including some law enforcement officials, view methadone as no different from other harmful substances. Babies born with NAS in Alabama frequently trigger child-welfare investigations that may result in a mother losing custody. Sometimes, even when a mother is using opioids under a doctor’s care, NAS leads to a chemical endangerment charge.
That’s what happened to Hanna Ballenger, 34, who lives in Cullman County, west of Etowah, in 2014. Ballenger said her problems began with a double injury to the head soon after high school. She was helping her stepfather paint the house when she hit her head hard on a table; the next day, she bashed her head on a car door. Specialists in Birmingham eventually diagnosed a brain fluid leak. After repeatedly trying to patch it, Ballenger’s neurologists mostly managed her condition with painkillers. Not only were the drugs highly addictive, they were also prohibitively costly for a cashier earning minimum wage at a job with no health insurance. Eventually, Ballenger said, her doctors turned to methadone, which cost only about $40 a month.
“It was never something that made me high,” she said. “It just made me function like I was normal instead of in constant pain. No one could ever tell I was taking anything.”
According to court records, Ballenger had other substance abuse problems over the years; she got married, had a daughter, divorced and lost custody to her ex. In 2011, she met a man at church named Zach Neely and fell in love; he, too, had drug problems that he was trying to overcome. In early 2012, Ballenger was overjoyed to discover that she was pregnant. But she was also “freaking out” that the methadone might hurt the baby. In the end, Ballenger and her doctors tried to find a middle ground. They gradually cut her methadone in half by the end of her pregnancy.
When her son, Case, was born in October 2012, he was five weeks premature but seemed robust. Then, while breastfeeding at the hospital, he turned blue. Case was taken to the neonatal intensive care unit at Trinity Medical Center in Birmingham, but six weeks later was plump, beautiful, thriving — a poster child for NAS survivors. Ballenger and Neely took their son home, expecting to settle into new lives.
That afternoon, though, social workers showed up and took Case, giving him to relatives of Neely’s who decided they didn’t want to give him back. The last time Ballenger saw him was in December 2013.
“My son doesn’t even know who I am,” she said through tears in her lawyer’s office earlier this year. “He knows I’m his mother, but he’s so little he doesn’t know what that means.”
Then, out of the blue, a year and a half after Case’s birth, Ballenger was arrested for chemical endangerment. Because Case had NAS, Ballenger was facing 20 years in prison. (Cullman County District Attorney C. Wilson Blaylock didn’t respond to questions about the case, which is pending.) “I got charged for being on methadone, and he’s healthy,” Ballenger said bitterly. “But if I had come off the methadone cold turkey, and he had died, they would have arrested me for killing him. I would have gotten charged either way.”
A Mother on Suicide Watch
Nearly all mothers charged with chemical endangerment end up pleading guilty. It’s a condition for a pretrial diversion or drug court, with the promise of a dismissal if a woman gets clean and stays out of trouble. “It’s a path of almost certain safety,” said Morgan County attorney Brian White — irresistible even if a woman believes she did nothing wrong.
But for poor women especially, pleas often come with unanticipated costs. Alabamians are strongly tax-averse, and local governments have come to depend on criminal justice fees and fines to stay afloat. Defendants are charged for virtually everything, including diversion programs and court-appointed lawyers. In Russell County, on the Georgia border, it’s not unusual for a chemical endangerment defendant to face a $2,500 fine on top of all the other fees.
Debi Word didn’t have that kind of money, but it wasn’t the only reason she wanted her daughter-in-law, Katie Darovitz, to fight her chemical endangerment charge. At 25, Darovitz has severe epilepsy. She can’t drive or hold a job, and she gets by on disability payments from Social Security — income she could not risk losing. Pleading into diversion would leave a stain on her record, with uncertain repercussions down the line, including incarceration if she flunked.
“Once you get in the system, people are watching you all the time,” Word said. “If you’re not perfect, if you mess up, it can just start to snowball.”
Darovitz’s chemical endangerment problems began with her epilepsy. A couple years ago, she had a miscarriage and worried that her medications — Keppra and Zarontin — might have been to blame. Some anti-seizure drugs have been associated with birth defects, and after Darovitz got pregnant again last year, her seizures became more frequent. Her neurologist said she needed to increase her medication, and the obstetrician agreed, telling her: “You could fall. You could die.” But the doctors couldn’t rule out increased risks for the baby. “I didn’t know what to do,” Darovitz said.
After some research, she decided to take a chance on marijuana. Cannabidiol, a nonpsychoactive ingredient in pot, has shown anticonvulsant effects in animal studies. Some researchers think it has promise for treating childhood epilepsy. Though its usefulness for adult seizures is less clear, it hasn’t been linked to birth defects. Word said smoking marijuana seemed to work — Darovitz’s convulsions largely stopped. Her son Will was born last Christmas Day, his normal health the only gift that mattered to his anxious family.
But a drug test detected marijuana in Will and his mother. Darovitz was arrested and hauled off to the Russell County jail in Phenix City, where she was so distraught that she ended up on suicide watch, Word said. Darovitz had postpartum bleeding and was lactating, yet went days without soap or a blanket, she told her family. It took a week for them to scrape together a $7,500 property bond; by then Darovitz was close to catatonic.
Darovitz had never been in trouble before, and Word’s family believed that if she could tell her story in court, she could beat the charge. An attorney they found in Birmingham agreed, but after taking $2,000 he suggested a protracted battle was beyond their means and stopped returning their calls, Word said. (The lawyer did not answer calls or emails for comment.) Then, Word’s fears about the system came to pass. The family decided to be proactive and enroll Darovitz in a drug-counseling and mental health program used by the Russell County court.
It turned out to be a bad idea. Darovitz’s childhood had been “a horror story” of abuse, Word said. “The counseling brought up all these issues about her history that she just wasn’t ready to deal with.” Darovitz started missing appointments and soon was considered “noncompliant.” She slipped into depression and was again on suicide watch this summer, Word said. In March, Word was granted full custody of Will.
But as of mid-September, there was still no word about Darovitz’s case. To Word, it was hard not to see the delay as punishment in itself. “Their attitude is, ‘Oh, well, you did this, and this is what you get,” Word said. “People around here are always talking about ‘protecting the unborn child,’ ” she said. “Well, that’s exactly was Katie was trying to do.”
Cleared, But Forgotten
When Casey Shehi got the news that her case would be dismissed, it came in dribs and drabs. The first hint was a word of encouragement from the investigator, whose daughter was in the same day care as James. In mid-May the district attorney, Jimmie Harp, sent a note to Shehi’s lawyer saying he would help out: “Glad she is doing good.” A couple of weeks later, she was told the case would be “no billed” by the grand jury, meaning no indictment. But there was nothing definitive until mid-June, and even then no one at the court bothered to inform Shehi or her lawyer. The court’s electronic system didn’t fully reflect the decision, either.
So Shehi went to the D.A.’s office and got a formal letter stating that the case was dead. Even that felt anti-climactic: “I just kind of expected something more than a letter, I guess.”
There was too much tumult to celebrate, much of it centering on James’ father. Things came to a head in a mid-August confrontation, when the two tussled over their screaming son in an empty lot next to her ex-boyfriend’s property. Shehi grabbed James and flagged down two passers-by, who gave them a lift to the local police station. For Shehi, the incident became the moment when her life pivoted back on course. For 12 months, she had tried to live down her arrest while working full-time and doing her best to regain parental rights to her older son. She had buried her rage and incurred enormous bills. She knew that taking the Valium had not had any effect on James — it would be hard to imagine a healthier, happier baby than her burly, blue-eyed son. But the chemical endangerment case had cut to the core of who she was.
“It made me feel like a horrible mother,” she said. “It made me doubt myself in every way.” Then, that day in the lot, Shehi had rescued her baby. They were going to be OK. The next week, Shehi’s lawyer persuaded a judge to award her full custody of James. Her legal fight for her older son has been put on hold, but she sees him all the time. She also has been taking her clearance letter around town, trying to make things right. One of her first stops was the Etowah County Sheriff’s Office, where she asked to have her mug shot removed from the website. After everything that had happened, she wasn’t sure what to expect, but she was pleasantly surprised: “They took it right down.”
Like this story? Read Nina Martin's story about Alabama Supreme Court Judge Tom Parker and his activism on reproductive rights.