September 25, 2015 — Hundreds of pregnant women and new mothers have been prosecuted since Alabama enacted a "child chemical endangerment" statute in 2006, according to a ProPublica investigation.
The Alabama chemical endangerment statute was passed in 2006 as a response to methamphetamine use in the state. The law was targeted toward parents who put children at risk by producing methamphetamine in their homes. However, according to ProPublica, prosecutors and courts started applying the law to pregnant women shortly after the law's enactment. Experts across the country criticized such laws, noting that criminalizing pregnant women who use drugs discourages them from seeking care.
Nonetheless, abortion-rights opponents co-opted such laws in the late 2000s as part of the "personhood" movement, which aims to overturn Roe v. Wade by granting legal rights to embryos and fetuses. In cases in 2013 and 2014, judges ruled that the chemical endangerment law could be used to prosecute women for drug use even from the time of conception.
Women charged under the Alabama law can face one to 10 years in jail if they deliver a healthy infant, 10 to 20 years in jail if the infant shows signs of exposure and 10 to 99 years if the infant dies.
According to ProPublica, the law also is problematic for the treatment of women who misuse opioids. According to Stephen Patrick, assistant professor of pediatrics at Vanderbilt University medical school, neonatal abstinence syndrome is highly treatable. By contrast, reducing a pregnant woman's opioid dosage is dangerous, as doing so during the first trimester can result in a miscarriage while a reduction in the third trimester can lead to premature labor. Treating a pregnant, opioid-dependent woman with methadone, a form of opioid which eases withdrawal symptoms, stabilizes maternal drug levels, and is used for medical treatment of opioid addiction, is the standard of care in such cases, ProPublica reports. However, many people, including some in law enforcement, consider methadone no different than other drugs, even when prescribed and monitored by a physician.
The ProPublica investigation finds that at least 479 pregnant women or recently postpartum women have been prosecuted in the state since 2006. The women charged under the Alabama law mostly were white, although a report from National Advocates for Pregnant Women found that across the country, such laws disproportionally affect women of color. Women charged under the Alabama law also tended to be low-income, a trend that the NAPW report found to be consistent across the U.S.
The investigation also notes a wide disparity in how the law is applied across the state's 67 counties. John Gross, a professor and director of the criminal defense clinic at the University of Alabama School Of Law in Tuscaloosa, noted, "You get vastly different results in terms of how the cases are prosecuted." Moreover, drug screening is universal in some areas within the state, whereas testing is done only on a case-by-case basis elsewhere (Martin, ProPublica, 9/23).