Approximately 60 chemical endangerment prosecutions of new mothers occurred in Alabama since 2006. According to NYTimes.com, Alabama's chemical endangerment law was originally created to protect children from potentially explosive meth labs. This law prohibits a "responsible person" from "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, chemical substance or drug paraphernalia."
Many argue that Alabama's chemical endangerment law was never meant to apply to a pregnant woman's drug use. Emma Ketteringham, director of legal advocacy at National Advocates for Pregnant Women, said, "The words 'womb,' 'uterus,' 'pregnant woman' don't appear in the law. It was meant to protect children from meth labs." But shortly after the law passed, Alabama prosecutors extended the term "environment" to also mean "womb," and "child" to mean "fetus."
In 2006, Tiffany Hitson was charged with chemical endangerment after giving birth to a baby that tested positive for cocaine and marijuana, but was otherwise healthy. She served a year in jail. After that prosecution was successful, other Alabama started following suit and began prosecuting women on behalf of their newborn children.
Criminal convictions of women because of their newborn's positive drug tests are rare in other states. In most states, maternal drug use is a matter of child protective services, not law enforcement.
Last summer, Alabama Court of Criminal Appeals upheld this expanded interpretation of the chemical endangerment law, ruling that the definition of "child" did, in fact, include "unborn child." This case will be challenged in the Alabama Supreme Court.
Critics of Alabama's chemical endangerment law argue that drug use by pregnant women is a health issue, not a criminal one. For addiction to be treated, drug users have to be willing to seek help. If a pregnant woman fears arrest, she would be less likely to seek addiction treatment. She would also be less likely to seek prenatal care.
Heather Capps is a 25-year-old mother, who was arrested two days after giving birth via Caesarian section to a healthy baby boy who tested positive for Oxycodone. Heather claims she became addicted to the drug after she was prescribed it for scoliosis pain. When she became pregnant, she knew she would be prosecuted to give birth to a baby who tested positive for opiates, but she also knew the dangers to the fetus from withdrawal. Heather went online and got in touch with Ketteringham. Heather was told that if she gave birth in Marshall County, she would most likely be prosecuted. She was advised to hire a lawyer.
She considered moving to a nearby county that was not prosecuting chemical endangerment cases on pregnant women, but her other two children were in school in Marshall County. She decided to stay and continue taking the lowest possible dose of Oxycodone that she could manage. She was arrested on hospital grounds, and soon some of her private Facebook messages were plastered all over the news. She remained in jail for three months because her family could not afford the bond. Then, she was sent to rehab and put in a halfway house, where she continues to receive treatment. She is allowed to see her children once a week on Sunday. If she completes the program to the judge's satisfaction, her sentence will be dismissed.
The recommended treatment for opiate addiction during pregnancy is a controlled dosage of methadone. Dr. Robert Newman, of the International center for Advancement of Addiction Treatment of Beth Israel, claims the prognosis for both mother and baby is good with long-term outpatient treatment. Prosecutors is Alabama claim they will not charge a woman on methadone.
Another concern is that women fearful of prosecution may try to have their babies elsewhere, and that could be dangerous. One defense lawyer cites cases of a woman who drove to Georgia when she went into labor and another who gave birth to a three pound baby in a bathtub at home.
Some argue that women who use drugs may choose an abortion, simply to avoid prosecution. They argue that this law "is a deterrent to choosing life."
Another woman convicted of chemical endangerment talks about the long-term effect the charges have had upon her. She admits to smoking pot while she was pregnant with her third child, claiming it helped with the near debilitating morning sickness. Her child tested positive for both cocaine and marijuana, although she claims she never took cocaine. Her children were placed in her parent's care after the birth of her third child. She ended up pleading guilty to chemical endangerment, to be given a suspended sentence. She completed drug treatment and continues to attend NA. She has had a hard time getting a job. She was studying to be a physical therapy assistant, but no one will hire her with an abuse charge, especially to work with children or the elderly.
Dr. Barry Lester said, "I think what you are looking at here is a failure to understand that addiction is a disease of the brain. You are looking at people who think that these are horrible women who are rationally, willfully hurting their kids, but it's more complicated than that."
One of the toughest chemical endangerment prosecutors is from an area known as "Meth Mountain," where the meth problem is out of control. In an area severely infected with methamphetamine use, many of the babies in the area are born affected by an addicted mother. This prosecutor argues that although the mothers are taken from their children, they are helped in the long-run because they are required to get treatment.
No one would suggest that a pregnant woman use drugs, but often times the use of alcohol during pregnancy is much more harmful to the child. Babies with fetal-alcohol syndrome are likely to have lifelong physical, mental, and emotional issues, including significant delayed brain development. But, Alabama is not arresting women whose children have fetal-alcohol syndrome.
Opponents of Alabama's chemical endangerment law feel that this could get out of hand, as more and more precedent is set. Ketteringham said, "It starts with cocaine, and then it's cigarettes and alcohol. How much alcohol? And when? It's only a matter of time until it comes to refusing a bed-rest order because you need to work and take care of your other children and then you have a miscarriage. What if you stay at a job where you're exposed to toxic chemicals, as at a dry cleaner? What if you keep taking your S.S.R.I.'s during pregnancy? If a woman is told that sex during her pregnancy could be a risk to the fetus, and the woman has sex anyway and miscarries, are you going to prosecute the woman-and the man, too?"
Personally, my biggest concern is that taking the mother away from a newborn is not good for the child. While I also agree that mothers of newborns who test positive for drugs should get treatment, and I am by no means saying they should not face any consequences. But, I think that throwing them in jail is not the best thing for the baby in many cases. In most states, this is a matter of social services, and these mothers are required to attend parenting classes and treatment in order to not lose their children. In my opinion, locking these mothers up and prosecuting them criminally is counterproductive for the newborn, as well as its mother's recovery.
- Item Tag: Alabama's chemical endangerment laws