Some days, I wonder whether certain prosecutors learned about a little thing called legislative intent when they were in law school. The reason I’m wondering this today is this: in Alabama, a prosecutor is charging a woman who is addicted to methamphetamine and who was unable to kick her addiction during her pregnancy with “chemical endangerment,” a new offense created in 2006 to protect children who live in homes where methamphetamine is produced. The law was envisioned as providing a tool with which to remove kids from homes where parents were producing meth.Operating on the theory that a fetus is a child, and paying no mind to the legislative intent motivating the law, the county prosecutor has used it to charge several women whose infants test positive for meth immediately after birth. The prosecutor tries to sell the law as being about insuring maternal and fetal health:
”We are doing this for the sole purpose of trying to make sure both the mother and the child have a healthy pregnancy,” he said. ”We’re not trying to throw these women in jail. That’s absolutely not the goal of it.”
Putting aside for a moment the fact that he is in fact throwing women in jail, this statement is totally wrongheaded. Expert after expert has asserted and article after article has shown that jailing pregnant women and new moms who struggle with addiction does not ensure healthy pregnancies — in fact, it has just the opposite effect. Prosecutions like this one drive pregnant women away from seeking the prenatal care that is so vital to their health and that of their fetuses. Feminist Law Profs has a laundry list of just some of the negative consequences of these prosecutions:
They deter women from getting drug treatment; they restrict reproductive freedom by incentivizing abortion; they are inevitably selectively enforced against the poor and minority; they remove the focus from the very real problem of lack of prenatal care for poor pregnant women; they take the attention off proven risks to fetuses such as fetal alcohol syndrome and tobacco use during pregnancy; they put hospitals and medical care providers in an adversarial relationship with their patients; they lead to absurd results, such as prosecuting women for not getting prenatal care or having a miscarriage; and so forth.
And yet, the prosecutions continue. Despite the fact that drug treatment programs are less expensive than incarceration and are more effective and ensuring healthy pregnancies and helping women get off drugs, treatment continues to be offered very little and funded even less. In some states, there is not a single drug treatment program that is aimed at or has space for a pregnant woman or mother and children. Given all these facts, the Alabama prosecutor’s pledge of purpose becomes even more laughable. The facts are out there to prove that his prosecutions are counterproductive. But at least the healthy child routine provides a good facade to mask the other, less socially acceptable, purposes of these prosecutions. If this prosecutor (or the others out there pushing punishment on pregnant women and mothers) really cared about making sure pregnancies resulted in healthy births, they’d have halted the prosecutions yesterday.