Anything but Delicate: Alabama’s Solution to Substance Abuse During Pregnancy

Josie Sustaire, Resident Blogger (’14, University of Oregon School of Law)

Suppose a woman chooses to have a child.  Suppose that she elects also to raise the child after it’s born.  You may be thinking, “Great.  Good for her.”  But suppose that the woman also happens to be addicted to drugs.  Are you still excited for her?  Is she any less suitable to invoke her rights?  What should be done?  Legislators in Alabama have answered these questions by prosecuting women who expose their children to drugs while pregnant.  The Alabama statute, Ala.Code 1975 § 26-15-3.2, was originally put on the books to protect children from exposure to meth labs.  However, the law has been expanded through litigation to encompass fetal exposure to drugs in utero, essentially offering legislator’s a backhanded way of circumventing a woman’s rights.

“Laws concerning a pregnant woman’s treatment of her fetus are not without precedent,” Ada Calhoun points out in her New York Times article on the subject.  “Since abortion was legalized in 1973,” she says, “hundreds of women across the country have been arrested for harming their fetuses, with charges ranging from child endangerment to first-degree murder.  Emma Ketteringham, the director of legal advocacy at the National Advocates for Pregnant Women, a New York-based reproductive-justice group, predicts a grim future if laws like Alabama’s stay on the books.  “Everyone talks about the personhood of the fetus,” she remarks, “but what’s really at stake is the personhood of women.  It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she’s pregnant becomes subject to state regulation.”

And, as if to add insult to injury, medical research has shown that quitting cold turkey while pregnant can be fatal to the fetus.  So, that same hypothetical pregnant woman who abuses drugs, if she has access to adequate medical care, may be told by a medical professional that she should not quit but rather should maintain acceptable levels to avoid miscarriage.  Given the research, maintaining low levels of the drugs in order to save the fetus seems much safer.  BUT if the state that the woman lives in has a law like Alabama, she will still face criminal charges once the baby is born and traces of drugs are found in the baby’s system.

There must be something we can do about this.  We must find a way to reconcile the rights of women with the interests of the state in ensuring the health and safety of infants.  Why does a woman’s rights have to be sacrificed?  How can Alabama legislators believe that two wrongs can make a right?  What we can be sure of is that Alabama has no plans of backing off.  Over 60 women have been incarcerated for child endangerment and the legislature has submitted proposed amendments to the statute to explicitly apply to in utero exposure.

Now don’t get me wrong.  I love the babies.  I want what is best for them.  But how can locking their mother up for 10 years (mandatory sentence in Alabama is 10 years to life) because she is a drug user be the best option?  Sure she should not have used drugs while pregnant, but hindsight’s 20-20 and what’s done is done.  What can we offer her moving forward?  Drug treatment options seem like a much more beneficial option.  I would also encourage changing regulation of methadone clinics due to the risk of methadone exposure to fetuses.  There may not be an easy solution, but we certainly can’t go on like this.

Note:  The Guttmacher Institute has a state policy pdf that states “No state specifically criminalizes drug use during pregnancy,” and I have submitted a request for clarification and am currently awaiting their response.