LAURA CURRY—Six days after giving birth, Hali Burns was arrested and separated from her newborn and older child. The arrest stemmed from two positive drug tests during her pregnancy, which her attorneys contend were caused by a legal prescription for Subutex, a medicine used to manage opioid addiction and withdrawal, and sinus medication. Burns was held in pretrial detention for two months, unable to meet the $10,000 cash bond and inpatient drug treatmentrequirements for release. While incarcerated, Burns was denied pads for postpartum bleeding and denied postpartum medical care. She was finally released on September 12th with the help of National Advocates for Pregnant Women.
Burns was charged under an Alabama law commonly known as the chemical child endangerment law. The law criminalizes exposing children to an environment in which one, “[k]nowingly, 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.” The type of felony and sentencing range depends on whether there was mere exposure, physical harm, or death of the child. Exposure itself with no resulting harm is a Class C Felony with a sentencing range from 1 to 10 years. Where the child dies, it is a Class A Felony with a sentencing range from 10 years to life.
The law was passed in 2006 as methamphetamine (“meth”) addiction increased in Alabama and was originally intended to criminalize the operation of meth labs in homes with children. However, prosecutors quickly deployed the law against pregnant people who tested positive for drugs or gave birth to children who tested positive for drugs. Officials disproportionately targeted pregnant people and by 2015, 479 people, or about 15% of total prosecutions under the law, were charged based on pregnancy-related exposure to drugs. Prosecutors have charged people at all stages of pregnancy, including Ashley Banks, who was charged for allegedly using marijuana on the day that she learned she was pregnant.
In 2013, the Alabama Supreme Court directly addressed whether prosecutors could use the law to prosecute pregnant people for using drugs in Ex Parte Ankrom. The Court interpreted the plain meaning of the word “child” in the statute to include an unborn child or fetus. The Court reasoned that the only area where fetuses are denied full legal protection is the right to abortion set out in Roe v, Wade. The Court affirmed this interpretation again in Ex Parte Hicks in 2014, in which Chief Justice Moore wrote a separate concurring opinion that included religious language emphasizing the sacredness of life and directly quoted the Christian bible. In both cases, the Court explicitly recognized the personhood of fetuses and assigned them legal rights, notably the right to be free from chemical exposure.
In many ways, pregnant people in Alabama have already been living in a Post-Roe world. They have been criminalized based only on actions with the potential to adversely affect the fetus, and criminal prosecutions have targeted conduct at all stages of the pregnancy regardless of whether actual harm occurred. Alabama’s chemical child endangerment law, along with the approach of the state’s courts, thus exemplifies how the growing doctrine of fetal personhood could allow legislators to criminalize pregnant people based on a wide range of conduct beyond abortions. The danger of expansive criminalization is compounded by the lack of definitive scientific data about the harm that the use of specific drugs cause to a pregnancy. While the harm of drug use during a pregnancy may be uncertain, the harm of an arrest, incarceration, and conviction is more clear. Children of people involved in the criminal legal system face increased economic instability, school disciplinary action, emotional issues, and trauma related to the resulting termination of parental rights in some cases. The drug use of a pregnant person may not harm their child but the resulting prosecution likely will.
Lack of definitive medical proof did not stop prosecutors from bringing charges against Brooke Shoemaker for the stillbirth of her child. Shoemaker had used methamphetamine on at least two occasions during the pregnancy and a toxicology report revealed methamphetamine in the baby’s blood. Shoemaker unexpectedly gave birth at home when the baby was only between an estimated 24 and 26 weeks gestation. The coroner, a politician with no medical degree, listed methamphetamine toxicity as the cause of death based on a conversation he had with a pathologist who was unconnected to the case and who had never examined the baby. A state medical examiner testified at trial that her drug use could have caused the stillbirth, but the examiner could not definitively determine it was in fact the cause. According to the Centers for Disease Control, 30% of stillbirths occur due to an unspecified cause. Nevertheless, a jury convicted Shoemaker and sentenced her to serve 18 years in the Julia Tutwiler Prison for Women. Brooke Shoemaker is still serving her sentence, separated from her four other children.