‘We are fighting for our lives’: Experts worry criminalization of pregnancy will rise post-Roe
Even before the reversal of Roe v. Wade last year, actions to criminalize behavior during pregnancy occurred across the country. Now, experts worry they’ll see far more cases.
BIRMINGHAM, Ala. – A tall young woman with dark eyes and blonde highlights opens Door 13 to her temporary bedroom.
Shaquira Brooks has made this room her home with a fuzzy pink blanket, a couple of stuffed animals and a pouch hung above her bed that holds some crystals. She wants to print out pictures of her children, too, to help her feel close to them.
This is Brooks’ second stay at Mother’s Hope, an inpatient treatment facility where people who are pregnant, who have children or who have recently given birth are treated for substance use.
Brooks, pregnant with her fifth child, said she checked herself in – far different circumstances from her first time in 2019, after she was arrested for chemical endangerment of her newborn and sent to treatment by law enforcement.
“The first time … honestly, I was just so angry. I was mad at the system. I was mad at the judges. I didn’t feel like they were being fair and giving me a chance, because I had no priors,” the 26-year-old said.
“It was like I was losing everything.”
Mother’s Hope is operated by Aletheia House, a statewide organization that treats substance use and addiction by men and women.
Overall, program officials report, about 40% of Aletheia House patients come from the judicial system – many of them pregnant people who’ve been accused of intentionally harming their fetuses.
With the reversal of Roe v. Wade last summer, experts in Alabama and elsewhere worry criminal charges against pregnant people will rise, especially as some states push to grant personhood status to a fetus from the moment of conception.
“You often see in those statutes language around life, the relationship between conception and life, the fetus and life,” said Wendy Bach, a law professor at the University of Tennessee Knoxville. “The more you have that language, the more there is for the state to point to that the fetus is a person and therefore can be protected.
“And the folks who are trying to fight that no longer have Roe … to cite.”
‘Greater license to punish’
The criminalization of pregnancy is not new.
Even before the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization – eliminating federal abortion protections and returning regulation to the states – actions to criminalize behavior during pregnancy took place across the country.
Pregnancy Justice, a New York organization that aids people arrested or detained for offenses related to pregnancy, says it has documented 1,331 arrests, forced interventions or civil commitments of pregnant people from 2006 to 2020 and more than 1,700 cases dating back to 1973.
From 2000 to 2020, If/When/How, a national nonprofit that also provides legal help related to pregnancy, documented 61 cases of people investigated or arrested for allegedly ending their own pregnancies – or helping someone else do so.
Whether related to “self-managed” abortion, substance use or something else, these cases have run the gamut.
– In 2010, an Iowa woman was arrested for feticide after falling down the stairs in what police called an attempt to kill her unborn child. She said she tripped. Ultimately, prosecutors decided not to press charges.
– In 2011, a woman in Indiana was arrested for murder and attempted feticide following a failed suicide attempt. After a public outcry and court challenges, she pleaded guilty to a reduced charge, was sentenced to time served, and was released in 2013.
– In 2012, a New York woman – pregnant when she crashed into a car – was convicted of manslaughter in the death of her child, who was delivered by emergency caesarian and later died. The conviction was reversed when an appellate court ruled that state law did not intend to hold a woman responsible for unintentional injury to a fetus.
– In 2018, an Arkansas woman was arrested for two counts of abuse of a corpse after delivering stillborn twins prematurely and disposing of the remains. She turned herself in, eventually pleaded no contest, and was sentenced to 60 months’ probation.
– In 2019, a California woman was charged with murder after taking methamphetamine while pregnant, resulting in a stillbirth. A judge later dismissed the charge, saying prosecutors failed to show she took drugs with the knowledge or intent to harm her baby.
“People are being arrested in every state: red state, blue state – doesn’t matter.”
— Dr. Mishka Terplan
Medical director at the Friends Research Institute
With Roe no longer the law of the land, some worry such cases will increase.
“Post-Dobbs, there has been a lot more talk of criminalizing people for abortion or abortion medication,” said Trip Carpenter, a legal fellow with Pregnancy Justice.
“In Alabama, specifically, the state attorney general threatened to apply the chemical endangerment law to prosecute people who use medication abortion. He later walked those comments back. But we’re seeing … those sorts of conversations happening.”
This year, lawmakers in Oklahoma, Indiana and Texas tried, but failed, to eliminate legal provisions that protect people who get an abortion from criminal prosecution. And unsuccessful bills in South Carolina, Kentucky, Georgia, Alabama and Arkansas would have made abortion subject to the same penalties as homicide.
Additional measures tried to further extend rights to fetuses.
Fetuses have been protected under some state laws for years. Pregnancy Justice reports that 38 states have fetal homicide laws, which are intended to criminalize violent acts against a pregnant person or the fetus.
But some states and interest groups want to further expand the idea of personhood. The national anti-abortion group Students for Life is among those advocating for equal protection for fetuses under the 14th Amendment of the U.S. Constitution.
Fetal personhood has been the crux of the criminalization of pregnant people, especially in cases involving substance use.
According to the Guttmacher Institute, an abortion-rights advocacy group, civil statutes in 25 states and Washington, D.C., consider it child abuse to use substances during pregnancy. Five of those consider substance use while pregnant grounds for civil commitment.
States like South Carolina and Alabama go further.
The South Carolina Supreme Court has said that a viable fetus is a “person” under the state’s criminal child-endangerment statute and that “maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus” constitute criminal child abuse.
And in Alabama, the state Supreme Court has held that the state’s chemical endangerment law may be applied in cases where fetuses are exposed to substances. That carries a possible sentence of up to 10 years in prison and up to a $15,000 fine.
Dr. Mishka Terplan is medical director at the Friends Research Institute, a Baltimore nonprofit that focuses on mental health and substance use research and treatment.
Terplan said in overturning Roe, the Supreme Court established that autonomy for individuals “evaporates during pregnancy,” giving states “greater license to punish.”
“People are being arrested in every state,” Terplan said, “red state, blue state – doesn’t matter.”
‘We are fighting for our lives’
Alabama leads the nation in pregnancy criminalization cases, according to Pregnancy Justice. Of the more than 1,700 cases the organization tracked from 1973 to 2020, Alabama had more than 600.
One notable case is that of Marshae Jones of Birmingham.
In 2018, Jones was five months pregnant when she got into a fight with a co-worker, who shot her in the abdomen. The unborn child died. The shooter was not indicted, but Jones was – because authorities said she instigated the argument.
Following an outcry in Alabama and far beyond, prosecutors dismissed the charges.
Through her attorneys, Mark White and Hope Marshall, Jones declined to speak with News21. But White said: “The attention that the case attracted was worldwide because it was such a horrible, obvious injustice.”
White considers the state’s criminalization of women an extension of its history of prejudice and discrimination. The state was a flashpoint in the civil rights battles of the 1950s and ’60s.
“As the historians would say, the old attitude of ‘let’s put them in their place and keep them in their place’ still comes out and surfaces,” he said.
Birmingham abortion-rights activist Mary-Berkley Gaines agrees.
“We are the birthplace of different movements with civil rights,” she said, “so we’re continuing that on with reproductive justice. We stay here and we fight because we’re not going to abandon our communities.
“We are fighting for our lives here.”
The most common way pregnant people face criminalization in Alabama is under its chemical endangerment of a child law.
Lawmakers passed the 2006 measure amid a methamphetamine crisis, to help prevent children from being exposed to controlled substances in homes and places like meth labs. But then police and prosecutors began applying it to fetuses exposed to substances in the womb.
After a woman was convicted of exposing her unborn child to cocaine, she appealed to the state Supreme Court, arguing the law was not intended to apply to a fetus. In 2013, the Alabama Supreme Court disagreed, saying “child” could be taken to mean the unborn or a viable fetus.
“When that ruling came down, it was shrouded in anti-abortion politics. But on a practical level … it opened the floodgates. Any prosecutor who wanted to pursue these cases was suddenly free to do so,” said journalist Amy Yurkanin, who has spent years covering the criminalization of pregnancy in Alabama.
Yurkanin noted that women in other states have been arrested for drug use during pregnancy, but “it typically happens when there’s an injury to the baby or something really bad happens like a stillbirth or miscarriage.”
“In Alabama,” she said, “these cases can be brought against anyone who tests positive for drugs during pregnancy or at delivery. So we’re talking about positive marijuana tests. We’re talking about, back in 2015, women who had used drugs prescribed by their doctors. It was just extremely broadly applied.”
Etowah County, in northeastern Alabama, has brought more of these cases than any other in the state.
According to Pregnancy Justice, more than 20% of pregnancy-related cases in Alabama originate in Etowah County, which comprises about 2% of the state’s total population.
“A lot of prosecutors have said that they try to use this law to get women into treatment through the criminal justice system,” Yurkanin said. “And you do see that – a lot of women channeled into drug courts or pretrial intervention programs.”
But in Etowah County, she said, “You see a lot of cases that maybe wouldn’t be pursued elsewhere.”
One woman was arrested for chemical endangerment without even being pregnant.
Last year, the county’s welfare department was investigating Stacey Michelle Freeman for alleged drug use when one of her daughters claimed Freeman was pregnant. A few days later, Freeman was arrested and jailed.
Only then was a pregnancy test administered. When it came back negative, Freeman was released. She has since sued the county.
“In this particular case, they just assumed somebody was pregnant without any proof,” said Freeman’s lawyer, Martin Weinberg, who claims the sheriff’s investigator told Freeman that if she were to later get pregnant, she’d be arrested again.
Others in Etowah County have been arrested for knowingly exposing their fetuses to substances, even though they contend they didn’t use drugs once they learned they were pregnant.
The county also has come under fire for strict bail conditions for those charged with chemical endangerment, requiring $10,000 cash bond and mandatory inpatient treatment.
“Some didn’t have … the level of addiction that they needed to qualify for beds,” Yurkanin said. “So in practice … Etowah County was keeping pregnant women and postpartum women in jail for sometimes months at a time before they had gone to trial or been found guilty for this chemical endangerment charge.”
News21 reporters reached out to the Etowah County Sheriff’s Office, the Alabama attorney general and the Etowah County prosecutor’s office for comment. The latter two did not respond. Josh Morgan, a spokesman for the sheriff’s office, said officials could not comment without attorney approval because of ongoing litigation.
Carpenter, of Pregnancy Justice, said such conditions are unconstitutional because they do not serve the intended purpose of ensuring a person returns to court instead of absconding.
“All of them were indigent and pregnant or immediately postpartum,” Carpenter said of the clients his group represented. “So what risk did they pose? … They didn’t even have the capability of fleeing the county.”
‘I do need this’
Forced treatment for substance use, whether through the courts or involuntary commitment, is an idea that has gained momentum amid the nation’s opioid epidemic, even in blue states like California.
Although research shows that involuntary treatment often is less effective, some in the treatment industry say it can work. Yakima Burch, a staff member at Mother’s Hope in Birmingham, said clients have told her, “I’m glad that the judge sent me here.”
Elizabeth Luna came to Mother’s Hope for legal reasons, though not a chemical endangerment charge. She said she wanted to come anyway because, “I do suffer from alcoholism, and I did need the help. I do need the help.”
This is Luna’s first time at the facility, and she misses her only son, who graduated from kindergarten while she’s been away.
“He just thinks that mommy is sick and she’s somewhere getting better.”
Chris Retan is executive director of Aletheia House, which runs Mother’s Hope.
“There are people who say, ‘It saved my life to be required to go to treatment,’ and there are other people for whom it’s a coercive, terrible situation,” Retan said.
“It’s a complicated situation.”
The residential facility can house up to 16 mothers for treatment of substance use. The regimen includes therapy, peer support, meditation, chores and parenting classes.
“We have received individuals that come into treatment and they didn’t want to be here, but after maybe two to three weeks of acclimating, they realize, ‘I do need this,’” Burch said. “It helps give them insight to be able to be more open and willing and change their perspective.”
Having experienced mandatory treatment, Shaquira Brooks has a different view.
Back in 2019, after she and her newborn daughter tested positive for stimulants, Brooks was sent to Mother’s Hope as a condition of her release from jail. Back then, Brooks said, she wasn’t prepared to accept help.
“It’s a good program, don’t get me wrong. But you have to be ready. You have to be open-minded to the change and accept the help that’s here for you,” she said. “I was too angry.”
Not so this time around, Brooks said.
She’ll officially complete her treatment in August, but she’s chosen to stay longer and to have her next child while at Mother’s Hope. Her due date is Sept. 10.
“I just want to make sure that I have all my ducks in a row, that I’m fully ready to be back in society with my baby and able to deal with triggers – and I have the proper tools to use,” Brooks said, “so that relapse is not an option for me.”
Having lived through mandatory treatment, Brooks firmly believes “you cannot force somebody into treatment if they’re not ready.”
Asked what could be a solution, Brooks replied, “Second chances would be nice – being a little bit more lenient. Don’t be so harsh to just exile us because we made a mistake.”
“Separating a mother from her baby is a trigger that’ll make you want to use, especially if that’s all you know how to do. So I just hope, eventually, there will be some change – because locking us up and taking our babies ain’t the answer.
“We’re not animals.”
News21 reporter Elise Catrion Gregg contributed to this story.