My latest for RH Reality Check has been published. This case has me monumentally pissed off:
[read full post at RH Reality Check]
Conservatives like to complain about judicial activism, which generally means, a judge issued a decision which they don’t like.
I have grown to hate the term because it is used so frequently that it doesn’t mean anything anymore. Still, there are few alternative phrases that accurately describe the Alabama Supreme Court’s decision in the consolidated cases of Amanda Kimbrough and Hope Ankrom. Amanda and Hope are two women who were swept up in the Alabama judiciary’s zeal to promote an anti-choice personhood agenda at the expense of pregnant women, by redefining the word “child” in Alabama’s chemical endangerment statute, so that it now applies to pregnant women who use any amount of controlled substances, whether prescribed by a doctor or not.
In the cases of Amanda and Hope, the drugs were not prescribed by a doctor. Both women ingested illicit drugs during their pregnancies (meth in Amanda’s case, and cocaine in Hope’s case) and were prosecuted for it. But the two women were prosecuted for behavior that was not intended to be criminalized when the Legislature enacted the chemical-endangerment statute in 2006, and that is where the egregious injustice lies.
The statute was enacted to protect children from injury resulting from exposure to toxic chemicals used to produce methamphetamines, not to punish drug-dependent women for choosing to carry their pregnancies to term despite their drug dependencies. In fact, the chemical-endangerment statute was not intended to address the behavior of pregnant women at all.
I actually clicked through for once ;-) and this caught my eye:
My sister-in-law had a scheduled caesarian section when both my niece and nephew were born, and she was given narcotics to deal with the pain. When she was worried about breastfeeding, the nurses told her it was fine.
So does this mean that, in Alabama, it’s now illegal to breastfeed your child if your doctor prescribes narcotics for you to take because you’ll be exposing your child to that drug? Who the hell sponsored this, the formula industry?
Villago Delenda Est
Sluts must, must, MUST be punished.
@Villago Delenda Est:
Except for your safeword.
c u n d gulag
In this personhood issue, why aren’t men who masturbate charged with, oh, I don’t know, “Illicit Spillage of Seeds,” or something?*
If men go around spilling their seeds into socks and tissues, there won’t be enough sperm left in them to form a person, to have personhood.
*Not that I’d be an advocate of that policy, since, when people aks me, “How’s the old love life?”
I answer, “Oh, you know, just holdin’ my own!”
It may look horrific to throw a pair of pregnant women in jail for the crime of potentially harming their future off-spring. But just know we’re doing it for the children.
I assume all miscarriages in Alabama will now be investigated and the fetus will have to be autopsied. So, ‘bama ladies, don’t flush before examining the bowl — you may be flushing legal evidence…of your innocence or guilt of infanticide.
All folks who find themselves to be dependent on drugs of any sort need to have easy pathways to comprehensive help. Parents, and parents-to-be should be at the top of the list that we want to get such services to. This obviously is a no-brainer.
And we still need to hold accountable those adults who continue to engage in illicit behaviors that so obviously endanger the well being of their children.
Cite to legislative history, please.
I’m certain that you’re not suggesting that a state has no legitimate interest in deterring pregnant women from using drugs that can trigger a whole menu of health problems for both mom and fetus.
So what are you suggesting?
I’m unsure why I’m supposed to be angry that 2 women who knowingly took knowingly illegal drugs during a pregnancy would be punished for it.
Actually, I’m angry that the women knowingly took those knowingly dangerous drugs. It’s not like they got silver bracelets for ingesting Lunesta or Embrel. Did I misunderstand something?
peach flavored shampoo
Wait…where? Oh FFS, now I have to check my socks too?
You’re supposed to be angry that the prosecutors stretched to find a law where they could be punished more severely for it than was otherwise provided for under current law.
There are also concerns that women who are prescribed perfectly legal drugs by their doctors during pregnancy could be prosecuted under this law because there seems to be a big giant loophole in the decision that doesn’t allow for a doctor’s orders to be followed by a pregnant woman.
You’re also supposed to be angry because these prosecutors are trying to claim that injuring a fetus and injuring a born child are the exact same thing that should carry the exact same penalties, which would automatically mean that all abortions should be outlawed since aborting a 10-week fetus=living in a meth lab with your toddler.
(Fixed to be more accurate to the law.)
I’m puzzled by the surprise and I’m not sure it’s appropriate. I’m not a lawyer and I don’t live in Alabama but women lose their children all the time for taking controlled sub…drugs during pregnacy. It’s been going on since at least the 80’s when I first started to pay attention. Remember crack babies? News stories about long term damage? I’m a foster mom and I can tell you they remove babies from mom at birth when she tests positive of baby does for certain things. I;m told they no longer do it for marajuana. The training film first night of foster training mentioned they do or did the same in Oregon.
They don’t usually pursue criminal charges against these moms because they don’t have the jail space but my understanding is they could. They just do it for the worst cases. In the worst cases, criminal prosecution is warrented. Circumstances people get into are incredibly varied and there is no reason to assume every person or even most is a motherhood monster but they aren’t all angels either. So the judges do sound like more slut bully’s but the women don’t sound nice either. It’s bad to have judges exceed the laws authority but in my state there would already be specific laws that veiw these women’s actions as criminal. Could there be other law’s in Alabama that the judges didn’t mention?
We don’t do very effective drug treatment, criminalize when we could treat more effectively and cheaper etc.
Another aspect of this….here in Florida if a woman is going to jail (I think for a year or more)who has children and there is no family willing and able to take care of the children, she has to give the children up for adoption to the state. I don’t know the exact details of the laws-possibility of early parole etc. What I do know is that she has a big say in who gets to adopt them. I’ve also heard a lot about children who were harmed by parents use of drugs including prebirth. I also know many many non drug users who went through pregnancy avoiding the caffine they loved, not smoking, not taking anything for headachs etc because doctors say not to and there are all kinds of studies. I can understand that it’s hard to quit, maybe impossible when you find out you are pregnant but they ARE harming their unborn child with hard drugs.
The penalty may be excessive and harmful to odds of influencing behavior to be better but I don’t so far understand that it’s so far out of routine. I usually agree with you but I’m not getting it this time.
The title of the statute that these women were prosecuted under is “Endangerment of Exposing a Child to an Environment in Which Controlled Substances are Produced or Distributed.”
So, basically, in Alabama the uterus is now an “environment” where controlled substances are “distributed” when a woman takes drugs during her pregnancy.
Do you really not find it disturbing at all that prosecutors are taking a law that was meant to stop children from being raised inside meth labs and deciding that a woman’s uterus is just as dangerous an environment?
Maybe you should stick to data entry.
@peach flavored shampoo:
Naw. Just throw them all in the laundry. Hot water, extra detergent, extra bleach.
@Mnemosyne: Buuuut don’t prosecutors (and defense counsel) do this all the time? They find ways to stretch the understandings of a law to set up a court case in a way that favors them.
That happened to a couple of white racisits here in Texas about twenty years ago. To be eligible for capital punishment, the understanding of what the law said had to be stretched just a bit. For better or for worse, very few seemed to care, as these were awful dudes.
Now they are dead.
Sweet Home Alabama…
Where the skies are so blue…
Sweet Home Alabama…
Lord, I’m coming home to you.
@gvg: The point is that the AL courts have essentially determined that a fetus is exactly the same as an actual child.
If that’s true, then abortion is murder.
And we put murderers in jail.
Not quite, because the AL SCt acknowledged that Roe v. Wade is still in the way.
Also, a rather large point kind of buried in the piece, is that the women didn’t raise any Constitutional arguments and the court was dealing only with an issue of statutory construction. And in that context — while I am not saying that it didn’t have an anti-abortion underlying agenda, because it very likely did — the result is not all that much of a stretch. Consider “unborn child.”
ya know, this may actually be a good thing in the long run, in that the wingnuts are so thoroughly pushing this whole personhood thing beyond any semblance of sanity that the real issue will esoon merge.
note that they shifted from talking about when life begins to “personhood.” now they’re holding the woman’s medical needs as subservient to those of the unborn child. but, until the fetus is 6 months or so, it is essentially a parasite. it has a very poor chance to survive without the mother; it is utterly dependent on the mother to have a prayer (ahem; apologies) of ever existing as a person.
so these people are suggesting we threaten the life of the mother in our worship of this unborn potential but not yet person. not just threaten her medical health, but threaten to incarcerate her. and, one has to assume, the – um – unborn fetus along with her.
talk about boundary issues.
so, i’m wondering. with all the efforts in various states to pass legislation to establish personhood at conception (whenever the heck that is), why don’t we try the opposite in more democratic leaning legislatures? why not get someone to propose a bill that states, to establish an unequivocal definition, that a “person” (not life; a viable person) is considered a breathing individual; “personhood” begins when the newborn takes its first breath.
good gawda’mighty, why that’s what most folk around the world have been assuming for, well, EVER.
this could easily be applied at the other end as well, addressing the point at which a person no longer breathes, either with or without medical assistance (replete with all the coma and terry schiavo implications).
even petition for referenda wherever these apply. given the outcome of the MS personhood referendum a couple years ago, it appears there is a critical mass of folks eager for such clarification on the books even there. if it passed, especially in all these states trying to shut down abortion clinics and such based on the notion that these fetuses are real people and therefore murders are being committed, well gosh, that argument just gets totally vaporized.
or, erm, aborted.
@Darkrose: Just a question growing out of honest curiosity here:
In many states, if you commit grievous harm to a pregnant woman, the charge can be doubled (or at least aggravated) due to the harm to the unborn. Are those laws out of line?
I will freely admit that IANAL, but it seems very weird that the prosecutors were able to take a statute that was supposed to allow them to arrest people who were raising their kids inside the same house where their meth lab was located and declare that a woman’s uterus is exactly the same thing as a physical building.
No one “declared” that, and to suggest that they did is precisely the kind of faux extrapolation that people despise lawyers for.
The words of the statute are what controls, not the title. Construing the word child to include a fetus, the women’s actions fit within the conduct criminalized by the words of the statute.
There is a difference between harming yourself and harming another person. If (for example), you decide on your own to permanently damage your own body by getting a tattoo, that is a very different matter under the law than if you hold someone else down and forcibly tattoo them.
That’s why there’s a difference in the law between a woman who decides on her own to end a pregnancy and a woman who is attacked or injured by a third party in a way that ends a pregnancy without her consent. The gray line comes in with deciding at what point that fetus becomes a third party that has its own rights. Right-wingers say that point is when the sperm meets the egg, while some people on the other side take the opposite extreme of saying that, as long as the fetus is enclosed inside the woman’s body, her rights should be the only ones that matter.
IIRC, under most of the current “harm to the unborn” laws, they are tied into harm to the mother. I don’t think a prosecutor can charge someone only with that without simultaneously charging them with also harming the pregnant woman, but, again, IANAL.
Here’s the language of the statute that ABL quoted in her article:
It’s not just the title. I think the women had bad lawyers, unfortunately, but I still find it extremely creepy that the prosecutors can take a law meant to apply to a child’s living conditions and decide it also applies to a woman’s uterus. If there’s a bong in the house where the pregnant woman is living, does that count as “exposing [the fetus to] drug paraphernalia”?
The problem, as burnsie alluded to above, is that what was “meant” by a statute — or indeed, any question of intent in any legal context involving the interpretation of written words — is a question that you do not reach unless the words you are dealing with are first deemed to be ambiguous. Look again at those words — you do not need to construe “environment” to mean “uterus” in order to support the prosecution’s interpretation.
I just took a Mandatory Reporting class for my state and one of the questions that came up is what do you do if you see a pregnant women taking illegal drugs. Basically, the DHS worker said that there is nothing they can do since the baby isn’t born yet. What they can do is notify the surrounding hospitals of an incoming pregnant patient so the hospital can be ready to deal with a baby that could have potential issues. Once that baby is born and if they test positive for drugs then DHS and the police get involved.
Ok, this article has actually prompted me to re-examine some of my opinions.
I’m strongly in favor of a woman’s absolute right to choose safe, legal abortion for any reason during the first trimester of pregnancy
I am also, however, horrified at women who knowingly take drugs which could injure or deform their baby, and I think they should be legally discouraged from doing so.
How to reconcile those two feelings?
Well, I might postulate that society has an interest in minimizing the costs of caring for addicted/deformed/developmentally disabled children. This, however, only applies to children who are actually born, of course.
So I think my position is this: Women who wish to take potentially fetus-harming drugs have a responsibility to terminate their pregnancies before doing so. If they choose to continue their pregnancies, then they can and should be held responsible for the well-being of their fetus.
Naturally, this doesn’t apply to women who don’t know they’re pregnant.
I guess what I’m saying is that a woman has a right to not have a baby, but if she’s going to have it she needs to take care of it even before it’s born.
@Mnemosyne: Maybe I am denser than this oak table, but it strikes me that a lot of law in this area rests on a monumental double standard as to how a pregnancy may be interrupted. It’s a double standard that many of us choose to live with since we believe that women have a right to autonomy over their body within the court described limits.
Amanda choose to ingest toxic substances and thus exposing her fetus to serious harm. Or let’s say there was an acquaintance that slipped her a little something without her knowledge exposing her fetus to serious harm.
Or let’s imagine that Amanda went to Planned Parenthood Southeast Inc. and exposed her fetus to serious harm. Terminal harm.
I am all in favor of the last instance being treated very differently. What about the first two? Should there be differences? Should an expectant mother get a whoopsie (for how long)?
FWIW, I have not figured out my perfect world senario here.
Yes, it is a double standard, because the actual pregnancy must take place inside the body of a woman. Until that somehow changes, there will be one standard for how the person inside whose body the pregnancy takes place treats that pregnancy, and another standard for how people outside of that body treat that pregnancy. I’m pretty sure you’re not proposing that we say it’s a-ok for a man to deliberately beat a pregnant woman to force her to have a miscarriage because, hey, she could have chosen to abort the fetus on her own, so there’s no difference.
At the risk of being exposed as a heartless baby-hater who hates babies and wants them all to die, it was, unfortunately, her decision to ingest those substances. We can argue about whether an addict is making a rational decision and choosing to be an addict, but I’m not really sure that someone who already had her baby die at birth because of her actions needs to also spend 10 years in prison.
BTW, this has been going on since at least 2008. These are just the two women who had their cases get as far as the Alabama Supreme Court.
What if Amanda left her very stylish pink Smith and Wesson unsecured in the bedroom and lil 3 yr old Becky blows her own head right off.
Mom’s been through quite a lot. Should Amanda face charges?
BTW, not all pregnant drug abusers are addicts. Some just don’t give a fuck. About ten years ago, I helped one – a neighbor – arrange for an abortion.
This seems like the right thread to post this link from The Guardian http://www.guardian.co.uk/world/2013/jan/15/criminalisation-pregnancy-women-study
“Hundreds of women have been arrested, convicted, jailed, detained in mental institutions or forced to endure medical procedures as a result of the “criminalisation of pregnancy” [in the USA] over the last four decades, a new report has found.”