“F” for Felon: The New Scarlet Letter by Hannah Hicks

“F” for Felon: The New Scarlet Letter

Hannah Hicks

 

Introduction

 

In most states, the use of illegal drugs by a woman during her pregnancy is a matter addressed by child protective services.[1] However, in Alabama women can be criminally prosecuted for drug use during pregnancy. This post will provide a brief introduction to Alabama’s chemical endangerment statute and argue that public policy weighs against the prosecution of women for drug use during pregnancy.

Alabama’s Chemical Endangerment Law

Ala. § 26-15-3.2 makes chemical endangerment of a child a felony.[2] Under the law, knowingly or recklessly allowing a child to ingest, inhale, or come into contact with a controlled substance, chemical substance or drug paraphernalia is a class C felony.[3] If a child sustains injury as a result of exposure, the offense is a class B felony.[4] If death results, the offense is a class A felony and carries a minimum 10-year sentence.[5]

Alabama’s chemical endangerment law was enacted to protect children from exposure to meth labs.[6] However, Alabama prosecutors have used the law to bring dozens of cases against women who used drugs during pregnancy.[7] This has led The New York Times to describe Alabama as “the national capital for prosecuting women on behalf of their newborn children.”[8]

The two strongest arguments in favor of the criminal prosecution of women who use drugs during pregnancy are that these laws have a strong deterrent effect[9] and that these prosecutions link pregnant women to drug treatment programs.[10] These arguments ultimately fail under the weight of the counter-arguments presented below.

 

Policy Arguments Against Criminalization of Drug Use During Pregnancy

 

              Barriers to Treatment

 

Women fearing prosecution under chemical endangerment laws may avoid seeking prenatal care or drug treatment if they believe that medical providers will turn them over to law enforcement. Additionally, one defense attorney in Alabama is aware of one woman facing prosecution under the chemical endangerment statute “who drove to Georgia when she went into labor and another who gave birth to a three-pound baby in a bathtub at home.”[11]

These women’s concerns are well grounded. Some jurisdictions have experimented with the policy of doctor reporting of pregnant women suspected of drug use.[12] Although the U.S. Supreme Court in Ferguson v. City of Charleston decided that hospital testing for the purpose of obtaining evidence of criminal drug use by a pregnant woman is an unreasonable search when the woman has not given her consent,[13] the holding of the case was so narrow that it leaves open the possibility that medical records could be turned over to authorities and used against pregnant women.[14]

For example, women who are addicted to “hard” drugs undergo serious withdrawal symptoms that often require medical intervention. Doctors sometimes prescribe small doses of methadone to wean users off of these drugs. There is nothing in the Alabama statute that would prevent prosecution of women undergoing this form of addiction treatment.[15]

The American Medical Association, American Academy of Pediatrics, and The American College of Obstetricians and Gynecologists have voiced their concern that prosecuting women for drug use during pregnancy “is irrational” because “it will result in greater harm to infants.”[16] These professional organizations argue that “fear of prosecution would not influence women to discontinue drug use early enough to significantly reduce harm to infants [and] women will be encouraged to avoid contact and communication with medical providers.”[17] Moreover, withdrawal effects might complicate pregnancies.[18]

 

              Unbridled Regulation of Pregnant Women

Another concern surrounding statutes like Alabama’s chemical endangerment statute is the looming possibility of extensive intrusion the lives of pregnant women. One critic states the concern as follows: “everyone talks about the personhood of the fetus, but what’s really at stake is the personhood of women.”[19] Some fear that the application of Alabama’s chemical endangerment law opens the door for state regulation of all aspects of a pregnant woman’s life. At least one critic has queried whether criminal prosecutions for the use of cigarettes and alcohol while pregnant are the next step.[20] Beyond that, what happens when the pregnant woman works at a job that exposes her to toxic chemicals or fails to follow her doctor’s bed rest orders because of other pressing responsibilities?[21]

Crushing Social Outcomes

Successful prosecution under Alabama’s chemical endangerment law delivers a devastating blow to women and their children. Not only does it result in temporary separation of the family during crucial years of child development, it also initiates a lifelong struggle under the scarlet letter “F” for felon. With the label “felon,” these women will face extreme difficulty securing employment. Additionally, they will not be able to receive government assistance, including food stamps and housing. With these insurmountable barriers, it is no surprise that women and children affected by these child endangerment prosecutions will succumb to the cycle of chronic poverty and criminal activity.

Conclusion

Other states are beginning to follow Alabama’s lead. In 2014, Tennessee enacted a law that allows for the prosecution of women who give birth to drug-dependent children.[22] Some women’s rights advocates argue that laws that allow for prosecution of drug use during pregnancy are one more weapon in pro-life advocates’ armory of  “fetal personhood” arguments.[23] If that is the case, more states with pro-life majorities are likely to begin adopting similar laws. However, these laws might not withstand constitutional challenge,[24] and as this post has argued, there are strong policy reasons to object to the recent shift toward criminalization of drug use during pregnancy.

[1] Ada Calhoun, The Criminalization of Bad Mothers, The N.Y. Times Mag. (Apr. 25, 2012), http://www.nytimes.com/2012/04/29/magazine/the-criminalization-of-bad-mothers.html?_r=0.

[2] Ala. Code §26-15-3.2.

[3] Ala. Code §26-15-3.2(a)(1).

[4] Ala. Code §26-15-3.2(a)(2).

[5] Ala. Code §26-15-3.2(a)(3).

[6] The Associated Press, New Ala. Law Being Used to Prosecute Drug-Using Moms, The Legal Intelligencer (Feb. 14, 2008), http://www.thelegalintelligencer.com/id=900005503410/New-Ala-law-being-used-to-prosecute-drugusing-moms.

[7] Hicks v. Alabama, 153 So.3d 53, 57 (Ala. 2014).

[8] Calhoun, supra note 1.

[9] Dave Boucher & Tony Gonzalez, Prosecutors Argue Controversial Law Helps Drug-Addicted Moms, The Tennessean (Apr. 14, 2015), http://www.tennessean.com/story/news/crime/2015/04/13/prosecutors-argue-controversial-law-helps-drug-addicted-moms/25705273/.

[10] Boucher & Gonzalez, supra note 9.

[11] Calhoun, supra note 1.

[12] Ferguson v. City of Charleston, 532 U.S. 67 (2001).

[13] Id. at 70-71.

[14] See Brigitte Nahas, Drug Tests, Arrests & Fetuses: A Comment on The U.S. Supreme Court’s Narrow Opinion in Ferguson v. City of Charleston, 8 Cardozo Women’s L.J. 105 (2001).

[15] Calhoun, supra note 1.

[16] Brief Amicus Curiae for Appellee at 3, Johnson v. Florida, 602 So.2d 1288 (Fla. 1992) (No. 77-831).

[17] Id.

[18] Id.

[19] Id.

[20] Calhoun, supra note 1.

[21] Id.

[22] Boucher & Gonzalez, supra note 9.

[23] Calhoun, supra note 1. In considering 2014 challenge to this use of the chemical endangerment statute, the Alabama Supreme Court placed great weight on the fact that the plain meaning of the word “child” includes fetuses. Hicks, 163 So.3d at 59-61.

[24] Kathleen Adams, Note: Chemical Endangerment of a Fetus: Societal Protection of the Defenseless or Unconstitutional Invasion of Women’s Rights?, 65 Ala. L. Rev. 1353, 1371 (2014). However, the Supreme Court of Alabama recently held that the state’s chemical endangerment statute did not violate the mother’s constitutional right to due process. Hicks, 163 So.3d at 65.

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