Jailing addicted new moms: A slippery slope?

Two troubling articles about pregnant women, addiction, and the law came out this week.

1) The first, in the most recent New York Times Magazine, describes how Alabama is increasingly handing out long jail sentences to drug-addicted new mothers. The charge? “Chemical endangerment of a child,” a Class A felony in Alabama that carries a mandatory 10-year sentence.

Emma Ketteringham, the director of legal advocacy at the National Advocates for Pregnant Women (NAPW), is particularly rankled by the use of the “chemical endangerment” statute to prosecute addicted women. The law was originally drawn up to protect children from the dangers of parental meth labs and the like; it was never intended to be used against pregnant women struggling with the disease of addiction. From the Times article:

[Ketteringham] argues that applying Alabama’s chemical-endangerment law to pregnant women “violates constitutional guarantees of liberty, privacy, equality, due process and freedom from cruel and unusual punishment.” In effect, she says, under Alabama’s chemical-endangerment law, pregnant women have become “a special class of people that should be treated differently from every other citizen.” And, she says, the law violates pregnant women’s constitutional rights to equal protection under the law.

It also makes it much less likely that an addicted woman will seek help during her pregnancy, thus putting her child in even greater danger–a point which seems to have been lost on the state’s legislators.

The push to prosecute drug-addicted pregnant women is actually part of the larger effort to pass “fetal personhood” laws (which have been introduced as initiatives and measures in 22 states to date), which declare that a fully constitutional-rights-endowed person is created the moment sperm meets egg.  A major problem with this view, according to Lynn Paltrow, executive director of NAPW, is that:

“… there is no way to treat fertilized eggs, embryos and fetuses as separate constitutional persons without subtracting pregnant women from the community of constitutional persons.”

In other words, from the moment of conception a woman’s rights would be superseded by those of her fertilized egg.

2) Okay, so getting jailed on a PWA (pregnant-while-addicted) charge may seem like a distant concern for most Americans–the vast majority of pregnant women in the U.S. are not drug-addicted, after all.

But hold on a moment. As the second article (from the Washington Post) points out, the number of pregnant women addicted to prescription painkillers has tripled in the last decade, including many women who are being treated for very legitimate pain issues–not the “typical” drug addict so often reviled in the media.

The Alabama law makes no distinction between “medical” addiction to painkillers (prescribed after a car accident, say), and “recreational” addiction to heroin or crack, and in a way, they’ve got a point. From a baby’s standpoint it doesn’t matter why mom’s addicted, so why not prosecute them all? There hasn’t been a legal stampede to throw the book at moms on Vicodin as yet, but it shouldn’t take a politically ambitious Alabama attorney too long to figure that one out.

Spending a decade in jail for the “crime” of having a baby while addicted to a doctor-prescribed treatment may seem like a stretch today, but today’s stretch is often tomorrow’s norm. As Rush Limbaugh-esque politicians steadily chip away at women’s reproductive rights, it doesn’t sound so far-fetched to me.


Filed under Maternal-child health, Newborns, Politics

6 responses to “Jailing addicted new moms: A slippery slope?

  1. So very scary. Thanks for the information.


  2. For you earlier readers–sorry that I goofed the link to the NY Times article. It’s fixed now.


  3. Alabama Citizen

    Actually, the law as written does not apply to drug use during pregnancy. It has been incorrectly interpreted that way by the prosecution and the lower appellate court. Every legislative session since 2008, the Alabama legislature has rejected bills to specifically amend the statute to cover these factual scenarios. Which begs the question–if the law already means what the prosecution said it means–why hasn’t the legislature passed these bills to eliminate the confusion?


    • Could you clarify that for me? If the Alabama legislature has rejected amendments to the bill which would allow the prosecution of pregnant women for “chemical endangerment of a child”, why are these women still being arrested? Thanks – Mark Sloan


  4. Same lines

    Along these same lines there is a very short step between also prosecuting post partum women who use narcotic pain relief and breastfeed.


  5. Jessica

    I am 37 weeks pregnant and WAS a heavy marijuana smoker. I have been fully aware that Alabama prosecutes mothers if their baby’s meconium (first poop) or umbilical cord shows any traces of illegal substances that ARE NOT prescribed. It’s unfortunate that they push the limitations of issues like these yet they fail to address equally important issues such as the lack of labor laws to protect it’s working citizens. Alabama is the land of the socially unconscious and the land where people choose not to stand up and question and protest and speak out on what’s right. The people here don’t stand up for social changes that could improve everyone’s quality of life. All that’s important here is WAR EAGLE and ROLL TIDE!


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