Anti-choice activists are not simply trying to pass abortion restrictions through state legislatures, they are trying to expand existing criminal statutes to create multiple pathways for recognition of fetal rights. The latest example of this strategy comes courtesy of the Alabama Supreme Court and an opinion that held a fetus should be considered a child and therefore is protected under the state’s chemical endangerment law.
The ruling came as the court upheld the convictions of two women whose used illegal drugs while they were pregnant. The two women had been charged with chemically endangering their children in violation of an Alabama law that makes it a crime to expose a child to a controlled substance, a chemical substance such as precursors for manufacturing drugs or drug paraphernalia.
The cases are themselves tragic, even without the additional failure of the criminal justice system here. Hope Ankrom and her newborn son both tested positive for cocaine when the child was born on January 31, 2000. Medical records documented Ankrom’s substance abuse during her pregnancy but she was unable to break her addiction. She pleaded guilty and was sentenced to three years’ imprisonment, which was suspended, and she was placed on probation for one year, according to the statement.
In the case of Amanda Helaine Borden Kimbrough, her son, T.K., was born premature and died 19 minutes later. An autopsy determined his death was caused by “acute methamphetamine intoxication.” Prosecutors charged Kimbrough under the state’s chemical endangerment statute. She pleaded guilty and was sentenced to 10 years in prison.
Both women challenged their charges, arguing the chemical endangerment statute did not apply to them because the statute protects “children” not a fetus. However, the court disagreed, observing that “the only major area in which unborn children are denied legal protection is abortion, and that denial is only because of the dictates of Roe.”
Executive Director of the National Advocates for Pregnant Women, Lynn Paltrow responded to the ruling. “This decision is judicial activism at its most dangerous. By reinterpreting the word ‘child’ to include eggs, embryos, and fetuses, the court has judicially enacted a “personhood measure” in disguise—making it a crime for some pregnant women to go to term and to give birth” Paltrow said.
“What this ruling means is that every pregnant woman in Alabama will be a criminal suspect and those who ingest any controlled substance—even if it is prescribed and whether or not it will have any effect on her future child—may be arrested and incarcerated.”
Paltrow’s correct. And it’s not just Alabama, either. This woman was arrested for DUI and child endangerment despite the fact that she was under the legal blood alcohol limit and didn’t have a child in the car with her when she was pulled over. But she is pregnant, which for the state of Tennessee, was good enough.
Cases like these are chilling reminders of what is at stake in the battle over reproductive rights and show that in the 40 years since Roe v. Wade the battle over women’s legal ability to own their bodies remains far from settled.