Are you a mother? Do you know someone who is? You probably do, and that’s why you should be very concerned about Alabama’s chemical endangerment clause, which aims to protect fetuses from mothers who abuse drugs. Alabama’s law — and others like it — signify a wave of legislation aimed at granting fetuses more rights and women less, effectively treating mothers as second class citizens.
The New York Times covered Alabama’s backwards law this weekend, and featured several women affected by the legislation. Women like Amanda Kimbrough of Alabama, whose son Tommy Jr. was born prematurely and died at just 25 weeks old. Kimbrough admitted that she had smoked methamphetemine — just once — during her pregnancy, and though it couldn’t necessarily be determined to be the cause of Tommy Jr.’s death, she was sentenced to 10 years in prison and Kimbrough’s two other children were put in protective care. Heather Capps was arrested after her infant son tested positive for Oxycodone. Capps was prescribed the painkiller to treat scoliosis pain, and knew that if her son tested positive for the drug at birth she could possibly be arrested, but continued to take the drug anyway to help manage her pain. After doctors found traces of Oxy in her son’s blood, she was arrested at the hospital and languished in jail for three months because her family couldn’t post her $500,000 jail. She was then required to attend rehab and sent to a halfway house where she still lives. She sees her infant son and her two oldest children once a week.
Under the state’s chemical endangerment statute, women can be prosecuted if their infants test positive for any drugs — including marijuana. Since 2006, around 60 women have been prosecuted under the statute, which was originally created to protect kids from meth labs, not to apply to “the rights of the unborn.” Proponents of the law say they are doing everything they can to protect “the most innocent among us.” But critics say the chemical endangerment statute is more or less simply a “fetal personhood” law in disguise, aimed at granting a fertilized egg the same rights as a fully formed, independent human. And it comes at a high cost for women, explains Emma Ketteringham, the director of legal advocacy at the National Advocates for Pregnant Women. Because to increase the rights of fetuses turns women into “a special class of people that should be treated differently from every other citizen.”
So, let’s think about what this is doing in terms of altering the rights of women. According to the rules of Alabama, a woman loses her status as “woman” when she becomes pregnant. It’s then that she becomes a “mother” — a special class of people, as Ketteringham notes, for whom special rules apply. And that’s because in Alabama’s world view, and in the increasing world view we’re seeing in dozens of states around the country, the life of the unborn fetus actually takes precedence over the life of the mother, reducing women to nothing more than vessels through which “innocent life” can be shepherded.
It’s like something out of A Handmaid’s Tale, the Margaret Atwood classic, a dystopian nightmare in which women are divided into wives, procreators and the like. In the book, women’s lives are heavily regulated and controlled, and once pregnant, women are not allowed to leave the house. “The idea that the state needs to threaten and punish women so that they do the right thing during pregnancy is appalling,” notes Ketteringham. It assumes that women are somehow incapable of managing their bodies and their lives themselves. And it essentially serves to undermine womens’ autonomy. Ketteringham continues:
“Everyone talks about the personhood of the fetus, but what’s really at stake is the personhood of women. It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she’s pregnant becomes subject to state regulation.”
“It starts with cocaine, and then it’s cigarettes and alcohol. How much alcohol? And when? It’s only a matter of time until it comes to refusing a bed-rest order because you need to work and take care of your other children and then you have a miscarriage. What if you stay at a job where you’re exposed to toxic chemicals, as at a dry cleaner? What if you keep taking your S.S.R.I.’s during pregnancy? If a woman is told that sex during her pregnancy could be a risk to the fetus, and the woman has sex anyway and miscarries, are you going to prosecute the woman — and the man too?”
Of course, this isn’t to say I’m advocating pregnant drug users disregard their pregnancies and use with abandon. No one wants children born addicted to drugs and alcohol. But by prosecuting women for using while pregnant, you effectively take away the personhood of women and place it on that of the fetus. And while Ketteringham paints a scary picture of where legislation like this could lead, it doesn’t seem particularly all that far off. As Lynn Paltrow executive director of the National Advocates for Pregnant Women explains, you can’t give fetuses more rights without taking away the rights of the women carrying them. “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,” she explains.
In Alabama, women need to think twice — not just about whether they want to have kids, but whether they’re willing to possibly go to jail for anything they do while pregnant, because the well-being of the “unborn” supersedes that of its mother. And meanwhile, the pro-life movement, strengthened by the fetal personhood fight, continues to soldier on, bolstered by the idea that if it can push fetal personhood it can set a precedent for outlawing abortion as murder everywhere. Or as Troy Newman, of Operation Rescue points out, “We win every time we establish the precedent that the unborn child in the womb is a unique human individual.”
And meanwhile the children — remember the children? — of the women who are incarcerated for chemical endangerment of a fetus are left to go on without a mother. All in the name of protecting the kids.
Contact the author of this post at Julie@TheFrisky.com. Follow me on Twitter at @havethehabit.