Commentary Law and Policy

Hope Ankrom and Amanda Kimbrough: Victims of Alabama’s Personhood Agenda

Imani Gandy

I have grown to hate the term "judicial activism" because it is frequently used by conservatives to criticize court decisions they simply don't like. 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, two women who were swept up in the Alabama judiciary’s zeal to promote an anti-choice personhood agenda by redefining the word “child” in Alabama’s chemical endangerment statute, so that it now applies to pregnant women who uses any amount of controlled substances, whether prescribed by a doctor or not.

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:

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(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:
(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260. A violation under this subdivision is a Class C felony.
(2) Violates subdivision (1) and a child suffers serious physical injury by exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia. A violation under this subdivision is a Class B felony.
(3) Violates subdivision (1) and the exposure, ingestion, inhalation, or contact results in the death of the child. A violation under this subdivision is a Class A felony.

Also, the statute specifically does not apply when the controlled substance is prescribed to a child:

(c) It is an affirmative defense to a violation of this section that the controlled substance was provided by lawful prescription for the child, and that it was administered to the child in accordance with the prescription instructions provided with the controlled substance.

(One wonders how a drug could be prescribed to a fetus in the first place.) 

And, the Legislature rejected multiple attempts to amend the statute to make it applicable to pregnant women. (Four bills were introduced in the Alabama Legislature—House Bill 723 in 2008; House Bill 601 in 2010; House Bill 8 and Senate Bill 34 in 2011, and Senate Bill 31 in 2012and none of them became law.) Additionally, the sponsor of the chemical-endangerment statute, Sen. Lowell Barron (D-Fyffe) stated, “I hate to see a young mother put in prison away from her child.” 

Amanda and Hope were prosecuted anyway, and when they raised the above-mentioned arguments in connection with their efforts to dismiss their indictments, they were unsuccessful. Rather than risk the full weight of the law bearing down on them, both women plead guilty and pursued their appeals in the Criminal Court of Appeals, and, ultimately, the Alabama Supreme Court. (Hope was sentenced to three years in prison (the sentence was suspended and she was placed on probation) and Amandawho has three childrenpled guilty and was sentenced to ten years in prison.)

In its January 11 ruling, the Alabama Supreme Court refused to overturn Hope and Amanda’s sentences. Instead, the Court affirmed the Criminal Court of Appeals’ decision to redefine the word “child” in the chemical-endangerment statute, and went further than the Court of Appeals did: The Court found that to the extent the Court of Appeals had limited the definition of “child” to a “viable fetus,” such a distinction was unwarranted because “outside the right to abortion created by Roe v. Wade, the viability distinction has no place in the laws of [Alabama],” and is “inconsistent with the plain meaning of the word ‘child’.” So now, any pregnant woman in Alabama who uses any amount of controlled substances, whether prescribed by a doctor or not, risks arrest, prosecution, and imprisonment.

The Court’s ruling reads reasonably enough. Neither women raised constitutional issues in their appeals, so the Alabama Supreme Court did not address such issues. (Courts of appeal only address issues actually raised on or preserved for appeal.) The Court rather dryly hung its hat on a rule of statutory construction which requires a court to interpret a statute as written. That, too, seems reasonable enough. (Rules of statutory construction are simply rules that courts follow when interpreting statutes. Generally, courts will look to the plain meaning of the statute before it will look to legislative intent or elsewhere.)

But here’s the problem: when construing criminal statutes, courts are required to read them narrowly so that actions the legislature did not specifically intend to criminalize are not criminalized. That’s a basic principle of respect for the rights of individuals, a principle championed by the late great Justice Marshall himself. 

The Court did not do that here. In fact, the Court recognized that it had a duty to strictly construe criminal statutes, but then refused to do so, instead claiming that it was not required to “abandon common sense.”

“[A]lthough penal statutes are to be strictly construed, courts are not required to abandon common sense. Absent any indication to the contrary, the words must be given their ordinary and normal meaning.

In giving the word “child” its ordinary and normal meaning, the Alabama Supreme Court found that “child” reasonably includes “an unborn child,” referencing dictionary definitions and colloquialisms. (The 2008 edition of Webster’s Collegiate Dictionary defines child as “an unborn person or recently born person,” Black’s Law Dictionary defines “child” as “[a] baby or fetus,” and, women sometimes say “I’m with child,” when they’re pregnant.)

Setting aside the fact that my 1986 American Heritage Dictionary defines child as “a person between birth and puberty,” and also setting aside the fact that the only person to use the phrase “I’m with child” in this century is Jennifer Tilly in the movie Seed of Chucky, any narrow readingindeed, any common-sense readingof the chemical-endangerment statute would mandate overturning the sentences of Amanda and Hope.

Remember, this law was enacted to deal with the growing problem of meth labs, and children suffering long-term developmental disabilities by inhaling the toxic fumes from chemicals used to produce meth. There is no common-sense reading of this statute, especially in light of the legislative history and intent of the statute that would warrant its application to a pregnant woman who smokes meth.

Most importantly, the Court’s (mis)reading of the statute has severe policy implications for women in Alabama. As outlined in the amicus brief filed by the National Advocates for Pregnant Women on behalf of twenty-three organizations with expertise in fetal, neonatal, and maternal health, as well as drug addiction and psychiatry, the Court’s rewriting of this law is bad for women in a number of ways:

  1. It undermines maternal, fetal, and child heath by deterring drug-dependent pregnant women from seeking health care out of fear of arrest.
  2. It discourages pregnant women with drug problems some carrying pregnancies to term, thus resulting in pregnant women who might otherwise choose to maintain their pregnancies choosing to get abortions in order to avoid prosecution and potentially imprisonment. (In one case, State v. Greywind, that’s exactly what happened  a woman facing prosecution for taking drugs and allegedly harming her fetus aborted the pregnancy, was released from jail, and avoided prosecution.)
  3. It will deter pregnant women from sharing vital information with health-care professionals who serve pregnant women best when an open relationship of trust and confidence exists between provider and patient, especially when the patient is struggling with drug dependency and may need specialized medical care.
  4. It will endanger maternal and fetal health by incarcerating pregnant women who will be relegated to the inadequate prenatal health care services delivered to women in prison, and will suffer, among other things, risk of infectious disease, poor nutrition, and sexual abuse. (Indeed, Alabama received an “F” rating for delivery of prenatal care.)
  5. It will make pregnant women who lawfully take prescribed controlled substances subject to criminal investigation and arrest, since the chemical-endangerment statute does not apply if a controlled substance is prescribed to a child, but does apply if a controlled substance is prescribed to a woman. (Never mind that it’s impossible to prescribe medicine to a fetus.)

The Alabama Supreme Court ignored these policy concerns, ignored the rules of statutory construction that would have mandated that the Criminal Court of Appeals’s decision be reversed, and perverted the law to promote an anti-choice and fundamentally anti-woman agenda — even signing off the decision with a quote from the Declaration of Rights in the Alabama Constitution:

The decision of this Court today is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law. Today, 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 [v. Wade]. Furthermore, the decision in the present cases is consistent with the Declaration of Rights in the Alabama Constitution which states that ‘all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.’

“All men.”

Indeed.

Unfortunately, cases like Amanda and Hope’s are not outliers. A new study conducted by Lynn Paltrow of National Advocates for Pregnant Women and Professor Jeanne Flavin found more than 413 cases in which pregnant women were arrested, detained, or otherwise deprived of personal liberty, as a result of the “passage of feticide measures and laws restricting access to safe abortion care that, like so-called ‘personhood’ measures, encourage state actors to treat eggs, embryos, and fetuses as if they are legally separate from the pregnant woman.” These laws have increasingly resulted in the incarceration of pregnant women, or of women who have just experienced reproductive loss, and are based upon a grave misunderstanding of the science of addiction and/or depression. (The case of Bei Bei Shuai is a tragic example.)

The Alabama Supreme Court’s recent decision is simply the latest in the alarming trend explored in Paltrow and Flavin’s new study  a trend that champions the rights of fetuses by trampling on the rights of women  both women who choose to terminate their pregnancies, and those who choose to carry their pregnancies to term.

***This post has been edited since it was originally published to reflect that the Alabama Supreme Court rejected the Criminal Court of Appeals’ distinction between viable and previable fetuses, and redefined “child” to include the “unborn” whether viable or not. Additionally, as of April of last year, Kimbrough was free on appeal bond pursuant to the terms of her plea bargain. 

News Law and Policy

Texas Lawmaker’s ‘Coerced Abortion’ Campaign ‘Wildly Divorced From Reality’

Teddy Wilson

Anti-choice groups and lawmakers in Texas are charging that coerced abortion has reached epidemic levels, citing bogus research published by researchers who oppose legal abortion care.

A Texas GOP lawmaker has teamed up with an anti-choice organization to raise awareness about the supposed prevalence of forced or coerced abortion, which critics say is “wildly divorced from reality.”

Rep. Molly White (R-Belton) during a press conference at the state capitol on July 13 announced an effort to raise awareness among public officials and law enforcement that forced abortion is illegal in Texas.

White said in a statement that she is proud to work alongside The Justice Foundation (TJF), an anti-choice group, in its efforts to tell law enforcement officers about their role in intervening when a pregnant person is being forced to terminate a pregnancy. 

“Because the law against forced abortions in Texas is not well known, The Justice Foundation is offering free training to police departments and child protective service offices throughout the State on the subject of forced abortion,” White said.

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White was joined at the press conference by Allan Parker, the president of The Justice Foundation, a “Christian faith-based organization” that represents clients in lawsuits related to conservative political causes.

Parker told Rewire that by partnering with White and anti-choice crisis pregnancy centers (CPCs), TJF hopes to reach a wider audience.

“We will partner with anyone interested in stopping forced abortions,” Parker said. “That’s why we’re expanding it to police, social workers, and in the fall we’re going to do school counselors.”

White only has a few months remaining in office, after being defeated in a closely contested Republican primary election in March. She leaves office after serving one term in the state GOP-dominated legislature, but her short time there was marked by controversy.

During the Texas Muslim Capitol Day, she directed her staff to “ask representatives from the Muslim community to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws.”

Heather Busby, executive director of NARAL Pro-Choice Texas, said in an email to Rewire that White’s education initiative overstates the prevalence of coerced abortion. “Molly White’s so-called ‘forced abortion’ campaign is yet another example that shows she is wildly divorced from reality,” Busby said.

There is limited data on the how often people are forced or coerced to end a pregnancy, but Parker alleges that the majority of those who have abortions may be forced or coerced.

‘Extremely common but hidden’

“I would say that they are extremely common but hidden,” Parker said. “I would would say coerced or forced abortion range from 25 percent to 60 percent. But, it’s a little hard be to accurate at this point with our data.”

Parker said that if “a very conservative 10 percent” of the about 60,000 abortions that occur per year in Texas were due to coercion, that would mean there are about 6,000 women per year in the state that are forced to have an abortion. Parker believes that percentage is much higher.

“I believe the number is closer to 50 percent, in my opinion,” Parker said. 

There were 54,902 abortions in Texas in 2014, according to recently released statistics from the Texas Department of State Health Services (DSHS). The state does not collect data on the reasons people seek abortion care. 

White and Parker referenced an oft cited study on coerced abortion pushed by the anti-choice movement.

“According to one published study, sixty-four percent of American women who had abortions felt forced or unduly pressured by someone else to have an unwanted abortion,” White said in a statement.

This statistic is found in a 2004 study about abortion and traumatic stress that was co-authored by David Reardon, Vincent Rue, and Priscilla Coleman, all of whom are among the handful of doctors and scientists whose research is often promoted by anti-choice activists.

The study was cited in a report by the Elliot Institute for Social Sciences Research, an anti-choice organization founded by Reardon. 

Other research suggests far fewer pregnant people are coerced into having an abortion.

Less than 2 percent of women surveyed in 1987 and 2004 reported that a partner or parent wanting them to abort was the most important reason they sought the abortion, according to a report by the Guttmacher Institute.

That same report found that 24 percent of women surveyed in 1987 and 14 percent surveyed in 2004 listed “husband or partner wants me to have an abortion” as one of the reasons that “contributed to their decision to have an abortion.” Eight percent in 1987 and 6 percent in 2004 listed “parents want me to have an abortion” as a contributing factor.

‘Flawed research’ and ‘misinformation’  

Busby said that White used “flawed research” to lobby for legislation aimed at preventing coerced abortions in Texas.

“Since she filed her bogus coerced abortion bill—which did not pass—last year, she has repeatedly cited flawed research and now is partnering with the Justice Foundation, an organization known to disseminate misinformation and shameful materials to crisis pregnancy centers,” Busby said.  

White sponsored or co-sponsored dozens of bills during the 2015 legislative session, including several anti-choice bills. The bills she sponsored included proposals to increase requirements for abortion clinics, restrict minors’ access to abortion care, and ban health insurance coverage of abortion services.

White also sponsored HB 1648, which would have required a law enforcement officer to notify the Department of Family and Protective Services if they received information indicating that a person has coerced, forced, or attempted to coerce a pregnant minor to have or seek abortion care.

The bill was met by skepticism by both Republican lawmakers and anti-choice activists.

State affairs committee chairman Rep. Byron Cook (R-Corsicana) told White during a committee hearing the bill needed to be revised, reported the Texas Tribune.

“This committee has passed out a number of landmark pieces of legislation in this area, and the one thing I think we’ve learned is they have to be extremely well-crafted,” Cook said. “My suggestion is that you get some real legal folks to help engage on this, so if you can keep this moving forward you can potentially have the success others have had.”

‘Very small piece of the puzzle of a much larger problem’

White testified before the state affairs committee that there is a connection between women who are victims of domestic or sexual violence and women who are coerced to have an abortion. “Pregnant women are most frequently victims of domestic violence,” White said. “Their partners often threaten violence and abuse if the woman continues her pregnancy.”

There is research that suggests a connection between coerced abortion and domestic and sexual violence.

Dr. Elizabeth Miller, associate professor of pediatrics at the University of Pittsburgh, told the American Independent that coerced abortion cannot be removed from the discussion of reproductive coercion.

“Coerced abortion is a very small piece of the puzzle of a much larger problem, which is violence against women and the impact it has on her health,” Miller said. “To focus on the minutia of coerced abortion really takes away from the really broad problem of domestic violence.”

A 2010 study co-authored by Miller surveyed about 1,300 men and found that 33 percent reported having been involved in a pregnancy that ended in abortion; 8 percent reported having at one point sought to prevent a female partner from seeking abortion care; and 4 percent reported having “sought to compel” a female partner to seek an abortion.

Another study co-authored by Miller in 2010 found that among the 1,300 young women surveyed at reproductive health clinics in Northern California, about one in five said they had experienced pregnancy coercion; 15 percent of the survey respondents said they had experienced birth control sabotage.

‘Tactic to intimidate and coerce women into not choosing to have an abortion’

TJF’s so-called Center Against Forced Abortions claims to provide legal resources to pregnant people who are being forced or coerced into terminating a pregnancy. The website includes several documents available as “resources.”

One of the documents, a letter addressed to “father of your child in the womb,” states that that “you may not force, coerce, or unduly pressure the mother of your child in the womb to have an abortion,” and that you could face “criminal charge of fetal homicide.”

The letter states that any attempt to “force, unduly pressure, or coerce” a women to have an abortion could be subject to civil and criminal charges, including prosecution under the Federal Unborn Victims of Violence Act.

The document cites the 2007 case Lawrence v. State as an example of how one could be prosecuted under Texas law.

“What anti-choice activists are doing here is really egregious,” said Jessica Mason Pieklo, Rewire’s vice president of Law and the Courts. “They are using a case where a man intentionally shot his pregnant girlfriend and was charged with murder for both her death and the death of the fetus as an example of reproductive coercion. That’s not reproductive coercion. That is extreme domestic violence.”

“To use a horrific case of domestic violence that resulted in a woman’s murder as cover for yet another anti-abortion restriction is the very definition of callousness,” Mason Pieklo added.

Among the other resources that TJF provides is a document produced by Life Dynamics, a prominent anti-choice organization based in Denton, Texas.

Parker said a patient might go to a “pregnancy resource center,” fill out the document, and staff will “send that to all the abortionists in the area that they can find out about. Often that will stop an abortion. That’s about 98 percent successful, I would say.”

Reproductive rights advocates contend that the document is intended to mislead pregnant people into believing they have signed away their legal rights to abortion care.

Abortion providers around the country who are familiar with the document said it has been used for years to deceive and intimidate patients and providers by threatening them with legal action should they go through with obtaining or providing an abortion.

Vicki Saporta, president and CEO of the National Abortion Federation, previously told Rewire that abortion providers from across the country have reported receiving the forms.

“It’s just another tactic to intimidate and coerce women into not choosing to have an abortion—tricking women into thinking they have signed this and discouraging them from going through with their initial decision and inclination,” Saporta said.

Busby said that the types of tactics used by TFJ and other anti-choice organizations are a form of coercion.

“Everyone deserves to make decisions about abortion free of coercion, including not being coerced by crisis pregnancy centers,” Busby said. “Anyone’s decision to have an abortion should be free of shame and stigma, which crisis pregnancy centers and groups like the Justice Foundation perpetuate.”

“Law enforcement would be well advised to seek their own legal advice, rather than rely on this so-called ‘training,” Busby said.

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

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Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.