News Abortion

Kermit Gosnell Gets 30 More Years on Drug Charges

Tara Murtha

Gosnell, the rogue abortion doctor who earlier this year was convicted of first-degree murder for killing babies born alive in his West Philadelphia clinic as well as involuntary manslaughter for the death of a patient, was sentenced Monday to 30 years for running a pill mill out of the same building.

Kermit Gosnell, the rogue abortion doctor who earlier this year was convicted of first-degree murder for killing babies born alive in his West Philadelphia clinic as well as involuntary manslaughter for the death of a patient, was sentenced Monday to 30 years for running a pill mill out of the same building.

Gosnell was accused of running a pill mill from June 2008 through February 18, 2010. He pleaded guilty to 12 drug-related charges in July.

From a statement issued by the U.S. Attorney’s office:

Gosnell pleaded guilty to conspiracy to distribute controlled substances, including oxycodone, alprazolam, and codeine; distribution and aiding and abetting the distribution of oxycodone; and maintaining a place for the illegal distribution of controlled substances.

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Gosnell wrote fraudulent prescriptions for thousands of prescription pills and the frequently-abused syrups Phenergan and Promethazine with Codeine, to drug “seekers,” who met with Gosnell briefly for a cursory exam or no exam.

Authorities who first raided the clinic in 2010 were looking for evidence that Gosnell was illegally selling prescription drugs—not violations of Pennsylvania’s Abortion Control Act. When they entered the building, however, they discovered that “[s]emi-conscious women scheduled for abortions were moaning in the waiting room or the recovery room, where they sat on dirty recliners covered with blood-stained blankets,” according to the grand jury report.

According to the Philadelphia Inquirer, Gosnell spent the hearing “insisting he was ‘well intentioned’ and cared about the addicts who patronized his West Philadelphia ‘pain management clinic.'”

Gosnell, 72, is already serving three consecutive life sentences without parole.

Analysis Violence

Drug War’s Impact on Black Women Comes to the Fore in Daniel Holtzclaw Trial

Kanya D’Almeida

Of the many horrific details that have come to light in the ongoing trial of Daniel Holtzclaw, the former Oklahoma City police officer accused of sexually assaulting multiple Black women, perhaps the most common is the allegation that the 28-year-old football star-turned-cop specifically targeted women with histories of substance dependency.

Read more of our articles on the Daniel Holtzclaw trial here.

Of the many horrific details that have come to light in the ongoing trial of Daniel Holtzclaw, the former Oklahoma City police officer accused of sexually assaulting multiple Black women, perhaps the most common is the allegation that the 28-year-old football star-turned-cop specifically targeted women with histories of substance dependency.

Holtzclaw reportedly preyed upon 12 Black women and one Black teenager in the low-income neighborhoods on the east side of Oklahoma City that served as his patrol area between December 2013 and June 2014, stopping those he suspected of being in possession of drugs and allegedly using this excuse to perform abusive body searches and to threaten or coerce women into sexual acts.

By Tuesday evening, which marked day 16 of the trial and saw the 13 accusers taking the stand against Holtzclaw in the Oklahoma County courthouse, a pattern of alleged abuse had emerged that not only highlighted Black women’s vulnerability to police brutality, but also called into question the ways in which the “war on drugs” has disproportionately impacted Black women.

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Since the trial began on November 2, local journalists have reported that the defense attorney led his cross-examinations by questioning witnesses about being under the influence of, or in possession of, either drugs or alcohol at the time of the assaults.

An investigation by the Associated Press revealed that one woman who claims to have been orally sodomized by Holtzclaw was handcuffed to a hospital bed throughout the incident; she’d been admitted to the medical facility while high on angel dust, or PCP.

Other accusers say the ex-officer fondled, groped, and even penetrated them under the guise of searching them for drugs. Some say he promised to make pending charges go away if they “cooperated with him,” or threatened them with jail time if they didn’t.

The sixth accuser who testified against Holtzclaw on November 18 was the second witness to take the stand while in the custody of Oklahoma County jail on drug-related charges. Shackled at the wrists and ankles, she wore an orange jumpsuit to the courtroom and told the all-white jury she was under the influence of crack cocaine when Holtzclaw allegedly stopped her on the street, drove her home, and raped her in her own bedroom.

Defense Attorney Scott Adams has seized upon some witnesses’ histories of substance dependency to cast doubt on the validity of their testimony, according to reporters with the Oklahoman and TV news channel KOCO 5.

In one incident that generated some buzz on social media, Adams aggressively questioned a witness on the stand until she said, “Before I came here I smoked some marijuana and a blunt stick laced with PCP.” Other accusers interviewed by the AP say that, haunted by the attack, they have since slipped even deeper into the use of substances like cocaine.

These repeated references to drug use by the alleged victims made their way into a BBC article on the case—one of the few pieces of coverage of a trial that has otherwise been completely ignored by the mainstream media—headlined, “Daniel Holtzclaw trial: Standing with ‘imperfect’ accusers.”

“I think this is absolutely disgusting,” Camille Landry, co-convener of an Oklahoma City group called Occupy the Corners, said in response to the BBC article, “to suggest that a victim has to have certain attributes or behaviors in order to not be blamed for an assault against her.”

“Exactly what would a perfect victim be?” she asked. “How does one become perfect in anticipation of being victimized so that one is not blamed for her victimization?”

“It doesn’t matter what they were doing or what their past might have beenthese women were sexually assaulted by a man who was charged with serving and protecting them and who instead became a predator against them,” Landry told Rewire.

A close look at the state’s policing of drug-related offenses offers some insight into the context surrounding the threats Holtzclaw is accused of making, and the systems in place that his alleged victims may have been up against at the time of their encounter with the officer.

A 2014 study conducted by the University of Oklahoma’s Department of Sociology found that the state has the highest female incarceration rate in the country, locking up 130 women per 100,000 residents, compared to the national average of 67 per 100,000 residents. About 1,000 women are admitted into Oklahoma’s prison system every year—half of them on drug-related charges.

“The number-one offense is possession,” Susan Sharp, a contributor to the study and author of the book Mean Lives, Mean Laws: Oklahoma’s Women Prisoners, told Rewire in a phone interview.

“Women are low-hanging fruit, they are easy to detect and prosecute, and they seldom have enough information to plea bargain with. The war on drugs is what has driven the high rate of female incarceration in this state.”

She said harsh drug sentencing laws are largely to blame for the fact that 2,400 women are currently locked up in jails and prisons across Oklahoma.

“In Oklahoma you can be charged with drug trafficking for possession of five grams of crack or 20 grams of methamphetamine, both of which are fairly low quantities,” explained Sharp, who is also a professor in the sociology department at the University of Oklahoma. She said policies like the 85 percent rule—originally intended to ensure that violent criminals served 85 percent of their sentence before becoming eligible for parole, but which has now been extended to some drug-related offenses—ensure lengthy sentences for minor crimes.

While all low-income women are caught up this dragnet, she said, Black women tend to be disproportionately impacted, a reality that is not limited to Oklahoma.

Across the United States, the “war on drugs” has torn apart communities of color at a far higher rate than white communities, despite the fact that the government has repeatedly documented similar rates of drug use across racial groups.

A recent fact sheet by the Drug Policy Alliance revealed that 80 percent of the roughly 1.5 million drug-related arrests that happened in 2013 were on simple charges of possession. Black people comprise 30 percent of those arrested for drug law violations and 40 percent of those imprisoned on drug-related charges, even though they account for just 13 percent of the population.

Statistics are even grimmer for women. Between 1980 and 2002 the number of incarcerated women in the United States jumped from 12,300 to 182,271. During that time, incarceration rates for drug offenders ballooned by 888 percent, with women of color disproportionately impacted by the increase; the American Civil Liberties Union (ACLU) estimates that Black women are three times more likely to be locked up on drug charges than white women.

“In the last 20 years, Black women have comprised the largest group of people presenting in prisons, and much of that is driven by the war on drugs,” asha bandele, an author and senior director at the Drug Policy Alliance, told Rewire.

A 2005 ACLU report titled Caught in the Net, the most recent comprehensive study on the impacts of the drug war on women, revealed that these racially lopsided numbers are not a coincidence. Rather they are the result of “racially targeted law enforcement practices, prosecutorial decisions, and sentencing policies,” which are exacerbated by “selective testing of pregnant women of color for drug use as well as heightened surveillance of poor mothers of color in the context of policing child abuse and neglect.”

Organizations like the African American Policy Forum (AAPF) have documented the ways in which Black women have borne the brunt of drug war policies like mandatory minimum sentencing laws “despite their peripheral involvement in the drug trade.”

A 2015 AAPF report highlighted how interactions with law enforcement personnel who regard Black women’s bodies as “vessels for drugs ingested, swallowed or concealed, or their homes as drug factories” have led to the deaths of Black girls as young as 7 and Black women as old as 92.

Hyper-policing of Black women under the guise of fighting the “war on drugs” also informs how women interact with the criminal justice system, legal experts say.

Citing a recent report on policing and domestic and sexual violence, Sandra Park, a senior attorney at the ACLU, told Rewire, “Survivors with criminal records or substance abuse issues, even if they have experienced sexual assault or domestic violence, tend not to reach out to the police because they know they are vulnerable to arrest.”

She added, “That issue is compounded when you are talking about a police officer like Daniel Holtzclaw, someone who can use stringent drug laws to help perpetuate or commit sexual assault.”

As witnesses in the Holtzclaw trial have testified, this same cycle of fear held true when it came to reporting the police officer’s alleged abuse. Under aggressive questioning by Holtzclaw’s attorney, several women on the stand confessed that they didn’t lodge official complaints because they were afraid to reveal their own drug problems, didn’t think the authorities would believe the word of a Black woman, or simply saw no purpose in reporting a crime to the very same institution that the alleged perpetrator was part of.

“What kind of police do you call on the police?” the 13th and final accuser said on the stand on Tuesday.

Damario Solomon-Simmons, a civil rights lawyer based in Tulsa who traveled to Oklahoma City together with National Bar Association President Benjamin Crump to witness the trial proceedings, said in an interview with NewsOne, “As Black men and lawyers, it was important that we attended the trial to both personally show solidarity.”

Asked about what he witnessed in the courtroom, Solomon-Simmons said, “Frankly, it was a surreal and disappointing scene that was more like 1915 than 2015 … while defendant Holtzclaw was allowed to attend the trial in a suit and free from handcuffs or restraints, some of the alleged victims were actually forced to testify while shackled and ‘dressed out’ in jail orange jumpsuits.”

He also noted his “disappointment” that the women did not appear to have adequate legal representation or the support they needed to navigate the complex proceedings.

In addition to a decades-long crackdown on narcotics, Oklahoma recently tightened regulations regarding the abuse of prescription drugs. The state ranks ninth nationally for overdose deaths involving opioid pain relievers, or OPR, according to the Oklahoma Department of Mental Health and Substance Abuse Services, while local news reports suggest that the number of overdose deaths as a result of powerful prescription drugs has doubled in the past 12 years.

Last year the senate passed HB 2589, a bill that added morphine, oxycodone, hydrocodone, and benzodiazepine to a list of controlled substances in Oklahoma’s Trafficking in Illegal Drugs Act. Ostensibly aimed at curbing overdose deaths, the legislation imposes a ten-year minimum sentence on individuals found to be in possession of legally stipulated quantities of the four additional substances. However, criminal justice experts fear the law will do nothing except add to the state’s prison population by policing and prosecuting users, rather than, for instance, the drug manufacturers.

The bill could have especially serious ramifications for communities of color, who are disproportionately cut off from health services and are unable to seek treatments or care for dependence on controlled substances. The Oklahoma Policy Institute estimates that over 20 percent of the state’s African-American population is uninsured, suggesting that once again Black people are more likely to feel the most impact of a crackdown on “drugs.”

By putting a health issue into the hands of law enforcement personnel, the state has effectively widened the scope for police officers to conduct searches in the name of public safety. In fact, a common thread running through the testimony against Holtzclaw is the allegation that he instructed women to remove their shirts, “lift up their breasts,” and even pull down their pants so he could search them for drugs, in one case reportedly shining a flashlight between a 57-year-old woman’s legs to satisfy his suspicions.

So far the prosecution has called more than 40 witnesses, while the defense is expected to produce up to 75. With the trial expected to carry on well into the month of December, activists who have mobilized to pack the courtroom, demonstrate outside the courthouse, and otherwise show their support for the accusers say they are ready for the long haul.

“It is traumatic, seeing what has happened to these women in our own backyard and knowing it could have been us,” Landry said. “I am 65 years old and I have been accosted by the police just driving down the street. Other Black women have had similar experiences. Grandmothers, women with gray hair, have shared stories of being thrown up against the hood of their car and patted down with their grandchildren in the backseat, on their way home from church or school or the grocery store.”

“Even people who have had a hard time getting involved in this kind of activism have come out and said, ‘This is the straw that broke the camel’s back. This is where I draw the line. This is where I stand up and say, stop,'” she said.

As of Tuesday evening, all of the alleged victims had taken the stand, including one girl who was just 17 years old at the time of the assault and whose DNA was found on the inside and outside of the former policeman’s trousers, a lead detective testified this week. Holtzclaw has pleaded not guilty to all 36 charges against him, which include battery, stalking, and forcible oral sodomy.

Analysis Law and Policy

Pregnant Texans Are Being Charged With Crimes That Don’t Exist

Andrea Grimes

Texas' penal code explicitly exempts pregnant individuals from being punished for harming their own fetuses. But that hasn't stopped prosecutors from charging them with child endangerment for using drugs while pregnant.

The West Texas media loves to show her mugshot—the overhead fluorescent lighting, the height hatch marks on the cinderblock wall behind her disheveled hair, all filtered through the grainy colors and low-resolution pixels of the jailhouse camera. Together, these elements scream the words that news anchors and police beat reporters don’t even need to use: bad mommy.

She is Christene Beam. Or Jennifer Silva. Or Juanita Elkins. Or Talisha Redic. Or Tiffany Rios. And she has been charged with endangering her “unborn child” for taking drugs while pregnant.

Their faces make the newspaper or the 9 p.m. cable broadcast, set alongside a damning headline. Something with a nice jumble of fear-inducing keywords: “pregnant,” “mother,” “meth,” “cocaine,” “unborn,” or “baby.”

Then, after their trial-by-media, they mostly disappear. Perhaps viewers and readers imagine them in jail, serving hard time for their moral failures as women and mothers living with substance addiction.

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The thing is, what they’ve done isn’t actually illegal in Texas.

Yet.

Protected Under the Law?

According to the National Conference of State Legislatures, 38 states have “fetal homicide” laws on the books that increase penalties for crimes committed against pregnant people and the embryo or fetus inside them. Texas’ law, signed by Gov. Rick Perry in 2003, is one of the broadest in the country. It defines an individual as “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth,” meaning that, for example, a drunk driver who kills a pregnant person can be charged with a crime against two separate people.

But the Texas law also makes an important exception: A pregnant person cannot be charged with injury to their own fetus, and neither can a doctor performing legal abortion care with “requisite consent.” This exception, nestled into the 2003 modification of the Texas Penal Code, ensures that a crime “does not apply to conduct charged as having been committed against an individual who is an unborn child” if said conduct is “committed by the mother of the unborn child.”

This provision should shield pregnant people from accusations of child endangerment toward their own embryos or fetuses. In fact, Texas Attorney General Greg Abbott effectively confirmed in a 2005 ruling that the law does provide this shield; the Texas Court of Criminal Appeals also issued an opinion on the matter in 2006, overturning the conviction of two Texas women who had been sentenced to jail for taking drugs during their pregnancies.

But that hasn’t stopped prosecutors in the vast, largely rural swath of the state west of Interstate Highway 35 from charging women with reckless child endangerment for ingesting controlled substances while pregnant. And inevitably, these allegations are accompanied by the over-saturated mugshots and scandalized copy that have become the hallmark of local media reports.

Attorney Farah Diaz-Tello, an Austin native who works for the New York-based watchdog organization National Advocates for Pregnant Women (NAPW), keeps an eye on the news for these stories and then intervenes whenever she can.

“The media loves ‘Bad meth mom arrested!’” Diaz-Tello told Rewire. “That’s how we find out.”

Diaz-Tello, who works pro bono, then reaches out to the lawyers who handle these cases, nearly always court-appointed, overburdened public defenders who might not realize that their clients have been wrongfully charged with a non-crime.

“The law is pretty clear,” she said. “Theoretically, the fact that the law doesn’t permit that charge means it shouldn’t be brought.”

Police and prosecutors, though, nevertheless pursue these cases. The child endangerment statute casts a wide net: The accused may have “intentionally, knowingly, recklessly or with criminal negligence, by act or omission” done something to place “a child younger than 15 in imminent danger of death, bodily injury, or physical or mental impairment.” As a state jail felony, it carries a maximum fine of $10,000 and between 180 days and two years of imprisonment.

In some instances, babies test positive for drugs soon after they’re born, and doctors and hospitals, in an attempt to comply with another Texas law about reporting babies “born addicted,” pass on their findings to Child Protective Services or local law enforcement officials. In others, ex-husbands and ex-boyfriends file reports with police, CPS, or even directly with prosecutors—sometimes from hundreds of miles away—alleging that their partners have endangered their children while pregnant.

The upshot? District attorneys and cops get to look tough on drug crime. Anti-choice lobbyists and lawmakers get to brag about their compassion for the unborn. And the public gets to sneer and jeer at “bad mommy” mugshots. What rarely gets reported, however, is that after the initial allegations make the evening news, these erroneous endangerment charges don’t stick, thanks to smart public defenders and reproductive rights lawyers like Diaz-Tello.

But dodging the child endangerment charge doesn’t necessarily mean that these women, or their families, can walk away scot-free. Instead, mothers are nearly always persuaded to plead guilty to possession or other drug-related offenses, which often carry heftier penalties of incarceration; judges may take the child endangerment charges into consideration as well.

Pregnant women, particularly those with substance addiction, don’t tend to fare well in the heavily privatized Texas jail and prison system. Earlier this summer, a San Antonio woman was denied the medical methadone treatment she needed to maintain a healthy pregnancy when she was jailed in Guadalupe County. It wasn’t until she reached out to NAPW for intervention—and pleaded with institutional officials and her parole board—that she was released to home monitoring, where she could continue her drug treatment program. Research suggests, too, that alternatives to incarceration, such as substance abuse rehabilitation programs, are less expensive for taxpayers and more effective at reducing recidivism.

And if women are charged after their babies are born, or if they have other children, those kids will often be funneled into Texas’ overtaxed foster care program, especially if there are no family members available to take on the responsibilities of child care. Lawmakers have continuously attempted to privatize this underfunded state agency, even as children die under the supervision of the supposedly superior corporations.

Furthermore, university research suggests that kids whose mothers are incarcerated “may be more likely to experience a disruption in the caregiving environment” compared to those whose fathers are incarcerated, potentially putting those “children at higher risk for insecure or disrupted attachment relationships,” which could “compromise children’s health and development.”

Still, one West Texas prosecutor told Rewire that he believes incarceration is the best solution when pregnant Texans use drugs.

Joel Wilks, a Taylor County assistant district attorney in Abilene who brought a child endangerment charge against a pregnant woman named Juanita Elkins in 2012, told Rewire that he would have liked to put Elkins in prison on the charges, but Texas’ abortion-exemption statute got in the way.

“We were kinda screwed on that deal,” he said. While Wilks believes “there’s no easy solution” in these cases, he said “there’s a deterrence factor” in being able to prosecute pregnant people for ingesting controlled substances, and an opportunity for “retribution.”

Elkins was one of at least two Taylor County women arrested for using drugs while pregnant who have recently faced the state jail felony-level punishment for child endangerment. Elkins was arrested under this statute in 2012; the other woman, Jennifer Silva, was eventually charged the same year after originally testing positive for methamphetamine when she gave birth in 2009.

The endangerment charges against both women were ultimately dropped after Diaz-Tello cold-called their public defenders and helped pass on legal arguments that convinced reluctant prosecutors, including Wilks, to dismiss the cases.

“The beneficial thing about hearing from [NAPW] out of the blue was we didn’t have to go looking for that information,” recalled Kory Robinson, the Abilene criminal defense lawyer who was appointed to defend Silva in 2012. At the time, he had already considered looking at the statute of limitations on Silva’s case due to the length of time between her original drug test and her arrest, but Diaz-Tello helped shore up his case against the legality of bringing the endangerment charges in the first place.

Robinson remembers presenting his case to Taylor County assistant district attorney Dan Joiner, who “got very upset,” he said, throwing up his hands and storming out of their meeting. But two weeks later, in October 2012, Joiner—”a very good, fair guy,” in Robinson’s estimation—dismissed Silva’s endangerment charges. According to the Abilene Reporter-News, Silva no longer has custody of her child.

Less than six months later in the same jurisdiction, assistant district attorney Wilks dropped similar charges against Elkins.

Wilks told Rewire he wanted to prosecute Elkins on charges of drug possession with intent to distribute, with endangerment charges tacked on “for punishment.”

Ultimately, his plan didn’t work. Wilks dropped the endangerment charges, and Elkins pleaded guilty to drug charges in exchange for ten years of probation.

“In some ways, prison gets a bad rap,” Wilks continued, though he conceded that it’s a “tough call.” He thinks incarceration would have helped Elkins and women like her, even if it means turning children over to foster care.

“Prison does keep you away from drugs and stuff,” said Wilks, who noted that the Texas Department of Criminal Justice, which oversees Texas state prisons and jails, offers a special program for pregnant inmates. (The availability of similar opportunities is varied at county jails, which are generally privatized.) “I think [incarceration] does have a rehabilitation effect,” he said.

Diaz-Tello sees it very differently. She said that if prosecutors had gotten their way, Elkins could have pleaded guilty “to a crime that doesn’t exist,” potentially setting a legal precedent that could inspire the Texas legislature to amend the existing penal code or give courts room to make attempts at reinterpreting the law—ones that could threaten pregnant people’s authority over their own bodies.

Left With No Option

As legislators and law enforcement officials move to toughen fetal homicide laws throughout the country, reproductive rights supporters have grown increasingly nervous at the possibility of these laws affording a kind of legal “personhood” to fetuses that may contradict the rights of pregnant people.

Some states, for example, have passed fetal homicide laws ostensibly meant to target criminal doctors like Kermit Gosnell, though evidence collected by Rewire last year suggests that Gosnell, a rogue provider who preyed on low-income women with no access to safe abortion care, was an extreme outlier. Instead, a study conducted by NAPW found that the provisions often give law enforcement officials room to hold pregnant people “legally liable for the outcome of their pregnancies.”

Laws of this kind that don’t carefully provide exceptions removing pregnant people from being charged with harm to their own fetuses could, if Roe v. Wade were to be overturned, allow states to prosecute individuals for trying to end their own pregnancies.

In Texas, noted Abilene prosecutor Wilks, “we have very pro-unborn protections as far as DWIs” and other crimes committed against pregnant people.

“But,” he continued, “to make an abortion legal, we have to make some exceptions to that as far as the actions of the mother or a medical professional acting on behalf of the mother.”

Wilks acknowledges that rewriting the Texas Penal Code to enable prosecutors like him to put substance-addicted mothers in prison—but still preserve the overall right to legal abortion—would be a difficult endeavor.

“You could write it a little better, say if your intent is to terminate the life of the fetus then you’re covered,” Wilks mused, suggesting that the law could be clarified to reflect whether an offender was trying to specifically end their pregnancy or whether they had used a substance that happened to result in fetal harm. “But then what do you do? You get somebody who said, ‘I can’t afford an abortion, so I thought I’d try to have a spontaneous abortion by smoking meth.’”

Wilks perhaps inadvertently hit on something that’s been worrying Diaz-Tello ever since she traveled back home to Austin last summer to protest Texas’ omnibus anti-abortion law, HB 2. In a state where lawmakers have taken guaranteed access to legal abortion care out of the hands of all but the wealthiest Texans, she said, “carrying a pregnancy to term is not always a choice.”

Just two years ago, Texans who live along the western Interstate-20 corridor—in Abilene, Midland, and Odessa—had access to legal abortion care nearby at a handful of Planned Parenthood facilities dotting the windy West Texas landscape. Then, in 2011, the state of Texas slashed family planning funds and ended all public funding of Planned Parenthood, forcing dozens of clinics to close.

Rural areas like the Rio Grande Valley and West Texas were the hardest hit. All legal abortion facilities in the West Texas triangle between El Paso, San Antonio, and Fort Worth closed their doors or stopped providing abortion care.

Then came HB 2, which, in part, requires all abortion facilities to operate as hospital-like ambulatory surgical centers. Earlier this month, a Fifth Circuit Court ruling closed all but eight Texas abortion clinics when it allowed HB 2 to go into full effect. Two weeks later, the Supreme Court granted abortion providers a temporary reprieve from the law; as of October 15, eight clinics had been able to reopen, bringing the total number of legal abortion providers in Texas up to 16.

But because of these court rulings, access to legal abortion care can change overnight in Texas. If federal courts allow HB 2 to go back into effect—and evidence suggests that the Fifth Circuit Court of Appeals would like to see it so—the only legal abortion providers that will remain in Texas will be located in Fort Worth, Dallas, Houston, San Antonio, and Austin. The wealthiest West Texans might be able to drive or fly hundreds of miles round-trip to those cities, or to New Mexico. Others might try, as Wilks speculated, to end their pregnancies by other means, risking legal ramifications in the process.

“That’s what happens when you can’t terminate a pregnancy when you want to do so,” said Diaz-Tello. She says that by bringing child endangerment charges against pregnant substance users, the state is effectively saying that “by being a person who is an addict and pregnant, you have some sort of heightened obligation to the state [to preserve fetal life], which is answerable by a prison term.”

Rather than offering substance-addicted pregnant Texans abortion care if they choose—thus circumventing the child endangerment issue—or rehab in their communities, however, officials instead incarcerate them, said Diaz-Tello. This, she noted, could push more marginalized people into a criminal justice system that she described as “broken beyond belief.”

Diaz-Tello is far less optimistic than Wilks about the benefits of incarcerating mothers of young children. She says that it can be difficult to win over hearts and minds, even in the pro-choice and reproductive justice communities, when she talks about people who struggle with substance addiction. However, she points out, the charges these women face are potentially a harbinger of broader restrictions to come.

“Even if people don’t care about the lives of people who are addicted,” said Diaz-Tello, “I hope that they would be able to see that the prosecution of drug-using women are usually just the first volley in going after the most vulnerable, most marginalized population, to build precedent, so that they can go against people who look more like them.”

In other words, attempts to criminalize pregnancy in Texas could not only break up families by forcing pregnant women into prisons and children into foster care; they could be the starting point for a new strike on reproductive rights across the state.

The Threat of Fetal “Personhood”

Such creeping attacks on choice are already beginning to emerge elsewhere. In 2014, Tennessee lawmakers became the first in the United States to explicitly criminalize drug use during pregnancy; Gov. Bill Haslam signed the bill into law in April. Meanwhile, courts in South Carolina and Alabama have also empowered prosecutors to seek charges against pregnant people for drug usage. In all three states, Black women are expected to be disproportionately negatively affected.

This punitive climate scares many people away from seeking health care they need—a particularly tragic consequence, in light of evidence that shows substance-using pregnant women who have access to prenatal care experience better perinatal outcomes than those who don’t.

At the NAPW offices in New York City, Diaz-Tello says she gets phone calls “every week” from women in the South who fear they’ll go to jail if they seek substance abuse treatment while they’re pregnant.

“The number one thing is that people avoid prenatal care and drug treatment,” as a result of these kinds of laws, said Diaz-Tello. “They’re terrified.”

And they have good reason to be: In July, Tennessee’s SB 1391 had only been in effect for one week before Mallory Loyola was arrested for “exposing her child to amphetamine”—in other words, using drugs while pregnant. Loyola faces a fine of up to $2,500 and up to one year in jail.

For now, women in Texas are ostensibly protected from the kind of treatment those in Tennessee, Alabama, and South Carolina are facing. Still, as in the past, that hasn’t stopped more child endangerment charges from cropping up. In the last year, two more West Texas women have been arrested, this time in Ector County.

The first case, involving an Odessa woman named Talisha Redic, is particularly heartbreaking: She gave birth prematurely to a child in 2013 that was found to have cocaine in its system. Afterwards, six of Redic’s living children, between the ages of two and 11 years old, tested positive for cocaine in late 2013. The infant died, and a warrant was issued for Redic’s arrest on six counts of child endangerment.

In December 2013, Redic turned herself in to the local authorities; Ector County District Attorney Bobby Bland brought a seventh child endangerment charge against Redic for ingesting cocaine while she was pregnant with her now-deceased child.

Bland issued a statement saying that his office had been denied an opportunity to put Redic in jail for life.

“The maximum punishment for the current charges is two years in prison. Had an autopsy been performed, we might have been able to develop evidence sufficient to charge the Defendant with a first-degree felony, which carries the maximum penalty of life,” said Bland in a February 2014 statement. He continued, “Justice has been denied for this infant’s death.”

For failing to complete the autopsy, a grand jury found earlier this year that “the Investigators of the Ector County Medical Examiner’s Office lack credibility, competence and accountability … which has limited our ability to fully investigate the matter at hand.”

Bland then pushed for the medical examiner’s office to be entirely disbanded, which the county commissioner’s court rejected. The chief medical examiner has since left her post for a different county department.

But while Redic awaits trial on her seven charges, Bland has turned his attention to a second Ector County woman, Tiffany Rios, who was arrested in September 2014 after giving birth in March to a child who tested positive for cocaine.

Rios failed to appear at her scheduled September arraignment, which means she hasn’t yet been assigned a public defender. Rewire attempted to reach Rios at the address listed with the court, but was told that she didn’t live at the residence.

When Rewire contacted Bland by phone for comment on the Rios case, he said he couldn’t weigh in on a pending charge, but that he was aware that the Texas Penal Code exempts pregnant women from being charged with injury to their own fetuses.

“My job is to enforce the law and to make sure that justice is served,” Bland said. When asked how incarcerating Rios might serve a larger public safety interest, Bland replied, “That’s not an appropriate question.”

Once again, it appears Farah Diaz-Tello, who hopes to intervene in Rios’ case if she can, has found herself at odds with a prison-minded prosecutor.

“You can do just about anything in the name of a fetus,” Diaz-Tello said.

And in West Texas, prosecutors aim to try.