Analysis Law and Policy

Alabama Supreme Court Justices Make Case for Prosecuting Abortions

Jessica Mason Pieklo

In a decision interpreting the state's chemical endangerment statute, two justices of the Alabama Supreme Court argued for jailing women who terminate pregnancies.

Alabama Supreme Court Justice Tom Parker opened his concurring opinion in Ex Parte Hicks—a decision that upheld the conviction of Sarah Janie Hicks under Alabama’s child endangerment statute for giving birth to a healthy baby that later tested positive for cocaine—by quoting former U.S. Supreme Court Justice Sandra Day O’Connor’s plurality opinion in Planned Parenthood v. Casey. “Liberty finds no refuge in a jurisprudence of doubt,” O’Connor wrote for the plurality in Casey, to underscore that despite the deep wounding Casey‘s undue burden standard had just delivered to Roe v. Wade, Roe‘s central premise, that a woman has a fundamental right to privacy that includes the right to choose abortion, remained intact. It was designed to be a reaffirmation of the liberty rights of women, even in the face of significant state intrusion.

So why would an Alabama Supreme Court justice quote one of the most famous lines of abortion rights jurisprudence in an opinion concerning criminal child endangerment? To launch a shot across the bow in the battle to re-criminalize abortion.

In Hicks, the Alabama Supreme Court ruled that “the plain meaning of the word ‘child,’ as that word is used in the chemical-endangerment statute, includes an unborn child” and, therefore, prosecuting pregnant persons under the statue was permissible. Passed in 2006, Alabama’s chemical endangerment law was intended to deter people from bringing children to places where controlled substances are produced or distributed, such as methamphetamine laboratories, but increasingly prosecutors have used it to charge pregnant women who test positive for a controlled substance or who, like Hicks, give birth to a healthy newborn who tests positive for a controlled substance, or who experience a pregnancy loss. The decision follows a similar one handed down last year by the Alabama Supreme Court in Ankrom v. State, in which Alabama’s highest court also ruled that the word “child” includes an “unborn child.” While neither Ankrom nor Hicks were expressly abortion rights cases, they are the proverbial canary in the coal mine. The Alabama Supreme Court did not need to address abortion rights jurisprudence in the Hicks decision at all. In fact, the majority opinion upholding Hicks’ conviction doesn’t, even though it interprets the child endangerment statute to “protect the life of the unborn.” But that at least two members, including the chief justice, went out of their way to link the reasoning in Hicks and Ankrom to a call to re-criminalize abortion and attack the very premise, re-affirmed in Casey, that pregnant people have any liberty interests at all, is a very clear indication that the goal of the “personhood” movement includes prosecuting and jailing women, even those who deliver healthy babies like Hicks.

“Liberty will continue to find no refuge in abortion jurisprudence until courts … like Alabama recognize an unborn child’s inalienable right to life at every point in time and in every respect,” Parker continued. His flipping of the Casey quote here is as telling as it should be chilling. In one fell swoop, Justice Parker announces Alabama’s attempted judicial secession from abortion rights jurisprudence and makes a call to action for other states to follow suit. But Parker’s opinion is not just some rhetorical exercise. He and his colleague and fellow ideologue Justice Roy Moore explicitly make the judicial case for prosecuting women who have had abortions. According to Parker, because the state has an interest in protecting life “at all stages of development,” this necessitates jailing and prosecuting women for not just endangering a developing fetus, but in the case of abortions as well. “Why should legal protection of an individual at a particular point in time depend entirely upon his or her subjective relation to the killer?” Parker wrote. “Because an unborn child has an inalienable right to life from its earliest stages of development, it is entitled not only to a life free from the harmful effects of chemicals at all stages of development but also to life itself at all stages of development. Treating an unborn child as a separate and distinct person in only select respects defies logic and our deepest sense of morality.”

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Not to be outdone by his colleague’s judicial activism, Justice Moore wrote separately that “as the gift of God, this right to life is not subject to violation by another’s unilateral choice ” and that it is “God’s law” the courts must follow.

From local to international, all law flows from the divine source: it is the law of God. The law of nature and of nature’s God binds all nations, states, and all government officials—from Great Britain to Germany to Alabama—regardless of positive laws or orders to the contrary.

Or, said another way, Justice Parker and Moore’s combined legal conclusion is that women should be prosecuted and jailed for their pregnancy outcomes because “God’s law” says so.

So why, beyond outright judicial activism, would Moore and Parker go out of their way to call specifically for courts to adopt fetal “personhood” as a means to eradicate abortion rights and to lay out, in detail, their purported legal reasoning for doing so? To help other anti-choice advocates make the same arguments in the future.

“These justices have clearly expressed the view that women who have abortions should be subject to prosecution and incarceration,” Lynn Paltrow, executive director of the National Advocates for Pregnant Women, told Rewire. “With the chief justice of a state supreme court now on record as viewing both women who give birth to healthy babies and women who have abortions as criminals, it is time proponents of anti-abortion laws and so-called ‘personhood’ measures address the punishment women will be subjected to as a result of these laws.”

In some ways, it was only a matter of time before an opinion like Hicks happened. Anti-choice zealotry has found a home with the elements of the criminal justice system that have pathologized and criminalized poverty, mental illness, and substance abuse. There’s the case of Rennie Gibbs, who at 16 years old faced life in prison after delivering a stillborn infant that prosecutors argued was related to cocaine use during pregnancy, despite the fact the infant never tested positive for cocaine, only cocaine byproduct. Other medical experts disagreed with that conclusion, instead concluding that the cause of death of Gibbs’ daughter was most likely the umbilical cord wrapped around the baby’s neck. A judge dismissed the case against Gibbs, but prosecutors have indicated that they will try and re-indict Gibbs this summer. Meanwhile, in Utah, a young woman was charged with a felony under the state’s child endangerment laws after having an emergency cesarean section that law enforcement believed was necessary because the woman allegedly was using methamphetamines while pregnant. And now Tennessee has explicitly given prosecutors the power to prosecute pregnant women for narcotic use, despite the fact that using drugs is not generally a crime.

One of the real dangers in prosecuting pregnant people under child endangerment statutes, according to Paltrow, is that there is no “limiting principle” to hold the state in check. “Once you decide that prosecutors and police officers have a role in prenatal care, there is no limiting principle, which means prosecutors can start to look at actions beyond just drug use,” she said. Paltrow’s right. In the argument promoted by Parker and Moore in Hicks, women’s personhood is erased at the moment of conception and anything that ends a pregnancy creates probable cause for an investigation into the cause of “death” of that pregnancy. And as the Parker and Moore opinions in Hicks show, for proponents of fetal “personhood” the only limiting principle  is the U.S. Constitution, which for now prevents judges from applying the logic of prosecuting pregnant drug users in the name of fetal rights to prosecuting women who seek abortions under the same—but even that may not be a given. In Iowa, three of the four Republican candidates for U.S. Senate have said that if elected they would block any federal judicial appointee who did not have a “biblical” view of justice or follow “natural law.” And while Kentucky senator and likely Republican presidential candidate Rand Paul recently caught heat from the right for claiming he had no interest in altering abortion laws, he remains a sponsor and proponent of the “Life at Conception Act,” which would create federal fetal “personhood.”

According to the Guttmacher Institute, in the pre-Roe days, despite the fact that many states criminalized abortion, including aiding and counseling a woman trying to obtain one, women were rarely convicted for having an abortion under those laws. Instead, prosecutors used the threat of jail, prosecution, and conviction to encourage them to testify against providers and drive out doctors who would continue to offer abortion care. That exercise of state power drove a dangerous and deadly wedge between pregnant people and their doctors and set patients and doctors up as potential adversaries with competing legal interests. But, history is an imperfect guide here. As we’re seeing in places like Alabama, Mississippi, Louisiana, and now Tennessee, fetal “personhood” proponents are creating a similar wedge, but this one isn’t to deter providers from treating women since TRAP (targeted regulation of abortion providers) laws and other laws restricting abortion access have already largely done that. This time, the exercise of state power is to go after the women themselves, regardless of her circumstances.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

Culture & Conversation Family

‘Abortion and Parenting Needs Can Coexist’: A Q&A With Parker Dockray

Carole Joffe

"Why should someone have to go to one place for abortion care or funding, and to another place—one that is often anti-abortion—to get diapers and parenting resources? Why can’t they find that support all in one place?"

In May 2015, the longstanding and well-regarded pregnancy support talkline Backline launched a new venture. The Oakland-based organization opened All-Options Pregnancy Resource Center, a Bloomington, Indiana, drop-in center that offers adoption information, abortion referrals, and parenting support. Its mission: to break down silos and show that it is possible to support all options and all families under one roof—even in red-state Indiana, where Republican vice presidential candidate Gov. Mike Pence signed one of the country’s most restrictive anti-abortion laws.

To be sure, All-Options is hardly the first organization to point out the overlap between women terminating pregnancies and those continuing them. For years, the reproductive justice movement has insisted that the defense of abortion must be linked to a larger human rights framework that assures that all women have the right to have children and supportive conditions in which to parent them. More than 20 years ago, Rachel Atkins, then the director of the Vermont Women’s Center, famously described for a New York Times reporter the women in the center’s waiting room: “The country really suffers from thinking that there are two different kinds of women—women who have abortions and women who have babies. They’re the same women at different times.”

While this concept of linking the needs of all pregnant women—not just those seeking an abortion—is not new, there are actually remarkably few agencies that have put this insight into practice. So, more than a year after All-Options’ opening, Rewire checked in with Backline Executive Director Parker Dockray about the All-Options philosophy, the center’s local impact, and what others might consider if they are interested in creating similar programs.

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Rewire: What led you and Shelly Dodson (All-Options’ on-site director and an Indiana native) to create this organization?

PD: In both politics and practice, abortion is so often isolated and separated from other reproductive experiences. It’s incredibly hard to find organizations that provide parenting or pregnancy loss support, for example, and are also comfortable and competent in supporting people around abortion.

On the flip side, many abortion or family planning organizations don’t provide much support for women who want to continue a pregnancy or parents who are struggling to make ends meet. And yet we know that 60 percent of women having an abortion already have at least one child; in our daily lives, these issues are fundamentally connected. So why should someone have to go to one place for abortion care or funding, and to another place—one that is often anti-abortion—to get diapers and parenting resources? Why can’t they find that support all in one place? That’s what All-Options is about.

We see the All-Options model as a game-changer not only for clients, but also for volunteers and community supporters. All-Options allows us to transcend the stale pro-choice/pro-life debate and invites people to be curious and compassionate about how abortion and parenting needs can coexist .… Our hope is that All-Options can be a catalyst for reproductive justice and help to build a movement that truly supports people in all their options and experiences.

Rewire: What has been the experience of your first year of operations?

PD: We’ve been blown away with the response from clients, volunteers, donors, and partner organizations …. In the past year, we’ve seen close to 600 people for 2,400 total visits. Most people initially come to All-Options—and keep coming back—for diapers and other parenting support. But we’ve also provided hundreds of free pregnancy tests, thousands of condoms, and more than $20,000 in abortion funding.

Our Hoosier Abortion Fund is the only community-based, statewide fund in Indiana and the first to join the National Network of Abortion Funds. So far, we’ve been able to support 60 people in accessing abortion care in Indiana or neighboring states by contributing to their medical care or transportation expenses.

Rewire: Explain some more about the centrality of diaper giveaways in your program.

PD: Diaper need is one of the most prevalent yet invisible forms of poverty. Even though we knew that in theory, seeing so many families who are struggling to provide adequate diapers for their children has been heartbreaking. Many people are surprised to learn that federal programs like [the Special Supplemental Nutrition Program for Women, Infants, and Children or WIC] and food stamps can’t be used to pay for diapers. And most places that distribute diapers, including crisis pregnancy centers (CPCs), only give out five to ten diapers per week.

All-Options follows the recommendation of the National Diaper Bank Network in giving families a full pack of diapers each week. We’ve given out more than 4,000 packs (150,000 diapers) this year—and we still have 80 families on our waiting list! Trying to address this overwhelming need in a sustainable way is one of our biggest challenges.

Rewire: What kind of reception has All-Options had in the community? Have there been negative encounters with anti-choice groups?

PD: Diapers and abortion funding are the two pillars of our work. But diapers have been a critical entry point for us. We’ve gotten support and donations from local restaurants, elected officials, and sororities at Indiana University. We’ve been covered in the local press. Even the local CPC refers people to us for diapers! So it’s been an important way to build trust and visibility in the community because we are meeting a concrete need for local families.

While All-Options hasn’t necessarily become allies with places that are actively anti-abortion, we do get lots of referrals from places I might describe as “abortion-agnostic”—food banks, domestic violence agencies, or homeless shelters that do not have a position on abortion per se, but they want their clients to get nonjudgmental support for all their options and needs.

As we gain visibility and expand to new places, we know we may see more opposition. A few of our clients have expressed disapproval about our support of abortion, but more often they are surprised and curious. It’s just so unusual to find a place that offers you free diapers, baby clothes, condoms, and abortion referrals.

Rewire: What advice would you give to others who are interested in opening such an “all-options” venture in a conservative state?

PD: We are in a planning process right now to figure out how to best replicate and expand the centers starting in 2017. We know we want to open another center or two (or three), but a big part of our plan will be providing a toolkit and other resources to help people use the all-options approach.

The best advice we have is to start where you are. Who else is already doing this work locally, and how can you work together? If you are an abortion fund or clinic, how can you also support the parenting needs of the women you serve? Is there a diaper bank in your area that you could refer to or partner with? Could you give out new baby packages for people who are continuing a pregnancy or have a WIC eligibility worker on-site once a month? If you are involved with a childbirth or parenting organization, can you build a relationship with your local abortion fund?

How can you make it known that you are a safe space to discuss all options and experiences? How can you and your organization show up in your community for diaper need and abortion coverage and a living wage?

Help people connect the dots. That’s how we start to change the conversation and create support.

This interview has been edited for length and clarity.

CORRECTION: This article has been updated to clarify the spelling of Shelly Dodson’s name.

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