Analysis Law and Policy

Alabama, Jane Doe, and the Dangers of Fetus-First Laws

Jessica Mason Pieklo

The story of an incarcerated woman in Alabama trying to get an abortion is a glimpse into the logical outcome of fetus-first legislation.

We don’t know that much about Jane Doe, the woman incarcerated in Alabama who is the latest pregnant person to be caught up in the middle of the state’s fetal rights craze. But what we do know, through reports and court filings, is tragic—and hers is by no means an isolated incident, or even one that’s limited to the state. Instead, it’s representative of the future of the fight over abortion rights in this country.

Every part of Doe’s story, from her initial arrest under Alabama’s chemical endangerment statute for reportedly using drugs while pregnant, to the state’s unrelenting and coercive campaign to force her to continue her pregnancy even while threatening to terminate Doe’s parental rights, is illustrative of what happens when the law prioritizes the potential of fetal life over the actual life of the pregnant person.

While in custody at the Lauderdale County Jail, the 29-year-old Doe made a request for a medical furlough to have an abortion, a procedure she was reportedly in the process of arranging when she was originally arrested and detained. Sheriffs refused her request, arguing it was too much of an administrative burden to make them comply with the myriad abortion restrictions in place in Alabama. Also, the nearest abortion clinic is in Huntsville, a 75-mile drive that the sheriff’s office argued was a public safety risk. Doe then went through the not-insignificant task of filing a federal lawsuit to try and obtain her legal abortion. Instead of granting Doe’s furlough request, attorneys for the State of Alabama responded with a motion to terminate Doe’s parental rights over her fetus, arguing that doing so would deny Doe “standing” to have an abortion.

The state’s tactics of of opposing Doe’s abortion at every turn worked. Doe changed her mind, according to a signed affidavit, and dropped her request for a furlough, ending her attempts to terminate her pregnancy.

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The State of Alabama, meanwhile, has not dropped its case to terminate Doe’s parental rights over her developing pregnancy. It has just put that case on “hold” unless and until the prosecutors change their minds.

But the threats to Doe’s reproductive autonomy weren’t confined to her attempts to get an abortion while behind bars. Doe was originally arrested for allegedly exposing her first-trimester fetus to some kind of drug. That is a crime in Alabama under the state’s “meth lab” statute, thanks to some inventive and opportunistic anti-abortion lawmakers. It also makes her one of hundreds of pregnant people arrested in the state under the guise of protecting fetal rights.

In 2006, Alabama lawmakers passed a law designed to punish parents who manufactured methamphetamine at home and exposed their children to toxic chemicals in the process. Under that law, it is a felony to “knowingly, recklessly, or intentionally” expose a child to a “controlled substance, chemical substance, or drug paraphernalia.” The law is as unforgiving in its punishment as it is vague in its terminology. If convicted under the statute, a person faces one to ten years in prison if a child suffers no ill effects from the exposure. It’s 20 years if the child is somehow harmed from the exposure. Should a child die, a person convicted under the statute faces up to 99 years in prison.

And this “chemical endangerment” law has had another, more insidious effect: It’s quickly establishing fetal “personhood” rights in the state.

As Nina Martin reported in ProPublica, almost immediately after the law’s enactment, prosecutors in the state began arguing that “fetus” was a “child” under the statute and “an environment in which controlled substances are produced or distributed” could be a womb. Therefore, they said, the statute should be used to prosecute pregnant people.

Advocates suggest that this was always the law’s true point. “Chemical endangerment is perfect [for the fetal personhood movement] because the people targeted are so demonized,” explained Sara Ainsworth, director of legal advocacy at National Advocates for Pregnant Women (NAPW). “No one is going to stand up for them, they are not organized themselves as an entity, so that is the perfect place to make that first inroad.”

NAPW, a nonprofit advocacy organization that fights for the rights of pregnant people and has been tracking such prosecutions, has logged 180 pregnant people or new mothers charged since 2006 for chemical endangerment of their fetus in Alabama alone. But that, its members say, is almost certainly an undercount.

“There’s counties where there has never been one single arrest for chemical endangerment of a person because of pregnancy, and then there’s counties where we see two or three a month,” said Ainsworth.

In 2013, the Alabama Supreme Court gave prosecutions specifically targeting pregnant people its blessing in Hicks v. State of Alabama, a decision that expressly applied the statue to a pregnant person and called for the prosecution of people who self-abort pregnancies, who provide abortions, and who seek abortions in general.

Hicks involved 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. The Alabama Supreme Court upheld her conviction; in the process, it also used its opinion as a vehicle for calling for the broader prosecution of abortion patients. In Hicks, the 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. According to the court, 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 for procuring 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?” wrote the court in Hicks, despite the fact that the case before them involved the birth of a healthy baby, not the injury or death of a child.

Although Roe v. Wade takes precedent over such judicial opinions, the opinion in Hicks was a clear signal to prosecutors that the courts in Alabama will largely look the other way in criminalizing pregnant people. Sure enough, after Hicks, an uptick in prosecutions followed.

“The range of things people are being prosecuted for under the chemical endangerment statute are shocking,” said Ainsworth.

“This is exactly what we’ve been trying to explain for years: that when you grant some kind of personhood status to fetuses,” in this case declaring them to be children, “the personhood of pregnant people is undermined and they become second-class,” Ainsworth continued.

Ainsworth went on to describe case after case of lives horrifically disrupted thanks to the unholy marriage of anti-abortion zealotry and aggressive, often unaccountable prosecutions. “One example is an Alabama woman who was prosecuted for taking half a Xanax in her third trimester of pregnancy,” started Ainsworth. “The prosecution was dropped. She was never indicted. But she was charged, arrested at her workplace in front of all of her co-workers, put in handcuffs, put in jail, and then her picture was all over the Internet.”

As Ainsworth explained, though, the dropped charges hardly ended this woman’s problems: “So the next day [after her arrest] her ex-husband takes her to court to get custody of their three-year-old, who she has been the primary care giver for the child’s entire life. She’s still fighting that battle.”

“It’s been almost a year now to get her child back. The baby was born perfectly healthy; child welfare didn’t intervene at all. Her mistake was telling her health-care provider that she had [taken half a Xanax]. Ultimately no crime, never indicted, but her whole life is turned upside down.”

Ainsworth then described the case of another woman in Alabama who was interrogated by a child-welfare worker asking if she could possibly be pregnant. The woman said she thought maybe she was. The child welfare worker then asked the woman if she had used any drugs. The woman reportedly said she had smoked marijuana in the last few months. The woman was arrested, put in jail, with a bond set at $15,000. As it turns out, she was never pregnant. “It took ten months for her to convince the court that she wasn’t pregnant, never was pregnant, and they finally dismissed the [chemical endangerment] charges,” said Ainsworth. “Again, her whole life is turned upside down.”

For Jane Doe, the ramifications of Hicks extended beyond her initial arrest. Prosecutors also used the Hicks decision in support of their efforts to strip Doe of her parental rights of her fetus. Relying on the Alabama Supreme Court’s holding, the prosecutors in Doe’s case argued that both Doe’s pending charges for endangerment and her request in federal court for a furlough for an abortion was evidence enough that the state should step in and retain custody of Doe’s developing pregnancy.

This takes the campaign for fetal rights to its most terrifying conclusion. “With the Doe case, we’ve reached The Handmaid’s Tale point,” said Ainsworth, referring to the dystopian novel by Margaret Atwood, “where you can say to a woman, ‘You are never going to be the mother to that child but we are not going to let you terminate this pregnancy.’”

But it doesn’t end there. With a solid line of charges and prosecutions developing post-Hicks, anti-choice Alabama lawmakers have stripped all pretense away from trying to protect pregnant people. SB 26, introduced earlier this month, would broadly define the conduct a person could be prosecuted for related to their pregnancy. “It is basically saying we’re going to go ahead and define every crime as something a pregnant person can commit against their own fetus and that includes abortion,” explained Ainsworth. “That includes any kind of pregnancy outcome including refusing a c-section [and later miscarrying or experiencing a stillbirth] to falling down the stairs and losing your baby. That is going to be a homicide charge.”

While Ainsworth believes the measure is not likely to get a hearing this session, she warned it’s the kind of proposal that will return.

“None of this is new,” explained Ainsworth. “It’s similar to what North Dakota did when they tried to flat-out set a challenge to Roe, saying we’re going to criminalize abortion at every opportunity we can and we are going to tell the women of this state you are going to carry babies to term.”

The Doe case teaches us that the use of state force doesn’t end at making people carry pregnancies to term against their will. In fact, if given the opportunity, anti-abortion advocates will try and use the power of the state to strip all reproductive agency from pregnant or potentially pregnant people. And like the wave of copy-cat anti-abortion legislation designed to regulate abortion access out of existence, we also know Doe’s case will reach beyond Alabama. The pieces are already in place.

Melissa McCann Arms is an Arkansas woman convicted of “introducing a controlled substance into the body of another” after her otherwise healthy baby was born with traces of meth in his system. She was convicted under a statute designed to target date rape drugs. Two years after his birth and just as she was about to regain custody of her son after completing a court-mandated drug treatment program to do so, she was charged, convicted, and sentenced to 20 years in prison.

Her case is currently on appeal to the Arkansas Supreme Court.

Then there are the cases of Alicia Beltran and Tamara Loertscher, two Wisconsin women who were both involuntarily detained at drug treatment facilities despite no evidence either used drugs during their pregnancies. In both cases they had told health-care workers of prior drug use and in both cases the women were arrested and detained under a 1997 Wisconsin law, which gives the state the power to forcibly detain any pregnant woman who “habitually lacks self-control” and poses a “substantial risk” to the health or the egg, embryo, or fetus.

“These people are being picked up just because they are pregnant,” said Ainsworth. “It’s shocking, unconstitutional, and coercive of abortion.” In other words, these laws actually drive some women to seek abortions out of fear of incarceration.

The fact that these fetus-first laws are coercive of abortion may be what finally busts the anti-choice mythology that these prosecutions were ever about anything other than punishing women. “We have talked to women who are terrified, who don’t want an abortion but feel they have to get one,” explained Ainsworth. “These are women who smoked pot before they knew they were pregnant or are in a methadone program and know their baby will be born with opioids in its system and they could go to jail,” Ainsworth said. “They are asking us if they can flee the state to deliver somewhere else.”

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