Alabama's chemical endangerment statute has now been replicated in some form in 44 states. Across the nation, women are being prosecuted for drug use while pregnant.

Surely, significant drug use during pregnancy should be discouraged, and women with a serious addiction problem or who are consistently using should be receiving treatment and assistance.

But in less serious cases—for example, smoking marijuana once or taking one anti-anxiety pill, even when authorities have determined that the use was minimal and not dangerous—a woman could be sentenced to decades in jail.

Many states have found these laws problematic and in the late 2000s, some even began to fight back against the broad criminalization of pregnant women. But then the anti-abortion movement gained even more steam, and this "chemical endangerment" crime was conflated with that.



By the time the chemical-endangerment cases began facing legal challenges in the late 2000s, though, the political and social landscape had transformed. Advocates for the rights of the unborn were on the ascendant. The personhood movement—which seeks to establish the embryo or fetus as fully human in as many legal and medical contexts as possible—had made significant inroads. The treatment of drug use in pregnancy as a crime against the fetus emerged as an important part of the strategy to dismantle Roe v. Wade.

This connection with the anti-abortion movement has meant that, as of now, chemical endangerment laws are alive and well. But, as Mother Jones and ProPublica point out, the inconsistent manner in which they are applied, and the vast disparity between who is prosecuted and who isn't, means that the law is a failure. At the very least, this law requires further guidelines, consistency, and reform.

And the disparity isn't just geographic. A National Advocates for Pregnant Women report cited in the article found that there was serious racial disparity in these arrests nationwide. In Alabama, though, women who are arrested are overwhelmingly Caucasian.

Still, even in Alabama, the number of women prosecuted varies significantly depending on where they live.



"In Birmingham, a city of 212,000 people and urban-level drug problems, authorities have charged only two women with chemical endangerment of an unborn child in nine years. By contrast, in suburban Shelby County, southwest of the city, they are so aggressive that last fall they arrested a woman for smoking pot during pregnancy despite having no proof that she was actually pregnant. (She wasn't)."

The inconsistency exists in not only how many people are prosecuted, but bail amounts and sentencing as well. In some Alabama counties women who test positive for small amounts of drugs are sent to treatment programs and allowed to maintain custody with supervision. In those places, authorities are rightly concerned that throwing women in jail will result in many women not getting prenatal care.

In other counties, those mothers are offered a standard plea deal of five to 10 years.

It is a wildly destructive choice to imprison a woman and take away her child because she used drugs once or twice while pregnant.

Not only is that irreparably harmful for the mother, it is irreparably harmful for the child. It is hard to claim that you care about the health of a child and then take away his mother without a second thought, even when its mother has otherwise been shown to be a good parent and strong caretaker.

When the war on drugs meets the war on women, especially in conservative states like Alabama, these pregnant women are in serious trouble. Reform is necessary in Alabama and all states to ensure that women get treatment, not prison.