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.

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.

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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.