Combining claims of fetal personhood and the war on drugs, prosecutors and judges have come together to deny pregnant women full protection under the law. Through severe and direct punishment for drug use during pregnancy, these state actors continue the tradition of the war on drugs by targeting low-income people and people of color for prosecution.[1] 
According to National Advocates for Pregnant Women, a non-profit organization that specializes in this issue, at least 45 states have attempted to prosecute pregnant women based on a theory of harm to the fetus.[2]

The criminalization happens primarily through reinterpretation of criminal statutes already in place to include activity by the pregnant person in relation to her fetus. For example, in New York, Jennifer Jorgensen was convicted of manslaughter when her fetus died as a result of a car accident where Jorgensen may have been under the influence of alcohol or prescription drugs.[3] Although the charges related to the two people killed in the other vehicle were dropped, Jorgenson was convicted for the death of her fetus.[4] The case was appealed to New York’s highest court and was ultimately reversed.[5]

Similarly, in Arkansas, Melissa McCann-Arms was charged through a novel interpretation of existing law.[6] After admitting to using methamphetamines while pregnant, McCann-Arms was charged and convicted of “introduction of a controlled substance into the body of another” under a statute traditionally used for cases of date rape.[7] She was sentenced to twenty years in prison.[8] Again, this case was appealed to the state’s highest court and McCann-Arms’ conviction was reversed.[9]

The experiences of both Jorgensen and McCann-Arms represent zealous prosecution efforts to limit the autonomy of pregnant people. In Alabama, these efforts, combined with judicial activism, have resulted in successful prosecutions and convictions.[10]

In Ankrom v. Alabama, the highest court of the state heard an appeal for two cases involving convictions of pregnant women that used drugs during pregnancy under Alabama’s Chemical Endangerment of a Child Act—a law originally passed to target homes turned into ‘meth labs.’[11] Ignoring the rule of lenity[12], the court upheld the convictions, holding that the plain meaning of the word “child” in the statute included fetuses.[13] Research conducted by AL.com and ProPublica, suggests that “at least 479 new and expecting mothers have been prosecuted. . . since 2006” using the Chemical Endangerment of a Child Act.[14]

Beyond a disregard for settled principals of statutory interpretation in criminal law, these prosecutions represent bad public policy. According to a large number of public health organizations, medical groups, and practitioners, incarceration and loss of child custody are not the answer to addiction, especially in the case of drug use while pregnant.[15] The American Medical Association, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists have concluded that “threats of arrest and punishment deter women from care and from speaking openly with their doctors.”[16] In addition, the American Medical Association has suggested that threats of incarceration could lead some women to seek out unwanted abortions rather than risk a run-in with law enforcement officers.[17] Instead of encouraging open discourse with doctors at a time when the mother is most in need of care, these prosecutions put maternal, fetal, and child health at risk. Addiction is a treatable illness, and a sounder public policy would treat drug use as a public health issue, not a criminal justice issue.

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[1] See Lynne Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Legal Status and Public Health, 38 J. Health Pol. Pol’y & L. 299, 300 (2013); Britni de la Cretez, Managing Addiction While Pregnant: Women Who’ve Been There Call for Harm Reduction, Truthout (Oct. 19, 2015), http://www.truth-out.org/news/item/33274-managing-addiction-while-pregnant-women-who-ve-been-there-call-for-harm-reduction.

[2] Nina Martin, Take a Valium, Lose Your Kid, Go to Jail, ProPublica (Sept. 23, 2015), https://www.propublica.org/article/when-the-womb-is-a-crime-scene.

[3] People v. Jorgenson, No. 179, 2015 WL 6180890, at *2 (N.Y. Oct. 22, 2015).

[4] Id. at *3.

[5] Id.

[6] Arms v. State, No. CR-15-124, 2015 WL 5895453 (Ark. Oct. 8, 2015).

[7] Id. at 1.

[8] Id.

[9] Id.

[10] See Hicks v. Alabama (Ex parte Hicks), 153 So.3d 53 (Ala. 2014); Ankrom v. Alabama (Ex parte Ankrom), 152 So.3d 397 (Ala. 2013).

[11] Ankrom, 152 So.3d at 407.

[12] Id. at 404 (citing Ex parte Bertram, 884 So.2d 889, 892 (Ala. 2003)) (“The rule of lenity requires that ambiguous criminal statutes be construed in favor of the accused.”)

[13] Id. at 411.

[14] Martin, supra note 2.

[15] Am. C. of Obstetricians & Gynecologists Comm. on Ethics, Comm. Opinion No. 473, Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist (Jan. 2011, reaff’d 2014), http://www.acog.org/-/media/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/co473.pdf?dmc=1&ts=20151105T1604505100.

[16] Paltrow et al., supra note 1.

[17] Id.