Pregnant women were jailed over drug use to protect fetuses, an Alabama county says

by Marisa Iati / The Washington Post

16:50 JST, September 9, 2022

It was Ashley Banks’s alleged use of marijuana while pregnant that landed her in an Alabama jail in May. And it was a drug program’s determination that she was ineligible for treatment that kept her there.

Banks, 23, was charged with chemical endangerment of a child after police allegedly found marijuana on her during a traffic stop, her lawyers wrote in court filings. She admitted that she had smoked marijuana on the day she learned she was pregnant – two days earlier – but says in court records that it was before she confirmed her pregnancy.

Banks’s statement to police, however, subjected her to what her lawyers say is a policy in northeast Alabama’s Etowah County: Almost all pregnant or postpartum women who are charged with endangering their fetus via drugs have to remain in jail until they complete a drug-treatment program, without an assessment of whether that condition is appropriate for them.

The policy, previously reported by AL.com, kept Banks in the Etowah County Detention Center for three months while she endured severe vaginal bleeding and two emergency room visits that left her fearful for her high-risk pregnancy. A court-contracted substance abuse agency twice told her that she didn’t qualify for treatment because she wasn’t addicted to drugs, leaving her in limbo until a judge granted her release Aug. 25 on conditions that did not include drug treatment.

The Etowah County District Attorney’s Office did not respond to an interview request but said in a similar case that the county’s request for drug treatment as a bail condition is meant to protect the fetuses.

“The goal of the state and the courts in this jurisdiction has been to try to – to try to see to it that children are born [safely]; that the mothers who are – who test positive during pregnancy have opportunities to get treatment so that we can have a healthy relationship subsequent to that,” Deputy District Attorney Carol Griffith said in a hearing last month, according to a transcript.

Prosecutors across the country regularly criminally charge pregnant women accused of taking drugs, arguing that such cases encourage them to get help and protect their fetuses. But the nonprofit legal organization National Advocates for Pregnant Women calls Etowah County the country’s “ground zero of pregnancy criminalization” for its number of prosecutions – more than 150 in the past decade – and their increasing frequency in recent years. The prosecutions also reflect how fights to restrict abortion, recently resulting in the fall of Roe v. Wade, have emboldened the fetal rights movement to seek criminal charges against pregnant women who use drugs.

Alabama’s “chemical endangerment of a child” statute was passed in 2006 to target people who turned their homes into methamphetamine labs, putting their children at risk. Prosecutors soon began applying the law to women who exposed their fetuses to drugs, particularly after the Alabama Supreme Court upheld the practice in 2013.

“The prosecution’s alleged justification for this is that this is needed to protect the women’s ‘unborn’ and born children,” said Emma Roth, a staff attorney at National Advocates for Pregnant Women. “When the reality is, this puts the health and well-being of these women at risk, and their pregnancies and their children at risk.”

Jails can be dangerous environments for pregnant women, Carolyn Sufrin, director of the Advocacy and Research on Reproductive Wellness of Incarcerated People program at Johns Hopkins University, wrote in a court filing supporting Banks. Poor dietary options, unsanitary spaces and lack of access to medical care, she said, can endanger the physical and mental health of women and their fetuses. The American College of Obstetricians and Gynecologists opposes criminalizing women for behavior that allegedly harms their pregnancies.

The Etowah County Sheriff’s Office did not respond to an interview request about medical services at the jail. Josh Morgan, a spokesman for the sheriff’s office, told AL.com that women charged with chemical endangerment receive the same medical evaluation as other inmates and are then referred to obstetricians.

Another woman in that county, Hali Burns, says she was arrested at the hospital six days after giving birth because of two positive drug tests during her pregnancy. Her lawyers argue in court filings that she has a prescription for one of the drugs she tested positive for – Subutex, which treats opioid addiction – and that her sinus medication caused her to falsely test positive for methamphetamine. She tested negative for drugs at the time she gave birth.

Burns, 34, was arrested July 12 due to the positive tests and separated from her newborn son and her older daughter, according to court records. Her bail conditions include inpatient drug treatment and a $10,000 cash bond, another common requirement in chemical endangerment cases.

Although Burns was deemed a candidate for a residential treatment center, her lawyers say, she was told that a bed would not be available for weeks. She eventually learned that a bed had become ready for her but that she was barred from entering the program because she allegedly had another positive drug test.

“In this case, I think the fact that we actually have another subsequent positive drug screen is just further evidence that this is an individual who desperately needs the help that we’re offering here,” Griffith said at an Aug. 18 hearing in Burns’s case.

Morgan Cunningham, a lawyer for Burns, argued that bail is meant to protect community members and ensure that a defendant shows up at trial. Burns, he said, is neither dangerous nor a flight risk.

“The purpose of bond is not punishment,” Cunningham said. “And, you know, some people might look at the opportunity to go to rehab as a reward. The purpose of bond is not reward either.”

A judge refused to revise Burns’s bail conditions, and she remains in custody – away from both her children.

“The courts and the prosecutors are hurting the very population that they allege they’re helping,” Roth said. “And at the same time, they’re robbing these women of their freedom.”