How far are conservatives willing to go in their quest to exert ownership over fetuses? Extremely far, it turns out, with a push for a radical enforcement of Alabama’s chemical endangerment law that would mean people can be imprisoned for prenatal exposure to hazardous substances. Taking such a stance, history reveals, can result in a situation where a woman will seek an unwanted abortion to avoid prosecution.
This is the face of the ‘pro-life’ movement.
Alabama’s law was originally passed with the best of intentions in mind, creating a specific legal framework for prosecuting people who bring children into environmentally hazardous environments. The specific target was meth labs, a growing problem across the United States and in the South. Children exposed to fumes and byproducts from meth production can become severely ill and may develop lifelong disabilities as a result of the exposure. Just like other child endangerment laws, this one is designed to protect children.
Living children, that is.
Last September, an Alabama court set a dangerous new precedent with regards to the chemical endangerment law, ruling that it also applied to fetuses. The court interpreted the bill as applying to ‘viable fetuses’ as well as living children, setting up the prosecutions of close to 60 women involved in prenatal exposure cases. Advocates fear that there will be more on the way, as many prosecutors were holding off on cases while they waited for a ruling.
Two of these women, Hope Ankrom and Amanda Kimbrough, are attracting media attention as a result of an amicus brief filed by the Liberty Counsel in their case. The conservative organisation argues that the law protects ‘unborn children’ and as such, these women should be jailed for their offenses, along with other people who test positive for controlled substances in pregnancy or give birth to babies who show signs of exposure to drugs.
Forty seven leading medical, legal, and public health organisations have spoken out against this interpretation of the law, arguing that it causes grievous harm and creates more problems that it solves. It’s not just bad public health policy and bad for pregnant people; it’s also unsound legal policy, because it amounts to judicial activism on the part of the court that made the contentious ruling. It’s a stretch to consider the law ‘ambiguous’ when it clearly references children, not fetuses, and while the anti-choice movement is fond of attempting to redefine fetuses as ‘preborn children,’ this term has no medical, social, or legal standing.
Chemical exposure laws like this are already questionable, as they feed the prison-industrial complex in the United States and don’t get to the heart of the problem. Young children may be exposed to toxic substances due to circumstances beyond careless or actively negligent parenting; parents may be forced to live in toxic communities, for example, or trapped in relationships with people who handle such substances. Systemic problems keep people of low income trapped in drug culture, and imprisoning them doesn’t actually resolve the issue.
The threat of prison is not an effective tool for reducing early childhood exposure to chemical hazards: addressing those hazards should be at the core of any reform campaign. That starts with making access to drug treatment easy, safe, and effective, with a clear framework for protecting parents who seek care and may be reluctant to do so because of stigma, worry about having their children taken away, or fear of a partner or family member. When drug treatment is not at the heart of programmes intended to address public health concerns about drug manufacture and consumption, such programmes are inherently flawed.
It’s also critical to enact environmental reforms to protect residents of toxic neighbourhoods, creating better tools for monitoring and enforcement. Expecting parents may be exposed to hazards in air, water, and soil without even being aware of it, and that certainly shouldn’t be grounds for criminal liability—the companies releasing these pollutants should be held liable for their actions, not their victims.
Getting children out of hazardous environments requires more than shaming their parents, and that goes double for women carrying fetuses who are exposed to toxins and decide not to get abortions. Pregnant patients who may have been afraid to get drug treatment before will be doubly so now, as doing so might create a risk of future prosecution. Patients may also be reluctant to seek prenatal care and other forms of assistance that might be made available for them, which poses a far greater danger.
Those fearing prosecution might opt for abortion rather than running the risk—so much for protecting the ‘preborn’–and others might choose to leave the state for pregnancy and childbirth, isolating themselves from their social networks and community. Those truly worried about fetal and maternal health shouldn’t be so eager to push expecting parents away from their support base, where they might access assistance with the pregnancy and what comes after.
Effectively, this interpretation argues that people who are exposed to hazardous substances should be penalised for it, cut off from available resources and imprisoned for daring to carry a pregnancy to term. Nowhere in this framework is there room for supporting patients who want drug treatment, prenatal care, and help with finding a clean and safe environment for their families.
Lynn Paltrow and Emma S. Ketteringham, writing on Reproductive Health Reality Check, fear that ‘a pregnant woman who has never been to a meth lab and who has never brought a child into a meth lab, can be punished for bringing a child into the world if she tests positive for a controlled substance—even one prescribed to her by her doctor.’ In other words, being a compliant patient could mean that you go to jail.
This is, as Paltrow and Ketteringham point out, a pro-punishment policy, rather than a proactive policy designed to address an actual public health issue. It is yet another reminder that the right believes that pregnant bodies are its property; those who perform abortions should be punished, and those who fail to behave in socially acceptable ways should also be punished, including pregnant women who can be prosecuted for murder after a suicide attempt results in a pregnancy loss.
Criminalising drug use in pregnancy doesn’t address the issue advocates claim to be legislating: If they believe that drug use in pregnancy poses a risk to fetuses (which it does), they should be focused on developing tools for reducing the incidence of drug use in pregnancy. Numerous studies illustrate that prohibitions are not effective, and neither are laws with harsh penalties ranging from a year to life in prison. Such laws drive drug-using parents underground, where they will have access to limited treatments and interventions, and effectively ensure that drug use in pregnancy will remain unaddressed.
If advocates believe environmental exposure poses a threat, which it most certainly does, they should be focusing their efforts on the source of the contaminants, not the victims. Many low-income people live on or near industrial sites, including abandoned sites that the government is expected to clean up. When they are exposed to toxins during pregnancy, this isn’t because they are neglectful or unwilling to take responsibility—it is because they are trapped in a hazardous environment.
It’s clear that conservative organisations are primarily concerned not with fetal and maternal health, but with the fetus as symbol and idea. The fetus as fetish object or icon is what’s important here. The same advocates fighting to interpret the chemical endangerment law as applying to fetuses oppose appropriation of funds to provide treatment services to babies with complications related to prenatal drug use. They oppose basic childcare and social services intended to support new parents, and are particularly resistant to long-term funding for people with disabilities, which includes individuals disabled as a result of drug use in pregnancy. They oppose environmental regulations and in some cases want to dismantle the Environmental Protection Agency, tasked with addressing pollutants that pose a threat to human health.
If the long-term goal is to lower the abortion rate in the name of preserving the sacred fetus, threatening patients with jail terms is going to have the opposite effect. Abortion is likely to go up in Alabama as a result of fear among patients that they might be prosecuted for giving birth. Interpreting the law this way coerces women into having abortions: the very same thing the right claims the left is doing.
The right views the uterus as an incubator and an object of public property, to be used and legislated as it sees fit. If that means forcing people to have abortions in order to exert authority over them, so be it, apparently.
Front page: fetus sonogram by Sam Pullara, licensed under the Creative Commons Attribution 2.0 Generic license.
But of course only liberal judges engage in “judicial activism”