Alabama Supreme Court Justices Make Case for Prosecuting Abortions

In a decision interpreting the state's chemical endangerment statute, two justices of the Alabama Supreme Court argued for jailing women who terminate pregnancies.

The justices of the Alabama Supreme Court ©Paul Robertson / Alabama.gov

Alabama Supreme Court Justice Tom Parker opened his concurring opinion in Ex Parte Hicks—a decision that upheld the conviction of Sarah Janie Hicks under Alabama’s child endangerment statute for giving birth to a healthy baby that later tested positive for cocaine—by quoting former U.S. Supreme Court Justice Sandra Day O’Connor’s plurality opinion in Planned Parenthood v. Casey. “Liberty finds no refuge in a jurisprudence of doubt,” O’Connor wrote for the plurality in Casey, to underscore that despite the deep wounding Casey‘s undue burden standard had just delivered to Roe v. Wade, Roe‘s central premise, that a woman has a fundamental right to privacy that includes the right to choose abortion, remained intact. It was designed to be a reaffirmation of the liberty rights of women, even in the face of significant state intrusion.

So why would an Alabama Supreme Court justice quote one of the most famous lines of abortion rights jurisprudence in an opinion concerning criminal child endangerment? To launch a shot across the bow in the battle to re-criminalize abortion.

In Hicks, the Alabama Supreme Court ruled that “the plain meaning of the word ‘child,’ as that word is used in the chemical-endangerment statute, includes an unborn child” and, therefore, prosecuting pregnant persons under the statue was permissible. Passed in 2006, Alabama’s chemical endangerment law was intended to deter people from bringing children to places where controlled substances are produced or distributed, such as methamphetamine laboratories, but increasingly prosecutors have used it to charge pregnant women who test positive for a controlled substance or who, like Hicks, give birth to a healthy newborn who tests positive for a controlled substance, or who experience a pregnancy loss. The decision follows a similar one handed down last year by the Alabama Supreme Court in Ankrom v. State, in which Alabama’s highest court also ruled that the word “child” includes an “unborn child.” While neither Ankrom nor Hicks were expressly abortion rights cases, they are the proverbial canary in the coal mine. The Alabama Supreme Court did not need to address abortion rights jurisprudence in the Hicks decision at all. In fact, the majority opinion upholding Hicks’ conviction doesn’t, even though it interprets the child endangerment statute to “protect the life of the unborn.” But that at least two members, including the chief justice, went out of their way to link the reasoning in Hicks and Ankrom to a call to re-criminalize abortion and attack the very premise, re-affirmed in Casey, that pregnant people have any liberty interests at all, is a very clear indication that the goal of the “personhood” movement includes prosecuting and jailing women, even those who deliver healthy babies like Hicks.

“Liberty will continue to find no refuge in abortion jurisprudence until courts … like Alabama recognize an unborn child’s inalienable right to life at every point in time and in every respect,” Parker continued. His flipping of the Casey quote here is as telling as it should be chilling. In one fell swoop, Justice Parker announces Alabama’s attempted judicial secession from abortion rights jurisprudence and makes a call to action for other states to follow suit. But Parker’s opinion is not just some rhetorical exercise. He and his colleague and fellow ideologue Justice Roy Moore explicitly make the judicial case for prosecuting women who have had abortions. According to Parker, because the state has an interest in protecting life “at all stages of development,” this necessitates jailing and prosecuting women for not just endangering a developing fetus, but in the case of abortions as well. “Why should legal protection of an individual at a particular point in time depend entirely upon his or her subjective relation to the killer?” Parker wrote. “Because an unborn child has an inalienable right to life from its earliest stages of development, it is entitled not only to a life free from the harmful effects of chemicals at all stages of development but also to life itself at all stages of development. Treating an unborn child as a separate and distinct person in only select respects defies logic and our deepest sense of morality.”

Not to be outdone by his colleague’s judicial activism, Justice Moore wrote separately that “as the gift of God, this right to life is not subject to violation by another’s unilateral choice ” and that it is “God’s law” the courts must follow.

From local to international, all law flows from the divine source: it is the law of God. The law of nature and of nature’s God binds all nations, states, and all government officials—from Great Britain to Germany to Alabama—regardless of positive laws or orders to the contrary.

Or, said another way, Justice Parker and Moore’s combined legal conclusion is that women should be prosecuted and jailed for their pregnancy outcomes because “God’s law” says so.

So why, beyond outright judicial activism, would Moore and Parker go out of their way to call specifically for courts to adopt fetal “personhood” as a means to eradicate abortion rights and to lay out, in detail, their purported legal reasoning for doing so? To help other anti-choice advocates make the same arguments in the future.

“These justices have clearly expressed the view that women who have abortions should be subject to prosecution and incarceration,” Lynn Paltrow, executive director of the National Advocates for Pregnant Women, told Rewire. “With the chief justice of a state supreme court now on record as viewing both women who give birth to healthy babies and women who have abortions as criminals, it is time proponents of anti-abortion laws and so-called ‘personhood’ measures address the punishment women will be subjected to as a result of these laws.”

In some ways, it was only a matter of time before an opinion like Hicks happened. Anti-choice zealotry has found a home with the elements of the criminal justice system that have pathologized and criminalized poverty, mental illness, and substance abuse. There’s the case of Rennie Gibbs, who at 16 years old faced life in prison after delivering a stillborn infant that prosecutors argued was related to cocaine use during pregnancy, despite the fact the infant never tested positive for cocaine, only cocaine byproduct. Other medical experts disagreed with that conclusion, instead concluding that the cause of death of Gibbs’ daughter was most likely the umbilical cord wrapped around the baby’s neck. A judge dismissed the case against Gibbs, but prosecutors have indicated that they will try and re-indict Gibbs this summer. Meanwhile, in Utah, a young woman was charged with a felony under the state’s child endangerment laws after having an emergency cesarean section that law enforcement believed was necessary because the woman allegedly was using methamphetamines while pregnant. And now Tennessee has explicitly given prosecutors the power to prosecute pregnant women for narcotic use, despite the fact that using drugs is not generally a crime.

One of the real dangers in prosecuting pregnant people under child endangerment statutes, according to Paltrow, is that there is no “limiting principle” to hold the state in check. “Once you decide that prosecutors and police officers have a role in prenatal care, there is no limiting principle, which means prosecutors can start to look at actions beyond just drug use,” she said. Paltrow’s right. In the argument promoted by Parker and Moore in Hicks, women’s personhood is erased at the moment of conception and anything that ends a pregnancy creates probable cause for an investigation into the cause of “death” of that pregnancy. And as the Parker and Moore opinions in Hicks show, for proponents of fetal “personhood” the only limiting principle  is the U.S. Constitution, which for now prevents judges from applying the logic of prosecuting pregnant drug users in the name of fetal rights to prosecuting women who seek abortions under the same—but even that may not be a given. In Iowa, three of the four Republican candidates for U.S. Senate have said that if elected they would block any federal judicial appointee who did not have a “biblical” view of justice or follow “natural law.” And while Kentucky senator and likely Republican presidential candidate Rand Paul recently caught heat from the right for claiming he had no interest in altering abortion laws, he remains a sponsor and proponent of the “Life at Conception Act,” which would create federal fetal “personhood.”

According to the Guttmacher Institute, in the pre-Roe days, despite the fact that many states criminalized abortion, including aiding and counseling a woman trying to obtain one, women were rarely convicted for having an abortion under those laws. Instead, prosecutors used the threat of jail, prosecution, and conviction to encourage them to testify against providers and drive out doctors who would continue to offer abortion care. That exercise of state power drove a dangerous and deadly wedge between pregnant people and their doctors and set patients and doctors up as potential adversaries with competing legal interests. But, history is an imperfect guide here. As we’re seeing in places like Alabama, Mississippi, Louisiana, and now Tennessee, fetal “personhood” proponents are creating a similar wedge, but this one isn’t to deter providers from treating women since TRAP (targeted regulation of abortion providers) laws and other laws restricting abortion access have already largely done that. This time, the exercise of state power is to go after the women themselves, regardless of her circumstances.