Conservatives like to complain about judicial activism, which generally means a judge issued a decision which they don’t like.

I have grown to hate the term because it is used so frequently that it doesn’t mean anything anymore. Still, there are few alternative phrases that accurately describe the Alabama Supreme Court’s decision in the consolidated cases of Amanda Kimbrough and Hope Ankrom. Amanda and Hope are two women who were swept up in the Alabama judiciary’s zeal to promote an anti-choice personhood agenda at the expense of pregnant women, by redefining the word “child” in Alabama’s chemical endangerment statute so that it now applies to pregnant women who use any amount of controlled substances, whether prescribed by a doctor or not.

In the cases of Amanda and Hope, the drugs were not prescribed by a doctor. Both women ingested illicit drugs during their pregnancies (meth in Amanda’s case, and cocaine in Hope’s case) and were prosecuted for it. But the two women were prosecuted for behavior that was not intended to be criminalized when the legislature enacted the chemical-endangerment statute in 2006, and that is where the egregious injustice lies.

The statute was enacted to protect children from injury resulting from exposure to toxic chemicals used to produce methamphetamines, not to punish drug-dependent women for choosing to carry their pregnancies to term despite their drug dependencies. In fact, the chemical-endangerment statute was not intended to address the behavior of pregnant women at all:

(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:
(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260. A violation under this subdivision is a Class C felony.
(2) Violates subdivision (1) and a child suffers serious physical injury by exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia. A violation under this subdivision is a Class B felony.
(3) Violates subdivision (1) and the exposure, ingestion, inhalation, or contact results in the death of the child. A violation under this subdivision is a Class A felony.

Also, the statute specifically does not apply when the controlled substance is prescribed to a child:

(c) It is an affirmative defense to a violation of this section that the controlled substance was provided by lawful prescription for the child, and that it was administered to the child in accordance with the prescription instructions provided with the controlled substance.

(One wonders how a drug could be prescribed to a fetus in the first place.)

And the legislature rejected multiple attempts to amend the statute to make it applicable to pregnant women. (Four bills were introduced in the Alabama Legislature—House Bill 723 in 2008; House Bill 601 in 2010; House Bill 8 and Senate Bill 34 in 2011, and Senate Bill 31 in 2012—and none of them became law.) Additionally, the sponsor of the chemical-endangerment statute, Sen. Lowell Barron (D-Fyffe) stated, “I hate to see a young mother put in prison away from her child.” 

Amanda and Hope were prosecuted anyway, and when they raised the above-mentioned arguments in connection with their efforts to dismiss their indictments, they were unsuccessful. Rather than risk the full weight of the law bearing down on them, both women pled guilty and pursued their appeals in the Criminal Court of Appeals, and, ultimately, the Alabama Supreme Court. Hope was sentenced to three years in prison (the sentence was suspended and she was placed on probation) and Amanda—who has three children—pled guilty and was sentenced to ten years in prison.

In its January 11 ruling, the Alabama Supreme Court refused to overturn Hope and Amanda’s sentences. Instead, the Court affirmed the Criminal Court of Appeals’ decision to redefine the word “child” in the chemical-endangerment statute, and went further than the Court of Appeals did: The Court found that to the extent the Court of Appeals had limited the definition of “child” to a “viable fetus,” such a distinction was unwarranted because “outside the right to abortion created by Roe v. Wade, the viability distinction has no place in the laws of [Alabama],” and is “inconsistent with the plain meaning of the word ‘child’.” So now, any pregnant woman in Alabama who uses any amount of controlled substances, whether prescribed by a doctor or not, risks arrest, prosecution, and imprisonment.

The Court’s ruling reads reasonably enough. Neither women raised constitutional issues in their appeals, so the Alabama Supreme Court did not address such issues. (Courts of appeal only address issues actually raised on or preserved for appeal.) The Court rather dryly hung its hat on a rule of statutory construction which requires a court to interpret a statute as written. That, too, seems reasonable enough. (Rules of statutory construction are simply rules that courts follow when interpreting statutes. Generally, courts will look to the plain meaning of the statute before it will look to legislative intent or elsewhere.)

But here’s the problem: when construing criminal statutes, courts are required to read them narrowly so that actions the legislature did not specifically intend to criminalize are not criminalized. That’s a basic principle of respect for the rights of individuals, a principle championed by the late great Justice Marshall himself.

The Court did not do that here. In fact, the Court recognized that it had a duty to strictly construe criminal statutes, but then refused to do so, instead claiming that it was not required to “abandon common sense.”

“[A]lthough penal statutes are to be strictly construed, courts are not required to abandon common sense. Absent any indication to the contrary, the words must be given their ordinary and normal meaning.”

In giving the word “child” its ordinary and normal meaning, the Alabama Supreme Court found that “child” reasonably includes “an unborn child,” referencing dictionary definitions and colloquialisms. (The 2008 edition of Webster’s Collegiate Dictionary defines child as “an unborn person or recently born person,” Black’s Law Dictionary defines “child” as “[a] baby or fetus,” and, women sometimes say “I’m with child,” when they’re pregnant.)

Setting aside the fact that my 1986 American Heritage Dictionary defines child as “a person between birth and puberty,” and also setting aside the fact that the only person to use the phrase “I’m with child” in this century is Jennifer Tilly in the movie Seed of Chucky, any narrow reading—indeed, any common-sense reading—of the chemical-endangerment statute would mandate overturning the sentences of Amanda and Hope.

Remember, this law was enacted to deal with the growing problem of meth labs, and children suffering long-term developmental disabilities by inhaling the toxic fumes from chemicals used to produce meth. There is no common-sense reading of this statute, especially in light of the legislative history and intent of the statute, that would warrant its application to a pregnant woman who smokes meth.

Most importantly, the Court’s (mis)reading of the statute has severe policy implications for women in Alabama. As outlined in the amicus brief filed by the National Advocates for Pregnant Women on behalf of 23 organizations with expertise in fetal, neonatal, and maternal health, as well as drug addiction and psychiatry, the Court’s rewriting of this law is bad for women in a number of ways:

1. It undermines maternal, fetal, and child heath by deterring drug-dependent pregnant women from seeking health care out of fear of arrest.
2. It discourages pregnant women with drug problems some carrying pregnancies to term, thus resulting in pregnant women who might otherwise choose to maintain their pregnancies choosing to get abortions in order to avoid prosecution and potentially imprisonment. (In one case, State v. Greywind, that’s exactly what happened—a woman facing prosecution for taking drugs and allegedly harming her fetus aborted the pregnancy, was released from jail, and avoided prosecution.)
3. It will deter pregnant women from sharing vital information with health-care professionals who serve pregnant women best when an open relationship of trust and confidence exists between provider and patient, especially when the patient is struggling with drug dependency and may need specialized medical care.
4. It will endanger maternal and fetal health by incarcerating pregnant women who will be relegated to the inadequate prenatal health care services delivered to women in prison, and will suffer, among other things, risk of infectious disease, poor nutrition, and sexual abuse. (Indeed, Alabama received an “F” rating for delivery of prenatal care.)
5. It will make pregnant women who lawfully take prescribed controlled substances subject to criminal investigation and arrest, since the chemical-endangerment statute does not apply if a controlled substance is prescribed to a child, but does apply if a controlled substance is prescribed to a woman. (Never mind that it’s impossible to prescribe medicine to a fetus.)

The Alabama Supreme Court ignored these policy concerns, ignored the rules of statutory construction that would have mandated that the Criminal Court of Appeals’s decision be reversed, and perverted the law to promote an anti-choice and fundamentally anti-woman agenda—even signing off the decision with a quote from the Declaration of Rights in the Alabama Constitution:

The decision of this Court today is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law. Today, the only major area in which unborn children are denied legal protection is abortion, and that denial is only because of the dictates of Roe [v. Wade]. Furthermore, the decision in the present cases is consistent with the Declaration of Rights in the Alabama Constitution which states that ‘all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.’

“All men.”

Indeed.

Unfortunately, cases like Amanda and Hope’s are not outliers. A new study conducted by Lynn Paltrow of National Advocates for Pregnant Women and Professor Jeanne Flavin found more than 413 cases in which pregnant women were arrested, detained, or otherwise deprived of personal liberty, as a result of the “passage of feticide measures and laws restricting access to safe abortion care that, like so-called ‘personhood’ measures, encourage state actors to treat eggs, embryos, and fetuses as if they are legally separate from the pregnant woman.” These laws have increasingly resulted in the incarceration of pregnant women, or of women who have just experienced reproductive loss, and are based upon a grave misunderstanding of the science of addiction and/or depression. (The case of Bei Bei Shuai is a tragic example.)

The Alabama Supreme Court’s recent decision is simply the latest in the alarming trend explored in Paltrow and Flavin’s new study—a trend that champions the rights of fetuses by trampling on the rights of women—both women who choose to terminate their pregnancies, and those who choose to carry their pregnancies to term.

***This post has been edited since it was originally published to reflect that the Alabama Supreme Court rejected the Criminal Court of Appeals’ distinction between viable and previable fetuses, and redefined “child” to include the “unborn” whether viable or not. Additionally, as of April of last year, Kimbrough was free on appeal bond pursuant to the terms of her plea bargain.