April 27, 2012 — This week's New York Times Magazine examines Alabama's chemical-endangerment statute, which has been used to convict approximately 60 women of endangering the life of their fetuses or newborns since it became law in 2006. The issue has drawn the interest of groups such as Planned Parenthood, the American Civil Liberties Union and the American Congress of Obstetricians and Gynecologists, who contend that the convictions establish a dangerous precedent.
The Alabama law prohibits a "responsible person" from "exposing a child to an environment in which he or she ... 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." Although the law originally was intended to protect children from explosive methamphetamine labs, state prosecutors quickly began using the term "child" to also mean "fetus" and the term "environment" to mean "womb," according to the Times Magazine.
Ala. Prosecutions Not Unique, Critics Say
The Times Magazine notes that charges against pregnant women for harming their fetuses are not unique to Alabama. Since abortion was legalized nationwide in 1973, "hundreds of women" have been charged for allegedly harming their fetuses, according to the Times Magazine. Many of the prosecutions are based on laws, such as "fetal homicide" measures, that were initially enacted to increase penalties for harming pregnant women.
Critics of the Alabama law also caution that it creates an opportunity for the enactment of fetal "personhood" legislation, according to Times Magazine. Personhood USA -- the group behind the personhood movement -- aims to define fertilized eggs as people with constitutional rights. The group has proposed personhood measures in 22 states, and while some have made it to state ballots, none have been approved.
Lynn Paltrow, executive director of National Advocates for Pregnant Women, said the problem with the idea of personhood beginning at fertilization is that it is dependent on "subtracting pregnant women from the community of constitutional persons."
Emma Ketteringham -- director of legal advocacy at National Advocates for Pregnant Women -- warned that personhood, fetal homicide and chemical-endangerment laws set the nation on a slippery slope. "Everyone talks about the personhood of the fetus, but what's really at stake is the personhood of women," she said, adding, "It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she's pregnant becomes subject to state regulation" (Calhoun, New York Times Magazine, 4/25).
Repro Health Watch — an exciting new edition of the Women’s Health Policy Report — compiles and distributes media coverage of proposed and enacted state laws and ballot initiatives affecting women's access to comprehensive reproductive health care, as well as litigation in response to those provisions.