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Criminalization of mothers that use drugs; implications on abortion
This is really long so I just posted the opening...
The Criminalization of Bad Mothers
By ADA CALHOUN
Published: April 25, 2012
On a rainy day just after Thanksgiving, Amanda Kimbrough played with her 2-year-old daughter in her raw-wood-paneled living room, petting her terriers and half-watching TV. Kimbrough, who is 32, lives a few miles outside Russellville, a town of fewer than 10,000 in rural northwestern Alabama, near the border of Franklin and Colbert Counties. Textiles were the economic engine of the area until the 1990s, when the industry went into decline and mills shut down. Now one of the region?s leading employers is Pilgrim?s, a chicken supplier. The median household income is $31,213, and more than a third of children live below the poverty line.
As family members came in and out of the room and one daytime show slid into another ? ?The People?s Court,? ?Intervention,? ?Jerry Springer,? ?The Ellen DeGeneres Show? ? Kimbrough talked about her arrest following the death of her third child, Timmy Jr. Born premature at 25 weeks on April 29, 2008, Timmy Jr. weighed 2 pounds 1 ounce, and lived only 19 minutes. When Kimbrough tested positive for methamphetamine, her two daughters were swiftly removed from her custody, and for 90 days, she was allowed only supervised visits. Social services mandated parenting classes and drug treatment.
That would have been a typical response in most places, but Alabama is different. Six months after Timmy Jr.?s death, the district attorney in Colbert County charged Kimbrough with chemical endangerment of a child, a Class A felony (because the infant died) that carries a mandatory sentence of 10 years to life. She turned herself in, and bail was set at $250,000. At the trial, the state completed its case in two days. On the advice of her lawyer, Kimbrough then pleaded guilty and received the minimum sentence of 10 years.
According to Kyle Brown, the chief assistant district attorney in the case, Kimbrough might have received far more time if a jury had found her guilty. ?She caused the death of another person,? Angela Hulsey, an assistant district attorney on the case, said, ?a person that will never have the chance to go to school, go to the prom, get married, have children of their own. You?re dealing with the most innocent of victims.?
When I met Kimbrough last fall, she was free on an appeal bond. (Her plea bargain allows her lawyers to appeal her conviction on constitutional grounds without contesting the specifics of her case.) Kimbrough said she never had a big problem with meth, but admitted that she started using the drug in her mid-20s, after her first marriage collapsed. When she was pregnant with Timmy Jr., she did meth only once, she told me.
?One time,? she said. ?I don?t even know why I done it. I guess the Devil knocked on my shoulder that day.? Otherwise, Kimbrough insisted, she abstained from drugs during her pregnancy, even refusing painkillers for an infected tooth for fear they would hurt the baby. Timmy Jr.?s birth had many potentially complicating factors, including prematurity and a prolapsed cord. Kimbrough says she was eager to have the child ? she had always wanted a boy. She and her husband, Timmy Sr., were told at an early-April prenatal visit that Timmy Jr. would likely have Down syndrome, and while abortion was an option, the Kimbroughs, who oppose abortion on moral grounds, did not consider it. ?We didn?t care if he was special needs,? Timmy Sr. said. ?We would have loved him.?
Kimbrough told me that she was devastated by the loss of her baby and scared of being locked up. She described a recent visit to her brother in prison, where he is serving time for burglary and other charges, and how upset she was by the place.
?I feel for people on drugs,? she continued. ?You got to stay away from people that?s on them. I learned that in rehab, and I been clean ever since. I feel like I iced the cake with this one. To me, losing a child. . . . ? She stared off into space.
You might not expect a rural Alabama mother with a felony conviction to have in her corner a national army of feminists, civil libertarians and gynecologists, but Kimbrough?s case has attracted the interest of groups like Planned Parenthood, the A.C.L.U. and the American Congress of Obstetricians and Gynecologists, who all maintain that her conviction sets a dangerous precedent. Emma Ketteringham, the director of legal advocacy at the National Advocates for Pregnant Women, a New York-based reproductive-justice group, has been following Kimbrough?s case closely. She has drafted ?friend of the court? briefs for Kimbrough signed by groups like the National Organization for Women-Alabama and the American Medical Association. She argues that applying Alabama?s chemical-endangerment law to pregnant women ?violates constitutional guarantees of liberty, privacy, equality, due process and freedom from cruel and unusual punishment.? In effect, she says, under Alabama?s chemical-endangerment law, pregnant women have become ?a special class of people that should be treated differently from every other citizen.? And, she says, the law violates pregnant women?s constitutional rights to equal protection under the law. Ketteringham also recruited two prominent Alabama lawyers, Jake Watson and Brian M. White, to take Kimbrough?s case pro bono. ?I love babies, too, but I don?t like locking up their mamas,? Watson told me.
There have been approximately 60 chemical-endangerment prosecutions of new mothers in Alabama since 2006, the year the statute was enacted. Originally created to protect children from potentially explosive meth labs, Alabama?s chemical-endangerment 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.?
Criminal convictions of women for their newborns? positive drug tests are rare in other states, lawyers familiar with these cases say. In most places, maternal drug use is considered a matter for child protective services, not for law enforcement. Advocates for Kimbrough insist that, in any case, Alabama?s chemical-endangerment law was never meant to apply to pregnant women?s drug use. ?The words ?womb,? ?uterus,? ?pregnant women? don?t appear in the law,? Ketteringham says. ?It was a law meant to protect children from meth labs.? One state legislator has filed an amicus brief, claiming the law was not intended to be used this way, and the Legislature has repeatedly rejected amendments to expand the law?s definition of ?child? to explicitly mean ?fetus.? But shortly after the law passed, Alabama prosecutors began extending the term ?environment? to also mean the ?womb,? and ?child? to also mean ?fetus.? In 2006, Tiffany Hitson was charged with chemical endangerment the day after she gave birth to a baby girl who tested positive for cocaine and marijuana but was otherwise healthy. When that prosecution was successful (Hitson was incarcerated for a year), other counties followed suit, making Alabama the national capital for prosecuting women on behalf of their newborn children.
Last summer, the Alabama Court of Criminal Appeals upheld this expanded interpretation of the chemical-endangerment law, ruling that the dictionary definition of ?child? includes ?unborn child,? an interpretation that will be challenged when the state?s Supreme Court considers Kimbrough?s case in the coming months. But the implications of that ruling go far beyond Alabama. Critics like Ketteringham argue that Alabama?s chemical-endangerment law offers a back door into what has become known as the ?fetal personhood? argument.
See the rest here
http://www.nytimes.com/2012/04/29/magazine/the-criminalization-of-bad-mothers.html?pagewanted=1&hp
Re: Criminalization of mothers that use drugs; implications on abortion
DD #1 passed away in January 2011 at 14 days old due to congenital heart disease
DD#2 lost in January 2012 at 23 weeks due to anhydramnios caused by a placental abruption
I wonder how this would apply to women who smoke or what about women who have children born with FAS from drinking. Could they be charged or is that different since those are legal substances? I'm also wondering about some prescription medications. There are plenty of drugs that are not safe to take during pregnancy but I'm sure there are people out there that still use them. Or people who even abuse OTC medications that may not be safe for a fetus.
Seems like a very slippery slope to me.
I agree the precedent this would set would have horrible implications.
Yeah, I'm no medical expert, but taking meth 1 time (supposedly) during pregnancy vs. a CORD PROLAPSE? Hmm.
40/112
There is absolutely NO way she did it just one time...as a caseworker I worked on a case in which the mother shot meth during her entire pregnancy and even IN the hospital during her delivery stay. The baby was born with pretty severe deformities on one of its hands, and the parents were both criminally charged for aggravated child endangerment and are doing time which is well deserved. Their rights to the child were immediately terminated.
Meth is one of the most addictive drugs out there and I am not buying this story of her doing it just once and that one time causing such health problems to the point of death.