by Nina Martin
ProPublica
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When the Womb Is a Crime Scene
Alabama has turned hundreds of pregnant women into felons for using drugs — even when they’re legal and the kids turn out fine.
by Nina Martin, ProPublica
September 23, 2015
Casey Shehi’s son James was born in August 2014, remarkably robust even though he was four weeks premature. But the maternity nurse at Gadsden Regional Medical Center seemed almost embarrassed, and as she took the baby from his exhausted mother’s arms, Shehi felt a prick of dread.
“She said they were going to have to take him back to the nursery to produce some urine, because I had a positive drug screen for benzodiazepines,” Shehi, 37, recalled one evening a few months ago at a café near her mother’s home. She hadn’t been sleeping well; her brown hair hung lank past her shoulders, and her eyes were rimmed with worry. “I said: ‘That can’t be true. Can you please check it again? Run the screen again.’ ”
This story includes reporting from AL.com's Amy Yurkanin in Birmingham and was co-published with AL.com and Mother Jones.
The nurse asked: Did she have a prescription for any form of benzo — Xanax or Klonopin or Ativan? No, Shehi insisted, there must be a mistake.
Then she remembered: the Valium.
One night a few weeks earlier, Shehi and her ex-husband got into a huge argument on the phone. She was in the late stages of what had been a difficult pregnancy; she was achy and bloated, and her ankles felt like they might explode. After the fight, she called her mother, Ann Sharpe, a retired teacher and guidance counselor who lived nearby. “She was really upset — ‘I’m miserable, I’m sick, I can’t sleep,’ ” Sharpe recalled. “I said, ‘Do you have something you can take?’ ” As Shehi later told investigators, she had swallowed half of one of her boyfriend’s Valiums to calm herself down.
Not long after, Shehi and her boyfriend and their various kids packed up the camper and drove 325 miles from Gadsden, in northeast Alabama, to the beach in Panama City, Florida, for one last vacation before the baby came. The weather was sweltering, the trailer — a grimy relic with an air conditioner that only worked when it wanted to — suffocating. Shehi was too keyed up to sleep, her 4-year-old son curled up beside her on the narrow bed. Finally, she reached for the other half of the tranquilizer.
As Shehi recounted the story, the maternity nurse told her, “Okay, okay.”
By that night, everything really did seem all right. Excited nurses woke Shehi and handed her the baby, swaddled in a light blanket. “They told me: ‘He’s good, he’s clean. You can have him now, no worries.’ ” Exposure to too much benzodiazepine during pregnancy can sometimes cause newborns to be fussy or floppy-limbed. But occasional, small doses of diazepam (the generic name for Valium) are considered safe. According to the lab report, James had nothing in his system. Shehi said the pediatrician reassured her, “Everything’s cool.”
The next day, Shehi and the baby went home, and someone from the Department of Human Resources, the state child welfare agency, paid a visit. In recent years, Alabama authorities have been aggressive about removing newborns from the custody of mothers who abuse drugs, typically placing a baby with a relative or foster family under a safety plan that can continue for months or years. The social worker listened to Shehi and Sharpe’s story and concluded that theirs wasn’t one of those situations. “She said: ‘I understand the pain you are in, and I understand what’s going on. I won’t take the baby away,’ ” Sharpe recalled.
But one morning a few weeks later, when Shehi was back at her job in a nursing home and the baby was with a sitter, investigators from the Etowah County Sheriff’s Office showed up at the front desk with a warrant. She had been charged with “knowingly, recklessly, or intentionally” causing her baby to be exposed to controlled substances in the womb — a felony punishable in her case by up to 10 years in prison. The investigators led her to an unmarked car, handcuffed her and took her to jail.
Shehi had run afoul of Alabama’s “chemical endangerment of a child” statute, the country’s toughest criminal law on prenatal drug use. Passed in 2006 as methamphetamine ravaged Alabama communities, the law targeted parents who turned their kitchens and garages into home-based drug labs, putting their children at peril.
Within months, prosecutors and courts began applying the law to women who exposed their embryo or fetus to controlled substances in utero. A woman can be charged with chemical endangerment from the earliest weeks of pregnancy, even if her baby is born perfectly healthy, even if her goal was to protect her baby from greater harm. The penalties are exceptionally stiff: one to 10 years in prison if her baby suffers no ill effects, 10 to 20 years if her baby shows signs of exposure or harm and 10 to 99 years if her baby dies.
For this story, ProPublica and AL.com filed multiple public information requests to identify the more than 1,800 women arrested under the chemical endangerment law, then sifted through court records to find the cases related to pregnancy. The data showed that at least 479 new and expecting mothers have been prosecuted across Alabama since 2006, or more than three times the number previously identified. Many others have been investigated in the chemical-endangerment version of stop-and-frisk, their lives turned upside down by an intrusive — and women’s advocates say, unconstitutional — dragnet of drug testing without their knowledge or, sometimes, their explicit consent.
The goal of the law is to protect children by removing them from unsafe settings and mothers too impaired and unstable to provide proper care. Prosecutors contend the law has been the impetus for hundreds of women to get treatment and restart their lives, with prison as the price for those who choose not to or who fail.
Yet there’s nothing in the statute to distinguish between an addict who puts her baby at grave risk and a stressed-out single mom who takes a harmless dose of a friend’s anti-anxiety medication. There are no standards for law enforcement officials or judges to follow: Is the presence of drugs in the mother’s body cause for charges if the baby tests clean? What test results are appropriate for medical providers to report and when? Should a mother face charges even when she was using a prescription drug under a doctor’s supervision? Local prosecutors and courts have wide discretion.
Some of the most wrenching effects of the law can be seen in the area of parental rights. Chemical endangerment is considered a form of child abuse, and a woman accused of exposing her baby to drugs in utero is at risk of losing custody of all her children, not just her newborn.
In Shehi’s case, social workers had determined that James, the baby she had supposedly endangered, was fine and could remain in her care, court records show. But she had an open custody case involving her preschool-age son. After the arrest, the judge overseeing those arrangements issued an emergency order granting her ex-husband sole custody. There wasn’t even a hearing. “I was supposed to pick him up from school,” Shehi said,“and my lawyer saw the order and told me, ‘Don’t go.’ ”
Abortion Politics Meet a Meth-Lab Law
The story of how Alabama’s chemical endangerment law became the most sweeping measure deployed against pregnant women in the U.S. during the last decade begins with methamphetamine. The drug arrived in the 1990s, and by the mid-2000s it was overwhelming law enforcement and social service agencies in rural, economically depressed areas in the north of the state and along the Florida border.
Drugs and Fetal Harm
Women are warned away from many substances during pregnancy, from cigarettes and wine to sushi. Science on the harms caused by illicit drugs is surprisingly nuanced.
Benzodiazepines
Science
Though used for decades to treat pregnancy-related anxiety and hypertension (preeclampsia), benzos have never been tested directly on pregnant and breastfeeding women to determine the effects on the fetus and infant. Diazepam (Valium) is considered the safest form to take in pregnancy, ideally in very small amounts.
Pregnancy Effects
Some studies point to a slightly increased risk of congenital anomalies such as cleft palate; others do not. The FDA classifies benzos as Category D drugs (positive evidence of human fetal risk; benefits may outweigh risks), to be avoided in the first trimester.
Birth Effects
Newborns exposed to acute doses in the third trimester or smaller doses over longer periods can have withdrawal symptoms that include floppy limbs, lethargy, and difficulties feeding and sleeping.
Long-term Effects
Babies born with withdrawal symptoms don’t appear to suffer any lasting effects.
Marijuana
Science
For ethical reasons, it’s been almost impossible to conduct clinical trials in the U.S. that expose pregnant women to marijuana, so many published studies have relied on historical and retrospective data from other countries. New, more potent strains make it harder to understand the drug’s true effects.
Pregnancy Effects
Pot has been used in other cultures for thousands of years to treat pregnancy-related conditions from morning sickness to labor pains. Studies of mothers in Jamaica and elsewhere have found no link to miscarriage or birth defects.
Birth Effects
While some studies have reported associations between marijuana and low birth weight, particularly in women who use it late in pregnancy, other research has found that the effects are insignificant when factors such as maternal age and tobacco use are taken into account.
Long-term Effects
A few studies have found an association between heavy marijuana use in pregnancy and things like lower tests scores, increased depression and impulsive behavior in teenagers. But children in these studies are often poor, with prenatal exposure to multiple substances, making it difficult to link their outcomes to a particular cause.
Cocaine
Science
Researchers have been tracking “crack babies” through childhood and adulthood for nearly 35 years, upending many early assumptions about the drug’s short- and long-term effects.
Pregnancy Effects
Heavy cocaine use has been associated with an elevated risk of preterm birth, miscarriage and placental abruption (when the placenta pulls away from the uterus, causing catastrophic bleeding). But early reports of widespread birth defects, including heart and gastric abnormalities and limb deformities, have not been supported by later research.
Birth Effects
While some cocaine-exposed newborns exhibit symptoms such as irritability, hyperactivity, and high-pitched crying, studies have found that most do not. Some effects once blamed on the drug, such as low birth weight, may be caused by nicotine, alcohol, or a lack of prenatal care.
Long-term Effects
Early predictions were that people exposed to crack in utero would suffer from severe emotional, mental, and physical disabilities. But those fears turned out to be overstated. Some studies have found that prenatal cocaine exposure increases the risk of cognitive and behavioral problems in children and teenagers, but not to the degree once thought — and underlying factors such as poverty, malnutrition, and poor-quality education appear to be much more influential.
Methamphetamine
Science
Research on neonatal and developmental effects has been hampered by small sample sizes and the tendency of subjects to use multiple substances. To understand the drug’s long-term effects, the Infant Development, Environmental, and Lifestyle (IDEAL) study is following children in four states over a number of years.
Pregnancy Effects
Some research suggests that the drug can restrict the flow of nutrients and oxygen to the developing fetus, inhibiting growth and increasing the risk of placental tearing and premature delivery. Depression — itself a risk factor for poor pregnancy outcomes — is highly correlated with meth use.
Birth Effects
Meth-exposed newborns may be smaller than normal and sometimes display signs of lethargy or stress.
Long-term Effects
One IDEAL paper suggests that children exposed in utero may be at slightly higher risk for deficits in fine-motor function, but these seem to disappear over time. Other studies have found an increase in cognitive, mood and behavior problems in young children.
In Montgomery, lawmakers tried to play catch-up by targeting do-it-yourself manufacturing operations and cracking down on sales of over-the-counter cold medications used to produce the drug. Home-based labs were noxious and dangerous, with a tendency to catch fire or blow up — especially hazardous for kids. Barry Matson, who heads the Alabama District Attorneys Association’s drug abuse task force, recalled one memorable case: “We raided the house, and they were venting the gases through a kitchen into the baby’s playpen.”
The new chemical endangerment law didn’t stop at meth labs. Parents and other responsible adults could be arrested for exposing children to virtually any type of controlled substance or drug paraphernalia in all kinds of settings: a crack pipe on a coffee table, an open bottle of pills, marijuana smoke in a car.
As the Legislature tackled that problem, hospitals were reporting another: an increase in the number of scrawny, often premature newborns who showed signs of exposure to meth in the womb. Some had withdrawal symptoms, a condition known as neonatal abstinence syndrome. When the Alabama Department of Public Health randomly screened 500 pregnant women during routine prenatal visits at clinics around the state, 13 percent were positive for a controlled substance (mostly marijuana), a figure that implied at least 8,200 live births per year by users, the state’s Maternal Drug Task Force reported. Even that number was thought to be a significant underestimate.
Marshall County, at the southern edge of the Appalachians, was one of the areas hardest hit, so awash in addiction that its most prominent landmark was nicknamed Meth Mountain. Doctors and nurses were clamoring for action, said Steve Marshall, the district attorney there since 2001. “We starting holding pow-wows … from a public health standpoint, a law enforcement standpoint, what was the best way to deter women from this behavior?”
Drug abuse in pregnancy is an extraordinarily difficult problem to treat; effective programs for poor, uninsured women were exceedingly scarce. With what felt like a crisis bearing down on them, Marshall and a few of his fellow prosecutors turned to the meth-lab law. Under the statute’s flexible language, they concluded, “a child” could be a fetus, and “an environment in which controlled substances are produced or distributed” could be a womb. In late 2006, they began charging mothers whose newborns tested positive for drugs — not just meth, but also cocaine, opioids and pot. Marshall’s goal wasn’t to throw women in prison, he said, but to use the threat of incarceration to force them into treatment. Mothers who were successful could eventually have the charges dismissed. “We wanted to find a mechanism to get mama clean, get kid healthy and hopefully encourage a reunification of the family,” he said.
“We have clearly used it [the chemical-endangerment statute] a little bit different than it was designed,” Marshall acknowledged. “That, in and of itself, doesn’t mean it’s wrong.”
It was an audacious legal experiment but not a novel idea. Since the “crack-baby” era of the 1980s, authorities in at least 44 other states have sought to hold women criminally accountable for drug use in pregnancy, according to the nonprofit National Advocates for Pregnant Women, often by repurposing statutes such as child abuse and drug distribution and trafficking laws meant for something else. But most experts thought arresting mothers was terrible public policy: It treated addiction as a crime rather than a disease; it discouraged the women most in need of prenatal care from seeking it; and it interrupted a mother’s bond with her baby when she was particularly vulnerable, making her more likely to relapse. “Did the war on drugs work? Do you have a reason to think a war on women using drugs during pregnancy is going to?” asked Donald Bross, a professor of pediatrics and family law at the University of Colorado School of Medicine. Only one state supreme court — South Carolina’s, in 1997 — ended up condoning the criminalization approach. In most states, drug use in pregnancy came to be seen as a matter best handled through the civil child welfare system: Removing a child seemed like punishment enough.
By the time the chemical-endangerment cases began winding their way through the Alabama courts in the late 2000s, though, the political and social landscape had transformed. Advocates for the rights of the unborn were on the ascendant. The personhood movement — which seeks to establish the embryo or fetus as fully human in as many legal and medical contexts as possible — had made significant inroads. The treatment of drug use in pregnancy as a crime against the fetus emerged as an important part of the strategy to dismantle Roe v. Wade, and the Alabama Supreme Court, possibly the most conservative high court in the country, proved especially receptive.
The Amanda Kimbrough Case
Only one woman has gone to trial for chemically endangering her unborn child: Amanda Kimbrough, whose case was one of two that became the basis for the Alabama Supreme Court’s 2013 ruling. Kimbrough’s son Timmy was born premature and died. Her lawyer blamed Down syndrome, while prosecutors blamed Kimbrough’s methamphetamine use.
Kimbrough ended up taking a plea deal and received a 10-year sentence. The high court asserted that its decision “is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law.” The only area where fetal rights were not recognized, the court said, was abortion.
One justice in particular, a longtime anti-abortion warrior named Tom Parker, saw an opportunity to create a whole new jurisprudence of personhood that could be ammunition for abortion opponents in their push for another showdown at the U.S. Supreme Court. In decisions in 2013 and 2014 that were as much about abortion as drugs, Parker and his fellow justices ruled that the meth-lab statute could indeed be used to prosecute expectant and new mothers — not just from the time the fetus is viable (around 22 weeks) but from the earliest stages of pregnancy.
Attorney Rebecca Green Thomason, who represented Amanda Kimbrough, the Colbert County woman whose case became the basis for the 2013 decision, thinks abortion opponents have got it all wrong. Thomason is proudly conservative — “a right-wing crazy” is how she puts it — and unapologetically anti-abortion: “Based on what I do, it seems that women have abortions for not necessarily their own reasons. They are often coerced into it.” One of her chief criticisms of the chemical endangerment law is that it punishes mothers in crisis who do their best to carry their babies to term; a smart woman, Thomason said, won’t even try. “From my right-wing perspective,” she said, “we are forcing women to have abortions.”
One Law, ‘Vastly Different’ Results
In 2013, a couple of weeks after the Alabama Supreme Court’s first ruling, Lynn Paltrow, the NAPW’s executive director, and Jeanne Flavin, a professor of sociology at Fordham University, published an extensive study on arrests and “forced interventions” against pregnant women in the 30 years following Roe. It was an eye-opening analysis of how the relentless battles to restrict abortion have resulted in the increasingly onerous regulation of pregnancy itself. The report compiled 413 examples across the United States, mostly arrests of drug-using mothers, but other types of detentions and prosecutions as well — a figure that struck many people as shocking. The number of Alabama chemical-endangerment prosecutions in the ProPublica/AL.com analysis — almost certainly an undercount — dwarfs anything in that report. As a new drug panic over opiates and “oxytots” spreads through the South and Midwest, and other states contemplate their own chemical endangerment-like statutes (Tennessee passed one last year; this past spring, eight legislatures introduced bills), the Alabama example holds lessons about the kinds of inequities and overreach that can result, said NAPW’s director of legal advocacy, Sara Ainsworth. “Alabama isn’t an aberration,” she said. “It’s a bellwether.”
Other States That Take a Hard Line
South Carolina and Tennessee also treat drug us during pregnancy as a crime. In Wisconsin, women can be detained.
South Carolina
A viable fetus is considered a person under the state’s child endangerment statute, and “maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus” are a form of child abuse.
Legal basis
South Carolina Supreme Court in Whitner v. State, 1997
How it works
Pregnant women who use drugs or alcohol from the late second trimester may be charged with felony child abuse or another crime. Authorities have also cited the phrase “maternal acts” to challenge other potentially risky behavior during pregnancy, including refusing to have a cesarean section and attempting suicide. Rutgers University researcher Grace Howard has tracked at least 107 cases since 2005.
Tennessee
A woman who uses an illegal “narcotic” while pregnant commits aggravated assault if her child is born “addicted to” or is “harmed by” the drug.
Legal basis
SB 1391, passed by the Tennessee Legislature in 2014
How it works
A mother who exposes her fetus to opiates in the third trimester faces up to 15 years in prison if her newborn tests positive. Women also have been charged for using methamphetamine. In the law’s first six months, 28 new mothers were arrested. This year, lawmakers introduced a measure to broaden the law, though it did not pass.
Wisconsin
Under the state Children’s Code, a juvenile court may take “exclusive … jurisdiction” over an unborn child if a pregnant woman “habitually lacks self-control” in the use of controlled substances or alcohol and poses a “substantial risk to the physical health” of her fetus.
Legal basis
“Cocaine mom” law passed by the Wisconsin legislature in 1998
How it works
A woman can be detained in a medical setting or a drug treatment program against her will for the duration of her pregnancy. The fetus has its own court-appointed lawyer, but the mother does not. After she gives birth, she can lose custody of her baby, temporarily or permanently. Because the proceedings occur in juvenile court, they are secret. More than 2,900 women were investigated under the law from 2005 to 2013, according to Wisconsin Department of Children and Families annual reports. At least 133 newborns were removed from their mothers.
Other States That Take a Hard Line
South Carolina
A viable fetus is considered a person under the state’s child endangerment statute, and “maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus” are a form of child abuse.
Legal basis
South Carolina Supreme Court in Whitner v. State, 1997
How it works
Pregnant women who use drugs or alcohol from the late second trimester may be charged with felony child abuse or another crime. Authorities have also cited the phrase “maternal acts” to challenge other potentially risky behavior during pregnancy, including refusing to have a cesarean section and attempting suicide. Rutgers University researcher Grace Howard has tracked at least 107 cases since 2005.
Tennessee
A woman who uses an illegal “narcotic” while pregnant commits aggravated assault if her child is born “addicted to” or is “harmed by” the drug.
Legal basis
SB 1391, passed by the Tennessee Legislature in 2014
How it works
A mother who exposes her fetus to opiates in the third trimester faces up to 15 years in prison if her newborn tests positive. Women also have been charged for using methamphetamine. In the law’s first six months, 28 new mothers were arrested. This year, lawmakers introduced a measure to broaden the law, though it did not pass.
Wisconsin
Under the state Children’s Code, a juvenile court may take “exclusive … jurisdiction” over an unborn child if a pregnant woman “habitually lacks self-control” in the use of controlled substances or alcohol and poses a “substantial risk to the physical health” of her fetus.
Legal basis
“Cocaine mom” law passed by the Wisconsin legislature in 1998
How it works
A woman can be detained in a medical setting or a drug treatment program against her will for the duration of her pregnancy. The fetus has its own court-appointed lawyer, but the mother does not. After she gives birth, she can lose custody of her baby, temporarily or permanently. Because the proceedings occur in juvenile court, they are secret. More than 2,900 women were investigated under the law from 2005 to 2013, according to Wisconsin Department of Children and Families annual reports. At least 133 newborns were removed from their mothers.
In the NAPW report, arrests disproportionately affected women of color; in Alabama, 75 percent of chemical-endangerment defendants who were pregnant or new moms have been white, largely reflecting the fact that enforcement has been strongest in majority-white counties. Alabama women, like the ones in the NAPW report, are also overwhelmingly poor: only 11 percent were able to afford their own lawyers.
Most striking are the enormous disparities in the way prosecutors in the state’s 67 counties have applied the law. The normal tendency toward insularity — “each county is its own little fiefdom,” said John Gross, a professor and director of the criminal defense clinic at the University of Alabama School of Law in Tuscaloosa — is magnified by huge workloads, meager budgets, archaic technology and divergent priorities. “You get vastly different results in terms of how the cases are prosecuted.”
In Birmingham, for example, a city of 212,000 with urban-level drug problems, authorities have charged only two women with chemical endangerment of an unborn child in nine years. By contrast, in suburban Shelby County, southwest of the city, they are so aggressive that last fall they arrested a woman for smoking pot during pregnancy despite having no proof that she was actually pregnant (she wasn’t). In Marshall County, mothers whose newborns test positive for controlled substances routinely face bail of $250,000 to $500,000. Last year, a new mother with no prior drug arrests had bail set at $300,000 for exposing her fetus to pot. Across the road in Morgan County, bails rarely exceed $2,500.
In most counties, authorities use the threat of jail to push women into drug court or pretrial diversion. Calhoun County, near the Georgia border, diverts pregnant women into a treatment program in Birmingham, too. But a mother who gives birth to a drug-exposed baby — even a woman with no prior arrests — is invariably offered a standard plea deal of five to 10 years in the notorious Julia Tutwiler Prison for Women. “It’s not a victimless crime,” said Jennifer Weems, a former prosecutor who oversaw the county’s chemical endangerment cases for years. “When children are born positive and addicted to drugs, then we treat it like [any other] crime against a child.”
Tutwiler Prison for Women
Tutwiler, built in 1942 and still Alabama’s only women’s prison, has been called “a horror house.” Decrepit, chronically overcrowded and understaffed, it had the highest sexual assault rate of any women’s prison in the country, the U.S. Justice Department reported in 2007.
Investigations in 2012 and 2014 found that guards routinely watched prisoners take showers and urinate, traded sex for basic necessities and contraband, staged strip shows and treated women “like animals.” Prisoners who complained were punished with solitary confinement. The state agreed to reforms as part of a Justice Department settlement in May.
Matson, of the Alabama D.A.’s association, points out that counties handle all kinds of cases differently, not just chemical endangerment prosecutions. He doesn’t think there’s anything wrong with this: “You have different populations, different expectations, different priorities,” he said. “I think that the disparity in each county is them trying to get it right.”
But critics such as the NAPW’s Ainsworth argue that the lack of consistency, amplified by abortion politics, has become a hallmark of the law. For example, this summer, in Lauderdale County, in the far northwest corner of the state, the district attorney sought to prevent a woman being held in the county jail (“Jane Doe”) from terminating her pregnancy, arguing that because she had chemically endangered her fetus, she should be stripped of her parental rights to it. The D.A. wasn’t engaging in “some kind of pro-life thing,” he maintained, but merely following the law. According to the high court’s chemical-endangerment rulings, he said, “It is the policy of the state of Alabama to protect unborn and born children.” The American Civil Liberties Union sued on the woman’s behalf, but she finally changed her mind and decided to have the baby. Prosecutors and courts “arbitrarily twisted this statute to do something that the Legislature did not intend,” Ainsworth said. “What’s so pernicious about this law is that it is completely based on discretion, at every level of the system. It just breeds discrimination.”
The disparities begin in doctors’ offices and maternity wards. In some parts of Alabama, drug screening of pregnant women, new mothers and infants has become almost universal; in others, testing occurs on a case-by-case basis. There is no state or federal law governing such testing or specifying the type of consent women must give. Hospitals are left to decide how to proceed.
Alabama law is clearer on what medical professionals are supposed to do if a new mother or baby tests positive: report them to child welfare authorities, who then are required to report them to police. Once that happens, women and their families are subject to investigations by the Department of Human Resources and law enforcement officials that can end with the temporary or permanent loss of their parental rights, or arrest, or both. Because a child is involved, the investigations are mostly confidential. They can also be highly subjective, influenced by small-town politics, family squabbles, class and gender biases, and personal beliefs about drug use and how children ought to be raised.
Casey Shehi’s case is one example of how local differences can play out. In Etowah County, where she lives, law enforcement officials have drawn what they call “a line in the sand,” vowing to aggressively pursue all chemical-endangerment cases, starting from pregnancy (“You will be arrested,” Sheriff Todd Entrekin declared at a news conference in 2013). But if Shehi had given birth just over the border in Marshall County, authorities wouldn’t have bothered. Fearful of discouraging prenatal care, they don’t arrest pregnant women, and “if mom tests positive, that doesn’t really matter,” said D.A. Marshall. “The significant factor for us is, does the baby test positive?” If not, it likely means a prescription drug was not being abused, he said. “A therapeutic dose is much less likely to ever show up in the system of the child.”
Even within the same jurisdiction, broad discretion can lead to very different outcomes, as shown by two chemical endangerment cases detailed in Calhoun County court files. (The women didn’t respond to phone calls and emails, so we are not using their names.)
The first case involved a 36-year-old African-American woman who lived on the outskirts of Anniston, the county’s largest town, and had a daughter she was putting through college. The woman had never been in trouble with the law before, according to court records, but in 2012 she gave birth to a healthy son who tested positive for cocaine. Child welfare authorities gave temporary custody to her mother, allowing the woman to stay involved in her baby’s care while she got sober.
Court records show that she used her time well, enrolling in a parenting class and a substance abuse program (“even voluntarily completing units throughout Christmas despite the death of my only grandmother,” she wrote). She continued to work, making plans to launch a publishing company and take online college courses. In another part of Alabama, authorities might have seen her as a success story. But in Calhoun County, where prosecutors have taken a harder line, she was arrested six months after her son’s birth and eventually sentenced to five years in Tutwiler.
Who’s Been Prosecuted?
Alabama has prosecuted at least 3,175 individuals under a law meant to protect children from exposure to illegal drugs. Court rulings expanded the law so authorities may charge pregnant women with in utero exposure.
Individuals charged, 2006–July 2015
58%Women
42%Men
Women charged with pregnancy-related exposure:
479
Race in pregnancy-related cases:
75%White
24%African American
1%Unreported
Most common drugs, pregnancy-related cases:
24%Marijuana
22%Cocaine
18%Methamphetamine
14%Opiates
Read our methodology.
According to District Attorney Brian McVeigh, the practice in Calhoun has been to encourage mothers accused of chemical endangerment to petition a judge for leniency if they’re unhappy with how they’ve been dealt with. That’s what the woman tried to do. Her case file contains letter after letter, neatly handwritten on lined paper, asking a judge for mercy. Her first request was to reduce the $30,000 cash-only bail that is common for chemical endangerment cases in the county. She wasn’t a flight risk, she wrote: “My family is very important to me … This is the first time I’ve ever been away from them.” She assured the judge, “Your honor, I’m not looking to deny responsibility in this very upsetting matter. Sir, I would just like the chance to continue to work on the positive progress I’m making in my life.” The judge’s one-sentence response: “BOND REDUCTION REQUEST … is hereby DENIED.”
Next, she wrote asking for permission to enter a well-regarded substance-abuse program near her home. The judge denied her again, saying any request needed to come from her public defender, whom the woman hadn’t been able to reach. Eight months later she wrote once more, hoping to get into an early release program known as Community Corrections that was designed to reduce prison overcrowding. Three days before Thanksgiving, the judge ruled again: “DENIED.”
Around the same time, court records show, another Calhoun County woman gave birth to a drug-exposed baby boy; she, too, was charged with chemical endangerment. Unlike the first woman, she had two prior felony convictions, which doubled her prison sentence to 10 years. A few months after she pleaded guilty, she filed a request — a five-paragraph form letter — asking to be transferred from Tutwiler to Community Corrections so that she could “resume a normal pattern of life.” Once again, justice moved quickly. But the second woman had drawn a get-out-of-jail card. Two days after petitioning the court for leniency, she was on her way home.
‘It’s Simply to Save a Life’
For much of the last century, Etowah County, in the iron ore-rich foothills of north Alabama, was one of state’s most important industrial centers. These days, it may be best known as the starting point of the World’s Longest Garage Sale, which begins in the front yards of Gadsden in August and continues for four days and 690 miles along Interstate 127 before petering out somewhere in Michigan. The area’s once-booming factories have dwindled to a Goodyear tire plant and some chicken processors. The population is significantly whiter than in other parts of Alabama, but also less well-off. Residents are half as likely to have graduated from a four-year college than in the U.S. as a whole.
In a region caught between stasis and decline, cheap self-medication found a ready market. Etowah avoided the worst of the crack epidemic, Jimmie Harp Jr., who served as district attorney for a decade until his death from cancer in July, said in an interview last year. “Then we woke up one day and crystal meth came to town. And crystal meth was unlike anything I’d ever seen.” The OxyContin wave hit even harder. By 2012, Alabama had become the No. 1 painkiller-prescribing state, according to the Centers for Disease Control and Prevention. More recently, a crackdown on opioids and benzodiazepines led to a surge in heroin use. “You start taking a cocktail of different drugs, anti-anxieties and antidepressants, and then the baby has some serious problems,” Harp said. “That brings a whole new dynamic for law enforcement.”
Etowah County shares a border with Marshall County and faces many of the same challenges. But until 2013, Etowah authorities almost never arrested women for chemical endangerment of unborn children. Harp wasn’t convinced that throwing women in jail, even to force them into treatment, was the right approach. “You had terrible [newspaper] pieces about how prosecutions invaded a woman’s right to do this and that,” he said. “My goal is certainly not to infringe on the constitutional rights of anybody. It’s simply to save a life.”
Over the past two years, however, authorities arrested at least 31 new or expectant mothers under the chemical endangerment statute, more than any other county. The change in policy shows how difficult it can be for elected officials in some areas to exercise discretion, whatever their misgivings about the law. That may be especially true in Etowah, the political birthplace of Alabama Supreme Court Chief Justice Roy Moore, scourge of gay marriage and author of some of the chemical endangerment rulings’ most forceful language on rights of the unborn. Harp and other officials announced their new zero-tolerance approach four months after the court’s 2013 ruling. “Kids are innocent,” Harp said last year. “They have no way to protect themselves.”
But it was Sheriff Entrekin who emerged as the policy’s most visible and forceful advocate, including in dealings with the medical community.
Some Etowah health care providers were pleased at first to see law enforcement take an interest in the prenatal drug problem, said Chris Retan, executive director of the Aletheia House treatment program in Birmingham. Yet when they realized the response might be to put pregnant women behind bars, “The medical people said, ‘We’re just not telling
you’ ” the drug-test results, Retan recalled. “The sheriff said, ‘You will too tell me.’ ” (Gadsden Regional declined to answer questions about drug-testing policies. “We do not publicly disclose such data,” a spokeswoman said.)
This spring, Entrekin led a push to amend the chemical-endangerment law to establish deadlines for medical providers to report suspected drug use by mothers. He proposed two hours — in some cases, even before test results were back from the lab. “We have had a little bit of reluctance to notify the authorities,” Entrekin said in an interview after a legislative hearing in May. “That’s why we’re trying to give them [providers] cover that makes it legal. They want to do it, and they want to be legal.” But even the Etowah lawmaker who sponsored the bill decided it went too far, and the legislation died in committee.
Etowah’s zero-tolerance policy isn’t meant to be punitive, Entrekin insisted to lawmakers. The county has an agreement to send some pregnant women to Aletheia House, where Medicaid pays for months of intensive treatment and new mothers get to keep their babies with them. “Medical professionals now understand that these women receive top-rated health care,” Entrekin wrote to ProPublica and AL.com in a seven-page response to questions about his office’s policies. Pregnant women who take controlled substances under a doctors’ care don’t face arrest, he said, but those who use even a small amount of an unprescribed drug do.
That’s just the law, Entrekin wrote. “If [an] offense is ignored,” he asserted, “sheriff’s deputies have failed to uphold their sworn oath of office.”
‘How could you do that to your baby?’
Stop at almost any gas station or minimart in rural Alabama and you will find, stocked amid the racks of energy drinks and chips, copies of a weekly tabloid called “Just Busted.” Garish and crude, the paper consists of hundreds of police mug shots organized by county and alleged crime (“Sex Offenders,” “Drunk Tank”), interspersed with ads for bondsmen and defense lawyers. In a recent issue, three-quarters of the suspects were men, but three-quarters of those singled out on the cover were women.
Mug shots from the Etowah sheriff’s office take up an entire page. They end up on Birmingham TV and all over the Internet. Casey Shehi’s was particularly unflattering, her eyes puffy from crying, her mouth a thin grimace of disbelief. Gadsden, population 36,500, is a decent-size town by Alabama standards, but to Shehi, it has always felt like “a tiny fishbowl.” After her arrest, old acquaintances would pretend they didn’t see her at the grocery store or turn away in embarrassment. Her baby was in the same day care as the sheriff’s investigator overseeing her case. “I feel like everywhere I go, people just kind of look at me and shame me like I’m a monster, like, ‘How could you do that to your baby?’ ”
Shehi seemed like the last person anyone would expect to get caught up in the chemical-endangerment law. She grew up middle class and graduated from Auburn University with a major in communications and a minor in wanderlust. A dancer and theater geek with a classically trained voice, she was pretty enough to compete for Miss Alabama in college (for her talent, she sang an aria from “Die Fledermaus”; for her special issue, she chose anorexia). In her 20s she worked as a performer on cruise ships in Hawaii and as a TV reporter in south Alabama. She returned to Gadsden in the mid-2000s, married into a well-connected local family, and had her older child — “my first true love” and “my rock,” she called him — in 2010.
When her marriage imploded a couple of years later, so did her world. She started dating James’s father, a high school flame with a couple of kids; her discovery that she was pregnant sent her into hyper-vigilant mode: no smoking or drinking, certainly no illicit drugs. Still, the circumstances were less than ideal. Her boyfriend had a “horrible tem