The Alabama Supreme Court recently upheld the conviction of a woman for chemical endangerment of a child for exposing her unborn child to a controlled substance, in violation of Alabama’s chemical endangerment statute, Section 26-15-3.2(a)(1). In doing so, the court declared that the use of the word “child” in the statute includes all children born and unborn.
On its face, this outcome may seem the obvious one. Women who use illegal narcotics while pregnant are physically harming their children, and in some instances their drug use causes the death of their child. Naturally, we want to protect all children, born and unborn, from the damaging effects of illegal drug use.
However, in a society that permits these same women to walk into any abortion clinic and legally kill that same child, we must consider the effects that criminal laws such as Alabama’s chemical endangerment statute may have on a woman’s decision-making. Do chemical endangerment statutes encourage drug dependent women to abort their babies rather than saving the baby’s life? A woman with a serious drug addiction, threatened with incarceration if she gives birth to a baby with drugs in his blood system, could be frightened into ending the pregnancy to avoid criminal prosecution. But should we allow women to physically and mentally harm their children, even to the point of causing the death of the child, in the hopes that they will decide not to abort?
Certainly, both scenarios are intolerable in a virtuous society that values every human life! The solution is obvious and yet not so easily achieved: abolish human abortion. The only sure fire way to save an unborn child’s life and at the same time penalize pre-natal child abuse is to criminalize the harming and killing of all children, born and unborn. A straightforward solution, but because our society does not recognize the sanctity of all human life, a law that punishes a woman for endangering her unborn child could conceivably be the impetus for her to kill that same child.
Does that mean that we should abandon attempts to protect unborn children from chemical endangerment until Roe is overturned? Must we let the good public policy of protecting children be held hostage to the bad public policy of abortion on demand?
I don’t believe we need to settle for choosing between protecting unborn children from the harmful effects of illicit drug exposure on the one hand, and not encouraging abortion on the other.
First, not all drug use is driven by addiction. Some drug use is purely recreational. Can’t a law, through affirmative defenses, sentencing guidelines, and prosecutorial discretion, distinguish between women caught in the meshes of a true addiction vs. those who like to “party” with drugs, despite recklessly risking their unborn child’s health and life? For example, the law might have as an affirmative defense that the woman was enrolled in and participating in a drug treatment program.
Second, child endangerment laws are not about “incarcerating pregnant women” as some headlines have claimed. The law comes into play when a child is born exhibiting symptoms of drug exposure, up to and including early death. Only women who continue to abuse drugs throughout their pregnancy are at risk of having a baby that will test positive for drugs at birth. In most states, abortion is not available after 24 weeks, and in many states not past 20 – 22 weeks, so these women are well past the point at which abortion was a realistic option. In the second half of pregnancy, a woman’s best option for avoiding prosecution is to stop abusing drugs, which benefits everyone.
As for planning ahead, how many women—drug dependent women—are going to have an abortion in the spring on the assumption that they will otherwise be punished for giving birth to a drug-addicted baby in the fall?
Drug policy is a complex and controversial issue, with experts coming down on different sides of the issue of how best to combat drug abuse. We encourage all efforts to protect unborn as well as born children from the deleterious consequences of drug exposure.
 Ex Parte Hicks 2014 Ala. Lexis 60, * (2014)