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Justice Tom Parker also wrote a separate opinion to emphasize Alabama's stance on the inalienable rights of the unborn, which apply "to life at every point in time and in every respect," including "a life free from harmful effects of chemicals at all stages of development." This, he notes, is what makes Alabama a "refuge" for liberty.
These justices had already ruled on a similar case, and it's "very unusual for a state supreme court to take a case to address a settled issue of law," said Lynn Paltrow, founder and executive director of NAPW. "It appears that the court accepted the Hicks case for the purpose of more fully articulating a view that pregnant women are proper subjects of Alabama's criminal justice system and a growing state and national system of mass incarceration."
They are, indeed. In Utah, a 24-year-old woman was recently charged with second degree felony child endangerment after giving birth to a child at 39 weeks—40 weeks is considered full term—and admitting that she had used meth several times during pregnancy. In Texas, women who smoke marijuana while pregnant can be charged with "delivery of a controlled substance to a minor," a second-degree felony punishable by two to 20 years incarceration. Ohio lawmakers are seeking to add extra penalties for selling drugs to a pregnant woman. And despite the now-legal status of marijuana in Colorado, using it while pregnant can still get you cited for child abuse.
"I would love to say that I see a shift towards the understanding that pregnant women can still be medical marijuana patients—indeed they sometimes are advised to use it for pregnancy ailments like morning sickness, for which it has historically been used by midwives for thousands of years," says Sara Arnold, co-founder of the Family Law & Cannabis Alliance.
"However, as the drug warriors grab at straws to try to stay relevant, the shift is towards greater invasion into pregnant women's bodies, their babies, and their homes via child protective services and family court, and sometimes criminal court as well."
These policies are not pro-children or pro-family. They mete out punishments based not on actual harm or risk but some combination of moral panic, fetal personhood propaganda, and selective interpretation of that risk. In their rush to usher newborns into the arms of state protective services, they frequently fail to consider what's best for babies at their most vulnerable. [What's worse for a child: a mother who smokes the occasional joint or is undergoing addiction treatment or being shuffled around from foster home to foster home for the first few weeks or years of life?]
It would all be highly objectionable even if it were working to decrease harm to babies and mothers. In reality, it fails to accomplish even this—and may actually drive up health risks—while managing new and powerful infringements on pregnant women's privacy and personal liberty.