A new report out of Etowah County, Alabama, reveals that a woman there was jailed for three months after admitting to smoking marijuana while pregnant. The type of law that led to her incarceration is not unique to Alabama, and such punitive laws don't achieve their goal of promoting healthy pregnancies.
According to Al.com's Amy Yurkanin, Ashley Banks was arrested on May 25 after being found with "a small amount of marijuana" and a pistol that she was not licensed to carry. She admitted to having smoked marijuana on the day she found out she was pregnant, which led to her being charged with the "chemical endangerment" of her fetus. Despite having a high-risk pregnancy, the fact that she had admitted to smoking marijuana while pregnant landed Banks in jail.
Under Alabama state law, women arrested for drug use who are pregnant or have recently given birth can be charged with chemical endangerment, which requires them to post a $10,000 bond and go to rehab to regain their freedom.
Banks was incarcerated for three months without being convicted of a crime. During her incarceration, she experienced "bleed[ing] for five weeks in jail. She said she also suffered from hunger and fainting spells," according to Yurkanin's report. "Two times, specialists evaluated her for drug addiction and found [Banks] didn't qualify for free addiction services offered through the state." Yurkanin adds that investigators told Banks to claim she had a drug addiction so she could get into treatment and be bailed out of jail.
Banks was finally released to community corrections on August 25.
According to Yurkanin's investigation, more than 150 Etowah County women have been charged with "chemical endangerment" of their pregnancies, even when their children are born healthy or do not test positive for drugs. A 2015 ProPublica investigation found that while other Alabama counties tend to enforce the law only when an infant tests positive for drugs, Etowah County "law enforcement officials have drawn what they call 'a line in the sand,' vowing to aggressively pursue all chemical-endangerment cases, starting from pregnancy."
According to a 2022 report from the Guttmacher Institute, "24 states and the District of Columbia consider substance use during pregnancy to be child abuse under civil child-welfare statutes, and 3 consider it grounds for civil commitment." Additionally, "25 states and the District of Columbia require health care professionals to report suspected prenatal drug use, and 8 states require them to test for prenatal drug exposure if they suspect drug use."
Alabama, as Banks' case demonstrates, is especially punitive on this issue. That's because the state Supreme Court has held that any illicit drug use while pregnant is "chemical endangerment" of a child. The South Carolina Supreme Court established a similar precedent, Guttmacher notes, when it ruled that "maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus" constitute criminal child abuse.
These laws are intended to protect fetuses but fail even on those grounds. A 2015 report by researcher Rebecca Stone concluded that "policies that substance-using women find threatening discourage them from seeking comprehensive medical treatment during their pregnancies." What's more, jails and prisons are not favorable places to receive prenatal care. According to a 2019 study from Johns Hopkins researchers, in some states at least 20 percent of incarcerated women's pregnancies ended in miscarriage, far more than the national average of 10 percent to 15 percent.
It is particularly risible—even in a legal system that grants personhood to fetuses—to punish pregnant women for using cannabis. "Studies on marijuana use during pregnancy are inconsistent and inconclusive," Reason Senior Editor Elizabeth Nolan Brown reported in 2021. "But cannabis is not known to be teratogenic—that is, to cause birth defects—in humans. The bulk of scientific evidence suggests that risks posed to developing fetuses are relatively minor and babies exposed to marijuana in utero still fall within normal ranges of outcomes."