After Alabama

Making IVF available won’t stop criminalization

Lynn M. Paltrow is a lawyer, activist, and the founder of Pregnancy Justice, formerly National Advocates for Pregnant Women.

---

by Lynn Paltrow

Shock and outrage have met the recent Alabama Supreme Court IVF decision that frozen embryos are children who “cannot be wrongfully destroyed without incurring the wrath of a holy God.” This decision, based on Christian theology, has put all in-vitro fertilization procedures in the state at risk. It should not, however, have come as a surprise given the many Alabama laws and earlier decisions holding that fertilized eggs, embryos, and fetuses are separate legal persons.

New legislation to ensure that Alabama families have access to this expensive fertility treatment will do nothing to address the other punitive and dehumanizing ways Alabama’s legal personification of the unborn is used to arrest hundreds of mostly poor, rural women. Nor will it do anything to stop the likely, if not inevitable, use of Alabama’s criminal laws to lock up anyone who has an abortion.

Alabama already leads the nation in what Pregnancy Justice  calls “pregnancy criminalization.” Since 2006, more than six hundred women have been arrested for allegedly endangering an in utero fertilized egg, embryo, or fetus. These cases include a woman who, while pregnant, took half of a valium, another who used marijuana to safely manage her severe epilepsy, and one who was indicted for manslaughter because while five months pregnant, she purportedly initiated the altercation in which she was shot in the abdomen and lost the pregnancy. 

This mass criminalization started in 2006, when the Alabama legislature passed a law that made it a crime to expose “a child to an environment in which controlled substances are produced or distributed.” The law’s sole purpose was to punish adults who took children to dangerous “environments” such as meth labs; it was not intended to address the issue of pregnancy and drug use. Once passed, however, it became a tool for arresting hundreds of pregnant women and mothers like Amanda Kimbrough and Hope Ankrom—who had been pregnant when they allegedly used a controlled substance. 

Lawyers from Pregnancy Justice worked with state-based lawyers, activists, and scores of medical organizations and experts to challenge these prosecutions. They argued that the arrests were legislatively unauthorized, unconstitutional and, in effect, irrational because they increased the danger to maternal, fetal and child health. 

Nevertheless, in 2013 the Alabama Supreme Court upheld these prosecutions in Ex Parte Ankrom. In the guise of what lawyers call “plain language” interpretation, Justice Tom Parker concluded that the word “child” unambiguously includes the born and unborn at all stages of development, and that the word “environment” “clearly” includes “the mother’s womb.” In a concurring opinion with himself, he also explained how recognizing the personhood of fertilized eggs, embryos, and fetuses provided the basis for overturning Roe v. Wade. Just a year later, the same court issued a decision in Hicks v. State that added a Biblical basis for expanding the chemical endangerment of a child law to include pregnancy.

As a result of these decisions, pregnant women who use any amount of any controlled substance—even those prescribed by their physicians—face arrest, prosecution, and conviction. Not surprisingly, these cases involving claims of drug use failed to elicit the kind of outrage we’re now seeing in response to the IVF case. But the fact is that none of the controlled substances these women allegedly used cause the devastating or unique harms erroneously attributed to them—and none of them are abortifacients. Indeed, a drug that can both get you high and end your pregnancy exists only in the imaginations of unethical, attention-seeking prosecutors. 

Eventually, the Alabama legislature passed a new law to make clear that pregnant women should not be arrested for using controlled substances prescribed to them. Prosecutors nevertheless continued to make such arrests. In one case, the prosecutor charged a mother because she had refilled a valid prescription for a pain killer while pregnant. Alabama police even arrested a woman on the mere (and unfounded) suspicion that she was pregnant.

In Etowah County, Alabama prosecutors implemented an unconstitutional policy prohibiting women suspected of being pregnant and using a controlled substance from being released while awaiting trial. They would remain in filthy jail cells unless they could raise a $10,000 cash bond and enter an inpatient drug treatment program. Even those women who could afford the bond often spent the duration of their pregnancies in jail. Treatment beds were unavailable and some women like Ashley Banks were ineligible because they did not have a drug dependency problem. (Banks was arrested based on her alleged use of marijuana before she even knew she was pregnant). And Ashley Caswell nearly lost her life because while incarcerated state authorities cruelly denied her medical care before, during, and after she gave birth.

These criminal cases provided precedent for the court’s decision in the IVF case. Indeed, the Ankrom and Hicks decisions concerning the “common sense” meaning of the word “child” in Alabama’s criminal law is repeatedly cited in support of the Alabama Supreme Court’s IVF decision—holding that the word “child” in the state’s wrongful death statute plainly includes extrauterine, frozen embryos.  

The IVF decision, however, does more than reiterate the State’s view on personhood. It also lays the groundwork for turning Alabama’s criminal abortion and homicide laws into ones that can be used to arrest, prosecute and convict those who have abortions.

These statutes currently contain language purporting to protect “the woman upon whom the abortion is performed or attempted to be performed” from prosecution. The IVF decision, however, not only rests on the Ankrom and Hicks decisions, but also the 2018 Sanctity of Unborn Life Amendment in the Alabama Constitution. According to Justice Parker, that Amendment requires the recognition of the unborn (frozen or thawed) as separate legal persons, and provides the basis for striking down any legislative act that “contravenes the sanctity of unborn life.”  The law prohibiting those who have abortions from prosecution would surely fit that bill. 

That means even if the Alabama legislature somehow acts to protect IVF, the legal personification of fertilized eggs, embryos or fetuses will still remain the law. Our outrage needs to go beyond one ruling about IVF. We must loudly decry and oppose  all of Alabama’s laws, rulings and prosecutorial practices that legally personify the unborn. We cannot and should not settle for justice only for some people, and allow others to face  criminalization and dehumanization based on disingenuous and theological constructions of the term “child.”

---

To learn more about what’s been happening in Alabama, check out this Q&A with Pregnancy Justice Senior Staff Attorney Emma Roth:

Arresting Women to 'Protect' Their Fetuses