Arresting Women to 'Protect' Their Fetuses

An interview with Pregnancy Justice

If you’re a regular reader, you know that I name-drop Pregnancy Justice quite a lot. The organization has been on the cutting edge of protecting pregnant people’s rights for years, and their work has been invaluable for making sense of post-Dobbs criminalization. (If you haven’t visited their data center yet, you really should.)

Pregnancy Justice was banging the drum about the danger of fetal personhood before anyone else, and predicted much of what’s happening right now, every day. That’s why I admire the group so much: It’s not just that they’re doing vital work to protect individual clients—their legal and cultural analyses have been key to my own work and to so many others’.

So I’m thrilled that Pregnancy Justice Senior Staff Attorney Emma Roth made some time to tell Abortion, Every Day about one of their current clients, and what the case means for criminalization more broadly.

Some background: Pregnancy Justice is suing Etowah County, Alabama, and the sheriff’s department on behalf of Ashley Caswell. Ashley nearly died after being forced to give birth in a jail shower, suffering a placental abruption. Before that, officials had refused to allow Ashley access to necessary prenatal visits, even though her pregnancy was high risk. You can read the complaint here.

If Etowah County sounds familiar, that’s because it’s the place that has jailed multiple pregnant women using chemical endangerment charges—basically, they claim the women used drugs and that their fetuses need to be ‘protected.’ In one case they arrested a woman who wasn’t even pregnant. (You also may remember that Alabama Attorney General Steve Marshall planned to use ‘chemical endangerment’ charges to arrest women who used abortion medication.)

All of which is to say: there’s lots to talk about.

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To start, can you just tell us a little about Pregnancy Justice and the work you do? 

For decades, Pregnancy Justice has defended pregnant people’s civil and human rights, focusing on those most likely to be targeted for investigation, arrest, detention, or family separation—poor people, people of color, and people who use drugs. We defend people who face criminal charges because of pregnancy or any pregnancy outcome, including pregnancy loss and abortion. Increasingly, we’re exploring affirmative strategies to dismantle fetal personhood and address the policies, practices, and laws that seek to criminalize and control pregnant people. 

Can you say a little about Ashley Caswell and her story? 

In 2021, when she was just two months pregnant, Ashley Caswell was arrested on a chemical endangerment charge. Ashley spent the rest of her pregnancy in jail. And during almost the entirety of her high-risk pregnancy, the Etowah County Detention Center showed callous indifference toward Ashley’s medical needs. Jail staff ignored her requests for prenatal care toward the end of her pregnancy, refused to provide her with her prescription medication, and even denied her basic accommodations by forcing her to sleep on a thin mat on a concrete floor. 

This mistreatment culminated on October 16, 2021, the day of her delivery. Ashley went into labor, and repeatedly asked to be taken to a hospital, but jail staff ignored her cries for help. Instead, they forced her to endure nearly 12 hours of labor alone with only Tylenol, which she threw up. She had no choice but to deliver her baby unassisted—not even in the jail’s medical unit—but in the jail shower. 

Feeling faint after the delivery, she yelled for someone to take her newborn before she passed out on the shower floor in a pool of blood. Instead of immediately helping Ashley, jail staff took pictures with her baby, who was still attached to her via the umbilical cord. 

She later learned from a doctor at a hospital that she suffered a life-threatening placental abruption, meaning the placenta separated from the uterus before delivery. This can also deprive a baby of oxygen. 

Ashley is currently incarcerated at Tutwiler Prison in Alabama, a separate facility than the jail where she gave birth, on a 15-year sentence for chemical endangerment—even though her baby was born healthy. 

This happened in Etowah County, Alabama—which we’ve heard a lot about when it comes to the mistreatment of pregnant people. What kind of cases have you seen there previously?

We first got involved in Etowah County in 2022 and partnered with local counsel to file a habeas petition on behalf of a woman who was being held indefinitely on unconstitutional, pretrial bond conditions. 

She was arrested on a chemical endangerment charge in a hospital just six days after giving birth. While incarcerated, she was denied in-person visits with her children, pads for postpartum bleeding, and postpartum medical care, and she suffered from severe depression. We were able to secure her release two months into her detention. 

But we quickly realized that her case wasn’t an isolated incident. It was part of a long and deeply disturbing pattern of abuse that pregnant people face in Etowah County. We ultimately helped secure a change to more reasonable bond conditions, leading to more women being freed, but we still have grave concerns. As long as the county pursues these cases, these injustices will continue. 

And Ashley isn’t the only woman whose rights were violated when they went into labor at the jail. For example, jail staff refused to take another pregnant woman to the hospital for five days after her water broke prematurely. She experienced vaginal bleeding, lost amniotic fluid, and later experienced a stillbirth. 

Alabama leads the nation in pregnancy criminalization—and Etowah County is the epicenter. According to local news reports and our own research, the county has targeted at least 257 pregnant women and new mothers between 2015 and 2023. Most of these charges involve the state’s Chemical Endangerment of a Child Law. 

Etowah mainly prosecutes mothers and pregnant women. According to court records, on average, 68% of chemical endangerment arrests in each large county were of women. But that’s not the case in Etowah, where 93% of chemical endangerment arrests from 2015 to 2023 involved women. 

This is a part of a larger story in Alabama, where abortion is illegal and counties are losing OBGYNs. Where are pregnant people supposed to go for care? And when they receive care, will it lead to criminalization? 

Tell us about ‘chemical endangerment’ charges. What was the law intended to do and how is it actually used? 

Alabama passed the Chemical Endangerment of a Child Law in 2006. It was originally intended to criminalize people who exposed children to methamphetamine labs. But starting in 2010, prosecutors started using the law to prosecute pregnant people for drug use, based on the idea that a fetus is a person and to “protect unborn life.” The Alabama Supreme Court then upheld this interpretation of the law. Now, pregnant people are arrested in Etowah County for drug use at alarming rates. 

Prosecutors say they pursue these cases to protect children, but the mothers don’t even receive adequate prenatal care during incarceration. And in Ashley’s case, her baby’s life was endangered. 

How is this all related to abortion? How do you explain to people who maybe aren’t familiar with how criminalization works that just because a charge doesn’t include something from an abortion ban, it’s still abortion-related? 

Any type of pregnancy criminalization is related to abortion because it involves policing a pregnant person’s actions. It singles out pregnant people for carceral responses for things that wouldn’t be illegal or would be less harshly punished if the person were not pregnant. 

For example, chemical endangerment comes with harsher sentences in Etowah County than drug possession. Any form of pregnancy criminalization is an invasion of someone’s bodily autonomy, and it’s a slippery slope from policing substance use during pregnancy to policing what someone chooses to do with their pregnancy. 

They’re trying to prioritize fetuses over the people who carry them in the name of fetal personhood. And when fetuses are prioritized, the threat of criminalization increases for pregnant people.

We know that the people who are most likely to be targeted for prosecution tend to be those who are the most marginalized. Can you tell us a little about that?

Three-quarters of the people arrested for chemical endangerment in Etowah County between 2015 and 2023 didn’t have the money to hire an attorney. Etowah County prosecutes people who don’t have the resources to fight these egregious charges. The county makes an example out of women charged with chemical endangerment. Essentially, they’re prosecuting poverty. 

And there is no public defender’s office there. Defendants are given court-appointed counsel who lack the institutional support of an office. 

It seems clear to me that the hope is that by prosecuting those on the margins, Americans won’t be as outraged or take as much action. How can we make sure that doesn’t happen? 

Treating pregnant people with dignity and compassion is imperative in our society. States that have adopted harsh criminal penalties for drug use during pregnancy have gone against the advice of major medical and public health organizations. Those organizations recommend providing health care, prenatal care, and substance use treatment instead of incarceration. And we know that drug use poses no more of a unique risk than other exposures during pregnancy. 

And what’s next? If you don’t take your medication for high blood pressure or diabetes, they might come after you someday, too. Those conditions are actually proven to endanger a fetus, so what’s to stop them? 

We need to highlight these cases to show that when the state gets involved in someone’s reproductive health care, no one wins. 

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