Alabama case over mistaken pregnancy highlights risks in a post-Roe world

Alabama case over mistaken pregnancy highlights risks in a post-Roe world

(Reuters) - An ongoing lawsuit in Alabama typifies the far-reaching criminalization of women enabled by some anti-abortion ideology and the U.S. Supreme Court’s recent overturning Roe v. Wade.

A ruling in the matter, which involves a woman merely suspected of being pregnant, could be a bellwether for various cases relitigating women’s rights in the wake of the high court’s decision.

Etowah County officials are facing what appears to be the first lawsuit in the state alleging false imprisonment because a woman who was jailed for exposing her unborn child to drugs wasn’t pregnant — although it isn’t the first time such dystopian injustice has played out in Alabama.

Stacey Freeman, who is seeking compensatory and punitive damages, was under investigation by a family services agency for substance abuse when her daughter incorrectly told social workers that Freeman was pregnant, according to her Nov. 7 complaint. Freeman said she offered to take a pregnancy test, but it wasn’t administered.

Sheriff’s investigator Brandi Fuller later issued a “patently false” warrant saying Freeman tested positive for amphetamines, according to the complaint. She was arrested for “chemical endangerment” days later, the complaint said, by sheriff’s deputies who stopped to assist her with a flat tire.

Sheriff Jonathon Horton and Fuller didn’t respond to questions for this column.

Freeman said she was forced to provide a urine sample in jail — which showed she wasn't pregnant. She was released only after Fuller "admonished" her, saying she would be charged if she were to get pregnant within the next few months, according to the complaint.

Freeman’s ordeal is shocking, to be sure. Yet, officials in Shelby County, Alabama, more than seven years ago brought and later dismissed chemical endangerment charges against a woman who also wasn't pregnant, AL.com in June 2015. And, in 2019, an Alabama grand jury indicted a woman who lost her unborn baby when she was shot, after declining to charge the shooter because it found she had fired in self-defense.

Those cases demonstrate the senselessness and very real dangers of the “fetal personhood” argument – which holds that the law should grant full personhood rights to fetuses and even . The idea has been used to support efforts to punish women for behavior considered risky to pregnancies or for seeking abortions — a position that even the Republican establishment and anti-abortion have previously rejected as radical.

Khiara M. Bridges, a professor at the University of California Berkeley School of Law, told me the theory is a throughline in the cases.

“These efforts are clearly premised on the idea that fetuses have rights that supersede any interest the pregnant person may have,” Bridges said.

The idea has been used to extend child protection policies to fetuses. It's also a backdoor tactic aimed at criminalizing abortion, according to a 2014 law review by Rachel Suppe, an attorney for the Nashville, Tennessee, law department (Simply put, abortion becomes murder if fetuses are "persons" as a matter of law.)

And the notion does in fact underlie ongoing efforts in the wake of the Supreme Court's June anti-abortion decision.

The high court didn't decide whether fetuses have personhood rights in that case, and it also to settle the question last month. Still, the fact that the Supreme Court left the issue open for states to decide means that some will indeed move to do so — and overzealous police and prosecutors will continue to criminalize people they suspect are pregnant.

Georgia passed a so-called "fetal heartbeat" bill that was not allowed to take effect the Supreme Court overturned abortion rights, for example. Arizona passed a similar law recognizing personhood from the moment of fertilization, although a that measure.

Martin Weinberg, who represents Freeman, told me her case "is a manifestation of why this is just not a pragmatic way" to go about protecting infants or women.

Etowah County is the epicenter of pregnancy criminalization, Emma Roth, a staff attorney with Pregnancy Justice, told me.

The group has the criminalization of women and pregnancy – more than 1,300 arrests and detentions that wouldn’t have happened if the person weren’t pregnant or suspected to be – since 1973. Currently, Alabama prosecutes more pregnant people than any other state, and Etowah County leads with more than 150 cases since 2010.

Advocates argue that fetal personhood is a short, slippery slope to nearly unfettered regulation of anyone who may be pregnant: strenuous physical activity, smoking, drinking and medical procedures, like chemotherapy, are potentially risky to fetuses, for example.

In practice, it has led to criminalization and increased state control over women – mostly Black women, historically, and exclusively low-income women, generally.

A disproportionate and overwhelming number of detentions related to pregnancy since the 1980s — more than 50% — were brought against Black women, according to research by Lynn Paltrow, a lawyer and executive director of Pregnancy Justice, and Jeanne Flavin, a sociologist at Fordham University.

Indeed, no empirical or anecdotal evidence appears to exist documenting the prosecution of middle- to upper-class women for these crimes, Cortney Lollar, professor at the University of Kentucky College of Law, in 2017.

Moreover, the underlying premises are simply wrong — and the policies don’t actually protect fetuses or coerce pregnant people to make healthy decisions, research shows.

Meghan Boone, a professor at Wake Forest University School of Law, and Benjamin McMichael, an economist and professor at the University of Alabama School of Law, analyzed the impact of Tennessee’s 2014 fetal endangerment law — which expired two years later — in a 2021 . They found “consistent evidence” that outcomes worsened under the law.

Eighty more infant deaths occurred in 2015 as a direct result of the law, they wrote. The results suggested that mothers were forgoing prenatal care out of fear of prosecution.

Freeman’s ordeal, then, is just one striking example of the pitfalls of importing fetal personhood into the law, and those myriad risks to women will persist so long as the Supreme Court on the matter.

(CORRECTION: A previous version of this column misidentified Lynn Paltrow's job title.)

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com