Alabama boasts a decade-long wave of criminal cases against new mothers, arrests that have touched more than a thousand women accused of using drugs while pregnant. That includes meth and heroin addicts, but also hundreds of marijuana users and even some people who didn’t know they were pregnant. Some spent months behind bars or even gave birth in jail.

The consequences go beyond the jailhouse. Hospital staff are required to report positive drug tests to the child welfare agency, and sometimes women lose custody of newborns and older children. In many cases, women faced criminal charges even after child welfare determined their children were safe.

Prosecutors say the law has pushed addicts into treatment and helped save babies from neglectful or even dangerous environments.

“It’s not like it’s one of those things where we’re throwing people in prison for years and years because they have addiction problems,” said Tim Gann, chief deputy district attorney for Madison County. “But it is one of those things where there is a penalty for doing something harmful to your child even though you may have an addiction problem.”

“We’re treating that, but we’re also punishing the bad behavior and giving the child a chance at a normal life. So, I think it’s been one of the best laws that has come on the books in a long time.”

But advocates for women say the last decade’s crackdown has backfired, and that Alabama is training young women who have used drugs to avoid medical care and hospitals when they become pregnant. They also argue the law catches women who did nothing wrong.

“We do know that moms are afraid of going to get prenatal care because they don’t want to be detected,” said Honour McDaniel, March of Dimes director of maternal and infant health initiatives for Alabama. “They don’t want people to know because they are afraid of attracting the attention of law enforcement, of child protective services, of having that criminalization of having substance use disorder.

“They love their kids. They don’t want their kids to be taken away.”

Fear of doctors

Stephanie Bendish, who lived outside of Mobile, struggled with opioid addiction when she became pregnant with her third child in 2017. When she found out she was expecting, she began taking prenatal vitamins. But like some other mothers in Alabama, she hesitated to make an appointment with an obstetrician.

“I thought that they would call the police on me,” she said. “And that they would take me to jail. And that I would have to be pregnant and have my baby in jail.”

In Alabama, in several counties, hospitals test newborns for drugs upon delivery and they share the findings with police.

Bendish developed a severe infection in her second trimester and lost her baby at 17 weeks. Doctors rushed her into surgery to stop her bleeding. She woke up with two police officers standing next to her hospital bed.

“No one would tell me what it was about,” Bendish said. “Not the nurses or the police. I kept asking, what is this about? What’s going on? And they wouldn’t tell me. So, after that they handcuffed me to the bed and told me I was under arrest. And that’s when I asked for a lawyer.”

What the numbers show

A few other states have similar laws, but Alabama alone has brought thousands of cases. Other states, for the most part, prosecute women when something bad happens to the baby. Alabama is the only place where women are routinely charged even if the baby is healthy.

According to data from the Alabama Medicaid Agency, the chemical endangerment law has done little to protect newborns. The number of babies diagnosed with neonatal abstinence syndrome – which happens when they are born dependent on drugs – actually rose sharply after 2013 and peaked in 2018. The number of drug overdoses during pregnancy almost doubled between 2016 and 2019.

That matches research on the effects of policies that require medical workers to report positive drug tests of mothers or newborns to child welfare agencies, said Dr. Laura Faherty, a pediatrician and policy researcher for RAND.

“There have been studies showing that punitive policies are associated with starting prenatal care later in a pregnancy,” Faherty said. “With lower likelihood of getting the recommended number of prenatal care visits. A lower likelihood of attending really important postpartum visits and a reduced likelihood of getting the really important evidence-based medication for opioid use disorder treatment.”

In Alabama, arrests are concentrated among poor and young mothers in just a handful of counties that enforce the law, while many counties largely ignore it. Etowah County in north Alabama has the highest rate of arrests of women for chemical endangerment but still has a rate of neonatal abstinence syndrome that is twice the state average, according to data from Blue Cross Blue Shield of Alabama.

Faherty found that policies meant to punish mothers to prevent drug use had no effect on rates of neonatal abstinence syndrome.

“A growing number of studies have found that punitive policies don’t really have the desired effect,” Faherty said. “Punishing pregnant women for substance use is not likely to be beneficial to anyone.”

Avoiding charges

John Tindle, an attorney who handles chemical endangerment cases in the Bessemer cutoff near Birmingham and once ran for judge as a Republican, said he has seen the unintended consequences of these prosecutions.

“Many of these women are aware of the laws now and will not go to the hospital to have their child and have their child at home without medical care to avoid felony charges,” Tindle wrote in an email. “It’s a horrible situation.”

But Gann, the chief deputy district attorney for Madison County, said his office in Huntsville frequently handles cases of chemical endangerment and he believes the law benefits newborns. He said he receives an average of about two reports every week about women or babies who tested positive for drugs in the hospital.

“I don’t know that it has worked in prevention,” Gann said. “But it has worked in treatment. We’ve seen success stories with the women who go through our [pretrial intervention program] program or the women who have gone through the entire system and they get clean. The bigger, more important thing is the innocent bystander, who is the baby. They get the care that they need early on.”

His office will handle cases differently depending on the type of drug and the mother’s criminal record. He said the court tries to get women with substance use disorders into treatment.

“We’re treating that, but we’re also punishing the bad behavior and giving the child a chance at a normal life. So, I think it’s been one of the best laws that has come on the books in a long time.”

Hendree Jones, senior advisor to UNC Horizons, a substance use treatment program for pregnant women, said programs that wait until babies are already born to offer treatment miss vital opportunities to improve the health of babies and moms.

“If you want healthy babies, you need to have the practices and supports in place to have healthy moms,” Jones said.

The Tennessee experiment

The strongest evidence that the law had the opposite effect in terms of protecting newborns comes from Alabama’s neighbor to the north. Tennessee lawmakers enacted a fetal assault law in 2014 that made it a misdemeanor to expose a fetus to drugs. Women could face up to one year in jail if convicted.

Proponents of the law pitched it as a pathway to treatment for women with addiction. However, doctors reported increases in drug-exposed newborns and decreases in prenatal visits soon after the law passed, and lawmakers allowed it to lapse after two years. Efforts to resurrect the fetal harm law failed.

Law professors Megan Boone and Benjamin McMichael analyzed health outcomes in Tennessee in the first attempt to measure the effect of criminalization laws on fetal health.

“Fetal endangerment laws not only fail to deliver the promised benefits in terms of improved fetal and infant health, but they actively undermine the realization of that goal,” said their research paper, which was published in the Georgetown Law Journal.

According to their research, the percentage of mothers receiving prenatal care dropped from about 94 percent before the law was passed to 83 percent two years later. The average length of Tennessee pregnancies and average Apgar scores, which measure newborns’ color, reflexes and breathing, also dropped during that time. Most alarmingly, the number of fetal deaths increased. Using publicly available data, the researchers estimated the law caused an additional 60 newborn deaths in the first 28 days of life in 2015 as expectant mothers avoided medical care.

“Mothers forego prenatal care when this law is in place – indeed, the chilling effect of this law on pregnant mothers lasts past the time the law lapses – which places them and their fetuses at higher risk,” the study found.

McMichael said Tennessee’s law, which lapsed in 2016, was easier to study than Alabama’s chemical endangerment statute, which came into being by a ruling of the state supreme court and has seen patchwork enforcement that tends to be much tougher in some counties and non-existent in others.

However, anecdotal reports of women avoiding hospital care are similar in both states. Doctors in Tennessee urged for a repeal of the law after a woman gave birth on the side of the road to avoid hospital drug tests and potential prosecution.

The same thing has happened in Alabama. In late 2020, a Scottsboro woman with a previous arrest for chemical endangerment gave birth in a motel in Hartselle. Her baby had to be transported to Huntsville Hospital for treatment in the NICU, according to court records. A Florence mom gave birth in an apartment in September 2018 and only came to the attention of officials after the resident reported her to police a day later. Her baby received treatment for pneumonia from the local hospital. Another mother in Etowah County crossed county lines to give birth in Marshall County and avoid detection by local authorities.

Life after loss

Bendish said she has mixed feelings about her chemical endangerment arrest. Prosecutors initially sought a 25-year sentence for her miscarriage, which they said was caused by her drug use. Instead, the judge took mercy on her and sentenced Bendish to one year in a drug treatment facility, where she finally got sober after a lifetime of addiction.

Things might have been different for her and her daughter if help had been offered before she became ill and lost her child. Bendish said medical workers treated her poorly when she arrived at the hospital in pain and suffering from a high fever. After she lost the baby, she was distraught and sought answers from a doctor who treated her kindly.

“I asked her specifically if I had killed my baby and she sat down on the bed and told me no,” Bendish said. “That there was nothing I ate, drank, smoked, drugs, nothing. That none of that was the cause. My fluid got infected, and I got blood poisoning. So, I was dying as well as she and that was my body’s way of saving me.”

Alabama has few treatment facilities specifically for pregnant women and mothers. Women with opioid use disorder can have healthy pregnancies if they receive proper treatment and prenatal care, according to the American Congress of Obstetricians and Gynecologists. Some obstetricians may not know how or where to refer women with substance use disorder.

“When you go through all that and people hear that you do drugs, they don’t want to help you properly,” Bendish said. “They just write you off. They just shun you and it’s not fair. I feel like if maybe they would have taken me a little more seriously, situations like this don’t have to happen.”