An anti-abortion litigation group filed a brief with the Alabama Supreme Court on Friday that urges the court to apply the state's "chemical endangerment of children" law to fetuses, which would allow prosecutors to continue putting women behind bars if their babies test positive for drugs when they're born. If the court rules that fetuses are "persons" in this context, the decision could open the door to a full ban on abortion in Alabama.
The chemical endangerment law in Alabama was written to protect children from exposure to methamphetamine laboratories, but prosecutors have been using it to indict pregnant women and new mothers. The Alabama Supreme Court will soon decide whether those prosecutions are an appropriate application of the law, based on whether a fetus can legally be considered a child.
According to the Liberty Counsel, the same advocacy group that help defend Mississippi's controversial personhood measure, the 1973 Roe v. Wade decision that said fetuses are not legally protected until they are viable outside the womb is "out of step with history, law and science regarding the humanity of unborn children."
An attorney for the American Civil Liberties Union, which filed a brief on behalf of the women defendants, called the prosecutions a "misuse of an otherwise good law." Applying the chemical endangerment law to fetuses, said the attorney, would "analogize a woman's body to a meth lab" and would force pregnant women who are struggling with addiction to choose between jail and abortion.
"They're so desperate to have any judicial interpretation of a fetus or egg as a person that they don't care about the result," said Alexa Kolbi-Molinas, staff attorney for the ACLU Reproductive Freedom Project. "The sole goal in filing this brief has nothing to do with protecting women and babies, but is solely about trying to get a decision that holds that a fetus or egg is a person, because somewhere down the line it will make abortion illegal."
Steve Crampton, general counsel for the Liberty Counsel, responded that the group is only focused on the law's potential implications for the fetus, saying, "Let's put it this way: We are in favor of recognizing and protecting the rights of the unborn in all circumstances."
"I don't think the ACLU is on solid ground, hypothesizing that that may occur down the road," he added. "What you have to do with the law is act in a principled and just manner by means of education, and deal with individuals who may be contemplating poor decisions later. You don't throw the good law out in order to prevent faulty logic."
The argument date for the case has not yet been scheduled.