On a rainy day just after Thanksgiving, Amanda Kimbrough played with her 2-year-old daughter in her raw-wood-paneled living room, petting her terriers and half-watching TV. Kimbrough, who is 32, lives a few miles outside Russellville, a town of fewer than 10,000 in rural northwestern Alabama, near the border of Franklin and Colbert Counties.
Textiles were the economic engine of the area until the 1990s, when the industry went into decline and mills shut down. Now one of the region’s leading employers is Pilgrim’s, a chicken supplier. The median household income is $31,213, and more than a third of children live below the poverty line.
As family members came in and out of the room and one daytime show slid into another — “The People’s Court,” “Intervention,” “Jerry Springer,” “The Ellen DeGeneres Show” — Kimbrough talked about her arrest following the death of her third child, Timmy Jr. Born premature at 25 weeks on April 29, 2008, Timmy Jr. weighed 2 pounds 1 ounce, and lived only 19 minutes. When Kimbrough tested positive for methamphetamine, her two daughters were swiftly removed from her custody, and for 90 days, she was allowed only supervised visits. Social services mandated parenting classes and drug treatment.
That would have been a typical response in most places, but Alabama is different. Six months after Timmy Jr.’s death, the district attorney in Colbert County charged Kimbrough with chemical endangerment of a child, a Class A felony (because the infant died) that carries a mandatory sentence of 10 years to life. She turned herself in, and bail was set at $250,000. At the trial, the state completed its case in two days. On the advice of her lawyer, Kimbrough then pleaded guilty and received the minimum sentence of 10 years.
According to Kyle Brown, the chief assistant district attorney in the case, Kimbrough might have received far more time if a jury had found her guilty. “She caused the death of another person,” Angela Hulsey, an assistant district attorney on the case, said, “a person that will never have the chance to go to school, go to the prom, get married, have children of their own. You’re dealing with the most innocent of victims.”
When I met Kimbrough last fall, she was free on an appeal bond. (Her plea bargain allows her lawyers to appeal her conviction on constitutional grounds without contesting the specifics of her case.) Kimbrough said she never had a big problem with meth, but admitted that she started using the drug in her mid-20s, after her first marriage collapsed. When she was pregnant with Timmy Jr., she did meth only once, she told me.
“One time,” she said. “I don’t even know why I done it. I guess the Devil knocked on my shoulder that day.” Otherwise, Kimbrough insisted, she abstained from drugs during her pregnancy, even refusing painkillers for an infected tooth for fear they would hurt the baby. Timmy Jr.’s birth had many potentially complicating factors, including prematurity and a prolapsed cord. Kimbrough says she was eager to have the child — she had always wanted a boy. She and her husband, Timmy Sr., were told at an early-April prenatal visit that Timmy Jr. would likely have Down syndrome, and while abortion was an option, the Kimbroughs, who oppose abortion on moral grounds, did not consider it. “We didn’t care if he was special needs,” Timmy Sr. said. “We would have loved him.”
Kimbrough told me that she was devastated by the loss of her baby and scared of being locked up. She described a recent visit to her brother in prison, where he is serving time for burglary and other charges, and how upset she was by the place.
“I feel for people on drugs,” she continued. “You got to stay away from people that’s on them. I learned that in rehab, and I been clean ever since. I feel like I iced the cake with this one. To me, losing a child. . . . ” She stared off into space.
Kimbrough’s cheerful 10-year-old, Brooke, arrived home from school, shaking the rain off her coat and chatting about a new necklace. In quick succession, Kimbrough checked Brooke’s backpack for new library books, fixed peanut-butter crackers and braided a doll’s hair. “She has to take care of everybody,” her adult stepdaughter Amy told me. “She’s a mother hen.”
You might not expect a rural Alabama mother with a felony conviction to have in her corner a national army of feminists, civil libertarians and gynecologists, but Kimbrough’s case has attracted the interest of groups like Planned Parenthood, the A.C.L.U. and the American Congress of Obstetricians and Gynecologists, who all maintain that her conviction sets a dangerous precedent. Emma Ketteringham, the director of legal advocacy at the National Advocates for Pregnant Women, a New York-based reproductive-justice group, has been following Kimbrough’s case closely. She has drafted “friend of the court” briefs for Kimbrough signed by groups like the National Organization for Women-Alabama and the American Medical Association. She argues that applying Alabama’s chemical-endangerment law to pregnant women “violates constitutional guarantees of liberty, privacy, equality, due process and freedom from cruel and unusual punishment.” In effect, she says, under Alabama’s chemical-endangerment law, pregnant women have become “a special class of people that should be treated differently from every other citizen.” And, she says, the law violates pregnant women’s constitutional rights to equal protection under the law. Ketteringham also recruited two prominent Alabama lawyers, Jake Watson and Brian M. White, to take Kimbrough’s case pro bono. “I love babies, too, but I don’t like locking up their mamas,” Watson told me.
There have been approximately 60 chemical-endangerment prosecutions of new mothers in Alabama since 2006, the year the statute was enacted. Originally created to protect children from potentially explosive meth labs, Alabama’s chemical-endangerment law prohibits a “responsible person” from “exposing a child to an environment in which he or she . . . knowingly, recklessly or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance or drug paraphernalia.”
Criminal convictions of women for their newborns’ positive drug tests are rare in other states, lawyers familiar with these cases say. In most places, maternal drug use is considered a matter for child protective services, not for law enforcement. Advocates for Kimbrough insist that, in any case, Alabama’s chemical-endangerment law was never meant to apply to pregnant women’s drug use. “The words ‘womb,’ ‘uterus,’ ‘pregnant women’ don’t appear in the law,” Ketteringham says. “It was a law meant to protect children from meth labs.” One state legislator has filed an amicus brief, claiming the law was not intended to be used this way, and the Legislature has repeatedly rejected amendments to expand the law’s definition of “child” to explicitly mean “fetus.” But shortly after the law passed, Alabama prosecutors began extending the term “environment” to also mean the “womb,” and “child” to also mean “fetus.” In 2006, Tiffany Hitson was charged with chemical endangerment the day after she gave birth to a baby girl who tested positive for cocaine and marijuana but was otherwise healthy. When that prosecution was successful (Hitson was incarcerated for a year), other counties followed suit, making Alabama the national capital for prosecuting women on behalf of their newborn children.
Last summer, the Alabama Court of Criminal Appeals upheld this expanded interpretation of the chemical-endangerment law, ruling that the dictionary definition of “child” includes “unborn child,” an interpretation that will be challenged when the state’s Supreme Court considers Kimbrough’s case in the coming months. But the implications of that ruling go far beyond Alabama. Critics like Ketteringham argue that Alabama’s chemical-endangerment law offers a back door into what has become known as the “fetal personhood” argument.
Personhood USA, an organization based in Colorado, was founded in 2008 by Keith Mason after he became frustrated by the mainstream anti-abortion movement’s incremental approach of restricting the availability of legal abortion. “From my perspective, I saw a movement that was largely dying or dead and had a lack of enthusiasm from younger people and from people who had been in the fight for so many years,” he told me. “Something had to change. Personhood is that rallying point, because it’s the crux of the issue.” His movement seeks to establish the fetus’s right to live as equal to that of the mother’s.
Personhood advocates regard fetal rights as a civil rights issue, and they often compare themselves to abolitionists. “I think it would be unequal protection to give the woman a pass when anyone else who injects drugs into a child would be prosecuted,” Ben DuPré, director of Personhood Alabama, said. “What it boils down to is, aren’t these little children persons?”
The goal of Personhood USA is to establish that a fully rights-endowed person is created when sperm meets egg. To that end, it has introduced initiatives and measures in legislatures in 22 states. Though none of these measures have become law, some, like Proposition 26 in Mississippi, have made it to a ballot referendum, and other measures have passed legislative chambers in North Dakota, Montana and Oklahoma. The problem with those measures, from a legal perspective, says Lynn Paltrow, executive director of the National Advocates for Pregnant Women, is that “there is no way to treat fertilized eggs, embryos and fetuses as separate constitutional persons without subtracting pregnant women from the community of constitutional persons.”
The sometimes vague language of the initiatives and measures masks what would be the “sweeping effects on access to health care,” says Alexa Kolbi-Molinas, a staff lawyer for the A.C.L.U.’s Reproductive Freedom Project. One district-court judge agreed with the A.C.L.U., which brought a suit to block a personhood initiative from the ballot in Nevada. Judge James E. Wilson ordered the sponsor of the state’s personhood initiative to add clarifying language. As he wrote in his opinion in December: “The initiative would protect a prenatal person regardless of whether or not the prenatal person would live, grow, or develop in the womb or survive birth; prevent all abortions even in the case of rape, incest or serious threats to the woman’s health or life, or when a woman is suffering from a miscarriage, or as an emergency treatment for an ectopic pregnancy. . . .” The initiative was withdrawn, but signatures are being gathered on a rewritten petition.
In Mississippi, Proposition 26 would have outlawed abortion, embryonic-stem-cell research, cancer treatments that might hurt a fetus and some popular methods of birth control. The measure was defeated, Paltrow said, “because its implication was obvious: once the woman becomes pregnant, she has a second-class status in which she loses virtually every constitutional right, including a right to medical privacy.”
“At least Mississippi put it up to a vote,” Ketteringham says. In Alabama, “you essentially have a personhood measure in disguise.”
Critics of Alabama’s chemical-endangerment law argue that drug use by pregnant women is best treated as a health issue, not a criminal one. Addiction, they say, can be treated, but drug users have to be willing to seek help, which they might be less likely to do if they fear arrest. “To simplify a complex medical and psychosocial issue into a criminal issue is really just like using a hammer to play the piano,” says Dr. Deborah Frank, a pediatrician and director of Boston Medical Center’s Grow Clinic for Children. “The whole definition of addiction is compulsive behavior in spite of adverse consequences — like the person who keeps eating doughnuts even though their doctor tells them they’re morbidly obese and going to die of a heart attack.” Deterrents, experts like Frank say, don’t work well when it comes to addicts and may even be counterproductive.
Heather Capps, a 25-year-old mother of three, was arrested in Marshall County, Ala., on Nov. 11, 2011, two days after giving birth via Caesarean section to a healthy boy who tested positive for Oxycodone. Capps says that she became addicted to the drug after it was prescribed for her scoliosis pain. When Capps learned she was pregnant, she knew she would be prosecuted if she gave birth to a baby who tested positive for drugs, and she also knew that the effects of withdrawal from quitting abruptly during pregnancy could be dangerous to her unborn child.
She went online, and after finding the Web site of National Advocates for Pregnant Women, called Ketteringham to ask for legal advice. Ketteringham confirmed that if Capps gave birth in Marshall County, she would most likely be prosecuted and recommended that she hire a lawyer. Capps had heard that prosecutors in nearby Jefferson County weren’t bringing chemical-endangerment charges against drug-using pregnant women, but because she had two young sons in school she decided to stay where she was and to continue taking the lowest possible dose of Oxycodone she felt she could manage. She also posted some regrettable things during private Facebook conversations: “I figured since I was just informed that im a crackhead (still wonderin how im the last to find out) and pregnant now ill just shoot thru my belly button strait into the uterus to make sure the baby gets high to.” That Facebook post, shown on the local news after her arrest, made her a pariah. Her family insists the post was a cry for help. “When she was told there was no help for her, and that she might lose the baby, she was petrified,” her husband, Matthew Devin, says. “She couldn’t live with herself if she hurt one of our kids.”
Capps was arrested on the hospital grounds. She remained in jail for three months because her family could not afford to post her $500,000 bail. She was then sent to rehab and placed in a halfway house, where she continues to receive treatment. If she completes the program to the judge’s satisfaction, her sentence will be dismissed. She is allowed to see her three children once a week on Sundays.
The recommended treatment for opiate addiction during pregnancy is a controlled dosage of methadone, says Dr. Robert Newman, of the International Center for Advancement of Addiction Treatment at Beth Israel, who says a prognosis for both mother and baby is good with long-term outpatient treatment. (Capps told me that the drug treatment she was offered while pregnant was at an inpatient facility in Birmingham.) Prosecutors I spoke with said they would not charge a woman taking prescribed methadone. But the law does not prohibit such a charge, and critics argue that the threat of prosecution discourages women from seeking addiction treatment. The American College of Obstetricians and Gynecologists issued a statement in 2011 cautioning that women would even avoid prenatal care when they believed doctors were gathering evidence for law enforcement. Measures like Alabama’s chemical-endangerment law, they said, are “contrary to the welfare of the mother and fetus.” State Senator Clay Scofield of Alabama, who is seeking to amend the state’s chemical-endangerment law to include the fetus, dismisses this concern. “The majority of women who are abusing meth already do not seek prenatal care,” he told me.
There is anecdotal evidence to suggest that pregnant women in Alabama, aware that they may be arrested and their medical records subpoenaed if they or their babies test positive for drugs, may be changing their behavior — although not necessarily as some prosecutors hoped. Carmen Howell, a defense lawyer in Enterprise, says she knows of one woman who drove to Georgia when she went into labor and another who gave birth to a three-pound baby in a bathtub at home. She is concerned that women who use drugs may also be having abortions to avoid prosecution. This law, she says, “is a deterrent to choosing life.”
Last November, I accompanied Kimbrough and Timmy Sr. to Timmy Jr.’s grave in a well-tended cemetery near Kimbrough’s parents’ house. Kimbrough’s grandfather was buried nearby; a gravestone portrait shows him driving a John Deere tractor. It was raining, and Kimbrough, shivering in a black turtleneck and jeans, rearranged metal butterflies, ceramic angels and a plastic cross until Timmy Sr. called out from their truck, “Are you trying to get a cold?”
The funeral had been small. “We only done close family,” Kimbrough had told me earlier. “I had a closed casket for my older kids cause he was so purple. I think about it every day. To me, that’s punishment enough.”
“Don’t upset yourself, now,” Timmy Sr. said. He pushed back his slicked-back hair, revealing an upper-arm tattoo of a cross above which is written “Amanda.”
“People look to her real bad,” he said. “I don’t know why they want to make out like she done it on purpose or something. Us losing it and all was enough for me and her both. Them wanting to send her to prison for it, that just ain’t right.” Timmy Sr., who is 22 years older than his wife, and whom she affectionately calls “Bro,” told me that he once had trouble with meth, too. But, he said, he “did a 180” when he met Kimbrough. “I been to rehab,” he said. “It’s a disease.”
Back at home, Kimbrough went into her bedroom and came out with a white box containing knitted socks and an imprint of Timmy Jr.’s foot on paper. Neatly folded in a bag labeled with his birth date was Timmy Jr.’s hospital blanket decorated with a teddy-bear angel. “There was one nurse who sat and talked to me,” Kimbrough said. “She was the only one who was really good to me. When they brought the baby in there, they acted like I didn’t hold him long enough. Who wants to hold a dead baby, you know?” she continued, apologetically. “I held him for about 10 minutes.”
When I drove up to the address that Hope Ankrom gave me, I assumed I must have entered it incorrectly into the car’s GPS. It was a palatial house in an upscale community with an 18-hole golf course. Ankrom was one of the first women to be prosecuted under Alabama’s chemical-endangerment law. Most women against whom chemical-endangerment charges are brought are poor, defense lawyers say. But Ankrom’s husband is an aircraft mechanic who makes six figures working as a contractor in Afghanistan. This house, which belongs to Ankrom’s parents, a retired Army colonel and a nurse, is about a five-hour drive south of Kimbrough’s home, and probably worth 10 times as much.
At 29, Ankrom seems like a mischievous teenager. She wore dangly silver earrings, a brown T-shirt, jeans and boots. Her three children (Bryson, now 3; Aubree, 4; and Paige, 5) raced around the living room in a blur of curly dark hair and sippy cups. She yelled at Bryson to come back from the open front door and helped Paige change from flip-flops to sneakers, then shooed all three children out the door to accompany their grandfather to McDonald’s.
“Listen: silence,” she said with a smile. Bryson, she told me, was born weighing almost six pounds. He was healthy but tested positive for marijuana and cocaine. Ankrom admits smoking pot but denies cocaine use. She said that she quit smoking pot for her first two pregnancies, but that during the third, her morning sickness was relentless. Marijuana kept her functional, she said, and so she continued in spite of her gynecologist’s warning that she faced prosecution if she did not stop. She planned to quit a few weeks before her due date, assuming that she would then test negative. But Bryson came six weeks early.
When Bryson’s drug-test results came back, the hospital called the Department of Human Resources, Alabama’s child-protection service, which placed her children in the custody of her parents. “The first night without my children, I thought I was just going to die,” Ankrom said. She moved in with her parents so she could be around her children, but she was not allowed to be alone with them.
“Since I was breast-feeding, they let me pump a few times before they took me to jail,” Ankrom said. They handcuffed her, walked her to the car in front of her parents’ neighbors and then took her to a holding cell, where she spent a few hours before her parents posted bail. “Boy, did I leak while I was in there!” she said with a laugh. “I had toilet paper crammed in my bra. There is nothing more painful than needing to express and not being able to.”
For several months Ankrom received regular, unannounced spot checks to make sure she wasn’t alone with any of her children. A friend moved in to supervise her when her parents weren’t home. Ankrom pleaded guilty to chemical endangerment and was given a suspended sentence with one year’s probation. She completed mandatory drug treatment and continues to attend Narcotics Anonymous meetings for what she describes as a marijuana addiction. “I really screwed up,” she said. “I can’t blame anybody but myself.”
Ankrom now stays home with the children full time. Even if they don’t need the money, she said, she wishes she could work. But the guilty plea has made that more difficult. “What’s killing me is I had a bright future,” said Ankrom, who was studying to be a physical-therapy assistant. “When you want to work with children or the elderly, they see that abuse charge and they’re like: ‘Whoa, no, thank you, ma’am. You’re not going to work here.’ ”
Ankrom said she had little expectation that her circumstances would change, though Alabama’s Supreme Court will hear her case along with Kimbrough’s. “I’m not holding my breath on the Supreme Court overturning it,” she said. “I am guilty. I did smoke pot. I made bad decisions.” She shrugged. “It is how it is.”
Ankrom’s lawyer, Carmen Howell, who represented her before the Court of Criminal Appeals (which upheld Ankrom’s and Kimbrough’s convictions this past summer), is pressing on with the appeal pro bono because, she said, the implications of the law are “scary.” She questioned what the arrest was really about if Ankrom could be prosecuted for drug use even though her child was unharmed.
“I think what you’re looking at here is a failure to understand that addiction is a disease of the brain,” says Dr. Barry Lester, the director of the Center for the Study of Children at Risk at Brown University. “You are looking at people who think that these are horrible women who are rationally, willfully hurting their kids, but it’s more complicated than that. Science has shown that addiction is a disease like any other mental illness, and absolutely treatable.”
Prosecutors often compare doing drugs while pregnant to driving while drunk. A crime has still been committed, they say, even when there is no harm done. Mitch Floyd, a passionate 42-year-old from Albertville — part of an area known as Meth Mountain — has prosecuted chemical-endangerment cases against new mothers more aggressively than anyone else. He is a patient, friendly man with light eyes who becomes deadly serious when he talks about babies.
Addiction is “a very powerful force,” he told me. “However, there’s a force that’s more powerful than that to me, and that is a child is helpless, and God has put one person on this planet to be the last-line defense, to be the fiercest protector of that child, and that is its mother. My wife would literally claw someone’s eyes out — fight you to the death for our children. I mean, that’s just what mothers are supposed to do. When that child’s ultimate protector is the one causing the harm, what do you do?”
Over breakfast at a hotel restaurant in Florence, Ala., he shared photos of babies involved in some of his cases. Many looked healthy, although he said they were tiny and had all been exposed to drugs. One, born in February 2007, was shown in a neonatal-intensive-care unit with a man’s wedding ring hanging around her wrist like a bangle. Another, born in August 2008, was dead and purple, his hands crossed over his chest.
“I meant to take that one out,” he said.
Floyd says he is committed to drug-abuse prevention because, through his own work as an assistant district attorney and that of his wife, who works for the Department of Human Resources, he has seen firsthand the devastation of drugs on families. He visits local high schools and community groups to encourage teenagers to stay off meth, and insists the primary goal of these chemical-endangerment prosecutions is to keep more babies from being exposed to drugs. The mothers who are convicted, he says, are put in rehab and helped in the long run. “It’s a shame that babies need to be protected from their own mothers, but sometimes they do, and that’s our job,” Floyd said. “It upsets me and offends me at the same time.
“People can argue with it,” he added, referring to his chemical-endangerment prosecutions, “but I think we’ve been very successful. We want folks to not reoffend, to get clean, to get reunited. I think that’s the best-case scenario.”
No one would suggest that pregnant women should use drugs. But there are scientists who say that methamphetamines do not have a long-term impact on a developing fetus. Dr. Carl L. Hart, an associate professor of psychiatry and psychology at Columbia University and a research scientist at the New York State Psychiatric Institute, says that heavy alcohol use is potentially far more serious than a mother’s use of opiates, cocaine or meth, because while these harder drugs may result in preterm labor or withdrawal symptoms that need to be managed, few babies experience long-term effects. Babies with fetal-alcohol syndrome, by contrast, are likely to have lifelong physical, mental and emotional issues, including significantly delayed brain development.
Furthermore, attributing a baby’s medical condition to the presence of a single drug can be difficult, because many women who use illegal drugs have other risk factors at play during their pregnancies. “Poor nutrition, smoking, drinking, homelessness, poverty. . . . How do you control for all that?” Dr. Stephen Kandall, a neonatologist and the author of “Substance and Shadow: Women and Addiction in the United States,” told me.
Floyd’s message, however, is clear and uncomplicated: drug use during pregnancy is dangerous and criminal. In January, he announced he would run for Marshall County district judge and campaigned in the Republican primary in part on his chemical-endangerment prosecutions. One ad featured a local obstetrician praising Floyd’s work on behalf of the county’s children, “born and unborn.” Floyd, the doctor says, “makes sure these women are jailed and the babies are placed in a safe home.” Another ad showed a woman named Whitney Holsonback holding her baby and smiling. “Mitch Floyd made sure I went to jail,” it read, “but allowed me to go to drug treatment.” With his help, she says in the ad, she was able to turn her life around. Now, she’s off drugs, in nursing school and able to be a good mother to her son. “Mitch was tough on me,” she says, “but he also cared about me; he encouraged me.”
On March 13, Floyd won in a landslide.
Laws concerning a pregnant woman’s treatment of her fetus are not without precedent. Since abortion was legalized in 1973, hundreds of women across the country have been arrested for harming their fetuses, with charges ranging from child endangerment to first-degree murder.
Many of these prosecutions originate in laws initially designed to build in extra penalties when pregnant women are victims of a crime. Fetal-homicide laws, for example, which are on the books in 39 states, have often been passed in response to a brutal killing. Alabama’s fetal-homicide law is known as the Brody Bill, named after the fetus who died in the 2005 murder of his mother, Brandy Parker. But treating women and their fetuses as separate persons under the law can have unexpected consequences. A woman in Indiana, Bei Bei Shuai, is now in prison for a suicide attempt that resulted in the death of her fetus. Three years ago in Mississippi, Rennie Gibbs had a stillbirth shortly after turning 16. When her baby tested positive for cocaine, she was charged with a “depraved heart murder,” the legal term for a killing with “a callous disregard for human life,” which in Mississippi carries a life sentence without possibility of parole until the age of 65. The Mississippi State Supreme Court, after initially agreeing to weigh in on the case, abruptly reconsidered, saying Gibbs should stand trial before it would rule on whether the law applies to pregnant women. Alabama’s fetal-homicide law exempts pregnant women.
Measures that specifically define fetuses as persons have failed in every state in which they have been introduced (Colorado voters rejected fetal-personhood initiatives twice), but Mason, the founder of Personhood USA, told me that he isn’t deterred. The goal, he said, is to raise awareness, much as gay marriage advocates, with whom he disagrees, have done with their campaigns. “The more we raise the issue, the more we change the culture,” he said. Troy Newman, president of the anti-abortion group Operation Rescue, agrees, in part, saying: “Is it a winning strategy? Obviously not. They’ve spent millions of dollars in at least two different states running initiatives, and they’ve all failed miserably.” On the other hand, laws like chemical endangerment, he says, could ultimately get the anti-abortion movement where it wants to go. “Look,” he says, “we win every time we establish the precedent that the unborn child in the womb is a unique human individual.”
Mathew D. Staver, the founder and chairman of Liberty Counsel, who helped get fetal personhood on the ballot in Mississippi, recently filed an amicus brief with the State Supreme Court supporting the state’s case against Ankrom. Staver told me by phone that “it’s clear that history has sided with the idea that life begins in the womb. The only aberration is Roe v. Wade. Abortion laws are an island unto themselves, and that island is gradually shrinking.”
But the expansion of fetal-homicide and chemical-endangerment laws have some people on the other side of the debate reaching for their copies of “The Handmaid’s Tale,” Margaret Atwood’s dystopian novel in which women are enslaved as childbearers.
“We’re heading toward this Margaret Atwood-like society,” Ketteringham says. “The idea that the state needs to threaten and punish women so that they do the right thing during pregnancy is appalling. Everyone talks about the personhood of the fetus, but what’s really at stake is the personhood of women. It starts with the use of an illegal drug, but what happens as a consequence of that precedent is that everything a woman does while she’s pregnant becomes subject to state regulation.
“It starts with cocaine, and then it’s cigarettes and alcohol. How much alcohol? And when? It’s only a matter of time until it comes to refusing a bed-rest order because you need to work and take care of your other children and then you have a miscarriage. What if you stay at a job where you’re exposed to toxic chemicals, as at a dry cleaner? What if you keep taking your S.S.R.I.’s during pregnancy? If a woman is told that sex during her pregnancy could be a risk to the fetus, and the woman has sex anyway and miscarries, are you going to prosecute the woman — and the man too?”
“[The fetus] is another human being, just like we are,” Scofield, the state senator, says. “I look at the tens of millions of good mothers who make the right decisions. My mother, for instance, smoked forever. The day she found out she was pregnant with me, she put down her cigarettes for the last time. If we turn our back on this, we say to all these good mothers who have made good decisions that it’s meaningless to society to be a good mother or a good father.”
Despite the mother-hen domesticity I witnessed, Amanda Kimbrough has not proved to be a model test-case defendant. Three months after I met her in Russellville, she was back in jail. Her appeal bond was revoked when she was charged with selling Oxycodone to a confidential informant. Timmy Sr. called the arrest a “setup.” David Henry Neal, the lawyer representing her on the new charge, said he would enter a not-guilty plea if there was an indictment. “We just hope that the system will not try to get its pound of flesh over the death of the infant through the new drug charge,” says Brian White, one of her lawyers in the chemical-endangerment case.
But an investigator in the Franklin County sheriff’s office, who asked not to be named because he was not permitted to speak to the press, told me that his office had been monitoring Kimbrough for a long time: “The important thing is the safety of the kids. She’s not an innocent person if she’s already in trouble and done that to her baby and she’s still out selling dope.”
Her lawyers were clearly disappointed by the new arrest, but given their experience working with defendants, not entirely surprised. “No case is ever easy,” Ketteringham told me. “People are complicated.” Kimbrough’s drug history, her lawyers acknowledge, may make it difficult to sympathize with her. But, they say, moral outrage need not be accompanied by legal punishment. “Maybe human beings have not evolved enough to hold the complex idea that many things can be true at the same time,” Paltrow of the National Advocates for Pregnant Women says. “We can feel a certain way. We can value the unborn as a matter of religion, ethics or experience, but we can’t do that as a matter of law and still value pregnant women.”