New York, NY – On Friday, April 18, 2014, the Alabama Supreme Court issued a 8-1 decision in Ex Parte Hicks upholding the conviction of Sara Hicks, who gave birth to a healthy baby who tested positive for cocaine in 2008. This decision affirmed the Court's prior ruling in Ex Parte Ankrom, holding that that the plain meaning of the word "child" in the Alabama law unambiguously includes fertilized eggs and that pregnant women may be arrested for using a controlled substance while pregnant.
The chemical endangerment law was passed in 2006 to deter people from bringing children to places where controlled substances are produced or distributed, such as methamphetamine laboratories. Since 2006, more than 100 women who became pregnant and tested positive for a controlled substance have been arrested. Some have experienced pregnancy losses, but the majority – like Sara Hicks – have continued their pregnancies to term and given birth to healthy children.
As a result of the rulings in Ankrom and Hicks, there is no exception from prosecution for pregnant women who used controlled substances that are prescribed by physicians. (See "Your Epidural is Against the Law: What Alabama Women and Doctors Need to Know".) Because Justice Moore's concurring opinion in Hicks relies on Biblical citations and God's authority, the decision may also raise First Amendment establishment clause questions.
Chief Justice Moore wrote a separate concurring opinion “to emphasize that the inalienable right to life is a gift of God” that not only justifies the decision in Hicks, but also requires that Roe v. Wade be overturned – and that pregnant women be punished whether they use a controlled substance or terminate a pregnancy. Justice Parker wrote a special concurring opinion to explain how the Hicks case fits into a “line of decisions affirming Alabama's recognition of the sanctity of life from the earliest stages of development,” and equating a woman who has an abortion to a “killer.”
In response, National Advocates for Pregnant Women (NAPW) released a statement from founder and executive director Lynn Paltrow:
"It is very unusual for a state supreme court to take a case to address a settled issue of law. It appears that the court accepted the Hicks case for the purpose of more fully articulating a view that pregnant women are proper subjects of Alabama's criminal justice system and a growing state and national system of mass incarceration.
"In a national first, Chief Justice Moore and Justice Parker's concurring opinions clearly express the view that women who have abortions should be subject to prosecution and incarceration. This decision demands response from national 'right to life' organizations and political leaders who seek to have Roe overturned. With the Chief Justice of a state supreme court now on record as viewing both women who give birth to healthy babies and women who have abortions as criminals, it is time proponents of anti-abortion laws and so-called 'personhood' measures address the punishment women will be subjected to as a result of their policy proposals.
"According to the majority and concurring opinions, Alabama purports to affirm the sanctity of life by establishing a separate and unequal law for pregnant women creating unique and additional criminal penalties in relationship to drug use. The decisions in Ankrom and Hicks empower police, prosecutors, and prison wardens to oversee prenatal care and motherhood, and by adopting policies that every leading medical group warns will undermine the health, safety and wellbeing of children born and unborn."
Tamar Todd, Senior Staff Attorney at the Drug Policy Alliance, stated: "Such prosecutions of pregnant women are misguided because they treat drug use and addiction as a moral failing that will respond to threats of punishment. The health of women and children will be improved if pregnant women are given access to medical care and treatment rather than deterred from seeking it through threats of imprisonment."
As a result of the decisions in Ankrom and Hicks, Alabama joined South Carolina as one of only two states that authorize the prosecution of pregnant women. Recently, Tennessee became the first state where the legislature actually voted to pass this kind of criminal law. This led to a New York Times editorial last Sunday titled “Criminalizing Expectant Mothers” that declared, “Prosecutors should have no role in overseeing prenatal care.”
National Advocates for Pregnant Women, the Drug Policy Alliance, and the Southern Poverty Law Center filed an amicus (friend of the court) brief in Ankrom on behalf of 49 medical, public health, and health advocacy groups and experts opposing the judicial expansion of the chemical endangerment law to pregnant women and mothers. The Drug Policy Alliance and the Southern Poverty Law Center also filed an amicus brief in Hicks on behalf of medical, public health, and health advocacy groups.