At a traffic stop, the police officer found a small amount of weed. Ashley Banks, a 23-year-old woman living in Alabama, admitted to the cops that she had smoked marijuana two days earlier. It was the same day that she learned she was pregnant. She was six weeks along. It was this disclosure – that she was pregnant – that led Etowah county officials to keep her in jail, without a trial, for the next three months.
Alabama has an exceptionally high incarceration rate, locking up about 938 people per 100,000 residents. But even in a state with a disproportionate prison population, an arrest for small-scale drug possession would not usually lead to such an extended pre-trial jail stay. But Banks fell victim to a peculiar Alabama law that advocates say Etowah county enforces with special zeal: pregnant women who are arrested for drug offenses are not allowed to post bail and go free, the way other people are. They have to stay in state custody: either in jail, or in a residential drug rehab program. The logic is that the women are a danger to their fetuses: they need to be imprisoned by the state, and kept from their freedom, in order to protect their pregnancies.
In Banks’s case, jail officials tried to send her to rehab, but after an assessment, the facility turned her away: Banks, they said, was merely a casual marijuana user, not an addict, and did not need in-patient drug treatment. Too healthy for rehab, but not trusted enough by the state to be set free, she was kept in limbo in jail. Meanwhile, Banks’s pregnancy wasn’t going well. She has a family history of miscarriages, and was experiencing bleeding in jail. At one point, jail officials assigned her to sleep in a bed that was already occupied by another prisoner; Banks slept on the floor.
She’s not the only one. Another woman, Hali Burns, was taken to the Etowah county jail just six days after giving birth to her son, with police saying that she had tested positive for a drug used by pregnant women with opioid addictions to help manage cravings and withdrawal. When she was thrown in jail, Burns was still physically recovering from giving birth. But the jail had no facilities for her to pump or tend to her wounds. Her partner tried to bring pads and underwear to her, so that she wouldn’t have to bleed into her clothes, but Etowah county authorities wouldn’t let her have them. The risk for infection was great – the indignity was even greater.
Stories like Banks’s and Burns’s – the needless and disproportionate incarceration, the loss of freedom and recourse inflicted on them on the basis of their pregnancies, the cruelty justified by authorities as “protection” for a fetus – are becoming more common. Alabama criminalizes more women for pregnancy than any other state. Just last year, Kim Blalock, a mother of six from Florence, Alabama, was charged with a felony for filling a longstanding prescription from her doctor while pregnant. Prosecutors charged that the medication, which Blalock was taking as prescribed, could have hurt her fetus, and that she should have known not to refill it. (Blalock later gave birth to a healthy baby boy.)
But these jailings are not just an Alabama thing: the trend of imprisoning pregnant and postpartum women for supposedly endangering their fetuses is one that’s growing nationwide. Over 32 years, from 1973, when Roe v Wade was decided, to 2005, the United States saw a total of 413 pregnancy prosecutions throughout the whole nation, according to Afsha Malik, a research associate at the reproductive justice group National Advocates for Pregnant Women and the co-author of a recent report on pregnancy criminalization. But over just a 14-year period, from 2006 to 2020, there were more than 1,300 such cases. That steep increase happened while Roe was still in place; now that it’s fallen, pregnancy criminalization is likely to accelerate even more. “We know that we’re going to see more examples of pregnant people being criminalized for behavior that may be [seen as] justified for the general public, like using substances,” Malik told the Nation. “[Other] cases that we’ve seen are going to accelerate, like [for] falling down the stairs, having a home birth, not seeking prenatal care, having HIV, having a self-induced abortion, and experiencing a pregnancy loss.”
Still, Etowah county seems to be a hotbed for this particular kind of misogynist cruelty. NAPW says that the county has jailed 150 pregnant women in recent years; as many as 12 are currently held in its jail.
The Dobbs decision didn’t create this state of affairs, but it’s likely to worsen it. The policy in place in Etowah county and elsewhere reveals the warped logic and hateful absurdities of the anti-choice worldview. The movement claims to see embryos and fetuses as persons, and in practice they speak as if these “persons” are not women’s equals, but their superiors: the fetus is conceived of as more important than the woman, more worthy, less tainted by those things that make a pregnant woman so unappealing – her femaleness, her sexuality, her tendency to have human desires and human struggles, like irritation or addiction or anger. In the service of protecting and advancing this superior being of the fetus, the anti-choice movement claims, it is justifiable, even necessary, to steal the freedom of those lesser women.
And yet the practice of imprisoning women to “protect” their fetuses and infants does not make sense on its own terms. Jails are dirty, desperate and violent places; Banks, who had a high-risk pregnancy, frequently bled during her incarceration and had no access to medical care. Burns, who was arrested just a few days after giving birth, was not able to care for her new son, or her toddler daughter. None of what the anti-choice movement is doing can be said to protect anyone – not the fictional “persons” imagined in an embryo or fetus, not the real, living children deprived of their mothers, and certainly not the pregnant and postpartum women, shamed and thrown into cages, still bleeding from giving birth. One begins to suspect that the only value the anti-choice movement really sees in fetal “persons” is the pretext that it allows them for misogynist sadism.
Moira Donegan is a Guardian US columnist
