This will not impact the abortion issue because of federal preemption. But the Alabama Supreme Court has accepted that fetuses and embryos “from the earliest stages of development,” qualify as a “child” under Alabama law.

The case involves a law that criminalizes exposing a child to harmful chemicals. Sarah Janie Hicks took cocaine while pregnant, and when her son “J. D.” was born, he had measurable amounts in his system. She pleaded guilty under the pertinent statute, preserving her right of appeal.

The case went to the Supreme Court where Hicks argued that the world “child” in the statute did not include the unborn. But a previous case had found that it applied to “viable” fetuses.

Hicks next said that the world “child” was defined as being under the age of 18, and hence could not apply to fetuses and embryos. Again, the Justices disagreed. From the court ruling:

As this Court held in Ankrom, the statutory definitions of the word “child” in other chapters of the Code do not limit “child” to only a child who has been born but simply set a maximum age at which the person is no longer regarded as a “child” under a particular statutory scheme.

Also, the references to a “human fetus” or “unborn child” in the partial-birth-abortion statute and the Woman’s Right to Know Act both deal exclusively with unborn children. Thus, it would be inappropriate to use the word “child” because that would, nonsensically in that context, include children who have already been born.

Because both born and unborn children can be exposed to controlled substances, we have no reason to doubt that the legislature intended for the chemical-endangerment statute to be using the plain meaning of the word “child” and thereby protecting all children.

How early in gestation do the “rights” of the unborn extend. All the way, apparently:

Consistent with this Court’s opinion in Ankrom, by its plain meaning, the word “child” in the chemical-endangerment statute includes an unborn child, and, therefore, the statute furthers the State’s interest in protecting the life of children from the earliest stages of their development. See § 26-22-1(a), Ala. Code 1975 (“The public policy of the State of Alabama is to protect life, born, and unborn.”)..

[T]he chemical-endangerment statute to protect the life of unborn children “is consistent with many statutes and decisions throughout our nation that recognize unborn children as persons with legally enforceable rights in many areas of the law”.

I know there will be howling and gnashing of teeth about this ruling from certain quarters, and claims that it turns pregnant women somehow into chattel. But I don’t understand why expecting a mother to protect her born children from specified harms doesn’t interfere with her liberty, yet it does when she is gestating. During pregnancy, it isn’t ”just” her body. She has two for which to care.

A fundamental duty of any parent is to protect his or her child from harm. Thus, a father who hits his pregnant wife in the stomach would be properly punished if the unborn child was injured or is miscarried (as well as for assaulting the woman). So too, it seems to me, a pregnant woman who takes substances knows (or should know) could harm her child.

I think one more point has to be made. The above statement potentially encompasses more than with which I am comfortable. Would a pregnant woman drinking wine with dinner potentially become criminal? What about smoking tobacco or marijuana? What about working in a factory with caustic chemicals? These are reasonable questions that need to be addressed by a law that would seem to have very broad application based on this case.

It seems to me the Alabama Legislature should narrow the applicable scope of the statute in cases of gestating mothers in order to better define it as applying only to those circumstances bringing high likelihood of significant harm.  A theoretical or minor risk should not be sufficient for a violation.

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Wesley J. Smith, J.D., Special Consultant to the CBC
Wesley J. Smith, J.D., Special Consultant to the CBC