By: Diana Kawka*

In Etowah County, Alabama, being pregnant places women at risk of severe punishment for what would otherwise be minor offenses, receiving wildly disparate treatment than their male counterparts.[2] Alabama leads the nation in pregnancy criminalization, with Etowah County disproportionately seeking to imprison and prosecute mothers and pregnant women.[3] Pregnancy criminalization is defined as when a person is arrested for “reasons related to their pregnancy, or where the terms of their bail, sentencing, or probation are heightened because they became pregnant after being charged with an unrelated crime.”[4] Under Alabama’s chemical endangerment statute, a defendant who exposes a child, including unborn fetuses, to an environment in which controlled substances are produced or distributed can be charged with a felony. [5] This statute should apply to men and women with equal force, but in Etowah County, 93% of arrests under this statute are women.[6] Women are charged at a rate 12 times higher than men.[7] This practice precedes the Dobbs decision,[8] but the scrutiny around state abortion laws has brought attention to this county’s treatment of pregnant women. While supporters of Alabama’s laws may make claims about protecting fetuses, the way the state weaponizes the chemical endangerment statute and treats incarcerated pregnant women tells an entirely different story.

            In March 2021, Ashley Caswell was arrested by Etowah County sheriffs after she tested positive for methamphetamine while two months pregnant.[9] She was charged under the chemical endangerment statute and will serve 15 years in state prison.[10] Despite having a high-risk pregnancy, Caswell received little healthcare while incarcerated at the Etowah County detention center.[11] Etowah County personnel refused to give Caswell regular prenatal check-ups, required her to sleep on the floor of her cell for the duration of her pregnancy against medical advice, and eventually forced her to give birth on the floor of the jail shower without medical assistance.[12] When Caswell went into labor, she was left alone in a cell in the medical unit.[13] She began to bleed and vomit for close to 12 hours.[14] Even though Caswell had been in labor all day, medical personnel told her she “better not have that baby” until Monday, two days away.[15] Caswell was taken to wash her blood off in the shower, which is where she finally gave birth.[16] After, correctional officers passed Caswell’s baby between them while he was still connected to her via the umbilical cord.[17] The correctional officers took a photo of her while she laid naked on the shower floor.[18] Emergency personnel transported Caswell to the hospital where she was diagnosed with placental abruption and hospitalized for several days.[19] The “care” Etowah County provided to Caswell endangered both her life and that of her child.

            Ashley Caswell’s story is not an outlier in Etowah County; in Caswell’s complaint against Etowah County, she lists at least three other women who received similar treatment while pregnant.[20] In one case, like with Caswell, jail personnel refused to take a pregnant woman with a high-risk pregnancy to the hospital when her water broke.[21] This resulted in her hemorrhaging a life-threatening amount of blood and killed her child.[22]

            In another instance, Etowah County police arrested Ashley Banks when they found marijuana in her car.[23] She had only become aware she was six weeks pregnant the day she was arrested.[24] Banks smoked marijuana two days prior.[25] It was this admission that led to her being charged with chemical endangerment.[26] The court denied Banks bail because she was a pregnant woman arrested for chemical endangerment and was only allowed to leave custody if she went to a residential drug rehab program.[27] Banks was not allowed to enter any drug rehab program because the substance abuse agency responsible for her placement would not classify her as a drug addict, only a casual marijuana user.[28] Instead, Banks remained in the Etowah county detention center for three months before the court granted her release.[29] While there, Banks experienced pregnancy complications that hospitalized her twice.[30]

            In Etowah County, all women are potentially at risk; the suspicion that a woman could be pregnant is reason enough to incarcerate and humiliate them.[31] Etowah County arrested Stacey Freeman on charges of chemical endangerment for allegedly using drugs while pregnant.[32] Freeman was not pregnant at the time of the allegation or the arrest.[33] First confronted with the allegation after Freeman’s child mistakenly told a DHS worker that Freeman was pregnant, Freeman denied it, offered to take a pregnancy test and was refused the opportunity.[34] Etowah County arrested Freeman on the sworn testimony of an Etowah County Sheriff’s department investigator, Brandi Fuller, who stated Freeman was pregnant and using drugs.[35] Freeman was menstruating while incarcerated and still, jail officials refused her a pregnancy test or any menstrual products for days.[36] After Freeman’s pregnancy test showed she was not pregnant, the investigator, Fuller, threatened Freeman that she would be arrested if she became pregnant and instructed her to use a condom.[37]

            Notably, Brandi Fuller— the investigator who provided the sworn testimony to arrest Freeman that was later proven false— has led the charge in criminalizing pregnancy in Etowah County.[38] In at least one other case, Fuller made false statements to media sources about a woman who was charged under the chemical endangerment statute.[39] Fuller is involved in almost all of Etowah County’s chemical endangerment cases and specifically those against pregnant women.[40] From 2013 to July 2023, Etowah County has arrested 257 pregnant women.[41] Fuller was the arresting officer or a key witness on 222 of those cases.[42] In 2020, Etowah County Sheriff’s Office awarded Fuller “Investigator of the Year” for her work.[43]

            There are many more stories like this in Etowah County.[44] Women are more intensely scrutinized than men, more heavily prosecuted than men, and once imprisoned, subject to humiliation and danger that men would never be.[45] Women are threatened and controlled by the state in a way that men are not by the mere fact that they are or could become pregnant. Claims about protecting fetuses are pretextual at best. If Etowah County cared about protecting life, what happened to Ashley Caswell, the women in her complaint, Ashley Banks, or Stacey Freeman would never have occurred. Instead of receiving care for their health or that of their fetus, these women are dehumanized and abused. The criminalization of pregnancy endangers the lives of women, fetuses, and newly born infants.[46] While Etowah County is the worst offender in America,[47] what is happening in Alabama illustrates a growing problem of states criminalizing pregnancy.[48] As pregnancy criminalization increases, more women face preventable threats to their health and safety.[49]

Diana Kawka is a staffer for JLI Vol. 42.*

[1] This post uses the term “women” because generally, in Etowah County cisgender women have been the target of prosecution and their presentation as women is relevant to the disparate treatment they suffer. But pregnancy criminalization threatens the health and safety of anyone who can become pregnant. Other factors such as race and socioeconomic status are not discussed in this post but are important to understanding the state of pregnancy criminalization in America. See generally Pregnancy Justice infra note 3 (studying how pregnancy criminalization arrests are disproportionately Black women and women who would qualify as “indigent”).

[2] See Amy Yurkanin, One Alabama county cracked down on pregnant drug users. 10 years later, has it gone too far?, AL.com, July 31, 2023, https://www.al.com/news/anniston-gadsden/2023/07/one-alabama-county-pledged-to-crack-down-on-pregnant-drug-users-ten-years-later-has-it-gone-too-far.html (“The sentence for chemical endangerment in cases of miscarriage or stillbirth can be as long as 99 years. Women in Alabama have been found guilty even in cases with no clear causal link between drug use and the death of a fetus.”).

[3] Id.; See Amy Yurkanin, How One Alabama County Declared War on Pregnant Women Who Use Drugs, The Marshall Project, July 26, 2023, https://www.themarshallproject.org/2023/07/26/alabama-pregnant-women-drugs; Amy Yurkanin, As arrests of pregnant women rise, Alabama leads the way, report says, AL.com, Sept. 19, 2023, https://www.al.com/news/2023/09/as-arrests-of-pregnant-women-rise-alabama-leads-the-way-report-says.html; The Rise of Pregnancy Criminalization: A Pregnancy Justice Report, Pregnancy Justice 4­–5, 20 (Sept. 2023), https://www.pregnancyjusticeus.org/wp-content/uploads/2023/09/9-2023-Criminalization-report.pdf; Marisa Iati, Pregnant women were jailed over drug use to protect fetuses, county says, The Washington Post, Sept. 8, 2022, https://www.washingtonpost.com/nation/2022/09/08/pregnant-women-drugs-jail/ (calling Etowah County “ground zero for pregnancy criminalization”).

[4] Pregnancy Justice supra note 3 at 11.

[5] Ala. Code 1975, § 26-15-3.2.

[6] Yurkanin, supra note 2.

[7] Id.

[8] Id.; Iati, supra note 3.

[9] Sam Levin, An Alabama woman was imprisoned for ‘endangering’ her fetus. She gave birth in a jail shower, The Guardian, Oct. 13, 2023, https://www.theguardian.com/us-news/2023/oct/13/alabama-pregnant-woman-jail-lawsuit.

[10] Id.

[11] Id.; Complaint at ¶¶ 33–54, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[12] Complaint at ¶¶ 33–74, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[13] Id. at ¶¶ 55–60.

[14] Id.

[15] Id. at ¶¶ 64–66.

[16] Id. at ¶¶ 68–77.

[17] Id. at ¶¶ 78–80.

[18] Complaint at ¶¶ 78­­­–80, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[19] Id. at ¶¶ 82–85; “In normal pregnancies, placental separation occurs immediately after birth, while in pregnancies complicated by abruption, the placenta begins to detach before birth (1). This premature detachment commonly produces pain and vaginal bleeding, the clinical hallmarks of placental abruption, and occurs in about 0.6–1.0 percent of pregnancies (2). Maternal risks associated with abruption include massive blood loss, disseminated intravascular coagulopathy, renal failure, and, less commonly, maternal death (1, 3). Abruption is potentially disastrous to the fetus as well, with perinatal mortality as high as 60 percent (4–7).” Cande V. Ananth, Allen J. Wilcox, Placental Abruption and Perinatal Mortality in the United States, 153 American Journal of Epidemiology 4, 332­–37 (2001) https://doi.org/10.1093/aje/153.4.332

[20] Complaint at ¶¶ 126–141, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[21] Id. at ¶¶ 137–38.

[22] Id.

[23] Moira Donegan, Alabama is jailing pregnant marijuana users to ‘protect’ fetuses, The Guardian, Sept. 12, 2022, https://www.theguardian.com/commentisfree/2022/sep/12/alabama-jailing-pregnant-marijuana-users-protect-fetuses;

[24] Id.

[25] Id.

[26] Iati, supra note 3.

[27] Id.

[28] Id.; Donegan, supra note 23; Carter Sherman, A Pregnant Woman Was Kept in Jail for Months Because She Smoked a Little Weed, Vice News, Sept. 8, 2022, https://www.vice.com/en/article/wxng7n/alabama-pregnant-woman-jailed-for-smoking-weed.

[29] Iati, supra note 3.

[30] Id.

[31] See Hassan Kanu, Alabama case over mistaken pregnancy highlights risks in a post-Roe world, Reuters, Dec. 6, 2022, https://www.reuters.com/legal/government/alabama-case-over-mistaken-pregnancy-highlights-risks-post-roe-world-2022-12-01/; Carter Sherman, Woman Jailed for Using Drugs While Pregnant Says She Wasn’t Even Pregnant, Vice News, Nov. 22, 2022, https://www.vice.com/en/article/xgypzd/woman-jailed-for-using-drugs-while-pregnant-says-she-wasnt-even-pregnant; Amy Yurkanin, Alabama woman jailed for using drugs during pregnancy wasn’t pregnant, lawsuit says, AL.com, Nov. 20, 2022, https://www.al.com/news/2022/11/alabama-woman-jailed-for-using-drugs-during-pregnancy-wasnt-pregnant-lawsuit-says.html.

[32] Kanu, supra note 31.

[33] Id.

[34] Complaint at ¶¶ 12–20, Freeman v. Fuller, No. 31-CV-2022-900443.00 (Etowah Circuit Court Nov. 7, 2022) (https://reason.com/wp-content/uploads/2022/11/2-Complaint.pdf).

[35] Yurkanin, supra note 2.

[36] Complaint at ¶¶ 12–20, Freeman v. Fuller, No. 31-CV-2022-900443.00 (Etowah Circuit Court Nov. 7, 2022) (https://reason.com/wp-content/uploads/2022/11/2-Complaint.pdf).

[37] Id. at ¶¶ 12–20.

[38] Yurkanin, supra note 2.

[39] The chemical endangerment statute requires the defendant to knowingly expose a child or fetus to drugs. Chelsea Stewart had not known she was pregnant when she was arrested for smoking marijuana outside her house. At the time, she was only six weeks pregnant. Investigator Fuller claimed in the local news that Stewart was three months pregnant and had knowingly smoked marijuana. Id.; Gadsden woman arrested for chemical endangerment, The Gadsden Times, Feb. 28, 2019, https://www.gadsdentimes.com/story/news/crime/2019/02/28/gadsden-woman-arrested-for-chemical-endangerment/5785012007/.

[40] Yurkanin, supra note 2.

[41] Id.

[42] Id.

[43] Donna Thornton, The Etowah County Sheriff’s Office recognized several employees during a recent Christmas celebration/awards banquet, The Gadsden Times, Dec. 15, 2020, https://www.gadsdentimes.com/picture-gallery/news/local/2020/12/15/etowah-county-sheriffs-office-honors-employees/6545162002/.

[44] See Yurkanin, supra note 2 (discussing the case of Chelsea Stewart, who was arrested for smoking marijuana outside her house and charged with chemical endangerment after she later discovered she was pregnant); Donegan, supra note 23 (discussing the case of Hali Burns, who was arrested for chemical endangerment after giving birth because she tested positive “for a drug used by pregnant women with opioid addictions to help manage cravings and withdrawal”); Emma Camp, Alabama Woman Jailed for 2 Months for Using CBD Oil While Pregnant, Reason, Aug. 4, 2023, https://reason.com/2023/08/04/alabama-woman-jailed-for-2-months-for-using-cbd-oil-while-pregnant/ (discussing the case of Amanda Bradley, who was arrested for chemical endangerment after using store-bought CBD oil lawfully sold in Alabama while pregnant).

[45] See Yurkanin, supra note 2 (showing the disparity in arrest and prosecution under the child endangerment statute between men and women).

[46] Complaint at ¶¶ 137–38, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[47] Iati, supra note 3.

[48] See Pregnancy Justice, supra note 3 at 4­–5, 20 (identifying the states that have most frequently arrested pregnant women for charges relating to their pregnancy).

[49] Id. at 11.