Controversy exists over prosecution of drug-using pregnant moms
Published: Friday, August 1, 2008 at 12:50 p.m.
Last Modified: Friday, August 1, 2008 at 12:50 p.m.
ANDALUSIA, Ala. – Tiffany Michelle Hitson says she made the biggest mistake of her life by using cocaine shortly before giving birth. About two-dozen national women's and medical organizations say an even bigger mistake occurred next, when the new mother was taken from her baby and sent to prison for a year.
Now another woman facing similar child endangerment charges is fighting to escape the same fate. Shekelia Ward — and her baby — tested positive for cocaine after the girl was born in January, healthy despite being five weeks premature.
Organizations opposed to prosecuting pregnant women for drug use have seized on Ward's case to turn rural Covington County, perched atop the Florida Panhandle, into their latest legal battleground. They argue that the county's district attorney, Greg Gambril, is misinterpreting a unique state law meant to punish parents who make methamphetamine in their homes.
"It is the first time I know of that a pregnant woman's body has been equated to a meth lab," said Tiloma Jayasinghe (JAH'-yah-sing-hah), an attorney for the National Advocates for Pregnant Women in New York.
Gambril has filed charges against five other women who either tested positive for drugs after giving birth or while they were pregnant and on probation, arguing that it's necessary to bring such cases to deter drug use and protect the children. In one case, the baby was born premature and died after an hour.
Jayasinghe's group and others including the Association of Reproductive Health Professionals and the National Council on Alcoholism and Drug Dependence say the law wasn't designed to apply to pregnant women and their fetuses. They also warn that the law could drive women to seek abortions or avoid prenatal care to escape prosecution, and they note that appellate courts across the country have overturned convictions based on similar laws.
Even the sponsor of the state's 2006 law, state Sen. Lowell Barron, D-Fyffe, said he didn't intend it to be used against new mothers.
"I hate to see a young mother put in prison away from her child," Barron said. "But if she could be put in a treatment program with her children, that would be the best course. Maybe we need to revisit the legislation."
Alabama's law makes it a crime, punishable by one to 10 years in prison, to expose a child to illegal drugs or drug paraphernalia. The maximum sentence increases to 20 years for injuring a child and life in prison for the death of a child.
The new president of the Alabama District Attorneys Association, Steve Marshall, likes what Gambril is doing and has recently brought several cases in his north Alabama county involving mothers and newborns who tested positive for drugs immediately after delivery.
No case has gone to trial yet in Marshall County, but the district attorney sees the prosecutions as a step toward curbing drug abuse.
"This is an opportunity to get treatment and assistance to a mother whose addiction is so bad she has chosen to take illegal drugs while carrying a child," Marshall said.
Hitson, 22, was the first mother prosecuted under the law shortly after it took effect in 2006. Police arrested her one day after her delivery because she and her baby tested positive for cocaine and THC, a chemical found in marijuana.
She pleaded guilty to child endangerment, and a Covington County judge sentenced her to one year in prison and one year in a drug rehabilitation center.
Hitson said she never meant to harm her daughter, but she knows what she did was wrong.
"I made the biggest mistake of my life and did some drugs with her father right before I went into labor unaware I was about to have her," she wrote in a letter to the judge.
Her daughter is now healthy and nearly 2. They live in an old hospital in Birmingham that houses a drug rehab program.
Hitson said she needed rehab, not prison, where she was separated from her infant daughter for the first year of her life.
"I get out and I have a child who's 1. It's hard to adjust to being the mother," she said.
Like most other women arrested on the child endangerment charge, Hitson was too poor to hire her own attorney and was represented by a court-appointed lawyer. And like most others, she faced other nonviolent charges — in her case, credit card fraud.
Hitson said she pleaded guilty rather than fight the charge for fear she would end up going to prison when her child was old enough to understand what was happening.
"I decided to get this over so she wouldn't remember," Hitson said.
Ward, a 29-year-old single mother, is trying to stay out of prison altogether. A judge has allowed her to go to rehab while challenging the use of the child endangerment law against her.
The national organizations are working with Ward's lawyer, citing cases from New Mexico, Kentucky, Nevada and Ohio where prosecutors have used child endangerment or abuse laws to prosecute drug use during pregnancy, only to have them struck down by appellate courts.
Covington County Circuit Judge Charles Short rejected their motion to dismiss the charges; Ward's attorney is taking the case to the Alabama Court of Criminal Appeals, where it could take a year or more to get a decision.
Obstetrician Eli Reshaf, who did his residency in Alabama and is now a clinical associate professor at the University of Oklahoma Health Sciences Center, has become involved in the Covington County cases because he fears they could have widespread implications for mothers-to-be.
"If we prosecute pregnant women who use any kind of illicit substance, we are opening the door to other prosecutions," he said. In Reshaf's view, that could mean prosecutions over cigarette or alcohol use during pregnancy.
Gambril doesn't buy that argument. He said he's seen a change in behavior as word about the prosecutions has spread throughout Covington County in recent months. No mothers on probation have tested positive for drugs, nor have any newborns, he said.
And he isn't willing to compromise when he sees those results.
"We've got a small community that has a very bad drug problem," Gambril said. "When a child is born and lives a few minutes because the mother was addicted to methamphetamine, that's a very, very serious crime here."
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