A woman in Montana has been charged with criminally endangering a child, which is a felony, after testing positive for illegal drugs. According to court records, she is in her first trimester of pregnancy. The case clearly illustrates how an increasing number of states are using fetal harm laws to criminalize pregnant women’s behavior and blur the lines about exactly when personhood begins in the eyes of the law.
According to the Ravalli Republic, 21-year-old Casey Gloria Allen has been charged with “putting her unborn child at risk by taking illegal drugs” after a drug test came back positive for benzodiazapines, THC, and opiates. She is reportedly 12 weeks pregnant and had been out on bail for previous drug possession charges. “The reality for some of these women is the need for drugs is stronger than any maternal instinct they have,” Ravalli County deputy attorney Thorin Geist told the local outlet.
However, as several reproductive rights advocates have pointed out, Allen’s “maternal instinct” isn’t really the issue at hand. It’s unclear whether Allen knew she was pregnant in the first place, or whether she has any plans to continue the pregnancy. Abortion is, of course, still legal at 12 weeks of pregnancy. Regardless of whether or not Allen ought to be using illegal drugs, charging her with endangerment of her “unborn child” suggests that the state of Montana is endowing her fetus with its own rights.
This is a frequent issue with fetal harm laws, which are on the books in 36 states. This type of legislation is intended to allow states to bring additional charges against someone who physically harms a pregnant woman, like a drunk driver who crashes into her car and causes her to suffer a miscarriage. But unless they’re very carefully worded, they can end up giving equal weight to the rights of both the woman and her fetus — which reproductive rights experts worry could be used as a legal argument for restricting abortion.
“There is some evidence that abortion opponents have been pursuing fetal homicide laws because they hope it will undermine abortion rights. It seems to be part of their overall strategy,” Elizabeth Nash, the states policy manager for the Guttmacher Institute, told ThinkProgress back in April, when lawmakers in South Carolina introduced a particularly broad version of a fetal harm measure.
Plus, states have increasingly been using fetal harm laws to charge pregnant women themselves, despite the fact that the legislation was never originally intended to be applied that way. The criminalization of pregnant women for any behavior that could potentially harm their fetuses, like using drugs, has created a society in which miscarriages and stillbirths are subject to increased scrutiny as prosecutors attempt to blame women for any issues with their pregnancies. Desperate women can also face criminal charges for attempting to end a pregnancy by resorting to illegal abortion.
Medical professionals would obviously prefer that no one used illegal drugs, including pregnant women. But there isn’t much practical basis for these laws, since there isn’t any conclusive evidence that using drugs like cocaine does long-lasting harm to fetuses. Major doctors’ groups, including the American Medical Association, strongly oppose bringing criminal charges against pregnant women who use drugs, pointing out that the threat of prosecution will likely deter those women from seeking out the medical attention and prenatal care they need. Instead, doctors favor efforts to get addicted women into treatment programs.
Although fetal endangerment charges aren’t rooted in public health or science, the animus behind them can be traced back to outdated policies under the War on Drugs, which helped stoke unfounded fears over “crack babies.” In the 1980s, pregnant women became a relatively easy target for prosecutors hoping to prove they were tough on drugs — and, like most policies within our criminal justice system, fetal harm laws tend to disproportionately harm low-income people of color.
Ravalli County’s response to Allen’s case also speaks to a broader trend in the way society treats women who are deemed to be bad mothers. The push to level charges against women who lack a proper “maternal instinct” is becoming all too common. Low-income mothers struggling to make ends meet are frequently arrested for being forced to make hard choices when it comes to their children’s care, like leaving their kids in a car during a job interview or allowing their kids to play unsupervised in a park while they go to work or visit a food bank. Now, it’s just a question of how exactly how early states can classify women as mothers.