In the last few weeks, political pundits and N.Y. and D.C. based journalists have wiped away the dust gathering on the ornamental globes sitting in the carved oak stands in their living rooms. They’ve carefully moved their fingers down from where they live and wondered which of the three states under Tennessee they were aiming to write about.
It is the middle one. Alabama. Sandwiched between Mississippi and Georgia.
The first story that caught their attention was the Montgomery dock brawl, which spawned some of the best memes from Black Twitter I have ever seen.
The mostly white journalists in D.C. and New York couldn’t ignore stuff like this.
Or this
Or this
This past week, though, the pundit hand-ringing centered around Alabama Attorney General Steve Marshall announcing he would charge women who went to another state to get an abortion - and those who help them - with criminal conspiracy.
Now, this is bad. And the journalistic response to it is justified. But the response is a bit too late and a bit too myopic.
Alabama has been criminalizing pregnant women for almost two decades. Before the word “abortion” was included, few national news outlets seemed to care.
One of the exceptions was Nina Martin, who in 2015 wrote about Alabama’s chemical endangerment law when she was at Pro Publica.
The chemical endangerment law - colloquially called the “meth lab law” - was passed in 2006 to punish parents who “turned their kitchens and garages into home-based drug labs, putting their children at peril.”
Like, you know, a toddler sitting at a kitchen table while their mom is cooking meth on the counter.
But soon after this law was passed, a few state attorneys decided that if a woman took a drug while she was pregnant - even a prescribed drug or one that has been deemed safe for pregnant women to take - she could be prosecuted under this law.
This effectively defined women’s bodies as meth labs.
“A woman can be charged with chemical endangerment from the earliest weeks of pregnancy,” wrote Martin, “even if her baby is born perfectly healthy, even if her goal was to protect her baby from greater harm.”
I talked to Martin and her colleague, Amy Yurkanin from AL.com, for a podcast I produced last year on Reproductive Justice.
The two journalists collaborated on a story about a woman named Casey Shehi, who took half of a valium in her third trimester of what was a stressful pregnancy. A few weeks later, she took the other half.
When her son was born, she was drug tested, and came up positive for a benzodiazepine. At the time, she didn’t remember taking the Valium. And her baby tested negative, so she took him home.
Three weeks later, she was arrested.
Ultimately, she was allowed to keep her newborn son. But she had been involved in a custody battle for her older son, and as soon as she was arrested, a judge gave custody to her ex-husband.
Yurkanin wrote many more stories about the abuse of Alabama’s meth lab law, including this one about a woman who was put in jail because she smoked pot the same day she found out she was pregnant. She was in jail for months, with a high-risk pregnancy, because she couldn’t post bail and the drug treatment center she was assigned to wouldn’t take her because she didn’t have a substance abuse disorder.
Kind of a vicious circle.
That same story details how another mom was put in jail after she gave birth, for taking a prescribed drug to help her overcome addiction.
Her children were taken as wards of the state.
There’s also Brooke Shoemaker, who had a stillbirth, and was found to have methamphetamine in her system. She thought Alabama’s law was so crazy, she fought it in court. She was sentenced to 18 years in prison.
Let’s be clear here. There is no research that connects stillbirth to meth or valium. In fact, the NIH notes that Valium, Xanax and other drugs in that class are safe in small doses for pregnant women beyond the first trimester.
But science doesn’t seem to be a thing in Alabama. Punishment is. Especially punishment of women.
It’s worth noting that most of these prosecutions took place in Etowah County - where disgraced former Supreme Court Justice and erstwhile Senate candidate Roy Moore is from.
It’s also worth noting that some of the women arrested after giving birth were drug tested without their consent, but some of them volunteered what they had taken because they felt it would help them get better care. Besides, they were proteced by medical privacy laws. Right?
At the time Martin and Yurkanin were writing their stories, people at the cable networks and The New York Times and Washington Post were uninterested. In fact, Martin told me, many of her colleagues at ProPubica didn’t believe her. They thought she must have talked to the very few people to whom this was happening, and was blowing it out of proportion.
What Martin added still resonates with me a year after she said it: “Things like pregnancy and maternal health were not deemed to be worthy in mainstream journalism.”
Personhood
Another statement that stayed with me was a 2011 interview Rachel Maddow did with Cristen Hemmins, a maternal rights activist in Mississippi. Hemmins was fighting against an effort to pass a personhood law - which would define a fetus as a human being.
“In Mississippi we have a lot of abstinence-only education,” Hemmins told Maddow, “so we have the highest teen pregnancy rate in the country.”
The “so” killed me.
The personhood law did not pass in Mississippi, but a version of it did pass in Wisconsin. That’s where Tammy Loertscher found herself pregnant.
This was a few years after she had had her thyroid removed. She was taking replacement meds when she suddenly lost her job. But, as filmmaker Jo Ardinger told me, “Because Wisconsin didn’t take the Medicaid expansion, insurance was unavailable to her.” So she turned to a small amount of meth to replace the meds she couldn’t afford.
“She was really on the brink, and felt suicidal,” said Ardinger, who made a film - Personhood - about Tammy’s fight to have and keep her child.
I’m not sure if anyone reading this understands the havoc a thyroid condition can wreak. Even on prescribed medication it can be hard to get out of bed in the morning. Sometimes people with severe thyroid disease hear voices. With no medication - and no thyroid - I can’t imagine how the healthcare establishment in Wisconsin expected Tammy to cope.
I lived in Wisconsin for the worst six months of my life, and one of the things I struggled with the most is that in that state, rules are rules are rules. The reasonableness of the rule is not taken into consideration. Someone made a decision. And everybody must obey.
For Tammy, obeying literally meant life or death. So she chose something that would help her live while she waited for the rules to be in her favor.
Then she got pregnant. That, according to Ardinger, was the surprising part. Tammy had been told she couldn’t get pregnant without a thyroid.
Someone must have written that down as a rule.
The pregnancy “was this galvanizing moment for her,” Ardinger said, and she went to get help getting on thyroid meds.
That’s when things got Kafkaesque.
“You assume,” said Ardinger, “that when you go for help to an agency or the doctor, that’s what you’re going to get. Help. You don’t assume that shortly thereafter, you’re going to be incarcerated.
“Especially since Tammy hadn’t committed a crime here.”
A hearing was held IN THE HOSPITAL, which Tammy refused to take part in without an attorney. But she didn’t get an attorney. Another rule that goes along with Wisconsin’s fetal health law is that the FETUS has an attorney provided by the state, but the WOMAN does not.
Tammy was “honest about her health background,” Ardinger said. “Her focus was solely on making sure her pregnancy would proceed in a healthy way, and her entire punishment came from that honesty.”
Give a listen to this clip from Personhood. Tell me the people in that room cared at all about the fetus or the pregnant woman.
Tammy ended up fighting. Other women did not, because fighting the state and its blind rules is hard. She ultimately won her case, with a lot of pro-bono help. But the decision did not create precedent. Other women in Wisconsin who take a drug deemed unhealthy to a fetus (including, I would assume, abortion meds) can still be put in jail WHILE PREGNANT. Because that’s totally healthy for a fetus.
You can watch the film, “Personhood: Policing Pregnant Women in America,” on Amazon Prime Video. I recommend renting it.
But It’s a Political Issue
This is what drives me crazy about our discussions around abortion in the media. We treat it as a political issue. What will the anti-abortion side do? What will the pro-choice side do? Both sides, ya know.
We don’t write or broadcast about human beings, trying to do the right thing, and how the rules of the state make it impossible to do so.
Nina Martin’s colleagues at ProPublica couldn’t believe Alabama would criminalize a woman for taking half a valium or smoking pot, or being in the presence of someone smoking pot.
Here’s Martin talking about how she had to convince them that this was, in fact, the truth.
But abortion… well, that’s a “political” issue, so it’s worthy of men to cover. It’s worthy of the big outlets to publish.
I wonder if, had news media focused on the unconstitutional use of Alabama’s meth lab law a decade ago, we would be talking about abortion today.
I wonder if the Wisconsin fetal health law and stories of women like Tammy had been a staple of the repetitive cable shows and legal podcasts, we would have been so unprepared for the Dobbs decision.
I wonder how many issues are allowed to grow and fester because journalists - who are supposed to be shining light on abuse of citizens - didn’t think the story was worthy of them.
Until it’s a crisis. Until it’s too late. Until the term “Kafkaesque” simply means “everyday life for women in America.”
Addenda
To my knowledge, Amy Yurkanin is the only journalist who regularly writes about this. Go read and support her work.
Here is a recording of Jo Ardinger reacting to the clip of Tammy’s hearing:
And here is a link to American Dreams: Reproductive Justice. The episode this newsletter is taken from is Nazis, Eugenicists and the History of Controlling “Deviance”