In most states, a pregnant woman who ingests chemicals or drugs that may harm her baby would be referred to a clinic or counseling center. In Alabama, they are subject to criminal prosecution, a reality that Catholic University law student Amy Kokot (Class of 2014) says amounts to a willful misapplication of the law.
Kokot offered her scholarship, “Prosecutorial Indiscretion: District Attorneys’ Misuse of Alabama’s Chemical Endangerment Law to Criminalize Pregnant Women’s Substance Abuse,” as the third and final installment of the 2012-2013 Student Scholar Series. Founded in 2009 by Professor A.G. Harmon, the series recognizes notable legal scholarship produced by CUA Law students during the academic year and aims to foster the skills associated with presenting and defending that scholarship in a professional conference-style setting.
Kokot’s work critically examined Alabama’s 2006 “chemical endangerment law,” originally enacted to prosecute individuals who expose children to methamphetamine laboratories. Since then, however, some expectant mothers have instead been jailed when their newborns have tested positive for substances such as cocaine.
“The Alabama legislature never intended for the law to be used to prosecute women for their substance abuse,” said Kokot, who believes that the state courts’ acceptance of the legal tactic has only encouraged its spread.
Kokot’s abstract of her paper read in part:
“I argue herein that district attorneys are exercising undue discretion in utilizing this statute to prosecute women for their illicit drug use while pregnant. These proceedings contravene the law’s plain text and the legislature’s well-established intent, but courts have nevertheless upheld women’s convictions, and, in turn, prosecutors’ misconstruction of the code. If left unchallenged, Alabama’s law – and prosecutors’ misapplication of it – could become more accepted nationwide, and might provide a bridge to invite further regulation of women’s conduct throughout pregnancy.”
One solution, Kokot suggested, would be a clarifying rewrite of law by the Alabama legislature.
Bonnie Hannan of the U.S. Department of Justice served as the respondent. Kokot followed fellow students Roger Abbott and Elyssa Lacson as a presenter in this year’s popular Student Scholar Series.