At about six weeks pregnant in May, Ashley Banks was arrested and jailed over an unregistered gun and possession of a small amount of marijuana. These charges typically allow for individuals to post bond and leave jail until their trial. But in Banks’ case, when police learned she’d smoked weed two days earlier—the same day the 23-year-old learned she was pregnant—she was forced to remain in the Etowah County Detention Center in Alabama unless she entered drug rehab, per a new report by Alabama-based outlet AL.com.
There was just one problem: Rehab centers wouldn’t take her. State specialists who evaluated Banks for drug addiction repeatedly found she didn’t qualify for free addiction services offered through the state. Banks’ lawyers say state investigators pressured her to “admit” to a drug addiction she didn’t have so that she could access rehab, pay the $10,000 cash bond for allegedly exposing her fetus to drugs, and leave jail. Banks refused.
As a result, she was forced to remain behind bars for months. Banks has a high-risk pregnancy because of her family’s history of miscarriage and was diagnosed with subchorionic hematoma, meaning blood pools near the wall of the uterus, increasing the chance of miscarriage, pre-term delivery, and other complications. But because the lower-bunk of Banks’ jail cell was double-booked, she was forced to sleep on the floor for weeks. Over a month into her time in jail, Banks began bleeding and continued to bleed for five weeks; she told AL.com she struggled with hunger and fainting spells as well.
This—all because she’d smoked weed the day she learned she was pregnant and refused to falsely testify that she had a drug addiction.
Banks slept on the jailhouse floor until Aug. 25, when a county judge eventually released her to community corrections. Her case isn’t an isolated incident—both across the country, and especially in Alabama, where AL.com reports as many as 12 pregnant or postpartum people suspected of drug use have been held in Etowah County Detention Center in August alone. Some are jailed indefinitely even without being found guilty of any crime. National Advocates for Pregnant Women (NAPW) tracked over 150 “chemical endangerment” cases—cases in which pregnant people are alleged to harm their fetus through drug use—in Etowah County since 2010.
Also in Etowah County, a mother of two named Hali Burns was arrested while visiting her newborn son in the NICU six days after giving birth, now over two months ago, because she’d tested positive for methamphetamine and Subutex (a medication to treat pregnant people with opioid use disorders) during her pregnancy. Burns’ lawyers say the drug tests were false positives stemming from sinus medication, and she has a prescription for Subutex. “When she first got in jail, she was right out of the hospital,” Burns’ boyfriend Craig Battles told AL.com. “She didn’t even have panties or pads and she had just had a baby. She was stuffing paper towels or toilet paper in her pants to stop the bleeding.” Burns remains in jail today, and Battles says their young child “keeps asking what [Burns] did wrong and why she can’t come home.”
Burns’ lawyer, Morgan Cunningham, says barring new moms and pregnant people from going home to await trial like all other defendants, all because of perceived threats to their fetus or newborn, is “not constitutional.” For context, Cunningham added: “I have reckless murder cases where defendants have been released on bond.” A deputy district attorney for Etowah County justified the county’s treatment of Burns, telling AL.com she “desperately needs the help we are offering here today.”
That “help” is literally jail within days of giving birth, which a maternal-fetal medicine expert says places Burns at greater risk of a wide range of postpartum mental health problems, not to mention how the postpartum period is a critical bonding time for mothers and infants. “Separation of mothers from their infants has adverse impacts on infant and child development with ramifications that stretch into adulthood,” the expert told the outlet. Martin Weinberg, an attorney who also represents Burns, said the availability of drugs in Etowah County Detention Center and Burns’ struggles with being separated from her family create a “dangerous situation.”
Just last year, another woman, Brittney Pickard, was arrested 10 days after giving birth because her newborn tested positive for marijuana. Pickard says that when she learned she was going to jail, she “was still going through postpartum, still bleeding, still had stitches down there.” At the jail, she told AL.com it took a day to get pads she needed for her bleeding, and she was denied pain medication for soreness in her abdomen.
While Pickard and Burns were jailed postpartum, others, like Banks, are arrested and jailed while still pregnant. Research has shown incarcerated pregnant people are almost twice as likely to suffer miscarriages as the general population. And in all states—but, again, especially Alabama—losing a pregnancy after alleged substance use, or for a range of other ridiculous reasons including eating poppyseeds—pregnancy loss or suspected self-managed abortion is frequently criminalized by local police departments that misapply fetal homicide laws and other laws. As legal experts have pointed out time and again, pregnancy loss is not a crime. Yet criminal charges for pregnancy outcomes have tripled in recent years.
Earlier this year in California, Adora Perez was released after serving four years in prison for manslaughter after she experienced a stillbirth for alleged methamphetamine use. In Alabama, pregnancy loss for alleged substance use can result in up to 99 years in prison. Just last summer, an Alabama woman was arrested and prosecuted for seeking to fill a prescription for pain medication due to debilitating back pain she was experiencing while pregnant with her sixth child.
Across the country, since the overturning of Roe, pharmacies have been refusing to fill prescriptions for not just medication abortion and Plan B, but literally any drug—including life-saving medications—that could cause miscarriage out of fear of criminal liability. Medication abortion can’t be medically distinguished from miscarriage, effectively rendering miscarriage criminal in states that criminalize abortion.
AL.com’s documented cases of pregnant or postpartum people being jailed—where other defendants wouldn’t be—despite not being found guilty of crimes, are a microcosm of a greater crisis that’s inevitably worsened by the overturning of Roe and burgeoning fetal personhood movement.