Chemical Endangerment Law, A Case for Clarity

Written by: Dr. Kathy Gennuso

On Jan. 11, the Alabama high court ruled that unborn children are protected by the state’s chemical endangerment law. The case involved two women who placed their unborn children at risk through the use of illegal drugs during pregnancy. One of the women acknowledged that she had smoked meth three days before her son was born prematurely. The child died 19 minutes later of “acute methamphetamine intoxication.”

Under Alabama law, it is a crime to chemically endanger a child by exposing him or her to a controlled substance. The women’s attorneys argued that the chemical endangerment law does not apply to unborn children. However, the court disagreed, observing that “the only major area in which unborn children are denied legal protection is abortion, and that denial is only because of the dictates of Roe.” The court noted that 40 states and the District of Columbia “permit recovery of damages for the wrongful death of an unborn child when post-viability injuries to that child cause its death before birth.” The high court emphasized that in upholding legal protection for the unborn, it was being consistent “with the widespread legal recognition that unborn children are persons with rights that should be protected by law.” It also noted that its decision is in keeping with the state constitution’s Declaration of Rights, which proclaims that “all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.”

The ruling cited a South Carolina case in which a court arrived at a similar ruling, determining that “it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse.” It also agreed with the appeals court that pointed out, “Not only have the courts of this State interpreted the term ‘child’ to include a viable fetus in other contexts, the dictionary definition of the term ‘child’ explicitly includes an unborn person or a fetus.”

How do we ethically justify our society having two different standards when we are talking about the same unborn child?