When Quitney Armstead learned she was pregnant while locked up in a rural Alabama jail, she made a promise – to God and herself – to stay clean.
She had struggled with addiction and post-traumatic stress disorder for nearly a decade, since serving in the Iraq war. But when she found out she was pregnant with her third child, in October 2018, she resolved: “I want to be a mama to my kids again.”
Armstead says she did stay clean before delivering a baby girl in January 2019. Records show that hospital staff performed initial drug tests, and Armstead was negative.
Armstead didn’t know that Decatur Morgan hospital also sent off her newborn’s meconium – the baby’s first bowel movement – for more advanced testing. Those test results showed traces of methamphetamine – drugs Armstead says she took before she knew she was pregnant. Because meconium remains in the fetus throughout pregnancy, residue of substances can show from many months before that are no longer in the mother’s system.
Child welfare workers barred Armstead from seeing her daughter, Aziyah, while they investigated, and Armstead’s mother stepped in to care for the newborn.
The hospital shared the meconium test results with local police, who then combed through months of medical records for Armstead and her baby to build a criminal case. Prosecutors alleged that the drugs she had taken much earlier in the pregnancy could have put the fetus at risk. Eight months after she’d delivered a healthy baby, Armstead was charged with chemical endangerment of a child.
She is one of hundreds of women prosecuted on similar charges in Alabama, Mississippi, Oklahoma and South Carolina. Law enforcement and prosecutors in those states have expanded their use of child abuse and neglect laws in recent years to police the conduct of pregnant women under the concept of “fetal personhood”, a tenet promoted by many anti-abortion groups that a fetus should be treated legally the same as a child.
These laws have also been used to prosecute women who lose their pregnancies. These tactics represent a significant shift toward criminalizing mothers: in most states, if a pregnant woman is suspected of using drugs, the case could be referred to a child welfare agency, not police or prosecutors.
Medical privacy laws have offered little protection. In many cases, healthcare providers granted law enforcement access to patients’ information – sometimes without a warrant. These women were prosecuted for child endangerment or neglect, even when they delivered healthy babies.
In these cases, whether a woman goes to prison often depends on where she lives, what hospital she goes to and how much money she has, our review of records found. Most women charged plead guilty and are separated from their children for months, years – or forever.
Prosecutors who pursue these criminal cases say they’re protecting babies from potential harm and trying to get the mothers help in some cases.
But medical experts warn that prosecuting pregnant women who seek healthcare could cause them to avoid going to a doctor or hospital altogether – which is dangerous for the mother and the developing fetus. Proper prenatal care and drug treatment should be the goal, they argue – not punishment.
Dr Tony Scialli, an OB-GYN who specializes in reproductive and developmental toxicology, said the prosecutions are an abuse of drug screening tests that are designed to assess the medical needs of the mother and infant. He said that drug use doesn’t necessarily harm a fetus. “Exposure does not equal toxicity,” Scialli said.
But prosecutors in these states aren’t required to prove harm to the fetus or newborn – simply exposure at some point during the pregnancy.
Legal experts say that under this expanded use of child welfare laws, prosecutors could also pursue criminal charges for a pregnant person who drinks wine or uses recreational marijuana – even where it’s legal. Police could also comb through medical records to investigate whether a life-saving abortion was medically necessary – or to allege that a miscarriage was actually the result of a self-managed abortion.
Because of concerns about people being criminally punished for seeking reproductive healthcare after last year’s reversal of Roe v Wade, the US Department of Health and Human Services is working to strengthen privacy rules under the Health Insurance Portability and Accountability Act, or Hipaa.
Scialli said the prosecutions ignore the effects of separating a newborn from a mother, which research has shown harms the child. Just because a person struggles with addiction doesn’t necessarily mean she is an unfit mother, he said.
“Unless the mother is being neglectful, separating the baby and mother is not healthy for either of them,” he said.
Armstead grew up Quitney Butler in Town Creek, about two hours north-west of Birmingham. She returned home from serving in the Iraq war in 2010 “a completely different person”, said her mother, Teresa Tippett. She was argumentative and temperamental.
Her tumultuous marriage with the father of her two oldest girls, Eva and Shelby, ended after multiple arrests for fights and drug possession.
Around the same time, prosecutors in Alabama started to use a chemical endangerment statute – originally designed to protect children from chemical exposures from home meth labs – to punish women whose drug use potentially exposed their fetuses in the womb.
A federal law requires each state to have a policy on how to report and examine cases of drug-exposed newborns – but the federal statute doesn’t require states to conduct criminal investigations. About half the states stipulate that healthcare providers report to child welfare agencies when a newborn or mother tests positive for drugs, but only a handful prosecute the mothers.
A handful of prosecutors in Alabama, South Carolina and Oklahoma have decided that under those states’ fetal personhood statute, child welfare laws can apply to a fetus, and some state courts have endorsed that interpretation. Mississippi doesn’t have a fetal personhood law, but that hasn’t stopped prosecutors in at least two counties from filing criminal charges against women who tested positive for drugs while pregnant.
There are several ways law enforcement can learn of alleged drug use. Sometimes, child welfare workers inform police. Occasionally women themselves admit drug use to an investigator; other times doctors, nurses or hospital staff pass test results to law enforcement or grant officers access to medical records without a warrant.
The cases demonstrate how existing privacy laws don’t protect women’s medical records from scrutiny by law enforcement, said Ji Seon Song, a law professor at the University of California, Irvine, who studies how law enforcement officials infringe on patients’ privacy.
Child abuse allegations shouldn’t be a “carte blanche to access someone’s private health information, but that’s how it’s being used”, Song said.
Because this surveillance system could also be used to police women who seek abortions, federal authorities have proposed a privacy rule addition for Hipaa. Among other changes, it would prohibit disclosure of private health information for criminal, civil or administrative investigations against people seeking lawful reproductive healthcare.
The agency is expected to complete the changes in coming months, after incorporating public feedback.
In some cases, women were arrested and prosecuted after being honest with their doctors about their struggles with substance abuse. A few women were even prosecuted after seeking treatment.
In 2018, Kearline Bishop was pregnant and struggling with meth addiction. She said she checked herself into a rehab program in north-east Oklahoma because she knew she needed help. The rehab transferred her to a local hospital, thinking she was having contractions.
A hospital doctor determined that she wasn’t yet in labor, and that despite her past drug use, her fetus was healthy.
Then two men Bishop didn’t know walked in. They were police detectives, who demanded a hospital worker draw her blood for testing, according to court records. It turned out that an off-duty police officer working security at the hospital had called his police department supervisor because he had heard that a pregnant woman in the hospital admitted to drug use.
The blood tests showed traces of drugs in her system. Officers handcuffed Bishop and took her from the hospital to jail. When Bishop’s daughter was born, she was healthy.
But the local district attorney charged Bishop with child neglect. A county judge dismissed the charge, ruling the state couldn’t apply its child welfare codes to a fetus. But the district attorney appealed, and a higher court later ruled that the prosecutor could continue the case against Bishop.
She ultimately opted for a blind plea – a form of guilty plea that leaves the sentence entirely up to a judge – in January 2022. She was sentenced to three years in prison, plus five years of probation. A court terminated her parental rights for her daughter.
Bishop did so well in prison that a judge reviewed her case and agreed to release her in April, after just one year. Her daughter is now a healthy four-year-old, adopted by a family member. Bishop has no contact.
Part of Bishop’s motivation to secure an early release, she said, was to prove that the prosecutors and judge who sent her to prison were wrong about her.
“They looked at me like I wasn’t even human,” she said.
Armstead has spent much of the past four years in and out of various county jails in Alabama. Her latest mistake – missing a court hearing – means she has been behind bars since December.
In the meantime, her court-appointed lawyer, Kevin Teague, heard about a chemical endangerment case similar to Armstead’s in which the defendant challenged the evidence and the charges were dismissed: Dianne De La Rosa.
De La Rosa was facing a chemical endangerment charge because her daughter’s meconium test in 2018 allegedly showed traces of marijuana. But she did something that many women in Morgan county couldn’t afford. She scraped together thousands of dollars to hire her own attorney – John Brinkley.
Brinkley is a father of nine, with another on the way. He had waited in many delivery rooms over the years, and he remembered a key detail: the hospital doesn’t preserve everything it collects when a baby is born.
So Brinkley and his law partner Justin Nance did something unusual: they asked to conduct their own independent drug tests of the meconium in De La Rosa’s case. Defendants in Alabama have the right to request independent testing of evidence. But since so many women plead guilty, it rarely happens.
Prosecutors admitted that the evidence wasn’t preserved, and the charges against De La Rosa were dismissed. That took nearly three years.
“They pick on these less fortunate women, and then they just railroad them,” Brinkley said.
After hearing about De La Rosa’s case, Teague filed a motion in late March to have the meconium evidence in Armstead’s case independently tested. Prosecutors never responded in a written filing, nor they did not turn over the sample within 14 days, as the court had ordered, Teague said. Armstead’s trial is set for August.
Because she can’t afford to make bail or pay for a pre-trial diversion program, she remains jailed. Her jail doesn’t allow in-person visits from anyone but her lawyer, and she barely has the funds to make phone calls.
Her three daughters only see their mother on occasional video calls from the county jail. On a recent video chat, four-year-old Aziyah asked if she could sneak out of jail, just for one night.
This past week, her lawyer arrived at the jail with news: Morgan county was now offering her a better plea deal. If she successfully completes veterans’ court in nearby Lauderdale county, both her drug possession charge and chemical endangerment charge will be dismissed, he told her. No conviction for either felony, so long as she didn’t screw up.
Armstead knew this meant the state probably didn’t have the testing evidence. But taking the plea deal meant getting out of jail sooner and hugging her girls. Maybe she would be home in time for back-to-school.
She couldn’t afford to say no.
This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system, AL.com, The Frontier, Mississippi Today and The Post and Courier. Sign up for The Marshall Project’s newsletters, and follow them on Instagram, TikTok, Reddit and Facebook.
Additional reporting contributed by Amy Yurkanin, AL.com; Brianna Bailey, The Frontier; Anna Wolfe, Mississippi Today; and Jocelyn Grzeszczak, The Post and Courier.
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