Anti-abortion activists have sought full legal rights for embryos since the Seventies. Today, Alabamians are learning the true cost of that fight, from IVF access to miscarriage management and pregnancy criminalization
BY TESSA STUART
Illustration by Ana Juan
MAY 20, 2024 9:00 AM
KRISTA HARDING’S DAUGHTER was eight weeks old when that police cruiser pulled behind her on the interstate and hit the lights in September 2019. She called her boss at the Little Caesars in Pinson, Alabama, where she’d just been promoted to manager: I’m going to be a little late, but I’m coming in! Don’t panic. Harding’s registration tag was expired. She figured the officer would write her a ticket and she’d be on her way, but when he came back after running her driver’s license, he had handcuffs out.
There was a felony warrant out for her arrest, he said: “Chemical endangerment of a child.” Harding used her most patient customer-service tone to ask the officer if he’d please check again. But there was no mistake, the cop confirmed: He was taking her to the Etowah County Detention Center, almost an hour’s drive away.
“I’m in the back of the cop car just bawling my eyes out, like, ugly-face-snot-bubbles crying,” Harding remembers. She was worried about being away from her newborn, and she was confused: Chemical endangerment of a child? “I think of somebody cooking meth with a baby on their hip,” she says.
She’s right to think that: The Alabama law, passed in 2006, was intended to target those who expose children to toxic chemicals, or worse, explosions, while manufacturing methamphetamine in ad-hoc home labs.
Harding says it took at least eight hours to be booked into a cell that night, and it was more than a week before she was finally allowed to see a judge. She was still leaking breast milk, and desperately missing her two daughters. Her family wasn’t allowed to bring her clean underwear, so every day she washed her one pair, saturated with menstrual blood, in the cell sink, then hung them to dry.
Harding says she eventually learned the warrant for her arrest had been issued because of a urine test taken at a doctor’s visit early in her pregnancy. Sitting alone in her cell, she conjured a vague memory of her OB-GYN warning her local authorities had begun to crack down on weed. The comment had struck her as odd at the time: Nine years earlier, when she was pregnant with her first child, the same doctor at the same hospital had told Harding, who’d smoked both pot and cigarettes before she was pregnant, that she’d rather Harding kick the nicotine than the weed. (Studies are unequivocal about the fact that cigarettes contribute to adverse pregnancy outcomes, but the research on weed is less conclusive, with some doctors arguing it at least has therapeutic benefits, like helping with morning sickness.)
But in the years between her first child and her second, something had changed in certain parts of Alabama. In Etowah County, in 2013, the sheriff, the district attorney, and the head of the local child-welfare agency held a press conference to announce they intended to aggressively enforce that 2006 law. Instead of going after the manufacturers of meth, though, they planned to target pregnant women who used virtually any substance they deemed harmful to a developing fetus.
“If a baby is born with a controlled-substance dependency, the mother is going to jail,” then-Sheriff Todd Entrekin said at the time. Police weren’t required to establish that a child was born with a chemical dependency, though — or even that a fetus experienced any harm — a drug test, a confession, or just an accusation of substance use during pregnancy was enough to arrest women for a first offense that carries a maximum sentence of 10 years. One public defender would later call these “unwinnable cases.”
Over the following decade, Etowah County imprisoned hundreds of mothers — some of whom were detained, before trial, for the rest of their pregnancies, inside one of the most brutal and inhumane prisons in the country, denied access to prenatal care and adequate nutrition, they say — in the name of protecting their children from harm.
Etowah County officials didn’t come up with this idea themselves. They borrowed it from a district attorney who began testing the limits of the chemical-endangerment law years earlier in a different part of the state. Steve Marshall’s theory — which essentially treats the uterus as a home meth lab, and the fetus a living child — was appealed to the Alabama Supreme Court. In 2013, the justices declared the term “child” included embryos at any stage of development, marking the first time a state Supreme Court anywhere in the United States recognized that embryos and fetuses had legal rights before the point of viability.
In the past two decades, Alabama has become the undisputed champion of arresting pregnant women for actions that wouldn’t be considered crimes if they weren’t pregnant: 649 arrests between 2006 and 2022, almost as many arrests as documented in all other states combined, according to advocacy group Pregnancy Justice, which collected the statistics. Across the U.S., the vast majority of women arrested on these charges were too poor to afford a lawyer, and a quarter of cases were based on the use of a legal substance, like prescription medication.
Today, Marshall is the attorney general of Alabama, and just a few months ago, the state’s Supreme Court used the same logic — that life begins at conception, therefore an embryo is legally indistinguishable from a living child — in a decision that was responsible for shutting down IVF clinics across the state.
The ruling was a triumph for the fetal-personhood movement, a nationwide crusade to endow fertilized eggs, embryos, and fetuses with constitutional rights. Personhood has been the Holy Grail for the anti-abortion movement since Roe v. Wade was decided in 1973, but outlawing abortion — at any stage of pregnancy, for any reason — is just the start of what legal recognition of embryos’ rights could mean for anyone who can get pregnant. Experts have long warned that elevating an embryo’s legal status effectively strips the person whose body that embryo occupies of her own rights the moment she becomes pregnant.
Across the country, this theory has led to situations like in Texas, where a hospital kept a brain-dead woman alive for almost two months — against her own advanced directive and the wishes of her family — in deference to a state law that prevents doctors from removing a pregnant person from life support. (The hospital only relented after the woman’s husband sued for “cruel and obscene mutilation of a corpse.”) Or in New Hampshire, where a court allowed a woman who was hit by a car while seven months pregnant to be sued by her future child for negligence because she failed to use “a designated crosswalk.” Or in Washington, D.C., where a terminally ill cancer patient, 26 weeks pregnant, requested palliative care, but was instead subjected to court-ordered cesarean section. Her baby survived for just two hours; she died two days later.
Or in Alabama, where, in 2019, Marshae Jones walked into the Pleasant Grove Police Department with her six-year-old daughter expecting to be interviewed for a police investigation. Months earlier, Jones, four and a half months pregnant at the time, had been shot by her co-worker during a dispute. In the hospital after the shooting, Jones underwent an emergency C-section; her baby, whom she’d named Malaysia, did not survive. Rather than indicting the shooter, though, a grand jury indicted Jones, who they decided “intentionally” caused the death of her “unborn baby” because she allegedly picked a fight “knowing she was five months pregnant.” The charges were ultimately dismissed, but Jones’ lawyer says her record still shows the arrest, and Jones, who lost her job after the incident, struggled to find work after her case attracted national attention.
The threat this ideology poses to American women is not contained to Alabama: Recognition of fetal personhood is an explicit policy goal of the national Republican Party, and it has been since the 1980s. The GOP platform calls for amending the U.S. Constitution to recognize the rights of embryos, and representatives in Congress have introduced legislation that would recognize life begins at conception hundreds of times — as recently as this current session, when the Life at Conception Act attracted the co-sponsorship of 127 sitting Republican members of Congress.
It wouldn’t take an act of Congress for the fetal-personhood movement to clinch a federal victory, either. If a case were brought to the Supreme Court, a conservative majority might look to state laws treating embryos as people around the country and conclude that America has a “history and tradition” of recognizing fetal rights. If they do, women all across the United States would be in the same position that women in Alabama are in today.
ON THE FIRST ANNIVERSARY of the Dobbs decision, the U.S. Supreme Court ruling ending a federal right to abortion — exactly one year after Alabama’s total ban on abortion went into effect — some of the most powerful anti-abortion organizations in the country rallied on the steps of the Lincoln Memorial in Washington, D.C., to reaffirm a full-throated commitment to their long-term project: securing recognition in the U.S. Constitution that fertilized eggs are people with full legal rights.
Speaking to the crowd that day, Lila Rose, the founder of the anti-abortion group Live Action, called it a “tragic contradiction” that even as American society has become more enlightened and advanced, it has continued to deny legal rights “to one group of human beings solely based on their location: the womb.”
Abortion has been legislated here for 200 years, but the idea that a fetus or embryo deserves the same rights as a person is relatively new, says legal historian and UC Davis law professor Mary Ziegler. The movement dates back to the 1960s, when two events unfolded in parallel: the Civil Rights Movement, and a campaign to repeal state-level restrictions on abortion.
Taking inspiration from Black Americans’ fight for equal rights, the anti-abortion movement began thinking of its own crusade as a fight for equality. “The argument that the unborn was the ultimate victim of discrimination in America was really resonant with a lot of white Americans, a lot of socially conservative Americans — and it was vague enough that people who disagreed about stuff like feminism, the welfare state, children born outside of marriage, the Civil Rights Movement” could find common ground, Ziegler says.
By the time the Supreme Court ruled on Roe v. Wade in 1973, the idea that a fetus was entitled to constitutional protections was mainstream enough to be a central piece of Texas’ argument that “Jane Roe” did not have a right to get an abortion.
The justices rejected that idea. “The word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn,” Justice Harry Blackmun wrote. But he gave the movement a cause to rally behind for the next half-century by adding: “If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”
Making that happen became the anti-abortion movement’s primary focus from that moment on. One week after Roe was decided, a U.S. congressman first proposed amending the Constitution to guarantee “the right to life to the unborn, the ill, the aged, or the incapacitated.” It was called the Human Life Amendment, and though it failed to make it to a floor vote that session, it would be reproposed more than 300 times in the following decades.
By 1980, the idea had been fully embraced by the Republican Party: Ronald Reagan’s GOP adopted it into the party platform — where it remains to this day — and in 1983, the Republican-majority Congress voted, for the first and only time, on the idea of adding a personhood amendment to the U.S. Constitution. That vote failed.
After their 1983 defeat, activists turned their attention away from the U.S. Capitol and toward the states, where they sought to insert the idea of fetal personhood into as many state laws as possible: everything from legislation creating tax deductions for fetuses or declaring them people for census-taking purposes, to expanding child-endangerment and -neglect laws.
Activists pursued this agenda everywhere, but they were most successful at advancing it in states that share certain qualities. “You could draw a Venn diagram of American slavery and see that what’s happening today is in common in those states,” says Michele Goodwin, a Georgetown University law professor and author of the book Policing the Womb. “Some would say, ‘Well, OK, how is that relevant?’ Slavery itself was explicitly about denying personal autonomy, denying the humanity of Black people. Now, clearly, these laws affect women of all ethnicities. But the point is: If you’re in a constitutional democracy and you found a way to avoid recognizing the constitutional humanity of a particular group of people, it’s something that’s not lost in the muscle memory of those who legislate and of the courts in that state.”
In those states, Goodwin notes, there was never a reckoning of what it meant to deny rights to whole swaths of people. It was largely federal interventions, like the Civil Rights Act, the Voting Rights Act, and Roe v. Wade, that offered a measure of protection — if only temporarily.
“In Alabama,” Goodwin says, “the perfect storm emerged.” It started with prosecutions pioneered by Steve Marshall, and blessed by the state’s Supreme Court. Then, in 2018, Alabama became the first state in the country to pass an amendment to its constitution recognizing fetal personhood. “It is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life,” it declares.
With the federal protections of Roe v. Wade still firmly in place in 2018, a majority of voters were willing to support that sentiment. “When the Sanctity of Life Amendment was voted on, people didn’t quite ever think that Dobbs would happen,” says JaTaune Bosby Gilchrist, executive director of the ACLU of Alabama. “For us, it was something we always knew would happen, and something people had been working to combat for the better part of a decade.” Only now, she says, are people across the state starting to realize the impact.
As I traveled around Alabama this spring, 11 years after the state Supreme Court first recognized fetal personhood and six years since the voters of this state gave it their stamp of approval, I spoke to people whose lives have been turned upside down by practices and policies that have long since ceased being hypothetical legal arguments. These are women and families navigating a reality that anti-abortion activists spent decades painstakingly laying the groundwork for.
“We talk about these as unintended consequences,” Bosby Gilchrist says. “But, in reality, these were always intended consequences.”
DR. MICHAEL ALLEMAND was on his way home from a weekend away in Tennessee in February when he got a text. “Hey, does everybody know about this?” one of his colleagues at the fertility clinic wrote to their group thread. She shared a link to a story about a ruling just issued by the Alabama Supreme Court, concerning another clinic, on the other side of the state, in Mobile.
Three years earlier, at the height of the pandemic, a patient had slipped through an unlocked door into a medical laboratory, pried open a cryogenic-storage tank fitted with monitors, and pulled out a tube submerged in liquid nitrogen at about negative 320 degrees. The patient dropped the tube, and several straws of human embryos it contained, to the ground. (That’s roughly the version of events that parties to the case have agreed upon at least.)
The three couples whose embryos were destroyed that day sued for negligence, claiming the clinic and the hospital did not properly store and protect their embryos. Then they went further, asserting the clinic and the hospital were liable under an 1872 law that allows parents to seek damages for the wrongful death of a child.
In an 8-1 ruling, Alabama’s Supreme Court upheld the couples’ claim: Their embryos — “extrauterine children,” in the justices’ words — qualified as people, entitling them to compensation. “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself,” Tom Parker, chief justice of the court, wrote in a concurring opinion.
Allemand read the news story, then the decision itself, slack-jawed. “It was literally unbelievable,” he says. “They invented terminology: ‘embryonic children,’ ‘cryogenic nursery,’ the scripture passages.… You can read it and tell that they have no idea what we do — no understanding of the realities of what takes place in this building.”
Treating infertility is an intricate, expensive, and incredibly time-sensitive process. It starts with tests (sperm counts and motility, ovarian reserve, tests to detect various hormones) and imaging (of the ovaries, uterus, and fallopian tubes). If the results show a patient is a candidate for IVF, she can prepare for egg retrieval: eight to 14 days of injecting hormones to stimulate the production of as many eggs as possible.
Spencer Goidel’s wife, Gabby, began her first course of injections — one round of which runs $4,000 — the same day the state Supreme Court’s decision came out, though the couple didn’t know it at the time. By then, they’d already invested $20,000 out-of-pocket in their fertility treatment, a fairly typical cost for one IVF cycle. (On average, it takes two and a half cycles to become pregnant.) Gabby was only a few days away from retrieval when she got a call from Alabama Fertility Specialists saying the clinic was pausing services while it tried to understand its legal exposure following the court’s decision.
Gabby and Spencer frantically called clinics looking for any facility that could complete their retrieval on schedule. They had a hard deadline: It takes one to two weeks for the eggs to mature to the point they can be removed from the ovaries. If they aren’t retrieved roughly 36 hours after the final injection, they’ll be shed or reabsorbed.
“If you call a clinic and say you’re in the middle of egg retrieval, and ask if you can be let in, they say ‘no,’” Spencer says, laughing ruefully in retrospect. “They treat you like you’re a crazy person.”
Before they started IVF, Gabby had miscarried three times. “Each time, we got to see the heartbeat on the ultrasound,” Spencer says. “Going through infertility, and deciding to start IVF, that’s already such an anxiety-filled process. This just made it so much worse.”
With days to spare, Gabby persuaded a clinic in Temple, Texas, to take them; the couple left Alabama that very night.
THE ALABAMA STATE Senate’s health committee holds its meetings in a drab, pink, fluorescent-lit Eighties-era conference room. On a Tuesday morning in March, that’s where eight men and one woman sat around a horseshoe table, searching for a loophole that would allow Alabama families to regain access to state-of-the-art reproductive technology, without contradicting the state Supreme Court’s ruling that an embryo is a person with legal rights. It had been 18 days since doctors were forced to suspend IVF services in Alabama.
The state isn’t the first to confront this problem. Other governments have grappled with regulating IVF from a “pro-life” point-of-view. “I’ve looked at Louisiana, I’ve looked at Italy.… I want to make sure we get it right,” one senator offered.
A fertility doctor from Birmingham, watching from the audience, just shook her head. Italy’s Law 40 banned freezing embryos, and required that any successfully fertilized eggs be implanted. Most of the law’s provisions were repealed within five years because of a decrease in the IVF success rate and an increased risk of pregnancy complications. In Louisiana, meanwhile, clinics have to ship hundreds of embryos to out-of-state storage facilities every month because of a 1986 state law that bans the destruction of IVF embryos.
In the hallway outside, just before the meeting began, Corinn O’Brien briefed a small group of IVF patients there to lobby, telling them who to thank for their support, who to press for a stronger commitment, and what language to insist be included in any bill to persuade the clinics to reopen and their suppliers to resume operations.
O’Brien has the warm smile, meticulous organization, and effortless crowd command of your favorite elementary school teacher, which is what she was before she became an advocate working on education reform at the Alabama State House. After three years of trying to get pregnant, including a miscarriage and an ectopic pregnancy, she finally had a successful embryo transfer in late January. She was at her six-week scan — the ultrasound that confirms a heartbeat — the day the Supreme Court issued its ruling on IVF.
At that appointment, O’Brien remembers, “I did not get 100 percent positive news.” All of the measurements looked all right, but her doctor said the pregnancy might not be viable. “To get that news, and then later that night to hear that I might not have access to IVF?… I was pretty shocked, and kind of stunned for several days,” she says.
Six days later, O’Brien drafted an email to lawmakers about protecting fertility medicine in Alabama, and dropped the text into a Google Doc. She sent it to 50 friends, and asked them to share it with 10 friends of their own. By the end of that day, she heard, the Republican speaker of the House was receiving an email every two minutes demanding lawmakers work to restore IVF access.
The next week, more than 300 people, organized through O’Brien’s Google Doc with help from RESOLVE: The National Infertility Association, had shown up in Montgomery in bright-orange T-shirts that read “Fight for Alabama Families” to press for a bill that would reopen facilities. It was the largest showing anyone could recall seeing at the State House in a very long time.
Alison Mollman, a lawyer who lives in Montgomery, was there. For queer couples like Mollman and her partner, assisted reproduction is one of the primary options they have to create a family. Since the Dobbs decision, Mollman has had three miscarriages.
Mollman’s first two pregnancies resulted in a “blighted ovum,” when an egg implants in the uterus but doesn’t form an embryo. Both times, she says, her health care providers said there was nothing they could do to help, and sent her home to pass the tissue on her own. It’s common elsewhere to offer a “D&C” — dilation and curettage, a type of abortion — or the abortion pill to reduce the risk of infection or sepsis, but Mollman wasn’t offered either. “That’s when I got angry, because basically in any other state I would have so many other options,” she says. (Alabama’s abortion ban allows exceptions for the life of the mother and for lethal fetal abnormalities, but it is up to a doctor to decide who is eligible.)
Roughly one in eight pregnancies will end in miscarriage, but that number is higher for IVF patients — one study has pegged it at one in three — and it increases as a woman gets older. It was clear speaking to patients and doctors at the State House that they felt the clock ticking with every day that passed, and it was equally clear that not every legislator felt the urgency as acutely as they did.
When Republican Rep. Ernie Yarbrough took to the House floor that day, he declared, “My conscience is absolutely on fire about this issue. If you’ve seen the famous TV series entitled Reacher, you will be familiar with one of his most famous lines: ‘In an investigation, details matter.’ I, like many of you, probably, am not an expert on IVF.… But if we had to be experts on everything, we wouldn’t pass any laws.”
Yarbrough went on to quote Vanilla Ice, urging his fellow lawmakers to “stop, collaborate, and listen.” If the suspension of IVF services “must continue until we determine what is moral and righteous and life-preserving, is this not worth a pause?” he asked.
By that time, conservative groups like the Heritage Foundation, Eagle Forum of Alabama, and the Alabama Policy Institute were mobilizing to oppose IVF protections. The American Action Fund sent texts declaring that lawmakers who supported reinstating IVF in Alabama were voting to protect those “who intentionally [cause] the death of an unborn child.”
Those efforts were, largely, too late. It took another several days of behind-the-scenes wrangling and late-night calls on speakerphone with committee members, but seven days after IVF advocates descended on the State House, a bill was approved by both houses and signed by Republican Gov. Kay Ivey.
The morning after it became law, O’Brien tells me, “Everyone is feeling exhausted. This has been a grueling couple of weeks.” She’s glad that friends of hers — women across the state who’d been injecting themselves with hormones for weeks, unsure of whether they would be able to move forward — could proceed with embryo transfers scheduled as soon as that morning. “To me, that is truly a victory,” O’Brien says. But, she adds, “the bill that passed is not perfect — we recognize that.”
The legislation doesn’t change the legal status of embryos under Alabama law; they’re still considered children for the purposes of the state’s wrongful-death statute. Instead, it provides broad immunity from civil lawsuits and criminal charges for IVF doctors, and more limited protections for suppliers, in the event that an embryo is damaged or destroyed. There are real concerns the law, if challenged, could be struck down by the state Supreme Court.
O’Brien still wants a longer-term solution. She’s seen polling showing 67 percent of Republican-primary voters would support a constitutional amendment to protect IVF. She plans to press on with that fight, as she starts her own fertility process over again. Two days after the IVF immunity bill passed, O’Brien found out her fetus had lost cardiac activity. She was admitted to the hospital and underwent a D&C the same day.
KRISTA HARDING WAS just trying to get to work the day she was pulled over, handcuffed, and taken to the Etowah County Detention Center with no warning. Six days after her arrest, she was finally assigned a public defender and given two options: She could either enter a 90-day inpatient drug-rehab program that would keep her away from her new baby for three months, or submit to a yearlong drug-court program. She chose the latter, and the obligations it involved — classes, meetings, mandatory drug tests an hour’s drive each way from her home — almost cost her her job.
The only thing she remembers thinking is: “This is what the judge says I had to do. I’m gonna do it because I don’t have the money to fight it.”
Harding is one of more than 250 pregnant women and new moms who were booked on chemical-endangerment charges at the Etowah County Detention Center between 2015 and 2023, according to an exhaustive accounting by AL.com’s Amy Yurkanin, a reporter who has covered Etowah County’s pregnancy criminalization issue extensively.
Another was arrested when police found a small amount of marijuana in her car during a traffic stop; she was held for three months after the officer learned she was pregnant.
Another was arrested six days after giving birth, separated from her newborn and toddler for two months after she tested positive at the hospital for a legal prescription medication.
Another used a store-bought CBD oil during pregnancy. When a drug test administered at the hospital turned up traces of THC, she was separated from her newborn for two months, pretrial.
Another was arrested when her young daughter told a social worker that her mother was pregnant and using drugs. That woman was held for 36 hours before she was allowed to take a test proving she was not pregnant after all. She was released immediately — testing positive for a substance is not a criminal offense if the person is not pregnant or on parole. (She recently reached a settlement with the Etowah County Sheriff’s Department over her unlawful detention.)
These women’s names, the unlitigated accusations against them, and their photographs are frequently published in press releases by the Etowah County Sheriff’s Department and reprinted, uncritically, by local news outlets without comment from the accused or their lawyers.
The arrests have become so common in Etowah County there’s a slang term for them: It’s called being “hit with a chemical.” Almost all of these cases are handled by the same investigator, Brandi Fuller. Fuller works in a small, windowless office under the detention center. She has long, silvery hair crimped with gel. When I show up at her office in March, she tells me she wishes she could share her perspective, but she’s not supposed to speak with the media. Before I leave, though, she tells me that she was assigned her role by the former sheriff, who decided that all chemical-endangerment arrests should be executed by the same officer. She says she didn’t want to be the only person in charge of these types of arrests — “Who the hell wants to put a pregnant woman in jail?” — but it’s her job. And, she adds, “it’s the law, period.”
Two years ago, Pregnancy Justice helped force a policy change that has resulted in fewer pregnant and postpartum women being held indefinitely in Etowah County jail. They no longer have to put up $10,000 cash and agree to enter a drug-treatment program to be released on bond, but they continue to be arrested on these charges, lawyers say.
Virtually none of the women arrested in Etowah County end up taking their cases to trial, regardless of the facts. The stakes, for the mothers, are just too high. In most cases, a maximum of 10 years — the first 10 years of her child’s life — if she loses. (The sentences can be higher, depending on the details of the case, including whether it is a repeat offense.) Instead of risking it, most accept a plea deal. A deal doesn’t guarantee a woman will stay out of jail, though. Some struggle to satisfy the conditions of the agreement: They might miss a class, or a meeting, or a drug test because of child-care issues or transportation complications, which can send them back to jail.
Numerous women without addictions were arrested because of this initiative, and for some who have struggled with substance-use issues, instead of helping with recovery, the policy landed them in jail over and over again.
The first time Ashley Caswell was arrested for chemical endangerment was in 2019, when she was two-months pregnant. (Caswell has been accused of methamphetamine use.) The day she was booked into jail, she reported she was raped there and filed a formal grievance with the detention center. Her lawyer says that she never received any response at all from the jail. (Caswell was taken to the hospital, where, according to a lawsuit she later filed against the county, her medical records showed she had sustained bruising on her vagina and inner thighs. In their response to the lawsuit, lawyers for Etowah County denied the allegations.)
Even as Southern jails go, Etowah County ranks among the most inhumane. There are no in-person visits allowed, and the only source of fresh air comes through small, barred windows near the ceiling of a concrete rec room known as “the sweat box.”
Investigations from watchdogs have long raised alarms about deficient medical care and inedible food at the jail. In 2016, the Southern Poverty Law Center found detainees at Etowah “failed to receive medication because facility staff delayed, refused, or forgot to distribute it”; the Women’s Refugee Commission wrote in 2012 that “in no other detention facility have we received so many complaints of inadequate, inedible, and insufficient food.” In 2022, U.S. Immigration and Customs Enforcement ended a 28-year contract with the facility after identifying “serious deficiencies” at the jail.
By the time Caswell was released after her first stint in Etowah, her mother, Denise, says she was a different person: “Closed off, not wanting to open up to people, not trusting. I was told by a pastor that he felt that she didn’t even know what love was anymore.” Caswell wanted to move away from the county after she was let out that first time, but, Denise says, it was a condition of her release that she remain there. “She didn’t need to be there,” Denise says. Nowhere in the country pursues these arrests as aggressively as Etowah County; if Caswell had been able to leave, she might not have been re-arrested, for the same charge, during a different pregnancy, two years later.
Caswell was being held in Etowah in October 2021 when her water broke, seven months after her arrest. According to the complaint filed by her lawyers, she spent 12 hours laboring unmedicated, vomiting from the pain, wailing so loud another inmate yelled at guards to “do something,” before she was given a single Tylenol. Her lawyers say Caswell alerted at least five jail staffers that she was in labor, begging to be taken to the hospital. Instead, she says, she was told to “stop screaming” and “deal with the pain.”
Caswell was bleeding profusely by the time she was finally escorted to the prison shower, where, she later told her lawyers, it felt like her body “was ripping apart.” She was standing alone in the shower when her son’s head started to emerge. Dizzy and concerned that she might faint from blood loss, she called for the corrections officer to catch her baby, then everything went black.
According to her lawsuit, when Caswell came to, she was lying, naked and bleeding, on the concrete shower floor, with a strange tugging sensation in her lower abdomen. She looked up to see corrections officers — suddenly there were five crowded into the shower — posing for a photo with her newborn son, still connected to her by the umbilical cord.
When Caswell and her baby were finally taken to Gadsden Regional hospital later that night, a doctor noted that the gurney she was wheeled in on was soaked with blood “from her shoulders to her feet.” She was diagnosed with a placental abruption, a potentially fatal condition that occurs when the placenta rips apart from the uterus.
Attorneys representing the county deny the claims made in Caswell’s lawsuit. Randy McNeill, a lawyer for the Etowah County sheriff and corrections officers named in the suit, tells Rolling Stone, “There is a significant difference between allegations in a complaint and the facts. We are looking forward [to] showing the facts and hope that it even gets a small portion of the publicity that the amended complaint has generated.” Asked if he could share any details about his clients’ version of the events, McNeill said, “I would actually love to, but I am constrained by Bar rules.”
Caswell spent two days in the hospital with her baby. Then she was discharged, and sent back to jail. Her son was placed in foster care. The irony of Etowah County’s policy is that the forced separation of a mother and her baby has been shown to have a significant negative impact on the child. Evidence indicates that separating a mother and child at birth or early in life can have profound, lifelong effects on brain chemistry, increasing the likelihood of post-traumatic stress, anxiety, mood, psychotic, and substance-use disorders. When it comes to exposure to controlled substances, “generally speaking, we grossly overstate the consequences of an in-utero chemical exposure, and greatly minimize the role of the caregiving environment,” says Dr. Mishka Terplan, an OB-GYN and addiction-medicine specialist.
For methamphetamine, like Caswell has been accused of using, Terplan says studies show the differences between children who were exposed to amphetamine in utero, and those who weren’t “lessen to the point of more or less being undetectable” as the child ages. “There might be some differences in some measurements of development in infancy, and very early childhood, but the magnitude of those tend to almost all go away” within about seven years. MRI imaging does continue to show a difference in the brain after this point, Terplan says, but those results are “of uncertain clinical significance.”
Pregnancy Justice is currently suing Etowah County, alleging that its treatment of Caswell violated her rights under the 14th Amendment — the same amendment under which fetal-personhood advocates want embryo rights recognized.
In its complaint, the organization’s lawyers cite the accounts of other pregnant women who experienced similar treatment at the jail: There’s A.S., a terrified first-time mom who was told guards “didn’t have time” to check on her when she went into labor. It was her fellow inmates, including Caswell, who timed her contractions and coached her through labor from adjoining cells. And K.W., whose water broke shortly after her arrest, about four months into her pregnancy. Five days elapsed before she was taken to the hospital. Her pregnancy ultimately ended in a stillbirth, and the loss of so much blood she required a transfusion. Her doctors later told her the baby would have survived if she’d been transported to the hospital when she first alerted prison guards to her condition. (In their response, lawyers for the county say their clients “are without sufficient belief or knowledge to admit or deny” these claims.)
Today, Caswell is incarcerated at Julia Tutwiler Prison in Wetumpka, Alabama, where she is serving a sentence of 15 years for chemical endangerment, concurrently with another sentence, second-degree assault, for shoving an Etowah County prison guard. Her son will turn three in October. In December, 2034 — her release date, according to the Alabama Department of Corrections, if she serves her entire sentence — he will be in the eighth grade.
