THE CASE OF ALMA BAKER

A law designed to protect pregnant women is being used against them.

By Peter Gorman

For years, civil rights advocates and defense attorneys have argued that too much power rests in the hands of prosecutors and not nearly enough in the hands of judges. This is particularly true in drug-related cases where mandatory minimum prison terms frequently leave a judge’s hands tied when it comes to mitigating circumstances or simply giving someone a break. But a Texas panhandle District Attorney has taken that concept one step further by interpreting a recent Texas law and combining it with existing law to create an entirely new category of criminal offence.

The District Attorney is Rebecca King, from Potter County, which includes Amarillo. The new law is the Prenatal Protection Act (SB 319) passed in 2003, which notes that for the purposes of murder and aggravated assault, a fetus is considered “an unborn child at every stage of gestation from conception to birth.” Written by State Senator Ken Armbrister (D-Victoria) and sponsored by State Representative Ray Allen (R-Grand Prarie), the law is Texas’ version of the Laci Peterson law. “We basically wanted to make it possible to charge someone with two murders if they killed a pregnant woman, or one if a boyfriend or a drunken driver caused the death of a fetus but not the death of the mother,” says Scott Gilmore, spokesman for Rep. Allen.

But DA King has begun charging women with Delivery of a Controlled Substance to a Minor, a second-degree felony carrying two-to-20 years in the state penitentiary, for having used illegal drugs during their pregnancy. “All fetuses are legally individuals at all times during pregnancy,” explains DA King. “That is my interpretation of the new law, and delivering illegal substances to those fetuses must be prosecuted.” So sure is Ms. King of her interpretation that last Sept. 22 she wrote a letter to health care workers and hospitals in her jurisdiction which noted in part, “Based on these laws, it is now a legal requirement for anyone to report a pregnant woman who is using or has used illegal narcotics during her pregnancy.”

The lawmakers claim that charging pregnant women with smoking marijuana or even doing crack—while they don’t approve—was not the intention of their law. “We’ve made it clear to Ms. King that the intent of our legislation has nothing to do with trying to prosecute a mother. Our legislation actually says the law does not apply to the mother,” Gilmore says.

Thus far, Ms. King’s office has charged two women with her new crime. The first, Tracy Ward, is a crack-cocaine user whose baby was born with traces of cocaine in his system. Her case has not yet been heard. The second case involves Alma Baker, a 35-year old whose twins, born in October, 2003, tested positive for marijuana. Baker—whose children are currently healthy and developing ahead of the curve--admitted smoking marijuana to lessen her morning sickness and help her appetite during pregnancy. Baker pleaded guilty to the charge on June 12 and was sentenced to a deferred adjudication of five years probation, a fine of $1,000, compulsory parenting classes and 250 hours of community service. Her legal aid lawyer Tom Lesly, while thinking Ms. Baker was right to not face trial and risk a prison sentence, is livid that the charges were ever brought. “This is an end around Roe v. Wade,” he says, “and not a subtle one. By extension, where will we go with this? How about charging obese women or women who smoke with Child Endangerment? Or why not just treat women as brood mares and be done with it?”

Ms. King, the only DA in Texas thus far to interpret the new law as a basis for criminal charges against mothers, admitted that she has not charged any non-drug using women who might be endangering their fetuses with crimes. “I will not speak in hypotheticals,” she says. “If there was a case brought to me I would view it on its merits.”

When asked about alcohol abuse by pregnant women, Ms. King was quick to point out that it is not illegal to give your child—or your fetus—alcohol in Texas. And, she added, “I’ve not yet seen a case of alcohol abuse that measures up to the legal standard for prosecution.”

Alma Baker’s lawyer and the lawmakers who wrote and sponsored the Prenatal Protection Act are not the only people who are upset with DA King’s interpretation of the law. Doctors and health care workers are also at odds with her on two counts: first, because it forces them to violate federal privacy laws and to act on behalf of law enforcement rather than in their patients’ interests. While it hasn’t yet occurred, DA King says she will prosecute health care workers who don’t comply with her order to alert authorities.

But the medical field is also upset with DA King because, they say, a woman knowing that she faces criminal prosecution because she has used drugs during pregnancy is less likely to seek the medical care she needs, thereby risking damage to both herself and her fetus.

“There is no question that every leading medical group opposes what DA King is doing as dangerous to fetal health,” says Lynn Paltrow, Executive Director of National Advocates for Pregnant Woman. “What people have found is that laws like these frighten women away from getting the care they could get if it were appropriate and available.”

Many of the “leading medical groups” mentioned by Paltrow actually weighed in on the issue during the late 1980s and early 1990s, when lawmakers wrote laws in several states related to pregnant women and the use of crack-cocaine. Among those groups were the American Medical Association, which noted in it’s journal, JAMA (2663, 267) in a 1990 report of the AMA Trustees that “Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician’s knowledge of substance abuse…could result in a jail sentence rather than proper medical treatment.” The AMA also passed a resolution at that time opposing the criminalization of maternal drug addiction.

The American Academy of Pediatrics’ Committee on Substance Abuse, noted in a 1990 paper on Drug Exposed Infants (Pediatrics, #86, Pg 639,641) that the academy “is concerned that [arresting drug addicted women who become pregnant] may discourage mothers and their infants from receiving the very medical care and social suport systems that are crucial to their treatment.”

Other medical groups who weighed in on the issue against punishing pregnant drug users included the American College of Obstetricians and Gynecologists, the American Public Health Association, the American Nurses Association, the March of Dimes, the National Association of Public Child Welfare Administrators and the American Psychiatric Association, among others.

DA King nonetheless stands by her position. “Have you ever heard the wail of a crack baby?” she asked this reporter. “It’s heartbreaking.”

But leading researchers disagree with her. In fact, they say, there is no justification for the term whatsoever. In an open letter to several major media outlets released on February 25, 2004, 30 leading medical researchers called on the media to stop using such stigmatizing terms because “These terms lack scientific validity and should not be used…. Throughout almost 20 years of research, none of us has identified a recognizable condition, syndrome or disorder that should be termed ‘crack baby’. Some of our published research finds subtle effects of prenatal cocaine exposure in selected developmental domains, while other of our research publications do not. This is in contrast to Fetal Alcohol Syndrome, which has a narrow and specific set of criteria for diagnosis.”

There were no screaming babies.

“Let’s face it,” says Paltrow. “This interpretation of the law demonstrates absolute disregard for maternal and fetal health by frightening women away from getting the health care they need during pregnancy.”

When asked about Alma Baker’s lawyer Tom Lacey’s comment that the King interpretation of the Prenatal Protection Act is an “end around Roe vs. Wade” Paltrow agreed, although she insisted that the more urgent matter was health care for expectant mothers. “I think this will immediately discourage pregnant women who’ve smoked a joint or used other drugs from seeking health care. But I think one can foresee how this can be use against abortion as well. There was a recent case in Utah, where a woman refused a C-section and her baby died and she was prosecuted for that death. I also understand that the immediate sponsors of bills like the Prenatal Protection Act in Texas do not mean them to be used as a tool for policing pregnant women. But I also think it’s fairly clear that there are organizations, particularly the Right to Life, who push for these laws under the guise of things like making the killing of a pregnant woman a double homicide, whose real agenda is to establish the rights of the fetus in as many states and as many laws as possible. And once those laws are established, they will be used by those Right to Life organizations to challenge the right of a woman to terminate a pregnancy.”

Civil rights advocates are hoping that Ms. King’s law will be overturned on appeal. They anticipate that when Tracy Ward’s case comes up she will plead guilty but reserve the right to appeal, something Alma Baker did not do. If that happens, the ACLU will handle the appeal.

“Look,” says Rep. Allen’s spokesman Gilmore. “Our legislation said the law did not apply to the mother. It’s as simple as that. This is not what we intended and we were clear on that. DA King has completely misinterpreted what the law intended.”

Eyes from both sides of the fence all around the country are watching to see what happens. Hopefully, an appeal will produce a decision from a judge that reminds prosecutors that their job is to prosecute violations of existing law, not inventing new laws for their constituents to violate.

Even if that happens, however, it won’t help Alma Baker. Once news of her guilty plea hit the Amarillo papers, her HUD caseworker utilized a Federal Law which prohibits people convicted of drug crimes from living in federally subsidized housing, and she was forced to leave her home. “My mother was able to buy a run down place next to hers,” she told Grow America. “It has no plumbing and no gas for cooking. That all needs to be replaced. So it’s sort of like camping out. When we want a toilet or a shower we go next door.”

Asked if she thought that was a fair price to pay for using cannabis to calm her nausea during pregnancy, Baker chuckles. “If I would have known that I’d get in trouble for telling my doctor the truth I would have either lied or not gone to the doctor,” she says.

That’s exactly the problem with DA King’s new law.