Mississippi Today
These states are using fetal personhood to put women behind bars
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, The Post and Courier and The Guardian. Sign up for The Marshall Project’s newsletters, and follow them on Instagram, TikTok, Reddit and Facebook.
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 her newborn’s meconium — the baby’s first bowel movement — to the Minnesota-based Mayo Clinic 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, it can show residue of substances 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. Nearly a year after she’d delivered a healthy baby, Armstead was arrested and 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 been used to prosecute women who lose their pregnancies. But prosecutors are also targeting people who give birth and used drugs during their pregnancy. This tactic represents 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, but not police or prosecutors.
Medical privacy laws have offered little protection. In many cases, health care 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, an investigation by The Marshall Project, AL.com, The Frontier, The Post & Courier and Mississippi Today found.
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. The evidence and procedures are rarely challenged in court.
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 people who seek health care 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 obstetrician/gynecologist who specializes in reproductive and developmental toxicology, said the prosecutions are an abuse of drug screenings and tests 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 U.S. 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. Several studies have shown that even when newborns exhibit signs of drug withdrawal at birth, keeping them in hospital rooms with their mothers improves their health outcomes.
Just because a person struggles with addiction doesn’t necessarily mean she is an unfit mother, Scialli said. “Even women who are using illicit drugs, they’re usually highly motivated to take care of their children. Unless the mother is being neglectful, separating the baby and mother is not healthy for either of them.”
Armstead grew up Quitney Butler in Town Creek, about two hours northwest of Birmingham. She watched as her town lost its Dairy Queen, grocery store, and eventually even the high school she graduated from in 2006.
She was deployed to Iraq in 2009, the same year her school closed. By then, she was 21 with one young daughter, Eva, with her boyfriend, Derry Armstead.
In Iraq, she drove trucks and made sure fellow soldiers got their mail. She was stationed at Forward Operating Base Hammer, in a stretch of desert east of Baghdad that was often the target of attacks.
Armstead came back from war in 2010 “a completely different person,” said her mother, Teresa Tippett. She was argumentative and temperamental.
Her family members “all said I changed when I went over there,” Armstead recalled. “I was like, ‘Mama, we were getting bombed all day, every day.’”
Armstead came home looking for an escape. She found drugs and trouble.
After her boyfriend returned from his deployment to Afghanistan, they married in 2012 and had a second daughter, Shelby. But their relationship became tumultuous, records show.
Both were arrested after a 2014 fight where he claimed she damaged his property, and she claimed he struck her on the leg, court records show. The following year, police records allege her husband drove his pickup past railroad barricades and into the side of a moving train, with his wife in the passenger seat.
Because of the couple’s fighting and arrests, her mother had custody of both Eva and Shelby. Quitney Armstead picked up two drug possession charges, and a misdemeanor charge for throwing a brick at the car her husband was in. Their divorce was granted in 2018, court records show.
In October 2018, she ended up back in jail after she was arrested on a drug possession charge during a police raid of a relative’s house, according to court records.
That’s when she found out she was pregnant with Aziyah, and promised herself she would get clean.
Not long before Armstead’s legal troubles began, some prosecutors in Alabama started to use a chemical endangerment statute — originally designed to protect children from chemical exposures in home meth labs — to punish women whose drug use potentially exposed their fetuses in the womb.
Prosecutions vary widely from county to county. In some areas, district attorneys choose not to pursue these charges, while one county has charged hundreds of women. In 2016, lawmakers carved out an exemption for exposure to prescription drugs, which can also be harmful to a fetus.
Morgan County District Attorney Scott Anderson said he does not discuss details and facts about pending cases.
“However, I will tell you that my position of being willing to allow mothers charged with chemical endangerment into diversion programs has not changed. I am willing to do that and, if at all possible, I favor that approach in resolving these type cases,” he wrote in an email. “I think that Ms. Armstead needs treatment for drug dependency and am in favor of her getting it.”
Some Alabama women we interviewed avoided a felony conviction and prison time by participating in pre-trial intervention programs run by prosecutors, which offer some treatment options. In some counties, the cost is $700 just to apply. Participants must keep making payments to remain enrolled. If they can’t afford to keep up, they face an automatic guilty plea.
In his email, Anderson said poverty does not prevent a person from entering diversion programs in his county.
In several Alabama cases, including Armstead’s, the mother and her newborn initially tested negative for drugs — but the hospital sent the baby’s meconium to a lab for more extensive testing.
Armstead said she never granted permission specifically for the test and had no idea her newborn’s meconium was being sent to the Mayo Clinic. A spokesperson for Decatur Morgan Hospital, where Armstead gave birth, wrote in an email statement that the hospital drug tests “all mothers who are admitted to our hospital for labor and delivery. Our hospital follows Alabama law regarding any required reporting of test results to state authorities.”
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 pursue criminal prosecutions of the mothers.
Some prosecutors in Alabama, South Carolina and Oklahoma have determined that under those states’ laws and court rulings establishing fetal personhood, child welfare statutes can apply to a fetus. 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.
In northeast Mississippi’s Monroe County, Sheriff’s Investigator Spencer Woods said he spearheaded the effort to begin prosecuting women under the concept of fetal personhood in 2019. Before that, Woods said, when the sheriff’s office received a referral from Child Protection Services about a newborn testing positive for drugs, officers wouldn’t investigate.
“It wouldn’t be handled because it did not fall under the statute. It still does not fall under the statute,” he said. “Because the state of Mississippi does not look at a child as being a child until it draws its first breath. Well, when that child tests positive when it’s born, the abuse has already happened, and it didn’t happen to a ‘child.’ So it was a crack in the system the way I looked at it. And that’s where we’re kind of playing.”
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 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. “When the loyalty to the patient completely disappears, that’s an institutional problem the hospitals need to deal with.”
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 health care. The agency sought public comment on the proposed rule through June 16, and is expected to complete the changes in coming months.
Medical groups supporting the changes argue that using private health information to punish people criminally harms the physician-patient relationship and results in substandard care. But several state attorneys general — including the AGs for Alabama, Mississippi and South Carolina — wrote a statement opposing the change.
As proposed, the HIPAA changes could require law enforcement to provide documentation, such as a search warrant or subpoena, when seeking records related to someone’s reproductive healthcare — and medical providers could still refuse, said Melanie Fontes Rainer, director of the Office for Civil Rights in the Department of Health and Human Services.
“It’s very much real that your information is being used inappropriately sometimes; and then that information is then being used to seek out criminal, civil and administrative prosecution of people,” Fontes Rainer said. “We’re in this new era — of unfortunately targeting populations for the kinds of health care they seek.”
In some cases, women were arrested and prosecuted after being honest with their doctors about their struggles with substance abuse. At one South Carolina hospital, a new mother admitted to occasional drug use while pregnant, only to have hospital staff call police who arrested her after a nurse handed over her medical records.
A few women have even been 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 northeast Oklahoma because she knew she needed help.
When Bishop appeared to have contractions, the rehab transferred her to a local hospital. A doctor at Hillcrest Hospital Claremore 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 in plain clothes, 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’d heard that a pregnant woman admitted to drug use.
The detectives didn’t have a search warrant, so they handed Bishop a “Consent to Search” property form with blank spaces on it. The officers crossed out the line where they would normally list the property to be searched and instead simply wrote “Blood Draw.” Police testified later in court that they didn’t advise Bishop she could talk to a lawyer first.
Bishop had told the cops she “was in a dark place, and needed help,” according to an affidavit.
The blood tests showed traces of drugs in her system. Officers handcuffed Bishop and took her from the hospital to jail. She stayed there until right before she delivered her baby, when she was allowed to go to a treatment house for pregnant women for a few days. When Bishop’s daughter was born, she was healthy. But child welfare workers took her from Bishop the next day.
The District Attorney in Rogers County, northeast of Tulsa, charged Bishop with child neglect. After an initial hearing, a county judge dismissed the charge, ruling the state couldn’t apply its child welfare codes to a fetus.
But the district attorney appealed. Then a 2020 decision in a separate case by the Oklahoma Court of Criminal Appeals ruled that the state’s child neglect law could be applied to fetuses — even ones that didn’t display harm from drug use. The court later ruled that the prosecutor could continue the case against Bishop.
District Attorney Matt Ballard celebrated on Twitter: “My office scored a big victory today fighting for unborn children. I’m proud of all the work that went into this. #ProtectingUnbornChildren”
Through a spokeswoman, Ballard declined an interview request.
Bishop 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 to her youngest daughter.
Bishop did so well in prison that a judge reviewed her case and agreed to her release this past March, after just one year. Her daughter is now a healthy 4-year-old, adopted by a family member. Bishop has no contact with her youngest but saves up the money she makes working to buy clothes to send to her daughter.
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. She said that they never gave her a chance to show she’d be a caring mother.
“They looked at me like I wasn’t even human,” she said.
The cloud of cigarette smoke in Kevin Teague’s Decatur law office is almost as thick as his north Alabama accent. Teague is Armstead’s court-appointed lawyer. He defends a number of women in Morgan County charged with chemical endangerment of a child.
Many of his clients — like most of the women charged in Alabama and other states — reach plea deals, rarely challenging the cases against them. Teague said he had intended to help Armstead plead guilty too, but something about her case gnawed at him.
“She’s just had a hell of a life. I mean, she fought for her country,” he said. “I truly believe she has some serious PTSD.”
Her country — and the state of Alabama — owed her something better, he said. It seems unfair that poor people who can’t afford pre-trial diversion programs get felony convictions and prison time, while people who could afford thousands of dollars in fees can get different outcomes, Teague said.
Armstead missed an October 2022 court hearing — she said she didn’t receive a notice or have transportation. The absence landed her back in jail in December, and, lacking the money for bail, she’s remained behind bars since.
Meanwhile, 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.
Eight months after De La Rosa’s daughter was born in 2018 in Huntsville, she and her family woke to a knock at the door at 2 a.m. The police had a warrant for her arrest for chemical endangerment. A meconium test allegedly showed traces of marijuana from earlier in the pregnancy.
De La Rosa 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.
“It’s unclear the criteria they have for when they do these tests,” Nance said. “They claim they’re doing them on everybody, but I don’t think that is true.”
Prosecutors admitted that the evidence wasn’t preserved, and the charges against De La Rosa were dismissed. That took nearly three years.
Many women charged with chemical endangerment in Alabama can’t afford their own lawyer to fight a criminal case for years, Brinkley said. “They pick on these less fortunate women, and then they just railroad them.”
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 was set for August.
When Teague told Armstead about filing that motion — in hopes of getting her case dismissed — she broke down sobbing.
Teague reminded her it would be a long road, and she would need to work on her sobriety and fulfill the requirements for a veterans’ court program she was offered for a synthetic marijuana possession charge in a nearby county. But it was a glimmer of hope she could hold on to.
“I am not the mistakes I’ve made,” Armstead said. “My kids were my world.”
Her incarceration has isolated her from family. Her jail doesn’t allow in-person visits from anyone but her lawyer, and she barely has the funds to make phone calls.
Her daughter Aziyah is 4 years old now. She and her older sisters only see Armstead on occasional video calls from the county jail, when the family can afford to put money in her jail account.
Armstead recalled that during a recent video chat, Aziyah asked her: “Mommy, can you just sneak out of jail for one night?”
She explained to Aziyah that if she did, she would be there even longer.
“It tore me up,” Armstead said.
Last week, Teague visited her 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. There would be no conviction for either felony, as long as she didn’t screw up.
Armstead knew this meant the state probably didn’t have the meconium 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.
Additional reporting contributed by Anna Wolfe, Mississippi Today; Amy Yurkanin, AL.com; Brianna Bailey, The Frontier; and Jocelyn Grzeszczak, The Post and Courier.
This article first appeared on Mississippi Today and is republished here under a Creative Commons license.
Mississippi Today
On this day in 1997
Dec. 22, 1997
The Mississippi Supreme Court upheld the conviction of white supremacist Byron De La Beckwith for the 1963 murder of Medgar Evers.
In the court’s 4–2 decision, Justice Mike Mills praised efforts “to squeeze justice out of the harm caused by a furtive explosion which erupted from dark bushes on a June night in Jackson, Mississippi.”
He wrote that Beckwith’s constitutional right to a speedy trial had not been denied. His “complicity with the Sovereignty Commission’s involvement in the prior trials contributed to the delay.”
The decision did more than ensure that Beckwith would stay behind bars. The conviction helped clear the way for other prosecutions of unpunished killings from the Civil Rights Era.
This article first appeared on Mississippi Today and is republished here under a Creative Commons license.
Mississippi Today
Medicaid expansion tracker approaches $1 billion loss for Mississippi
About the time people ring in the new year next week, the digital tracker on Mississippi Today’s homepage tabulating the amount of money the state is losing by not expanding Medicaid will hit $1 billion.
The state has lost $1 billion not since the start of the quickly departing 2024 but since the beginning of the state’s fiscal year on July 1.
Some who oppose Medicaid expansion say the digital tracker is flawed.
During an October news conference, when state Auditor Shad White unveiled details of his $2 million study seeking ways to cut state government spending, he said he did not look at Medicaid expansion as a method to save money or grow state revenue.
“I think that (Mississippi Today) calculator is wrong,” White said. “… I don’t think that takes into account how many people are going to be moved off the federal health care exchange where their health care is paid for fully by the federal government and moved onto Medicaid.”
White is not the only Mississippi politician who has expressed concern that if Medicaid expansion were enacted, thousands of people would lose their insurance on the exchange and be forced to enroll in Medicaid for health care coverage.
Mississippi Today’s projections used for the tracker are based on studies conducted by the Institutions of Higher Learning University Research Center. Granted, there are a lot of variables in the study that are inexact. It is impossible to say, for example, how many people will get sick and need health care, thus increasing the cost of Medicaid expansion. But is reasonable that the projections of the University Research Center are in the ballpark of being accurate and close to other studies conducted by health care experts.
White and others are correct that Mississippi Today’s calculator does not take into account money flowing into the state for people covered on the health care exchange. But that money does not go to the state; it goes to insurance companies that, granted, use that money to reimburse Mississippians for providing health care. But at least a portion of the money goes to out-of-state insurance companies as profits.
Both Medicaid expansion and the health care exchange are part of the Affordable Care Act. Under Medicaid expansion people earning up to $20,120 annually can sign up for Medicaid and the federal government will pay the bulk of the cost. Mississippi is one of 10 states that have not opted into Medicaid expansion.
People making more than $14,580 annually can garner private insurance through the health insurance exchanges, and people below certain income levels can receive help from the federal government in paying for that coverage.
During the COVID-19 pandemic, legislation championed and signed into law by President Joe Biden significantly increased the federal subsidies provided to people receiving insurance on the exchange. Those increased subsidies led to many Mississippians — desperate for health care — turning to the exchange for help.
White, state Insurance Commissioner Mike Chaney, Gov. Tate Reeves and others have expressed concern that those people would lose their private health insurance and be forced to sign up for Medicaid if lawmakers vote to expand Medicaid.
They are correct.
But they do not mention that the enhanced benefits authored by the Biden administration are scheduled to expire in December 2025 unless they are reenacted by Congress. The incoming Donald Trump administration has given no indication it will continue the enhanced subsidies.
As a matter of fact, the Trump administration, led by billionaire Elon Musk, is looking for ways to cut federal spending.
Some have speculated that Medicaid expansion also could be on Musk’s chopping block.
That is possible. But remember congressional action is required to continue the enhanced subsidies. On the flip side, congressional action would most likely be required to end or cut Medicaid expansion.
Would the multiple U.S. senators and House members in the red states that have expanded Medicaid vote to end a program that is providing health care to thousands of their constituents?
If Congress does not continue Biden’s enhanced subsidies, the rates for Mississippians on the exchange will increase on average about $500 per year, according to a study by KFF, a national health advocacy nonprofit. If that occurs, it is likely that many of the 280,000 Mississippians on the exchange will drop their coverage.
The result will be that Mississippi’s rate of uninsured — already one of the highest in the nation – will rise further, putting additional pressure on hospitals and other providers who will be treating patients who have no ability to pay.
In the meantime, the Mississippi Today counter that tracks the amount of money Mississippi is losing by not expanding Medicaid keeps ticking up.
This article first appeared on Mississippi Today and is republished here under a Creative Commons license.
Mississippi Today
On this day in 1911
Dec. 21, 1911
Josh Gibson, the Negro League’s “Home Run King,” was born in Buena Vista, Georgia.
When the family’s farm suffered, they moved to Pittsburgh, and Gibson tried baseball at age 16. He eventually played for a semi-pro team in Pittsburgh and became known for his towering home runs.
He was watching the Homestead Grays play on July 25, 1930, when the catcher injured his hand. Team members called for Gibson, sitting in the stands, to join them. He was such a talented catcher that base runners were more reluctant to steal. He hit the baseball so hard and so far (580 feet once at Yankee Stadium) that he became the second-highest paid player in the Negro Leagues behind Satchel Paige, with both of them entering the National Baseball Hame of Fame.
The Hall estimated that Gibson hit nearly 800 homers in his 17-year career and had a lifetime batting average of .359. Gibson was portrayed in the 1996 TV movie, “Soul of the Game,” by Mykelti Williamson. Blair Underwood played Jackie Robinson, Delroy Lindo portrayed Satchel Paige, and Harvey Williams played “Cat” Mays, the father of the legendary Willie Mays.
Gibson has now been honored with a statue outside the Washington Nationals’ ballpark.
This article first appeared on Mississippi Today and is republished here under a Creative Commons license.
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