Imagine toiling on your feet throughout an entire pregnancy, trying desperately to gain weight despite debilitating nausea, surviving domestic violence while pregnant and finally giving birth to a healthy child. Then imagine watching the state unexpectedly rip your child away from you at the moment of birth, put your older child in foster care and threaten you with a decade in jail — all because a lab test detected that you had used marijuana at some point in your pregnancy.
That is what happened to Lauren Smith, a mother in Greenville, South Carolina, who has experienced firsthand the criminalization of pregnancy that is rapidly spreading through the U.S.
South Carolina’s legal system has prioritized the well-being of fetuses long before the overturn of Roe v. Wade, through so-called “fetal personhood” laws, which grant a fetus all the rights and privileges of a person under 18, distinct from the person gestating the fetus — and established the interest of the state in protecting them.
South Carolina, Mississippi, Alabama, Oklahoma and Tennessee have led the country in criminalizing pregnancies and pregnancy outcomes through charges of “child neglect” or “endangerment,” or even “manslaughter” or “murder.”
Lauren Smith’s experience shows how brutal these systems of criminalization can be. Smith has been awaiting trial since 2019 for felony “child neglect” charges not for ever having failed to care for her children but simply because she used marijuana at some point in her pregnancy. For this sole “crime,” she faces up to 10 years in prison and has lost custody of two of her three children.
On February 18, 2019, Smith, then 26, delivered her youngest child via cesarean section, “a healthy, beautiful, loud baby,” named Audrey, she told Meteor. Audrey was delivered a month early, weighing six pounds five ounces, screaming and kicking, full of life. But instead of leaving the hospital the next morning with her baby, Smith was told by a case worker and a lawyer from the Department of Social Services (DSS) that because her meconium — the first stools voided by a newborn — tested positive for THC, indicating she had used marijuana at an unknown point in her pregnancy — she could not bring Audrey home. Lying alone in the hospital room, her abdomen freshly sutured shut, Smith began to scream. She went home without her baby that day.
“I didn’t feel like a mother, like a person who just had a baby. I felt like a criminal. I felt less than that,” she said in the video, which is embedded at the end of this article.
Pregnancy is physically and emotionally strenuous. Like many women in the United States, Smith worked throughout her pregnancy on her feet, waiting tables. Despite the fact that both she and her partner were excited for Audrey’s birth — Smith dreamed of a baby shower, of marriage, of celebration — their relationship soon turned volatile and then violent. The risk of domestic violence increases during pregnancy — the leading cause of death of pregnant women is homicide by an intimate partner, and the vulnerability of pregnancy gives an abusive partner more room to exert control; National Domestic Violence hotline reported a 100 percent increase in calls following the Dobbs v. Jackson Women’s Health Organization case. At six months pregnant, Smith was hospitalized with a dislocated shoulder. She then spent a week in a domestic violence shelter, with her then-18-month-old son in tow. Now, she was under the scrutiny of Greenville’s Department of Social Services.
The stress of working a physically demanding job, of coping with a violent and unstable relationship, and dealing with the Department of Social Services’s involvement exacerbated the physical toll of Smith’s pregnancy.
“I was in and out of the hospital — morning sickness, afternoon sickness, night sickness. They were prescribing medication for nausea but nothing helped with the appetite,” she said. She was placed on intravenous fluids for dehydration and advised to gain weight.
Marijuana is the most common controlled substance used during pregnancy. According to a 2019 Kaiser Permanente study, more than 7 percent of pregnant people reported using marijuana to treat depression, anxiety, stress, pain and nausea.
Amanda Williams, an M.D. obstetric-gynecologist, maternal care expert, and instructor at Stanford University’s School of Medicine told The Meteor, “When people have limited access to services, then sometimes using something like THC to help manage their symptoms is a pathway that people choose to take.”
It’s not actually known whether marijuana use is harmful to fetal development — there simply hasn’t been enough research on pregnant people.
“It wasn’t like I was doing bong rips or anything,” Smith says in The Meteor. “If I needed to roll a joint and hit it a few times to be able to still take care of my other children and work and live, that’s what I did. And I didn’t get any medical advice advising to steer away from it, or that it would cause any issues to the baby or to me, ever.”
Smith says she was only told by her doctor that she should stop using marijuana 30 days before her due date in order to avoid testing positive. Smith says she stopped at the end of her seventh month of pregnancy, and the tested meconium could only indicate that Smith had used marijuana at some point in her pregnancy, but not when. Nevertheless, Smith was separated from Audrey the day after she had given birth to her.
Medical science is in agreement that separating an infant from its mother, especially in the first few days of life, results in significant emotional and behavioral consequences for both the mother and child.
Heather Irobunda, co-founder of Obstetricians for Reproductive Justice, told Truthout that separating an infant from its mother immediately upon birth may result in more damage than any potential marijuana use.
“You are causing all of this harm, you are breaking up a family, you are putting this person in jail — but we don’t have any evidence that using marijuana causes harm to the child,” Irobunda said.
In South Carolina, and in other states where fetal personhood laws are stringently enforced, the state is determined to enforce the well-being of fetuses through criminalization and family separation.
“Pregnant people have fewer rights than people who aren’t pregnant,” explains Trip Carpenter, a legal fellow with Pregnancy Justice, a nonprofit fighting criminalized pregnancies that is assisting Smith with her case.
“If you’re pregnant and you fall down the stairs, you could be charged with a crime,” he says. “If you’re pregnant and you drive without a seatbelt, you could be charged with a crime. If you’re pregnant and you have a glass of wine, or you use drugs, you could also be charged with a crime.”
This sort of pregnancy criminalization is in keeping with the “heartbeat bill” that South Carolina passed in August banning abortions after six weeks of pregnancy. “The legislature has made a policy determination that, at a certain point in the pregnancy, a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live,” wrote South Carolina Supreme Court Justice John Kittredge.
The vast majority (over 90 percent) of fetal personhood-related arrests and charges are brought through allegations of substance use. The majority (66 percent) of pregnancies in these cases result in a healthy, live birth.
Pregnancy Justice Deputy Executive Director Dana Sussman pointed to the racist, virulently carceral “war on drugs” as the catalyst for pregnancy criminalization today.
“Through the war on drugs, there was an attempt to create a moral panic based on ‘crack babies,’ that these children would be born with lifelong health consequences due to the ‘irresponsibility’ of their mothers — overwhelmingly Black mothers,” she told Truthout. Sussman added that the panic around “crack babies” stemmed from a single paper whose author has since recanted his findings.
“But prosecutors now came in and said, ‘We can prosecute pregnant women for using illegal drugs, strip them of their rights, and lock them up,’” she added. “The war on drugs really created a political opportunity for the anti-abortion movement to bestow fetuses with this concept of ‘personhood,’ by claiming that fetuses can be victims of crimes, and the perpetrators of these crimes are the women carrying the pregnancies.”
Even after her daughter Audrey had been taken from Smith and placed in the custody of the child’s paternal grandmother, Smith tried to breastfeed Audrey as she had her older children. In the first six weeks postpartum, Smith would get up at around 4 am to drive to the paternal grandmother’s home to feed Audrey.
According to The Meteor, on one of these mornings, Detective Robert Perry of the Greenville Sheriff’s Department called. Smith’s case had been referred without her knowledge to the police about a month after Audrey’s birth. Detective Perry, who was recording the call without Smith’s knowledge (which is legal in South Carolina), asked Smith if she had used marijuana during her pregnancy. She said she had used it therapeutically and detailed her symptoms. “Well, that doesn’t sound like a wonderful trimester for you,” he said. “You poor thing.”
That phone call was used to issue a warrant for Smith’s arrest. On August 19, 2019, police swarmed the home of Audrey’s paternal grandmother, complete with lights, sirens and K9 units. Audrey woke up screaming. Police handcuffed Smith and drove her away. Three days later, as a result of this arrest, her child Aiden was taken from his daycare and placed in foster care. After a lengthy legal battle, Aiden, who is now 5, was returned to his family in 2022. Audrey, who is now 4, remains with her grandmother, but asks to leave with Smith every time she visits. Smith has to tell her no every time.
What is the best way for communities to ensure that babies are born healthy?
If states with abortion bans and fetal personhood laws “truly cared about family systems, health, and prosperity — they would be investing better in social programs, schools, universal health care, and providing prenatal care for these people,” says Obstetricians for Reproductive Justice’s Irobunda. “These are places with such horrible outcomes for maternal mortality and infant mortality…. So they want to invest in making sure they can control our bodies. It’s not about maintaining a family unit.”
Moreover, Irobunda emphasizes that people struggling with substance abuse need to be able to reach out to receive treatment without fear of being criminalized, stigmatized or being separated from their children.
Smith’s criminal trial has been continually delayed; it is now set for December 18, 2023. “I just want this to be over,” Smith told The Meteor. “It just enrages me how, as a woman, as a woman of color, as a human being, carrying a baby — and to be treated like nothing, like a criminal…. I want to prove that just because you are scared, it doesn’t mean that you give up.”
Director: Neda Toloui-Semnani
Directors of Photography: Dillon Deaton and Susie O’Brien
Editors: Susie O’Brien and Geraldine Garcia
Graphics: Bianca Alvarez
Sound Mix: Michael Olimpo
A Meteor and Firebrand Production
Producers for Firebrand: Sarah Sophie Flicker, Paola Mendoza, Meredith Shepherd, and Ginny Suss
In Partnership with Obstetricians for Reproductive Justice and Inmaat Productions
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