Since June 27, 2022 (three days after the Supreme Court overturned Roe v. Wade), Mississippi has prohibited nearly all abortions. According to the 2007 bill that resulted in that ban, "every human being, including those in utero, possesses a natural intrinsic right to live." It is therefore hard to understand why Brandy Moore, a mother of four who lives in Leake County, Mississippi, was recently arrested for a felony because she decided not to have an abortion back in 2019, when the procedure was still legal in her state.
The explanation for that puzzling situation lies at the confluence between the war on drugs and a child protection system that often breaks up families without solid evidence of neglect or abuse. In this case, that dangerous combination was compounded by a local prosecutor, District Attorney Steven Kilgore, who for years deployed patently frivolous criminal charges in an attempt to get drug-using mothers the help he thought they needed, whether they wanted it or not.
Moore's legal ordeal, which stemmed from surreptitious drug tests at the hospital where she gave birth to her daughter Remi in 2019, is detailed in a Mississippi Today story, produced in collaboration with The Marshall Project, that shows her situation is far from unique. Across Mississippi and across the country, postnatal drug tests can trigger grueling investigations by state-appointed social workers, separation of mothers from their newborn children, and even criminal charges. These interventions are all based on the faulty presumption that women who use illegal drugs during pregnancy—or are mistakenly suspected of doing so based on erroneous test results—are manifestly unfit parents.
Moore's experience is nevertheless striking in several ways. She stopped using methamphetamine around the middle of her pregnancy after a religious epiphany inspired her to reject abortion and turn her life around. For reasons that remain unclear, she was secretly indicted in 2020 but was not arrested until last May, at which point Remi was 4. And most remarkable of all, Kilgore, who seems to have previously overlooked the human consequences of treating mothers as criminals based on hospital drug tests, had an awakening of his own as a result of Mississippi Today's investigation.
"I've reevaluated our stance on the topic and have decided not to handle these cases anymore," Kilgore told Mississippi Today reporter Anna Wolfe after learning how his decisions had harmed Moore and other women, several of whom received stiff prison sentences because they failed to fully comply with the 8th Judicial District's drug court program. "It was eye-opening to learn of the fate of these women. I believe we can all do better."
As Kilgore tells it, he never thought these women belonged in prison. He just wanted to scare them straight. Toward that end, he charged them with "aggravated domestic violence," a felony punishable by up to 20 years behind bars.
Under Mississippi law, "a person is guilty of aggravated domestic violence" when he "attempts to cause serious bodily injury to another, or causes such an injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." Contrary to the way Kilgore read that statute, simply using an illegal drug during pregnancy does not meet the elements of that offense.
Moore, for example, says she used meth early in her pregnancy to help her deal with stress at a difficult time. "The father wanted no involvement and encouraged her to get an abortion," Wolfe writes. "As Moore plotted where and when to get the procedure, which was still legal in Mississippi at the time, she was using crystal meth to cope." Once she decided to keep the baby, "it wasn't hard to stop getting high."
Moore initially attracted scrutiny because her urine tested positive for marijuana and opioids after Remi's birth. She says she smoked marijuana near the end of her pregnancy to relieve nausea. She also took prescribed opioids for pain relief the night before Remi was born. But the urinalysis results led to a drug test of Remi's first bowel movement, which detected traces of amphetamines. Since that sort of test has a detection window up to 20 weeks or so, the result is consistent with Moore's account that she stopped using meth midway through her pregnancy.
The test result led to an investigation by Child Protective Services that was closed without any finding of abuse or neglect. But although Moore had no idea her case had been presented to a grand jury, she was indicted for aggravated domestic violence when Remi, her alleged victim, was about five months old.
Moore plainly did not "attempt" to cause anyone "serious bodily injury." Nor did she actually cause such harm, whether "purposely, knowingly or recklessly." Wolfe says "Kilgore's district—encompassing Neshoba, Leake, Scott and Newton counties—appears unique in its use of the domestic violence statute, as opposed to child abuse, to prosecute these cases." It is not hard to see why. Proving that charge in a case like Moore's would be more than a little difficult, since the facts do not fit the crime.
According to Kilgore, he never intended to try these cases. "Ultimately the goal wasn't to get a conviction upheld after a trial, which would be the goal in a murder case or something like that," he told Wolfe. "It was to get help for this mother."
To avoid prison, the defendants had to successfully complete the drug court program. "The program has more than 20 conditions, including paying hundreds of dollars in fines and fees each month, attending weekly check-ins, abstaining from any substance, including alcohol, submitting to home searches and drug tests, and waiving medical privacy," Wolfe notes. "Participants can be under these demands for up to five years."
For defendants who fell short, the consequences were severe. Although Kilgore was not sure exactly how many times he had charged new mothers with aggravated domestic violence because of their drug use, he gave Mississippi Today a list of 11 cases, including Moore's.
The other women all "pleaded guilty to avoid the risk of a jury conviction and a long prison sentence," Wolfe reports. They received suspended sentences, contingent on completing the drug court program. Eight of them were deemed to have "violated a condition of the program at one time or another," and judges "ordered six of them to prison. Four of those women are currently incarcerated." One got five years, and three are serving 20-year sentences.
Moore, by contrast, was determined to fight the charge against her. "I'm not guilty, and they're not gonna make me believe I'm guilty," she told Wolfe in June. After her arrest, "she stayed in jail for two days, missing her shifts as a caretaker at a local child care center, before her friends could bail her out," Wolfe writes. At her arraignment, "Judge Ruby Graham told her that because of the domestic violence charge and Moore's past drug use she must order Moore not to see" her daughter, who is now 5.
The separation lasted a week, during which Moore's ex-husband looked after Remi. "I've never been away from her," Moore told Wolfe. "I knew she was OK with my ex-husband, but I knew, a week goes by that she doesn't see her mama, she was going to be hurting too."
For months following Moore's arraignment, "her court-appointed public defender wouldn't answer her calls, and she struggled to find a private lawyer to take her case." One lawyer "offered to represent Moore if she paid him $40,000." Moore eventually found a lawyer, Jackson attorney Vicki Gilliam, who was eager to challenge criminal cases like hers. "Every prosecutor in this state needs to know, I'll be there," Gilliam told Wolfe.
Mississippi Today and The Marshall Project "found 44 women across Mississippi who were arrested between 2015 and 2023 for felony child abuse or child endangerment after their newborns tested positive for drugs." Such cases lead to family separation, intrusive surveillance, and criminal punishment—outcomes that reflect the arbitrary distinctions drawn by U.S. drug laws. Although alcohol consumption during pregnancy can harm a fetus, caseworkers and prosecutors do not target new mothers simply because they are drinkers. Yet any detectable use of an illegal drug is enough to trigger life-disrupting and liberty-threatening interventions.
Beyond the individual injustices, these policies may deter drug-using women from seeking medical care, which surely is not in the interest of the children whom officials claim to be protecting or the mothers they claim to be helping. The threat of criminal penalties might even tip the scale in favor of abortion, the option that Moore rejected years before she discovered that decision could send her to prison.
Gilliam thinks the demise of Roe v. Wade has encouraged prosecutors to pursue such cases. "Some local prosecutors across the nation have been charging women in these scenarios for years," Wolfe notes. "But no year saw more of these criminal charges than the year following the U.S. Supreme Court opinion overturning Roe."
After Kilgore saw the error of his ways, he dropped the case against Moore, who has mixed feelings about that result. "When she learned of the dismissal, Moore broke down in tears of relief," Wolfe writes. "But she said she was also almost sad about the conclusion—that she would have no public trial to challenge how the [district attorney] is criminalizing pregnant women in her community. Maybe a trial would have helped others, possibly changed some laws, she thought. That's what she hopes telling her story might do, especially for the mothers currently incarcerated."
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