“Tim Jr would be six years old [today],” she wrote, “and not a day goes by I don’t think of him. While I was out we keep his grave decorated and kept up, my husband and family do while I’m here.”
That Kimbrough – Alabama offender 287089, as the state branded her – should be thinking of her son on the anniversary of his death needs no explanation. But the poignancy of the letter is heightened by the knowledge that it was because of Timmy’s stillbirth at 25 weeks that she was locked up in the first place.
Kimbrough was prosecuted for the “chemical endangerment” of her fetus relating to her on-off struggle with drug addiction. The case was pursued so forcefully by the state of Alabama that she was charged with a class A felony – equivalent to murder – and taken all the way to trial, in what is thought to be the only full trial hearing of its sort in the country.
Later, the profound legal issues raised by the case would rise up through appeals all the way to the Alabama supreme court, the highest judicial panel in the state, where it would set a new precedent. In effect, it renders all pregnant women vulnerable to prosecution for any harm they might cause their fetus at any time after the moment of conception.
At her trial, Kimbrough was warned that if she was found guilty, she would face a mandatory sentence of 10 years to life in prison. In the end, though, she felt the deck was too stacked against her to take that risk.
When her trial lawyer asked the court to be allowed to call an expert medical witness to testify that Kimbrough’s drug problems were not responsible for her son’s stillbirth, the request was denied. So she pleaded guilty and was sentenced to 10 years.
Kimbrough was released from Tutwiler, an institution that the federal government has castigated for being rife with abuse of prisoners, earlier this month. She had spent more than three years in prison.
Over the past two years of her sentence, Kimbrough has engaged in a dialogue with the Guardian, exchanging letters from her prison cell. In the letters, she discusses in moving detail her son’s death, her thoughts about Alabama’s decision to prosecute her, and the impact of her imprisonment on her remaining three daughters.
In the letter written last year on the anniversary of Timmy’s death, Kimbrough revealed one of the great ironies in her case – she is herself firmly opposed to abortion. “I am against abortion, I was going to keep my baby no matter what … It’s my baby. I’d do any and everything I could for my kids,” she said.
In an earlier letter to the Guardian, written from Tutwiler in February 2014, she spelled out what occurred. Early in her pregnancy, she said, she had been tested for Down’s Syndrome and was advised by doctors to travel to Birmingham, Alabama for an abortion at 20 weeks. “I refused,” she wrote bluntly.
Five weeks later, she began having difficulties with her pregnancy. She knew she was high risk in any case – her first two children, Kimberly “Nicole”, now 16 and Kailey, 13, had both been born prematurely at seven and eight months respectively.
At 25 weeks and five days into her third pregnancy, Kimbrough went into labor. She rushed into the hospital and was given an emergency Caesarian. “I never heard my son cry and I panicked, asking why,” she said.
Timmy Wayne Kimbrough was not breathing when he was born, and his body was blue. “I got to hold my son. He was big for his size at 21 weeks he weighed 2 lbs 1 ounce, 12 ins long. It’s the worst thing I’ve ever been through,” she wrote.
After the stillbirth, Kimbrough’s obstetrician diagnosed “occult cord prolapse” – the umbilical cord had descended through the birth canal ahead of the fetus, cutting off blood flow. Yet the authorities chose to ignore that finding, focusing instead on another detail that emerged after the death – that a urine sample taken from Kimbrough had shown traces of the drug methamphetamine.
At that point, the cogs of Alabama’s justice system began to turn. In 2006, state legislators passed a “chemical endangerment” law. It was initially conceived as a way to protect young children exposed to noxious fumes or explosions when their parents ran improvised meth labs from their kitchens.
But soon after the law was enacted, state prosecutors began applying it in a way that had never been intended – against pregnant women. The investigative website ProPublica and AL.com have calculated that since 2006 at least 479 pregnant women have been prosecuted for “chemical endangerment” of their fetuses, most commonly for smoking marijuana.
One of those 479 was Amanda Kimbrough. In September 2008 she was charged with the chemical endangerment of a child with a bond set at half a million dollars. The indictment said that she “did knowingly, recklessly, or intentionally cause or permit a child, Timmy Wayne Kimbrough, to be exposed to, to ingest or inhale, or to have contact with a controlled substance, to wit: methamphetamine”.
Kimbrough, who declined to be interviewed by the Guardian following her release from prison, is an example of a trend that in recent years has swept across not just Alabama but several other states from Tennessee and South Carolina to Wisconsin. Hundreds of women have been prosecuted –some for murder – for harms allegedly inflicted on their fetuses, even though in many cases their pregnancies have ended with the birth of healthy babies.
Lynn Paltrow, an authority on the subject who is executive director of National Advocates for Pregnant Women, says that the spread of aggressive new tactics by prosecutors across several states has led to the effective criminalization of pregnancy in the US. “States are saying that they know what is best for fertilized eggs, and because they know best they can tell a pregnant women that she’s a criminal and that she must do whatever her doctor – or a social worker, or law enforcement officer, or lawyer appointed to represent her fetus – says.”
In 2013, Paltrow’s organization compiled a peer-reviewed study that documented more than 400 arrests or equivalent actions depriving pregnant women of their physical liberty between 1973, when Roe v Wade legalized abortion, and 2005. In the 10 years since 2005, the group has identified a further 800 cases and Paltrow said she believes the true figure is significantly higher.
A ‘personhood’ agenda
Kimbrough’s prosecution has not only had devastating consequences for her personally, it has also set a precedent that will affect countless other women following her. Two years ago, her case rose all the way to the supreme court of Alabama, the highest judicial panel in the state.
The judges ruled that the word “child” in the chemical endangerment law could be applied equally to unborn fetuses. To the astonishment of experts in reproductive health, the court went further and said that the law did not have to be restricted to viable fetuses – the standard set for abortion in Roe v Wade – but could in effect be used to prosecute pregnant women from the moment of conception.
Brian White, Kimbrough’s attorney, said that in his view her prosecution was a “backdoor way to promote the ‘personhood’ agenda - the idea that at any time after conception the fetus should be considered a person with full legal rights”.
Lynn Paltrow said that the impact of such a “personhood” approach was that an entire system of separate and unequal laws had been created for pregnant women.
“They say this protects unborn fertilized eggs, embryos and fetuses which have as much right to state protection as children. But there is no way to recognize the separate rights for fetuses without removing women from the protection of the federal constitution.”
She went on: “It creates a burden on all fertile women – because once there is a fertilized egg something they did yesterday that wasn’t a crime could be a crime today. So if they are taking painkillers for a painful back, they are now guilty of a crime.”
Medical and other authorities including the American College of Obstetricians and Gynecologists have spoken out vociferously against the proliferating laws criminalizing pregnancy. They warn that such a penal approach could frighten women away from seeking prenatal care which in turn could put both them and their fetuses in danger.
Threatening addicts with imprisonment can also be counterproductive, dissuading them from going to rehab and steering them away from safe medical treatment for their babies, who may themselves be addicted in the womb to their mother’s drugs. And then there’s a question of where will it all end – where do you draw the line?
As Chuck Malone, then chief justice of the Alabama supreme court, put it in a dissenting opinion in the Kimbrough case , what would happen to a “woman who has conceived, but who is without knowledge that she is pregnant, and who thereafter has a glass of wine”?
‘I’ll always blame myself’
Kimbrough in her letters to the Guardian explained that she had wrestled with meth addiction for about five years after the birth of her first two children. She was adamant, however, she had been clean for about two years before she became pregnant with Timmy.
Then she momentarily let her guard down. “One day, a friend came by and had some meth. I don’t know why but I did a line,” she wrote in the letter on the anniversary of her son’s death.
Asked whether she believes the meth harmed her unborn child, she said: “Maybe, maybe not.” But she added: “I should’ve been offered help to start with.”
In the letters, Kimbrough expressed conflicting views about what had happened. She said: “I’ll always blame myself.”
But she also said that “a lot of other factors” were involved in the stillbirth, including her propensity to have premature deliveries. She also felt deeply that her remaining children – Kimberly, Kailey and Josie, who was only two when Kimbrough was arrested – had been punished by the state of Alabama for something they had nothing to do with.
In March last year, when she was about halfway through her sentence, Kimbrough wrote to the Guardian and said: “The kids are doing alright I guess. But they’re ready for me to get home to them. Of course I worry about my girls, what mother wouldn’t? We write every week, we talk on the phone, and we visit once a month for two to three hours.”
Then she said: “I think it’s wrong that I’ve been taken away from them. I think they should’ve offered me some type of drug rehab. People make mistakes in life every day. I made mine, but my children shouldn’t be punished for it.”
Her lawyer Brian White agreed. “I don’t believe that the problem of drug use by pregnant women ought to be dealt with by putting them in prison and depriving children of their mother.”
White currently has three other “chemical endangerment” cases on his client list, all involving women who were subjected to drug tests in the hospital at birth and found to have consumed marijuana. All three had given birth to healthy babies, but now face prosecution and possible criminal records that could impair their employment and other chances for the rest of their lives.
White said that it was no coincidence that women facing such charges were offered the possibility of enlisting in pre-trial intervention programs as a means to avoid conviction, but at a cost that could run into thousands of dollars. “The way I look at it, Alabama is bankrolling itself by extracting a tax on poor pregnant women.”
Since Timmy’s death Kimbrough has been free from drugs. “I never had tried drugs with any of my three girls,” she stressed, adding: “A person can change. I know I have. People (myself included) deserve a second chance to prove theirselves.”
Kimbrough took the trouble on Thanksgiving day last year to write another letter to the Guardian. “I continue to give a lot to God and just hang on,” she said. “I know I made a mistake, a fatal one I have to live with every day. I just take it one day at a time. God has a reason for everything even if I don’t know.”
guardian.co.uk © Guardian News and Media 2015