Pregnant, Addicted, and Prosecuted

When abortion is heavily restricted or outright banned, any negative pregnancy outcome, even premature birth or a birth defect, can be criminalized. A miscarriage, for example, could be interpreted as an attempted abortion and prosecuted under the existing abortion statutes. (Currently, several states have laws on the books targeting self-managed abortion.) But often a pregnancy outcome is beside the point. Johnson gave birth to two healthy infants, but she was still accused of harming them. Prosecutors can easily build cases based on their own objections to a pregnant person’s habits and behaviors so long as they raise the possibility of risk to a fetus. Those behaviors can include drinking and using drugs, but they may also include more innocuous-seeming activities, like forgetting to put on a seatbelt or missing a doctor’s appointment. Lawyers may eventually succeed in getting these cases thrown out, but entering the legal system is life-altering for their clients.

Johnson’s story doesn’t end with sentencing, incarceration, or even her release. She says she only just now is beginning to feel that she’s gotten her life back. On a Zoom call in July, she greeted me with laughter as her camera turned on, explaining that she was wearing a patterned scarf on her head because she was having a bad hair day. (“Don’t put a picture of this in your article!” she jokes.) She says she finally has the words to make sense of what she went through in the ’80s and ’90s. Before, she said, other people got to define her experience for her.

“White people had this language and would theorize the situation, but nobody asked, ‘What happened to you?’” Johnson told me. “They weren’t talking to me; they were talking about an idea.”

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In 1987, Johnson, then 21 years old, told her son’s pediatrician that she had used cocaine the night before his birth. The pediatrician tested both Johnson and her son for the euphoriant, and the results came back positive. Johnson confessed with the hope of getting help: she was honest about her drug use in the belief that someone would help her if she told the truth. But hospital staff neither reported her to authorities nor connected her to resources that might help with her recovery. She had just begun using drugs regularly, and says she could have stopped if someone had referred her to a counselor or rehabilitation center. Instead, she was sent home with a newborn and no resources to a husband who was an abusive drug dealer.

Two years later, Johnson gave birth to her daughter Jessica. After delivering the baby, a similar scenario unfolded: Johnson told her obstetrician she had used crack cocaine just as she went into labor. Both times she delivered healthy babies with no complications, and both times she thought that doctors would be more responsive to her admission, that they would take her “to a drug place or something,” she later said at her trial.

But Johnson never got the help she repeatedly asked for. When she was pregnant with Jessica, she made multiple attempts to find a treatment center that would admit her, but at the time, there were no facilities in Florida that accepted pregnant women; only a few even took women at all. She was turned away by an out-patient drug program after being told she presented too great a liability to the organization. In December 1988, just one month before she delivered Jessica, Johnson called the paramedics on herself for a drug overdose. She was taken to the emergency room, where she told doctors that she was using crack and feared for the effects on the fetus she was carrying. She was admitted to the hospital for observation, according to court documents, but quickly released.

Ironically, it was Johnson’s persistence in seeking help that provided Jeff Deen, an aggressive Florida state prosecutor, with more fodder for his case against her. In 1989, Deen decided to make an example out of mothers who used drugs while pregnant and went looking for cases to prosecute. In his search, he found documents that detailed Johnson’s positive drug tests and many admissions to smoking cocaine, and decided to press charges.

“She created a paper trail that the prosecution used against her,” Johnson’s attorney, James Sweeting, later told the Los Angeles Times. “She made a lot of statements about her addiction that came back to haunt us.”

In January 1989, still in the hospital with her newborn daughter, Johnson was investigated by Florida’s Department of Health and Rehabilitative Services, who were responding to a report filed by hospital staff. Jessica was taken from her, and Johnson left the hospital alone. (By that point, overwhelmed by the demands of parenting while struggling with addiction, Johnson had sent her other children to live with a relative.) About two months later, Johnson was arrested by authorities from the county sheriff’s office, and charged with child abuse as well as two counts of “delivery of a controlled substance to a person under the age of eighteen.”

In a state court, prosecutors argued that Johnson had “delivered” the cocaine to her infant children in the 30 to 90 seconds immediately following their births via blood circulation before the umbilical cords had been severed. There was no hard evidence for this claim: Prosecutors cobbled together a case based on testimony from doctors who discussed the way an umbilical cord circulates blood between the placenta and child during delivery and after birth, and from experts who explained details about how the body metabolizes cocaine.

“When Dr. [Sashi] Gore was asked whether a woman who had smoked cocaine at 10:00 p.m. and again between 6:00 and 7:00 a.m. the following morning and delivered a child at 1:00 p.m. that afternoon would still have cocaine or benzoylecgonine present in her bloodstream at the time of delivery, the response was yes,” Florida Supreme Court justices wrote when they ruled on Johnson’s appeal.

That argument had never been made in court prior to Johnson’s case, and it relied on a law that wasn’t intended to apply to pregnant women. The statute was designed to prosecute adults who dealt drugs to minors; the legislation outlines violations related to selling drugs within 1,000 feet of schools and parks. Nonetheless, in July 1989, Johnson became the first woman in the country to be convicted on the charge, where “delivery of drugs” occurred via umbilical cord.

When lawyers from the ACLU began advising Johnson’s lawyer, the judge who presided over the trial, O.H. Eaton, told reporters, “I cannot imagine why the ACLU feels sympathetic for mothers who transfer cocaine to their babies.” This was the common attitude at the time, stoked by misinformation about the birth defects and developmental problems that researchers connected to pregnant women’s crack use. In reality, children are more likely to be impacted by prenatal exposure to tobacco and alcohol, but these substances aren’t illegal (neither are they layered with racial biases to the extent that crack cocaine is).

Johnson was sentenced to one year of house arrest and 14 years of probation, which required her to, among other things, attend treatment, find a full-time job, and notify her probation officer of any future pregnancies. Johnson received treatment while she went through the appeals process for her case. Doors to treatment centers, she says, miraculously opened to her once she was criminalized and legally required to be admitted.

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In late June, Johnson was visiting her daughter Jessica in Tampa, Florida. While making hotdogs for her granddaughter, she held up the phone to let the 5-year-old say “hi!” to me.

Now 55, Johnson lives alone in Rochester, New York. She’s an ordained minister, and when we first spoke she was about to finish her master’s degree in criminal justice. She spends her days caring for her youngest son’s three children. Because he was the last of her five kids, he was too small to remember her struggles with substance abuse or her battles with the legal system. It had been much harder building a relationship with Jessica, Johnson says, and they’ve only recently grown close. Her June trip to Tampa was the first time they spent time together in 32 years.

Johnson’s had to establish more of a friendship with many of her children rather than the traditional parent-child bond, because she was separated from them for more than a decade. Though she never officially lost custody of them, the two of Johnson’s children who were implicated in the state’s case, Jessica and her brother, went through the foster care system and spent some time with an aunt in New York, along with two of their other siblings.

“When I used to see a mother with a baby I’d have a level of guilt,” Johnson recalls. “I’d think, ‘Why couldn’t I get seen in the light of being a good mom?’”

As Johnson herself puts it, her reproductive rights were violated when she was arrested. Like many Black women, Johnson had to fight for the simple right to have and raise her children. According to a 2012 University of California, Los Angeles Law Review article, most of the Black women who are currently incarcerated are the primary caretakers of their children. Meanwhile, one-third of children in foster care are also Black, and “most have been removed from black mothers who are their primary caretakers.” The criminal justice system and the foster care system serve to “penalize the most marginalized women in our society while blaming them for their own disadvantaged positions,” law professor Dorothy E. Roberts writes.

Johnson’s criminal trial was a case study in the prejudices of these overlapping systems. According to Eaton, the judge who convicted her, Johnson’s crime was that she “made a choice to become pregnant and to allow those pregnancies to come to term.” The prosecutor charging Johnson put it even more plainly: “When she delivered that baby [Jessica] she broke the law.” In the eyes of the legal system for a Black mother battling addiction, an abortion might have been the preferred outcome.

“When I used to see a mother with a baby I’d have a level of guilt. I’d think, ‘Why couldn’t I get seen in the light of being a good mom?’”

But if Johnson’s case is a persistent reminder of how Black mothers are criminalized, then it’s also a reminder of how little support they have, even among groups that should be sympathetic. Reproductive rights groups had only marginal involvement with Johnson or her case. Though the National Abortion Rights Action League and two chapters of the National Organization for Women signed onto an amicus brief in support of Johnson, big names like Planned Parenthood and NARAL were conspicuously silent. Spokespeople from the two national organizations were unable to provide me with any examples of advocacy work they had done around pregnancy criminalization in the past.

“I can say that mainstream pro-choice and reproductive rights groups were interested in these cases to the extent that they might have implications down the road for the right to choose abortion,” says Lynn Paltrow, who worked on Johnson’s case when she was a lawyer at the ACLU. But there was little interest at the time in expanding the movement to acknowledge its intersections with racism, the war on drugs, or “the rights of people to have children without fearing arrest,” she said.

Though reproductive rights organizations may now be more aware of the different forms pregnancy criminalization can take, there’s still little advocacy for women who find themselves in a situation like Johnson’s. Organizations like If/When/How, a legal advocacy group for reproductive rights, and civil rights nonprofit Color of Change have both launched new initiatives dedicated to helping people who have been criminalized for pregnancy outcomes. But If/When/How’s legal defense fund would not cover women in Johnson’s position—the funds are only meant for those who “did something with the intent of ending the pregnancy,” senior counsel from the organization explained.

When I asked Planned Parenthood about its plans to focus on the issue, a spokesperson suggested I talk to Paltrow instead. A NARAL spokesperson told me that it’s “critical to ask questions about what a [post-Roe] world will look like,” before also suggesting that I speak to Paltrow.

But pregnant people are being prosecuted right now, while Roe is still in effect. Johnson’s 1989 conviction led to a number of copycat prosecutors, who attempted to use the same legal strategies to criminalize young Black women. Between 2006 and 2020, the National Advocates for Pregnant Women identified 1,200 cases that involved some form of criminalization for a person’s pregnancy outcome. Some of these involved drug use, while others involved miscarriages, the mistaken belief that someone had attempted an abortion, or actual abortions.

Prosecutors typically make their case by willfully misinterpreting existing criminal statutes, using pre-Roe abortion bans that remain on the books, or arcane fetal homicide laws, which were originally passed to protect pregnant women from domestic abuse and other targeted violence. In 2014, Tennessee became the first state to pass “fetal assault” legislation, which expressly criminalized women for using drugs while pregnant; it’s estimated that several dozen women were prosecuted under it before the law lapsed two years later. A more oblique law, passed in Alabama in 2016—ostensibly designed to protect children from at-home methamphetamine labs—has been used to prosecute more than 400 women for the same thing.

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We are “wired to believe in a just society,” Paltrow said, which makes it hard for people to fathom that people in the United States can face criminal punishment for being pregnant, but a new case comes across her desk at NAPW two to three times a week.

If the Supreme Court guts Roe, that number is expected to skyrocket, since any negative pregnancy outcome could be misconstrued as an attempted abortion. And in fact any perception of harm or attempted harm at all could provide the basis of a legal argument for prosecuting a pregnant person: In a post-Roe world, the rights of the fetus would supersede those of the person carrying it (which one could argue is nonetheless already true).

Paltrow maintains that criminalizing pregnant people has been one of the more covert ways the anti-abortion camp has succeeded at chipping away at Roe, since it promotes the idea that a fetus is a person—something conservative politicians have long tried to codify in law. It is a cause of eroding abortion rights, as well as a consequence.

“If you can put someone in jail because they gave birth to a healthy baby after using a drug that causes no harm while pregnant, what do you think is going to happen when Roe is overturned?” Paltrow asks.

Because many of the cases where a pregnant person has been charged with a crime involve some form of prosecutorial overreach, the charges are often dropped, dismissed, or overturned. But even when charges and convictions are successfully challenged, it’s usually long after legal fees or jail time. Not to mention the years of reputational harm, stigma, and emotional distress.

In one of NAPW’s most well-known cases, Purvi Patel spent three years in prison for feticide—a charge stemming from the suspicion that she had self-induced an abortion—until her conviction was overturned in 2016. Patel’s legal battle became a major cause celebre for the feminist internet, and news stories warned that her case could be “just the beginning” of prosecutors targeting pregnant women. But while stories like Patel’s are alarming enough to grab the public’s attention, people seem to find it difficult to link one pregnant woman’s case to another. When Patel was arrested and sentenced, few would remember that Patel was not “just the beginning”—Johnson was.

“If you can put someone in jail because they gave birth to a healthy baby after using a drug that causes no harm while pregnant, what do you think is going to happen when Roe is overturned?”

As in Patel’s case, Johnson’s conviction was unanimously overturned in 1992, but the legal system had already changed the course of her life. She was a virtual stranger to her oldest children. “You never get over that trauma,” she says. “You don’t recover from experiences like these—you just live with the injustices.”

Those injustices have emotional as well as tangible effects on Johnson. To this day her conviction still appears on her record; the narrow confines of Florida law make it nearly impossible to get expunged. Johnson says she usually does great in job interviews up until the point at which her potential employer runs a background check, and sees the words “delivery of drugs to a minor” beside her name.

Despite what she went through, she said she doesn’t have any aspirations to reform the criminal justice system. She describes herself as “politically neutral,” and in an email she clarified that her aim is to mitigate harm for the people and help them resolve their legal battles as quickly as possible.

Johnson is still searching for a job in her field, but her main preoccupation has been mending her relationships with her children.

“My daughter was angry for a long time,” she says. “Then she had her baby and she’s a mom and she’s more loving and accepting. My son tells me, ‘Thank you for fighting your addiction.’ I’m a super good mom.”