Michele Bratcher Goodwin, "Reproductive Carrots and Sticks"
(page 5 of 9)

Part II: Race, Class and the Illusory Concept of Drug Choice

Studying the choices that pregnant women make, including their drug use, can better assist legislators in crafting good public policy. For example, poor women, especially those who lack medical insurance, do not have access to prescription medication to address depression, anxiety, and other mental health issues. To this class of women, self-medication may seem like the only available option to treat depression and anxiety.[27] The drugs that they consume can be obtained without insurance, are easily accessible, and cheap.[28] For some women, that will mean buying easily available illegal drugs that are sold illegally. Thus, drug choice is an illusory concept. If given the option between treating their addictions with affordable, legal medications, dispensed by physicians, and buying crack on the streets from dangerous drug dealers, pregnant women would likely choose the former option.

However, physicians are sometimes complicit in prosecutorial regimes against pregnant women, and race is sometimes a factor. In Charleston, South Carolina, for example, the collaboration between local police, prosecutors, and the medical staff at the MUSC resulted in the planning and implementation of a covert "Search and Arrest" policy. This policy targeted some women and not others.[29] The secretive plan required doctors and nurses to search pregnant women for evidence of cocaine or crack use.[30] Using public service announcements and advertisements, MUSC staff and local law enforcement encouraged drug-dependent women into the hospital, urging pregnant women to help their developing fetuses by receiving free prenatal services. At first glance, using PSAs to encourage women to seek free prenatal screening seems more carrot than stick.

However, upon hospital staff identifying those with "dirty" urine tests, nurses quickly provided that information to local police and prosecutors.[31] In the process however, doctors and nurses trampled an undiminished expectation of privacy, undermined the physician-patient relationship, and disregarded the search and seizure requirements of the Fourth Amendment. That the policy was only implemented at MUSC, the single hospital in Charleston with a predominantly African American and low-income population, gives some indication that the locus was purposeful and those caught in the dragnet were the intended population.[32]

The "Search and Arrest" policy did however accomplish one goal: it allowed the state, without warrants or probable cause, to conduct nonconsensual searches of pregnant women who sought prenatal care. But the policy did not improve pregnancy outcomes, reduce cocaine use, or increase the number of women successfully completing drug treatment programs as none were offered.[33]

On the other hand, recent studies indicate that net worth influences health outcomes and sheds light on drug and alcohol abuse among whites.[34] These studies could dispel the notion that poor blacks comprise the more significant population of drug users of in the United States.[35] For example, among adults, studies indicate that "annual and current alcohol prevalences generally are highest among whites, at an intermediate level among Hispanics, and lowest among Blacks."[36] Another study conducted in Baltimore indicates that among women with twelve or more years of education, white women are more likely than their black counterparts to be heavy alcohol users.[37] That data, combined with studies from the National Institute on Drug Abuse (NIDA), reveals that white women are more likely to smoke and abuse alcohol during pregnancies.[38] The NIDA study also shed some preliminary light on drug use among racial groups. For the year of the study, the NIDA survey found that an estimated 113,000 white women compared to 75,000 African American women had used illicit drugs during pregnancy.[39] Yet, as one study found, black women are ten times more likely to be reported to a child welfare agency for drug use than white women.[40] This and similar studies indicate that race and wealth continue to influence our normative understandings of mothering and shape our notions of who qualifies as an appropriate mother.

What does this data tell us about the ways in which state resources are utilized to respond to drug dependency among women and social policy commitments to helping fetuses? There are a few possibilities. On one hand, we could read policies that primarily focus on illicit drug use as an effort to save poor and black babies. Viewed through this lens, we could imagine that reproductive policing is an ex ante screening device designed to predict the potential for later child neglect or abuse. Or reproductive policing could be seen as an economic alternative to rehabilitation. Essentially, the state has made a calculated decision that, despite less efficiency, it is better to incarcerate rather than rehabilitate poor, drug-dependent women. Another possibility is that, despite medical studies warning against incarcerating drug-dependent women, legislators have concluded that institutionalization of pregnant women produces a deterrent effect. Unpacked further, it is possible that legislators believe better prenatal resources are available to black women in prison than through state-funded hospitals. But such readings of current drug law policies are irrational.

On the other hand, it is possible to conclude that such policies are not effective, in that arrests occur primarily among poor African Americans, despite compelling evidence that wealthier women engage in substance use during pregnancies, but are not targeted by the state. A revised approach, one that polices a broader spectrum of behaviors that relate to harming fetuses, would likely result in the punishment of more pregnant women, particularly white women. Yet, that approach would be rationally related to the state's purported goals. Rather than shielding political elites within a community from the rules that ensnare poor women, such an approach might better equalize or promote democracy within the context of reproductive policing.

But there is something problematic in a broad, unrestrained approach to addressing maternal drug use. While FDLs reveal hostility toward the privacy interests of poor, usually minority, drug-dependent women, they are an imperfect proxy for achieving social welfare among any group of women. How much better off is a baby that is born in prison, or a toddler that grows up with a mother in prison? Has the state reduced the potential for long-term harm to the child or given greater value to the child's life by imprisoning its mother? Legislators should want to know whether the unintended consequences of this type of reproductive regulation exacerbates rather than reduces harms to children.[41] The evidence suggests that children do not benefit from parental incarceration; children of incarcerated parents are six times more likely to "go to prison."[42]

Thus, a clear distinction must be made. FDLs do not promote life. Nor do FDLs guarantee children a better quality of life. Clarification of the state's goal is an important step in realizing what the law is designed to do as well as what it cannot (ever) accomplish.

If reproductive policing is arbitrary, and disproportionate in enforcement, why have some in the medical community become complicit in its practice? One answer might be the repugnance factor. By this, I mean to suggest that pregnancies are perceived as more communal than private (despite the fact that sex and family-raising are considered private).[43] And, as a communal space, individuals, including doctors and nurses, feel more entitled to comment, critique, and even evaluate the pregnancy. Recent reports published in the American Journal of Obstetrics the Journal of Nurse and Midwifery explain that doctors and nurses are more critical of pregnant women's conduct.[44] In part, the heightened awareness of and attention to behavior during pregnancy might be explained by contempt for pregnant women who breach social and medical expectations. It also might be explained by fear. Physicians and nurses act out of the concern for fetuses and frame the unborn as "innocent" and pregnant drug addicts as "blameworthy." The moral authority against drug-dependent women is heightened in these situations as the "victim" is an "innocent" fetus.

Clearly, for some doctors, the legal status of the fetus is not only elevated to that of the mother, it enjoys greater respect, generosity, and consideration. One author recently suggested that "[t]here can be no 'rule of law' if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings."[45] That women and their fetuses are bound should not be understood to make the lines concerning their behavior brighter and clearer. Rather, the boundedness of women and their fetuses demonstrates the legal complications of disentangling fetal rights from the women who carry them. Taken to its logical conclusion, a woman could be subject to criminal penalties for failure to provide adequate water, nourishment, or a healthy environment to a developing fetus or for attempting to save her life at a risk to the fetus.

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