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

Other normative problems are raised by the way in which reproduction policing occurs in the United States. Chief among these implications is the distributional unevenness in prosecutions among racial groups. These impacts are unintended, but nevertheless real. For example, black women are more likely to be overrepresented in the prosecution of fetal abusers. As a matter of social policy, such an outcome is one that should be avoided. First among the reasons to avoid the overrepresentation and over-identification of black women as fetal abusers is that black women are more likely to be reported for illicit drug use, but according to the Centers for Disease Control, black women are actually less likely than white women to use illicit drugs like alcohol and cigarettes during pregnancies.[69] Over-policing black women's reproduction will likely have other unintended social consequences, including fostering the perception that black women are less caring mothers, and are more likely to abuse drugs than white women.

Highlighting the race pitfalls of FDL prosecutions brings to light other problems, especially the faulty science that prosecutors rely upon. Prosecutors make scientifically inaccurate claims with FDLs, suggesting a pregnant woman's drug addiction is what causes miscarriages and stillbirths. The emotional power of that type of rhetoric can be persuasive, but incomplete. For example, black women experience higher rates of stillbirths absent any drug use. A 2003 study conducted by the Centers for Disease Control found that between 1990 and 2003 fetal mortality was on the decline, however the fetal mortality rate for black women persisted and was double that experienced by white women.[70] Therefore, a black drug addict's miscarriage could be a false positive for fetal death with a drug related cause. Dr. Marian MacDorman, the study's lead author, reminds us that science is inconclusive about what causes fetal mortality.[71] However, contributing factors can be smoking, maternal obesity, high blood pressure, hypertension, and diabetes.[72] But are we to police these behaviors and health conditions too?

More importantly, the racial disparities resulting from fetal harm policing will result in a new social class: black children being raised in foster care with mothers in prison. The problem with fostering this type of social condition extends beyond the immediate families involved. This issue implicates state resources, as the consequences are not limited to social stigma, but rather, as data suggests, that children of incarcerated mothers are more likely to drop out of school and enter the criminal justice system.[73] In a report produced by the California Research Bureau, Dr. Charlene Simmons warns that "the impact of a mother's arrest and incarceration on a family is often more disruptive than that of a father's arrest and incarceration ... because approximately two-thirds of incarcerated mothers were the primary caregivers for at least one child before they were arrested."[74] An estimated 856,000 children in California have at least one parent in jail.[75] About 80% of women in prison in California have at least two children.[76]

This essay describes some of the legislative and social pitfalls resulting from using sticks rather than carrots to address maternal-fetal health harms. This essay critiques whether FDLs achieve their goals, and whether those goals might be accomplished by less punitive approaches, such as the use of carrots: rehabilitation, counseling, and empathy, to deter illicit drug use among women. Ultimately, FDLs hold women to a different standard than men. And, within the gendered space, FDLs often place poor women at an even more vulnerable status. Because of these outcomes, the stick (criminal) approach to regulating women's pregnancies lacks political rationality and leads to unjustifiable externalities in a civil society, and extra-legal punishments resulting in stigmatization, shame, humiliation, and stereotyping.

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Marginality and Exclusivity in ART Practices - Podcast Description
David Eng, Rayna Rapp, Faye Ginsburg and Michele Goodwin discuss "Marginality and Exclusivity in ART Practices" in this panel discussion moderated by Lesley Sharp. Increased demand for assisted reproductive technology (ART) and transnational adoption has been propelled by a number of factors, including the development of new technologies and changes in familial form - such as childrearing in second or third marriages; lesbian, gay, and transgendered families; and delays in childbearing and subsequent difficulties in conception - that make ART helpful. Other relevant factors include environmental changes that have negatively affected fertility levels, new levels of transnational migration and interaction that have fueled awareness of babies available for and in need of adoption, and concerns about genetic diseases and disabilities. Effectively, the various imperatives and the desires, both cultural and personal, that the use of ART fosters and responds to, have created a "baby business" that is largely unregulated and that raises a number of important social and ethical questions. Do these new technologies place women and children at risk? How should we respond ethically to the ability of these technologies to test for genetic illnesses? And how can we ensure that marginalized individuals, for example, people with disabilities, women of color, and low-income women, have equal access to these new technologies and adoption practices? And, similarly, how do we ensure that transnational surrogacy and adoption practices are not exploitative? These questions and many others on the global social, economic and political repercussions of these new forms of reproduction were the focus of this year's Scholar and Feminist Conference, "The Politics of Reproduction: New Technologies of Life," which took place on February 28, 2009 at Barnard College.

Endnotes

1. This essay is a shortened reflection from an earlier work, "Prosecuting The Womb," published by the George Washington Law Review. That project was presented at Barnard College in 2009, and inspired considerable conversation. Part of that conversation continues in this essay and the comments provided by my esteemed colleagues in this special issue. See Michele Goodwin, "Prosecuting the Womb," George Washington Law Review 76 (2008): 1657. [Return to text]

2. Wendy Chavkin, "Cocaine and Pregnancy—Time to Look at The Evidence," JAMA 285 (2001): 1626. [Return to text]

3. Deborah A. Frank et al., "Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review," JAMA 285 (2001): 1613. [Return to text]

4. See for example:, Andrew J. Wyrobek et al., "Advancing Age Has Differential Effects on DNA Damage, Chromatin Integrity, Gene Mutations, and Aneuploidies in Sperm," (PDF) Proceedings of the National Academy of Sciences 103.25 (2006): 9601. [Return to text]

5. Bekah Porter, "Dubuquer Gives Birth In Cell Alone," The Telegraph Herald 15 May 2009. [Return to text]

6. Ambrett Spencer, quoted in John Dickerson, "Arpaio's Jail Staff Cost Ambrett Spencer Her Baby, and She's Not the Only One," Phoenix New Times 30 October 2008. [Return to text]

7. Margaret Paulson and Anthony Decker, "Health Care Disparities in Pain Management,"Journal of the American Osteopathic Association 15.6 (2005). [Return to text]

8. See Dickerson, John. [Return to text]

9. Lynn Paltrow, "South Carolina: First in the Nation for Arresting African-American Pregnant Women—Last in the Nation for Funding Drug and Alcohol Treatment," National Advocates for Pregnant Women Briefing Paper (2003). [Return to text]

10. Ibid; Renae D. Duncan et al., "Childhood Physical Assault as a Risk Factor for PTSD, Depression, and Substance Abuse: Findings from a National Survey," American Journal of Orthopsychiatry 66 (1996): 437, 443; Sana Loue, "Legal and Epidemiological Aspects of Child Maltreatment: Toward an Integrated Approach," Journal of Legal Medicine 19 (1998): 471, 475-6. [Return to text]

11. Paltrow, Lynn. [Return to text]

12. Ibid. [Return to text]

13. Ibid. [Return to text]

14. Ibid. [Return to text]

15. Ibid. [Return to text]

16. Goodwin, Michelle. [Return to text]

17. See Joel F. Handler, "Constructing the Political Spectacle: The Interpretation of Entitlements, Legalization, and Obligations in Social Welfare History," Brooklyn Law Review 56 (1990): 899, 929-31; Michel Foucault, Discipline and Punish (New York: Vintage Books, 1977): 30-31, which suggests public punishment serves multiple purposes, including the creation of spectacle, shaming, and the assertion and demonstration of power. [Return to text]

18. See Drug Policy Alliance, "Race and the Drug War." [Return to text]

19. In other words, the correlation between fetal death among racial minorities where drug use has been present versus when it has not is understudied. [Return to text]

20. John M. Wallace, Jr., "The Social Ecology of Addiction: Race, Risk, and Resilience," Pediatrics 103 (1990): 1122. [Return to text]

21. Hallam Hurt et al., "Cocaine-exposed Children: Follow-up Through 30 Months," Journal of Developmental and Behavioral Pediatrics 16 (1999): 29. [Return to text]

22. Humberto Fernandez, Heroin (Center City, MN: Hazelden, 1998): 16; see also Julian Durlacher, Heroin: Its History And Lore (London: Carlton Books, 2000): 8. [Return to text]

23. Ibid. Interestingly, 60% of the heroin related arrests in Portland, Oregon were of Chinese. [Return to text]

24. Fernandez, Humberto. [Return to text]

25. John Witherspoon, "Oration on Medicine: A Protest Against Some of the Evils in the Profession of Medicine," Journal of the American Medical Association 34 (1900): 1591; See also, Hamilton Wright, "Report on the International Opium Commission and on the Opium Problem as Seen Within the United States and its Possessions," Senate Document No. 61-377 (1910): 45. For Wright, the opium drug czar of the 1910s, "[o]ne of the most unfortunate phases of the habit of opium smoking in this country [was] the large number of women who have become involved and were living as common-law wives of or cohabiting with Chinese in the Chinatowns of our various cities." As antimiscegenation laws and social customs, focused on preventing whites from cavorting with blacks and other persons of color, were strictly enforced in the United States until Loving v. Virginia, we can assume that Wright was not concerned about the common law relationships between black women and Chinese men, but instead was referring to white women. Comments like Wright's were often used to incite racial animus, and in this case, against the Chinese. [Return to text]

26. Drug policies at that time did not penalize wealthier mothers for abusing drugs, nor were these women depicted as neglectful, uncaring, or irresponsible toward their children. [Return to text]

27. Beth Glover Reed, "Developing Women-sensitive Drug Dependent Treatment Services: Why So Difficult?" Journal of Psychoactive Drugs 19 (1987): 151, 153. [Return to text]

28. Lise Anglin, "Self-Identified Correlates of Problem Alcohol and Drug Use with Comparisons Between Substances," International Journal of Addictions 29 (1994): 285, 287; Ruth E. Davis et al., "Trauma and Addiction Experiences of African American Women," Western Journal of Nursing Research 19 (1997): 442, explicating the overlooked causes of drug dependency among poor black women. [Return to text]

29. See Ferguson v. City of Charleston, 532 U.S. 67 (2001): 70-73, describing MUSC's drug-screening program for pregnant women suspected of using cocaine. [Return to text]

30. Ibid. [Return to text]

31. Ibid, 84-85. [Return to text]

32. This is exemplified by "Project Export," a joint research endeavor between MUSC and SCSU documenting the racial and economic disparities within South Carolina in general and within the I-95 corridor in particular. See Project Export Homepage and Reports. [Return to text]

33. See The Center for Reproductive Rights, "Ferguson v. City of Charleston: A Case Study." [Return to text]

34. Craig Evan Pollack et al., "Should Health Studies Measure Wealth?: A Systematic Review," American Journal of Preventive Medicine 33 (2007): 250. [Return to text]

35. See U.S. Department of Health and Human Services, Office of Applied Studies, "2001 National Household Survey on Drug Abuse: Volume I. Summary of National Findings." [Return to text]

36. See John Wallace; See also National Institute on Drug Abuse, "Drug Use Among Racial/Ethnic Minorities," (PDF) National Institute on Drug Abuse 34 (1995); Denise Kandel et al., "Prevalence and Demographic Correlates of Symptoms of Last Year Dependence on Alcohol, Nicotine, Marijuana and Cocaine in the U.S. Population," Drug and Alcohol Dependence 11.44 (1997): 24, stating that "[a]mong those who smoked [cigarettes] in the last year, blacks and Hispanics are significantly less likely than whites to be dependent, [while] among those who used cocaine/crack within the last year, blacks are more likely than any other group to be dependent."; Stephanie J. Ventura et al., "Trends and Variations in Smoking During Pregnancy and Low Birth Weight: Evidence From the Birth Certificate," Pediatrics 111 (2003): 1176. [Return to text]

37. M. Lillie-Blanton et al., "Black-White Differences In Alcohol Use by Women: Baltimore Survey Findings," Public Health Reports 106 (1991): 124-33. [Return to text]

38. Robert Mathias, "NIDA Survey Provides First National Data on Drug Use During Pregnancy," National Institute on Drug Abuse. [Return to text]

39. Ibid. [Return to text]

40. Ira J. Chasnoff et al., "The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," The New England Journal of Medicine 322 (1990): 1202. [Return to text]

41. The "Mentoring Children With Parents In Prison" reports that children with parents in prison are more likely to have behavioral problems. The children are more likely to experience depression, drop out of school and engage in the type of behavior that leads to juvenile incarceration. See: Tim Pratt, "Mentors Give Children Some Extra Attention," The Evening 10 June 2007; "Big Brothers Big Sisters/Amachi Texas and the Library of Congress Partner to Add Literacy Component to Mentoring Program for Children of Incarcerated Parents," Amachi Texas 18 September 2007; Julia Crouse, "Initiative Seeking to Keep Inmates, Children Together," Herald-Sun 16 January 2008. [Return to text]

42. Ibid. [Return to text]

43. Narrative and anecdotal accounts of unwanted touching during pregnancy are well represented in the media. See Baby Gaga, discussing belly touching. According to one blogger, "I hated when strangers would come up and touch my belly out of the blue. Just walk up and touching me would freak me out;" Touching The Pregnant Belly at PregnancyEtc.Com; Melissa Leonard, Don't Touch My Belly!, PregnancyAndBaby.Com; Candace Murphy, "The Unsolicited Belly Pat That Comes With Being Pregnant," The Oakland Tribune 12 August 2007. [Return to text]

44. See Theresa M. Stephany, "The Pregnant Addict: Treat or Prosecute?," Journal of Nurse-Midwifery 44: 154, commenting that "it is not uncommon to hear dismay or disgust expressed toward women who use drugs or alcohol while pregnant;" William A. Ramirez-Cacho, et al., "Medical Students' Attitudes Toward Pregnant Women with Substance Use Disorders," American Journal of Obstetrics and Gynecology 196 (2007): 86-87. [Return to text]

45. Charles I. Lugosi, "Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence," Issues in Law and Medicine 22 (200&): 119-120. [Return to text]

46. Cathy McKitrick, "House Oks Bill To Criminalize Intentional Miscarriages," St. Lake Tribune 29 January 2010. [Return to text]

47. According to researcher Carolyn Carter, "[u]ncomfortable relationships with health care providers and fear of reprisal on the part of pregnant women who are addicted make women four times less likely to receive adequate care thereby creating health risks for women who are addicted, their unborn fetuses, and their other children." Carolyn Carter, "Prenatal Care For Women Who Are Addicted: Implications For Empowerment," Health and Social Work 27 (2002): 166-67. [Return to text]

48. For example, in 1999, Lynn Paltrow expressed concern that prosecutors were disproportionately targeting low-income women of color for cocaine use during pregnancy, although minority women are not the only drug users and prenatal cocaine exposure arguably poses lower risks to the fetus than maternal alcohol and nicotine use. Lynn M. Paltrow, "Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade," Albany Law Review 62 (1999): 999, 1002-5. [Return to text]

49. Stephen G. Grant, "Qualitatively and Quantitatively Similar Effects of Active and Passive Maternal Tobacco Smoke Exposure On In Utero Mutagenesis At The HPRT Locus," BMC Pediatrics 5 (2005): 20. [Return to text]

50. Ibid. [Return to text]

51. See, for example: Michelle Oberman, "Mothers and Doctors' Orders: Unmasking the Doctor's Fiduciary Role in Maternal-Fetal Conflicts," Northwestern University Law Review 94 (2000): 451; Joseph M. Healey, Jr. and Kara L. Dowling, "Controlling Conflicts of Interest in the Doctor-Patient Relationship: Lessons from Moore v. Regents of the University of California," Mercer Law Review 42 (1991): 989. [Return to text]

52. See, for example: Travis A. Fritsch and John D. Burkhead, "Behavioral Reactions of Children to Parental Absence Due to Imprisonment," Family Relations 30 (1981): 83, 87. [Return to text]

53. See Nutrition Data, 211 Foods Highest in Caffeine, listing lemon-lime soda as the thirty-seventh most caffeinated food. [Return to text]

54. See Paul Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court and Buck v. Bell (Baltimore, MD: The Johns Hopkins University Press, 2008). [Return to text]

55. Virginia Sterilization Act, 1924 Va. Acts 569, quoted in Buck v. Bell, 130 S.E. n.1 (1925): 516-17. [Return to text]

56. Buck v. Bell, 274 U.S. (1927): 200, 207. [Return to text]

57. Ibid. [Return to text]

58. See James B. O'Hara and T. Howland Sanks, "Eugenic Sterilization," Georgetown Law Journal 45 (1956): 20, 22; Rickie Solinger, Pregnancy and Power: A Short History of Reproductive Politics in America (New York: New York University Press, 2005); Angela Y. Davis, Women, Race and Class (New York: First Vintage Books, 1981); see also The Lynchburg Story (Worldview Pictures, 1993), a documentary that interviews inmates from the Virginia Penal Colony where Carrie was sterilized and institutionalized. [Return to text]

59. See Lombardo, Paul. [Return to text]

60. L. George et al., "Environmental Tobacco Smoke and Risk of Spontaneous Abortion," Epidemiology 17 (2006): 500; David Derbyshire, "Smoking Kills Up To 5,000 Foetuses A Year," Daily Telegraph Online 2 December 2004; Zosia Kmietowicz, "Smoking is Causing Impotence, Miscarriages, and Infertility," British Medical Journal 328 (2004): 7436; Outi Hovatta et al. "Causes of Stillbirth: A Clinicopathological Study of 243 Patients,"BJOG 90 (1983): 691. [Return to text]

61. Leslie A. Morland, "Intimate Partner Violence and Miscarriage," Interpersonal Violence 23 (2008): 652. [Return to text]

62. New York State Office of Public Health, "Love Canal, Public Health Time Bomb: A Special Report to the Governor and Legislature," (NYS Office of Public Health, 1978): 14; See also, "History of Love Canal Waste Controversy," New York Times 21 May 1980; Ingrid Gerhard et al., "Chlorinated Hydrocarbons in Women With Repeated Miscarriages," Environmental Health Perspectives 106 (1998): 675; Kathleen S. Hruska et al., "Environmental Factors in Infertility," Clinical Obstetrics and Gynecology 43 (2000): 821; V.H. Borja-Aburto et al., "Blood Lead Levels Measured Prospectively and Risk of Spontaneous Abortion," American Journal of Epidemiology 150 (1999): 590. [Return to text]

63. The exact causes of stillbirth are not known, however, see: Jess F. Kraus et al., "Risk Factors for Sudden Infant Death Syndrome in the U.S. Collaborative Perinatal Project," International Journal of Epidemiology 18 (1989): 113; The compounding effect is not specifically discussed but has been alluded to in many of the smoking studies: De-Kun Li and Janet R. Daling, "Maternal Smoking, Low Birth Weight and Ethnicity in Relation to Sudden Infant Death Syndrome," American Journal of Epidemiology 134 (1991): 958. [Return to text]

64. Paltrow, "Pregnant Drug Users;" See also, for example, Kathleen R. Sandy, "The Discrimination Inherent in America's Drug War: Hidden Racism Revealed by Examining the Hysteria Over Crack," Albany Law Review 54 (2003): 665; Dorothy E. Roberts, "Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy," Harvard Law Review 104 (1991): 1419; Guido Calabresi, "Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores)," Harvard Law Review 105 (1991): 80, 85. [Return to text]

65. Paltrow, "Pregnant Drug Users." [Return to text]

66. Ibid, 1020. [Return to text]

67. See Chasnoff, Ira. [Return to text]

68. Ibid, 1204. [Return to text]

69. Robert Mathias, "NIDA Survey Provides First National Data on Drug Use During Pregnancy," National Institute on Drug Abuse. [Return to text]

70. Centers for Disease Control, "New Study Shows Decline in Still Births; Racial Disparities Persist," Center for Disease Control (2007). [Return to text]

71. Ibid. [Return to text]

72. Ibid. [Return to text]

73. Charlene Wear Simmons, "Children of Incarcerated Parents," (PDF) California Research Bureau 73 (2000): 1. According to Dr. Wear Simmons, children whose parents have been arrested and incarcerated face unique difficulties. Many have experienced the trauma of sudden separation from their sole caregiver, and most are vulnerable to feelings of fear, anxiety, anger, sadness, depression and guilt. They may be moved from caretaker to caretaker. The behavioral consequences can be severe, absent positive intervention—emotional withdrawal, failure in school, delinquency, and risk of intergenerational incarceration. [Return to text]

74. Ibid, 4. [Return to text]

75. Ibid, 2: Stating that approximately 195,000 children currently have a parent in state prison. [Return to text]

76. Ibid. [Return to text]

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