This article is a response to Michele Bratcher Goodwin's "Reproductive Carrots and Sticks" in this issue.

By serving up "carrots and sticks" alongside fertility cocktails in her essay on artificial reproductive technologies, Michele Bratcher Goodwin examines society's two main offerings to women who use drugs and who become pregnant.[1] As Goodwin makes clear with case studies and legal analysis, policy makers and law enforcement officials too seldom pass around any incentives or rewards for seeking prenatal care and rehabilitation, opting instead to serve up plate after plate of punishment for women whose pregnancy and drug use coincide. Goodwin recognizes that the "stick effect" does not work and bemoans the fact that there are so few carrots in the form of "treatment, education, and support" for women who use drugs and who become pregnant. The answer is to discipline, not punish, and to create the incentives and conditions so that she learns to self-discipline on her own.[2] "Enacting legislative policies that help women craft healthy prenatal choices is an urgent carrot goal of which I am in favor," Goodwin concludes.

One limit to the carrot and stick approach, however, is that it implies that the individual pregnant woman is what needs to be fixed. It too easily accommodates those who see a woman's prenatal decisions and actions as the problem. From this perspective, it is the woman—not the criminal justice system or an American economy heavily reliant on the corrections industry—who needs rehabilitation. It is she—not a media that produces sensationalist and inaccurate coverage of these cases or the communities who champion such punitive attitudes toward women—who needs education.

We share Goodwin's concerns about whose reproduction is valued and the consequences of punitive measures. We would like to move the discussion beyond documenting carrots and sticks, however, to consider ways in which the legislation and court rulings she describes and the contexts in which they take place can be challenged and changed. The role that public education and feminist research can play in this is huge, even in places often deemed by academics and others as too conservative to contend with.

What does it mean when we mention, as Goodwin does in her essay, that a particular reproductive injustice took place in Kentucky or South Carolina? Too often (though not necessarily in Goodwin's case), this implication summons unexamined stereotypes: name a state presumed to be more rural than urban and it suggests backwards attitudes and practices. Mentioning a southern state or rural area inevitably calls up easily demonized and therefore under-examined dynamics of racism, poverty, and patriarchy. Such places are written off by many scholars and activists as far too entrenched in conservatism (or worse) to live there, study there, or teach there, or try to change anything, least of all reproductive injustices such as a lack of access to prenatal care and drug treatment, coerced sterilizations, tight restrictions on access to abortion, bans on fact-based and proven effective sexual education, no-procreation orders, and, as Goodwin's essay attests, punishing and prosecuting pregnant women with reinterpreted laws and judicial redefinitions of child abuse/neglect and drug trafficking.

To be sure, such reproductive injustices do not occur evenly across the United States, and "red" states see more of them. National Advocates for Pregnant Women (NAPW) has documented hundreds of known cases in at least forty states where pregnant women who are identified as drug users have been arrested.[3] Preliminary analysis provides empirical support for Goodwin's claim that the brunt of the criminal justice system's intrusions into women's pregnancies has been borne by low-income women of color. Furthermore, more than 75% of the documented cases have taken place in the South or the Midwest while fewer than 10% have taken place in the Northeast.

Regional differences in abortion access are well-documented. 87% of all counties in the country (in which about 34% of all women live) do not have an abortion provider.[4] Nearly one in ten women obtaining an abortion in the United States must travel more than 100 miles to reach an abortion provider.[5] By contrast, the number of "crisis pregnancy centers" (or CPCs) far surpasses that of abortion providers. CPCs are often designed to resemble legitimate reproductive health care clinics but in reality many are fronts that exist mainly to pressure women to continue their pregnancies to term. CPCs have a well documented history of misleading and intimidating women in order to prevent them from accessing abortion care. A 2006 study found that nearly 90% of federally funded crisis pregnancy centers provided false and misleading information about the physical and mental health effects of abortion.[6]

In addition to being at the nexus of punitive responses to drug addiction and limited access to reproductive and other health services (including drug treatment), many regions suffer the disadvantage of being under-estimated as a site for effective public education and grassroots advocacy. There has been little attention paid to how regional or local educators and activists combat punitive measures and advance the cause of reproductive justice. Although many of the major reproductive rights organizations are concentrated in New England, public education, advocacy and effective activism most certainly can and do take place outside of the liberal East and West coasts.

Consider Oklahoma.

Oklahoma has been deemed among the most conservative states, in part, because of its draconian anti-choice laws and its punitive attitudes toward women. Despite the fact that some progress has been made in reproductive services (for example, the gap between white women and the large population of Native American women living in Oklahoma who receive prenatal care has diminished in recent years), Oklahoma has very high rates of domestic violence, mandates abstinence-only education, suffers the highest rate of incarcerating women in the U.S., and is ranked third for least access to abortion.[7] In 2005, there were only six abortion providers in Oklahoma; and 96% of all counties (serving 57% of Oklahoman women) had no abortion provider. Five years later there were only three clinics offering abortion services in Oklahoma, while 42 CPCs pepper the state.

Not all young people in Oklahoma and other red states reject pro-choice or reproductive justice positions. On the contrary, often they are only exposed to anti-abortion and right-wing messages and when life circumstances, such as a desire to have sex outside of marriage or an unplanned pregnancy, place them at odds with such messaging they actively look for different perspectives but don't find them. Finding information about access to abortion is incredibly convoluted for young women in these states, even with the Internet. When women in Oklahoma can finally see their way around the ubiquitous fake crisis pregnancy centers to a proper clinic that offers comprehensive reproductive health services, receiving these services is not usually a gateway experience to political action or empowerment. Indeed, the shame and secrecy surrounding such a medically safe and legally sanctioned operation as abortion are palpable. Even distributing condoms on Oklahoma college campuses is controversial. The divorce rate in Oklahoma is far above the national average because, local knowledge attests, young men and women are taught that it is necessary to wed before having intercourse. Factors that may contribute to Oklahoma's teen birth rate being higher than the national average include the stigma of abortion and contraception, as well as sexual assault and domestic violence rates, which are more than triple the national rates in the Sooner State. STD rates are high because (again according to anecdotal reports) young people receive scare-tactic lectures that show gruesome, advanced-stage diseases and—instead of relying on regular exams that constitute routine reproductive and sexual health care—they presume that someone who looks "clean" is infection-free.[8]

Under the pressure of these punitive and shaming attitudes and scare tactics that are instituted in schools and churches, young women in red states like Oklahoma are not often encouraged to claim the basic human right to reproductive and sexual health and education. Many mainstream organizations wrongly believe that it is a waste of resources to invest in states where right-wing and fundamentalist ideologies prevail. But writers, researchers, educators, students, and activists in these states know that plenty of women, especially young women, are hungry for factual, evidence-based education and have the potential to become effective grassroots and state based leaders for reproductive justice.

Although there are incredibly strong advocates for reproductive freedom in red states, often these are older white women whose experiences of pre-Roe v. Wade days do not quite match those of younger women. Younger Oklahoma women have never known a time when pronatalist "family values" propaganda have not been paramount in white communities or when a legacy of sterilization abuse has not ravaged communities of color, especially in Native American communities. National pro-choice programs that are known for reaching out to youth have not prioritized red states; Oklahoma in particular is an especially confusing case for some national organizations that cannot decide whether it should be in their southern or midwestern districts. While pondering that question, one group rejected an Oklahoma student who applied to be part of a leadership training, derailing the young woman's search for moral support and practical education.

As our own experiences attest, however, effective collaboration for public education and grassroots organizing in red states is possible.[9] In November 2008, Oklahoma State University's Gender and Women's Studies (GWS) department and New York City-based NAPW (National Advocates for Pregnant Women) joined forces to use local, mainstream media coverage to change the public conversation about Theresa Hernandez and her case. Theresa Hernandez was arrested in 2004 and charged with first-degree murder (a crime with a potential penalty of 25 years to life) for having suffered a stillbirth. The state claimed—without any scientific basis—that the stillbirth was caused by methamphetamine use.

With the help of NAPW interns and Oklahoma City University-educated attorney Kathleen Wallace, GWS and NAPW established relationships with numerous health, treatment, and political activists in the state. They secured funding to bring experts to Oklahoma who could reassure journalists, policymakers, and medical professionals that the best way to ensure healthy Oklahoma families and babies is to provide women with proper medical care, prenatal counseling, and drug treatment if they need it—not to throw women in jail under the old assumption (now widely discredited by the medical profession) that testing positive for drug use is tantamount to harming a child in utero.[10] Treating Oklahomans' meth addiction—the state's rate of admission for meth addiction treatment jumped from 15.5 per 100,000 in 1992 to 118.8 in 2002—as a public health concern rather than an individual moral choice is essential.[11] To educate the public, NAPW and GWS joined forces with local sponsors (such as the state chapter of the American College of Obstetricians and Gynecology, the state chapter of The National Association of Social Workers, and YWCA Oklahoma City) to organize two public education forums in Oklahoma City featuring Oklahoma physicians as well as nationally recognized experts in the field.

The first forum, which took place in November 2007 at the Presbyterian Health Foundation Conference Center, and the second, occurring a year later at Integris Baptist Medical Center, helped shape and shift public opinion on the issue. The efforts changed the conversation from one about murderous and indifferent moms to one about the role that the criminal justice system can play in creating greater access to appropriate health care for pregnant women. Adamantly "pro-life" prosecutors and judges began to see that protecting "the unborn" means first protecting women from medically inaccurate presumptions about pregnancy and drug use, such as the 1980s media-induced crack baby myth that Goodwin discusses, and from those who erroneously think they are acting in the best interest of children when they break up families by incarcerating women and denying them effective rehabilitation and treatment. This public education was instrumental in helping Ms. Hernandez avoid a life sentence, negotiate a plea, and secure her release only one year after sentencing. These combined efforts also put a stop to new arrests on similar grounds and supported local leaders who are now advocating for treatment rather than punishment.

Getting Theresa Hernandez out of prison and free from a 25-year sentence for suffering a stillbirth bolstered local reproductive justice supporters incredibly. It demonstrated that you can make a difference "even" in red states like Oklahoma.

What happened in Oklahoma is not a fluke. When the arrests, detentions, and prosecutions of women have been challenged, they are nearly always found—eventually—to be without legal basis or to be unconstitutional. All but one of the country's appellate courts have dismissed charges or overturned convictions of women who used drugs or experienced an addiction and sought to continue their pregnancies to term.[12] When these prosecutions are challenged, courts have routinely ruled that a plain reading of the applicable criminal statute, and the absence of legislative intent to address the issue of drug-using pregnant women through the criminal justice system, require that the charges be dropped. Many of these courts have recognized that applying existing criminal laws (such as those prohibiting child abuse, drug delivery, and homicide) to pregnant women in relationship to the fetuses they carry raises significant constitutional issues including due process principles of notice, vagueness, and over-breadth, as well as privacy and sex discrimination. Numerous courts have also acknowledged the extraordinary consensus among medical groups condemning these prosecutions as counterproductive and dangerous. In Florida, the state supreme court overturned Jennifer Johnson's conviction for drug delivery, declaring: "The Court declines the State's invitation to walk down a path that the law, public policy, reason and common sense forbid it to tread."[13]

Of course, the work in Oklahoma is not done. As we write this essay, Oklahoman reproductive rights activists continue to protest and educate the public about these and other laws that treat women as if they are too stupid to understand the consequences of their reproductive decisions. These measures include: requiring a woman seeking an abortion to have an ultrasound within an hour of the procedure and have its findings explained to her; requiring women to fill out a lengthy questionnaire and have this information recorded on a publicly accessible state website; and banning lawsuits against doctors who withhold information that could cause a woman to seek an abortion. Oklahoma Governor Brad Henry recently vetoed a bill that would have banned insurance companies from covering abortion and requiring women to purchase separate and special abortion insurance before a pregnancy occurs, thereby separating abortion—a usually exceedingly simple operation that can eliminate many life-threatening medical problems—categorically from health care.[14]

In the struggle for reproductive justice, documenting the application of carrots and sticks, as Goodwin does so capably, is important, but it cannot be an endpoint of analysis or action. The struggle requires education, advocacy, activism, and research. Especially now. As institutions of higher education implode on the west coast and as the economic downturn depletes jobs on the east coast, the "flyover" parts of America are going to see an influx of feminist scholars. Universities and colleges in middle America have unprecedented opportunities to hire newly minted PhDs from coastal schools, which in turn may go a long way to addressing regional stereotypes. This also may tip the scales in historically conservative schools and more evenly distribute progressively minded faculty across the U.S. As feminist scholars who are working on reproductive justice issues, we need to be cognizant of this shift and its potential. Now more than ever we may have the critical mass of feminist faculty, hence the opportunity, to train students in research methods that are intersectional and interdisciplinary. Promoting well-designed empirical and qualitative research, and theorizing dynamics of power based on insights that such research yields, can dovetail significantly with local and national organizing. And our students will respond. In addition to the public education forums that made current medical and social research available to policymakers and media concerned about the Hernandez case, for example, Oklahoma students have been inspired to do their own research. A group of Oklahoma State University and University of Oklahoma undergraduates have teamed up to translate their own absurd experiences with abstinence-only sex education and CPCs into data that can be used to demonstrate their ineffectual and often deleterious consequences for young women.[15]

Public education, collaborative research, and insightful feminist theory are as crucial to the legal and moral victories that have been recently won in red states as is the mobilizing of grassroots women's health activists, women in recovery, local healthcare providers, political action committees, and state policymakers. All are needed to shift the emphasis from a punitive, criminal justice approach (the stick), to a general-welfare-promoting public health approach (the carrot) that addresses the problems of pregnancy, parenting, and drug use. This requires that punitive laws and ill-conceived prosecutions be challenged. But this shift is not the full scope of the change that needs to occur. If the criminalization and regulation of women's reproductive decisions are to be stopped, the impetus must come from the women and communities most affected by them. These communities have been poorly served by health care policies based on outdated ideas and educational models based on fear and loathing. From our experiences in Oklahoma, however, resistance from communities can be overcome by presenting them with factual, evidence-based research. It is our time to offset or counter the scare tactics, stigmatizing attitudes, and punitive policies with scholarship, public education, and outreach. Important allies and potential allies in the struggle for reproductive justice exist everywhere, "even" and especially in the red states.

Endnotes

1. We prefer to avoid the term "pregnant addicts" or "crack addicts" given that most women who use drugs—and most men, too, for that matter—are not addicted to them. Also, referring to people as "addicts" or ("the disabled" or "the elderly") encourages us to define people by one particular feature of their lives. [Return to text]

2. "Discipline and punish" is a reference to the work of Michel Foucault, who argued that the modern impetus to encourage self-discipline is no less fraught with power dynamics than is old-fashioned punishment. [Return to text]

3. National Advocates for Pregnant Women, 2010. Data file is on file with Jeanne Flavin. [Return to text]

4. Rachel K. Jones, Mia R.S. Zolna, Stanley K. Henshaw and Lawrence B. Finer, "Abortion in the United States: Incidence and Access to Services, 2005," Perspectives on Sexual and Reproductive Health 40 (2008): 6-16. [Return to text]

5. Ibid. [Return to text]

6. U.S. House of Representatives, Committee on Government Reforms - Minority Staff, "False and Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers" (PDF), July 2006. [Return to text]

7. Sources attesting to these claims include: Oklahoma Women's Almanac, Oklahoma State Department of Health, Oklahoma State Bureau of Investigation, and Oklahoma Department of Mental Health and Substance Abuse. [Return to text]

8. See Bob Darcy and Jennifer F. Paustenbaugh, Oklahoma Women's Almanac (Stillwater, OK: OPSA Press, 2006), for statistics and national rankings of Oklahoma's divorce rate, teen birth rate, and STD rates. [Return to text]

9. In addition to being faculty at Oklahoma State University (Stillwater) and Fordham University (Bronx, NY) respectively, we are both board members of National Advocates for Pregnant Women, based in New York City. We also grew up in conservative areas, Carol in West Virginia and Jeanne in rural Kansas. [Return to text]

10. To make this point to the local community, Tulsa physician William Yarborough, the medical director of the internal medicines clinic at University of Oklahoma College of Medicine-Tulsa and medical director of a local rehab clinic, teamed up with Dr. Barry Lester, who directs the Brown University Center for the Study of Children at Risk to write a letter to the editor of the Oklahoman. They wrote that "no credible evidence links methamphetamine use during pregnancy with stillbirth" and that sentencing Hernandez was "a travesty that flies in the face of the past 25 years of scientific research." William Yarborough and Barry Lester, "The Real Crime," The Oklahoman 3 January 2008. See also Barry M. Lester, "Prenatal Drug Exposure & Child Outcome: Time for Policy to Catch up with Research," presentation presented at the "Women, Pregnancy, and Drug Use: Medical Facts, Practical Responses and the Well-Being of Children and Families" forum at the Presbyterian Health Foundation Conference Center in Oklahoma City. [Return to text]

11. Timothy W. Lineberry and J. Michael Bostwick, "Methamphetamine Abuse: A Perfect Storm of Complications," Mayo Clinic Proceedings 81.1(2006): 77-84. [Return to text]

12. Whitner v. South Carolina 492 S.E.2d 777 (S.C. 1997). Many charges and convictions of child abuse and neglect, drug distribution, and manslaughter that are leveled against pregnant women have been dropped on the grounds that the legislation was never written with the intent that it be applied to the context of pregnancy. For example, the court in Ward v. State held that it is impossible for a fetus to "possess" the drugs since a fetus would not be capable of handling, manipulating or using drugs. Ward v. State 184 S.W.3d 874, 876 (Tex. App. 2006). See also Reinesto 894 P.2d at 736-7; and other cases cited in State v. Martinez, brief of Amici Curiae Sutin, Thayer & Browne, P.C. et al. "In Support of Respondent." Part of this discussion was previously published in Jeanne Flavin and Lynn Paltrow, "Punishing Pregnant Drug-Using Women: Defying Law, Medicine and Common Sense," Journal of Addictive Diseases 29.2 (2010): 231-244. [Return to text]

13. Johnson v. State, 602 So. 2d 1288, 1297 (Fla. 1992). [Return to text]

14. According to an article in the Tulsa World, it was the fourth veto this session that Henry used on an abortion measure. The other three vetoes have been overridden. [Return to text]

15. Oklahoma students credit attending Hampshire College's Civil Liberties and Public Policy (CLPP) annual conference on reproductive justice as a source of inspiration. Taking the CLLP conference as a model but adapting it to local needs, Oklahoma students and faculty created a regional workshop, "Interdisciplinary Perspectives on Reproductive and Sexual Health," on January 21, 2011 at Oklahoma State University in Stillwater and are planning another conference for February 2012 at the University of Oklahoma in Norman. See the Oklahoma State University Gender and Women's Studies website and contact Oklahomans for Reproductive Justice for more information. [Return to text]