Beyond Carrots and Sticks: Effective Public Education and Feminist Research in Conservative States

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.¹ 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.² 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.³ 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.⁴ 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.”⁵

1. 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. [↩]
2. 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. [↩]
3. Timothy W. Lineberry and J. Michael Bostwick, “Methamphetamine Abuse: A Perfect Storm of Complications,” Mayo Clinic Proceedings 81.1(2006): 77-84. [↩]
4. 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. [↩]
5. Johnson v. State, 602 So. 2d 1288, 1297 (Fla. 1992). [↩]