Reproductive Carrots and Sticks

Part III: Does The Stick Effect Work?

Calibrating the appropriate response to drug addiction and pregnancy could achieve important state goals. And, as an empirical matter, states should explore whether enacting punitive legislation—sticks—designed to inflict severe criminal penalties (such as life imprisonment, or multi-year incarceration against pregnant women for miscarrying a fetus or for carrying a baby to term if they are drug-dependent) actually achieves their legislative goals. Legislatures generally adopt stick approaches to deter and disincentivize anti-social, dysfunctional social behaviors. Unlike carrot approaches, which seek to incentivize good behavior, or treat social breaches of conduct with counseling and rehabilitation, stick measures are designed to be punitive. These punitive measures, or sticks, are used to punish individuals for behaviors that breach expected social conduct. Not all sticks are bad; but the stick approach may not work across all behaviors that a state desires to deter, or at times carrots and sticks may both be necessary to adequately address dysfunctional social conduct.

A: Faulty Logic

One failure among state legislators introducing FDLs is the inability to provide a rational explication and articulation as to how such laws will comprehensively benefit the state, fetuses, society, and law enforcement. Instead, in these hastily drafted laws, the articulated need or justification for FDLs invokes almost exclusively retribution and punishment. The author of Utah’s recent FDL, Carl Wimmer, told the Salt Lake Tribune that his state’s law simply needed to be “placed on the books immediately.”¹ And even if criminal prosecution is the primary or exclusive legislative goal of the new FDLs, citizens nevertheless deserve to know whether such new rules about reproduction will deter pregnant drug addicts from carrying babies to term, if not as a matter of social justice, public health, or dignity, then as a matter of the economy. And it is worth serious contemplation whether sticks should ever be used in matters of reproduction.

The stick effect in reproductive health matters may cause a set of unanticipated consequences, thereby exacerbating harmful and inefficient contemporary reproductive dynamics. For example, to avoid the threat of prosecution, pregnant drug addicts, those with sexually transmitted diseases, and others who fear that their conduct could trigger criminal prosecution might avoid seeking prenatal care.² In other words, FDLs may serve to chill the very behavior public health officials seek to promote: good prenatal screening and medical checkups. By reducing the expectation of privacy in the intimate spheres of reproductive care, women who most need prenatal assistance will likely avoid hospitals. Women who associate prenatal treatment with police searches and criminal prosecution will likely be deterred from seeking the care necessary for monitoring fetal development. Opportunities for intervention and treatment will likely be significantly diminished as a consequence of tethering prenatal services to fetal police inspections.

Equally important, FDLs arbitrarily regulate risks to fetuses. For example, such laws are under-inclusive as they target poor women and ignore the risky high-income-bracket pregnancies where abuse of prescribed medications can result in fetal harms, or cases involving assisted reproductive technologies, where multiple babies, fetal crowding, and low birth weight might result from one pregnancy.³ Moreover, what about boyfriends and husbands? In a recent study conducted by Dr. Stephen G. Grant, he and his fellow researchers concluded that exposure to secondhand smoke during pregnancy can be just as detrimental to a developing fetus as primary exposure through maternal smoking.⁴ Secondhand smoking can lead to low “birth weight and susceptibility to … diseases, such as cancer”⁵ and miscarriage. The types of harms resulting from secondhand smoke can be significant and impair the health of pregnant women and fetuses. These resultant harms could be misread by an uninformed public as the result of a gestational parent’s conduct. Thus, the distributional consequences (incarceration, humiliation, and separation from family) map unevenly across the spectrum of parents who behave in ways that expose developing fetuses to harm.

The potential legal problems resulting from FDLs are equally broad. For example, FDLs establish and perpetuate disturbing medico-legal trends by normalizing and possibly incentivizing breaches in fiduciary obligations.⁶ Physicians in “target” hospitals that primarily serve poor and uneducated women with “illicit” drug problems are reassigned to the role of drug informants or snitches, and the physician-patient relationship is compromised. FDLs necessarily place the burden of information sharing on medical centers, which heretofore recognized a very different relationship with the patient, and only in limited instances, usually involving the abuse of women and children, were hospital personnel responsible for triangulating information with law enforcement. And while part of that relationship remains (i.e., a physician’s role to treat her patients), an important element of this bond is compromised.

Finally, FDLs pose economic and efficiency problems, which deserve greater scrutiny and empirical study. Incarcerating women is an expensive way of protecting the health interests of fetuses. And, as an empirical matter, it is doubtful whether fetuses are better protected and healthier because pregnant women and those who miscarry are in prison or subject to prosecution. Indeed compelling data about prison conditions for women, environmental hazards such as threats, violence, and physical abuse, and the difficulty of getting regular, adequate prenatal care, indicates that as an economic matter, states are investing in a costly strategy that will not protect maternal or fetal health. As with TK’s case above, delivering a baby in the metal toilet of a jail cell undercuts the notion that fetal health is better serviced or protected when pregnant substance abusers are in the state’s custody.

The economic costs of FDL incarcerations extend beyond the class of persons the laws are designed to target: pregnant women, those who experience miscarriages, or new mothers. States assume the financial burden of incarcerating (feeding, clothing, and housing) and providing medical care for women who are otherwise fit to work. But, FDLs also penalize babies and children, and burden the state with childcare costs. Perhaps more importantly, FDLs do not restore or support the family unit to which the child belongs. Studies demonstrate the seemingly irreversible negative effects on children with incarcerated parents. ((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.))

1. Cathy McKitrick, “House Oks Bill To Criminalize Intentional Miscarriages,” St. Lake Tribune 29 January 2010. [↩]
2. 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. [↩]
3. 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. [↩]
4. 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.  [↩]
5. Ibid. [↩]
6. 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. [↩]