Reproductive Carrots and Sticks

Part IV: Reproductive Policing—A War On Drugs 2.0

Scholars have argued that reproductive policing originated in the “Reagan-Bush war on drugs and the unprecedented media coverage of the ‘crack crisis,'” which coincided with resurgence in the anti-abortion movement.¹ Lynn Paltrow argues that “[p]regnant women became an appealing target for law enforcement officials who were losing the war on drugs and for the anti-choice forces whose goal has been to develop ‘fetal rights’ superior to and in conflict with the rights of women.”² In fleshing out this idea further, Paltrow suggests “[p]regnant, drug-using women, portrayed as depraved, inner-city African American women who voluntarily ingested crack to poison their children, were not likely” to engender public sympathy.³ In fact, a six-month study of five public health clinics and twelve private obstetrical offices in Pinellas County, Florida found that 14.1% of black pregnant women tested positive for drug and alcohol use, compared to 15.4% of white women.⁴ The most revealing aspect of the study was that only 1.1% of the pregnant white women testing positive for drug use were reported to health authorities as compared to 10.7% of black women.⁵ Among the conclusions that can be drawn from the study, that pregnant black women were a convenient scapegoat for two fervent movements, the war on drugs and the anti-abortion campaign, is one.

However, the analysis that anti-drug and anti-abortion campaigns were the sole cause of womb policing is insightful, but incomplete. The rise of the war on drugs and anti-abortion movements may have combined to bring about a particular attention to black women’s reproduction, but the realities are that womb policing existed prior to the Reagan-Bush administration of the 1980s. Both the eugenic movements at the turn of the 20th century and subsequent sterilization laws enacted during the period of 1950-1970, indicate that reproductive policing pre-existed Reagan era war on drugs policies. However, the persistence of reproductive policing has yet to succumb to more enlightened thinking. Why is that? In part, the answer can be found in a deeply embedded perception of reproduction hierarchies in the United States, and these reproductive hierarchies span across liberal and conservative spaces. In other words, reproductive policing is not exclusively a conservative movement.

Part V: A Few Normative Conclusions

Enacting legislative policies that help women craft healthy prenatal choices is an urgent carrot goal of which I am in favor. To be sure, prosecuting pregnant women of any socio-economic background for drug use (legal or illegal) during pregnancy, with the specific aim to win convictions more severe than drug distributors and to shame and spectacle them, will not achieve economic efficiency, rehabilitate mothers, promote healthy families, restore economic viability of households, nor enhance the educational, economic, and social development of children. If resources are finite, then financial resources directed at policing and prosecuting pregnant women will divert funds from rehabilitation programs. In other words, legislatures will invest in policing and punishment, but not rehabilitating and counseling drug-dependent women. Because of this, we can predict a few problems.

Calibrating the appropriate focus of FDL enforcement may be difficult for police and prosecutors, and enforcement of FDLs may be different throughout a state. For example, some jurisdictions may focus primarily on punishing pregnant crack users. But such an approach could result in the under-monitoring of other illicit drug use that poses risks of harm to fetuses and children. If resources are finite, directing public funds at policing, prosecuting, and incarcerating crack addicts diverts funds from monitoring actual child abuse cases, and creates a gap in the monitoring of smoking, alcohol misuse, methamphetamine abuse, and overuse of prescription medications during pregnancies. If this is true, nurses and doctors might be overly attentive to pregnant women that have used crack, but for the wrong reasons.

First, rather than focusing on carrots: treatment, education, and support for pregnant crack addicts, medical personnel might be more concerned about competently carrying out their new roles as police informants and evidence collectors. Second, focusing almost exclusively on the use of crack in pregnancy might draw a false bright line of fetal harm. The tacit assumption will be that crack use deserves more serious monitoring than overuse of prescription medications during pregnancy or alcohol and smoking. Of course, it could be the case that wealthy women who engaged in other types of risky behaviors during pregnancy receive effective rehabilitative care.

Overfunding crack-tracking and underfunding the monitoring of illicit drug use among pregnant women will likely disserve the state’s ultimate goal—or at least expose the fault lines in the policies on which the laws are predicated. In other words, if one is to believe that the best approach to protecting fetal health is to monitor and police drug use, then overfunding the investigation of crack use detracts from other types of drug abuse. More importantly, incarcerating pregnant drug users does not “help” their fetuses. Jailing this cohort will not help the state to deter other women from smoking, drinking alcohol, or abusing prescription medications during their pregnancies.

By decoupling our concern for the health of fetuses from crack prosecutions, states might better address the broader issue of maternal/fetal health, including developing frameworks to respond to assisted reproduction pregnancies. Such frameworks might involve investigating physician conduct for aggressive, in-person advertizing of fertility services that suggest implausible “success” rates. Or, states could pay greater attention to transition or hybrid-like services that involve an element of state enforcement, such as mandated rehabilitation. Such rehabilitation could take place in group home type environments, thereby permitting babies to be onsite, rather than in foster care. The point here is that current practices obviate the need for more humane, efficient, and consistent practices across groups of women who engage in risky behavior during pregnancies.

1. 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. [↩]
2. Paltrow, “Pregnant Drug Users.” [↩]
3. Ibid, 1020. [↩]
4. See Chasnoff, Ira. [↩]
5. Ibid, 1204. [↩]