Michele Bratcher Goodwin,
"Reproductive Carrots and Sticks"
(page 4 of 9)
Ina Cochran
Ina Cochran (IC) pursued her pregnancy. Despite her drug addiction,
Ina wanted to carry her baby to term, rather than seek an abortion. She
gave birth to a healthy baby girl. But a problem, one that she did not
anticipate, emerged. Medical officials at the Ephraim McDowell Regional
Medical Center in Kentucky tested Ina and her baby for illegal drugs.
Ina's test revealed her drug addiction. But the tests also showed the
presence of cocaine in her newborn. Hospital staff turned the test
results over to police and felony criminal charges were filed by
prosecutors.
Regulating women's reproductive conduct in these cases exposes
problematic gaps in the laws and their application, including fleeting
and un-sustained interests in the fetuses and babies that result. In
some instances the state's interest in protecting the fetus extends only
against the mother. At other times, because of the subjective nature of
these prosecutions, prosecutors and other government agents might ignore
harms, neglect, and reckless conduct inflicted by fellow state actors,
such as police, prison guards, and nurses.
Not surprisingly, the stick approach brings private, intimate matters
into the public theatre, creating spectacles of poor, pregnant women and
their children.[16]
These forms of public humiliation such as birthing
a baby in a toilet, being shackled during labor, and passing out before
being provided adequate pain relief, function to visually inscribe these
women's places in society. If a reproductive social hierarchy
exists,[17]
these women are the condemned—relegated to the bottom both
legally and socially. The main point here is not simply that focusing
on crack is under-inclusive. Legal regimes could be under-inclusive in
a more rational way if there were greater parity with the gravity of
harm. However, legislative and enforcement attention to maternal crack
use is disproportionate to that of tobacco and alcohol use despite
compelling research demonstrating far more serious harm to fetuses
resulting from maternal exposure to or use of those substances.
In past work, I have suggested that one approach to address the gaps
caused by FDLs might be to equalize punishment. Under this approach the
state might criminalize all parental behaviors that result in
youth/child/fetus exposure to harmful substances and behaviors whether
or not an actual injury or harm materializes. In this way, regulating
the risky behavior of parents sheds its gendered focus on women and
implicates fathers and boyfriends. It would also implicate wealthier
women who abuse prescribed medications during pregnancies, and even ART
users. Once the sticks are spread more broadly, their implementation
might be less disproportionate, but equally, the unintended social
burdens and consequences are illuminated. Or, alternatively, the state
might engage in a carrot approach, using education and rehabilitation
programs rather than incarceration to help families recover, while not
burdening the state with the expense of incarceration and indefinite
foster care, as well as the collateral and social costs of children
growing up with mothers in prison.
As states codify measures to prosecute women for drug use during
pregnancy, what becomes clear is that such rules are not intended to be
universalized and applied to all women.[18]
states appear less
interested in an empirically relevant approach to protecting all fetuses
even in the context of drug use. Most FDLs disregard drug abuse
during pregnancy, which would increase the pool of women under
community/state inspection, but instead focus only on illegal drug
use. As a result, FDLs can be said to focus more on policing
drug choice than focusing on fetal health and well-being. The
credibility of this approach is diminished on close inspection. If the
legislative focus is truly about the health of fetuses, then drug
choice among mothers should be irrelevant. Examined through this
lens, policing drug choice is an approach that ensnares pregnant women
according to which drugs they use, rather than the fact that they use
drugs. This approach can be likened to a form of pruning weeds from the
flowers.
But FDL pregnancy policing also ignores the many ways in which
fetuses are harmed by behaviors and exposures other than maternal drug
addiction, whether legal or illegal. For example, there is a higher
incidence of fetal and maternal mortality in poor, racial minority
communities where there has been no drug
use.[19] According to John M.
Wallace, Jr., "although the emphasis of pediatricians' and many other
helping professionals' work focuses on individuals and individual-level
behaviors, these behaviors can only be properly examined, diagnosed, and
treated when they are understood in light of the community and societal
contexts in which they occur."[20]
According to a study published in
the Journal of Developmental and Behavioral Pediatrics, poverty
is more detrimental to a child's cognitive development than in utero
exposure to drugs like crack.[21]
But my intuition is that drug abuse and addiction are best understood
when they are studied and treated, rather than pursued by policies that
focus exclusively on policing and punishment. Incarcerating poor women
because of illegal drug use is not an inquiry into the breadth of a drug
abuse problem among all pregnant women, nor does the policing address
the abuse of legal drugs that can harm fetuses. The result is a
type of policing with significant race and class overtones, which
captures a fragmented picture of drug use among women. Legislators
would be wise to consider lessons from the past.
For example, at the turn of the century, opiate and cocaine use was
widespread among white women.[22]
According to Humberto Fernandez,
between 1885-1887, middle- and upper-income white women accounted for
56-71% of those addicted to opiates in the United
states.[23] The
Harrison Narcotics Act of 1914, which later prohibited the use of those
drugs, drove much of this conduct
underground.[24] In an appeal to
distinguished members of the medical profession, Dr. John Witherspoon
warned of the medical community's obligation to, "save our people from
the clutches of this hydra-headed monster which stalks abroad throughout
the civilized world, wrecking lives and happy homes ...."[25]
Half a century later, use of tranquilizers, amphetamines, alcohol,
and prescription medications followed a similar racial and gender
pattern. The distinctions are obvious; the use of drugs such as those
listed above was legal, and the medications were easy to acquire.
Despite drug dependency and abuse of prescribed medications among
wealthier women, drug policies in the 1960s were not focused on this
type of drug problem.[26]
Nor have more recent efforts to police
maternal drug abuse taken into account the abuse of legal drugs as a
public health matter. The disparate state attention and efforts to
address maternal behavior among diverse classes of drug abusers results
in a distorted picture of maternal drug use and dependency, and
ultimately undermines the intent of FDL policies, which are
fetus-focused.
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