Michele Bratcher Goodwin,
"Reproductive Carrots and Sticks"
(page 6 of 9)
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."[46]
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.[47]
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.[48]
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.[49]
Secondhand smoking can lead to low "birth
weight and susceptibility to ... diseases, such as
cancer"[50] 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.[51]
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.[52]
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