This essay is a shortened reflection from an earlier work, "Prosecuting The Womb," published by the George Washington Law Review. That project was presented at The Scholar & Feminist Conference 2009, "The Politics of Reproduction: New Technologies of Life," held on February 28 at Barnard College in New York City, as part of the panel discussion "Marginality and Exclusivity in ART Practices."[1]

Watch video of Professor Goodwin's presentation.
Listen to a podcast of "Marginality and Exclusivity in ART Practices."

Nowhere is the geography of a woman's body more contested than in the reproductive sphere and space. Nowhere else across her body has there been an internecine struggle (of Constitutional proportion) to determine whether that space deserves a right of privacy or is subject to public regulation and social scrutiny. Within that space there are two approaches to categorize potential state response to vulnerable, drug-dependent, and drug-using pregnant women: the carrot and the stick. Not surprisingly, the carrot-based approach includes rehabilitation, counseling, and empathy. Alternatively, the stick approach uses a different set of values: it embraces disincentives, deterrence, and punishment to discourage not only drug use, but also sex and reproduction.

In the 21st century, reproductive freedom translates differently across race and class lines. On one hand, reproductive freedom translates into a multi-billion dollar assisted reproductive technology (ART) industry. In that sphere, a woman's reproductive possibilities resemble a candy store of options: freedom to purchase ova and sperm in her local community or across the country and world, in vitro fertilization, pre-implantation genetic diagnosis, intracytoplasmic sperm injection (ICSI) of ova, embryo grading, cryopreservation of ova, assisted hatching, embryo transfer, day five blast transfers, and more. Increasingly, some of the options can be facilitated from the comfort of a woman's home; with the click of a computer button, she can purchase sperm, rent a womb, buy ova, and select a clinic to help build a baby. For wealthy women (infertile or not) reproductive privacy and freedom are tangible concepts in uninterrupted operation.

But the 21st century reveals another reproductive space, one that is far less celebratory and attractive, with fewer options, and the threat of punishment overarching pregnancies and compromising the physician-patient relationship. In this alternate reproductive realm, public regulation trumps expectations of privacy. In this space, pregnant women's reproductive options are deeply constrained and contested. For example, a woman's poverty and drug consumption during pregnancy could result in severe legal consequences, including incarceration and even shackling during labor depending on the state in which she resides. In this space, a woman determined to carry a pregnancy to term could be subject to criminal prosecution, incarceration, and giving birth while in prison, sometimes without the appropriate aid of hospital physicians and staff.

The gulf dividing the reproductive statuses and freedoms afforded women who use ARTs as compared to those who are poor drug users might seem instinctively reconcilable, if not justifiable and rational. For example, legislators claim that they enact fetal drug laws (FDLs) because states have an interest in protecting fetuses from in utero harm. Critics argue that such laws are far too selective, primarily focusing on poor women who seek treatment at public medical centers. Critics also point to the gendered dynamic of such laws. Ironically, FDLs often explicitly focus only on women, overlooking a well-vetted empirical literature on domestic violence against pregnant women, which also threatens fetuses.

But taken at their value, FDLs suffer from other serious flaws. These laws are under-inclusive in that they perceive risks of fetal harm as resulting only from maternal use of illegal drugs. This notion of pregnancy and gestation misreads a persuasive and well-vetted scientific literature indicating that poverty—as an isolated indicator—has far greater detrimental impact on health outcomes for babies and children than does a mother's ingestion of crack during pregnancy. Other factors, such as obesity, smoking cigarettes, paternal age, and even drinking lemon-based non-alcoholic drinks during pregnancy, can impact whether a baby is born healthy or not.

Ironically, ARTs, which are virtually unregulated at state and federal levels, can pose far greater risks to a fetus as the failure rate is at least 66% (and higher in older women), and the dangers associated with the procedures include premature birth, multiple gestations, low birth weight babies, miscarriages, and higher incidences of cerebral palsy, hearing impairment, and cognitive delays in the newborns than in the general population. In cases involving fetal crowding resulting from multiple gestations, babies might survive in utero, but die after birth. In some cases, the fetuses do not survive to delivery. Legislators overlook the health risks associated with these types of pregnancies, despite the known medical complications associated with aggressive fertility cocktails that often accompany ART therapies. Serious child and maternal health problems can result from ARTs. Indeed, the intense fertility drugs, combined with the choice to implant multiple embryos can be directly linked to multiple gestations and low birth weight babies.

Perhaps legislators and prosecutors focus their attention on crack and methamphetamine users because they believe that babies exposed to these substances in utero are far more at risk of serious health problems than other babies. But, this view of fetal health lacks empirical support. In recent years, medical organizations such as the American Medical Association, and others, have dismissed the "crack baby" phantom child as a myth. Indeed, reputable peer-review medical journals such as the Journal of the American Medical Association (JAMA) and the New England Journal of Medicine (NEMJ) now refuse to publish articles using the term "crack baby." The decision made by these esteemed medical journal editorial boards to retire the term "crack baby" was not based on appeals or petitions from activist organizations representing institutionalized mothers. Rather, empirical research published in JAMA revealed that the so called "crack baby" does not exist.[2]

More than a decade ago, a study sponsored by the National Institute of Health indicated that the effects of cocaine use during pregnancy were not as severe as depicted in media accounts. In a compelling study published in JAMA, Deborah Frank and her colleagues reviewed thirty-six studies and determined that the risks of exposure to crack during gestation are not as severe or long-ranging as researchers and media pundits claimed two decades ago. The authors suggest that other known indicators of human growth and setback, ranging from poverty to other drugs, may play as much if not a greater role in determining the health outcomes in children.[3] Nevertheless, FDLs are also over-inclusive, as they call for the criminal prosecution of drug-afflicted pregnant women who carry babies to term whether or not the baby suffers an adverse consequence linked to the mother's drug dependence.

This paper conceptualizes the new fetal drug law movement as the struggle between the use of carrots and sticks in regulating women's reproduction. Such laws undermine Constitutional law principles as they focus exclusively on maternal conduct, destabilizing the law's aim to achieve equal protection between the sexes. Fetal drug laws hold women to a different standard than men as achieving a pregnancy is not an asexual function. And within the gendered space, FDLs often place poor women at an even more vulnerable status. The paper argues that the stick (criminal) approach to regulating women's pregnancies lacks political rationality and leads to unjustifiable externalities in a civil society as well as extra-legal punishments resulting in stigmatization, shame, humiliation, and stereotyping.

This project offers an alternative framework for analyzing fetal drug laws. It examines the reasonableness and rationality of such laws both from the perspective of the legislative enactments and the reasonableness of pregnant women's conduct. At the core of this project looms an alternative lens through which to assess rationality and reasonableness of drug-dependent women. For example, is it rational for a drug-dependent woman to attempt to bring a baby to term? Equally as important, should a drug-dependent woman's pregnancy be evaluated any differently than that of any other woman? Should drug-dependent pregnant women enjoy legal protections to bring a baby to term?

Part I: The Stick Effect: Pressure, Pain, and Punishment

Across the United States, a revived form of womb policing has led to an intensified state focus on women's reproduction. In Utah for example, Governor Gary Herbert recently signed into law the Criminal Homicide and Abortion Revisions Act, which specifically applies to miscarriages and other fetal harms resulting from "knowing acts" committed by women. A prior version of the bill, drafted by state legislator Carl Wimmer, failed to win the support of the Governor, as it called for up to life imprisonment for women who engage in reckless behavior during pregnancy that could result in miscarriage and stillbirth. Absent from most of the new wave of legislation penalizing pregnant women are considerations about men's conduct. For example, a 2006 peer-reviewed study published in the Journal of Obstetrics and Gynecology points out that pregnancies from men older than forty are 60% more likely to terminate in a miscarriage than those from men between the ages of twenty-five and twenty-nine.[4] Does this mean that a woman who intentionally decides to copulate with a man over forty exposes herself to the risk of criminal prosecution if a miscarriage results?

That the scope of such a law potentially extends beyond illicit drug use during pregnancy, encompassing activities ranging from consumption of alcoholic beverages and smoking, to the more innocuous, but equally dangerous, such as overeating, living near environmental hazards, or using ART, should raise concerns. How are prosecutors to decide which cases to pursue? And should miscarriages, which are issues of medical concern, now be the domain of police and prosecutors?

Ironically, the intensified interest in policing women's reproduction by states like Utah, South Carolina, Kentucky, and others, does not translate economically or structurally into better prenatal services, maternal counseling, drug addiction rehabilitation, or social services. Rather, the effort is decisively "stick" driven; its fundamental aim is to punish without regard for the economic costs to the state, the long-term emotional and health impacts on the babies, or the psychological toll imposed on the pregnant women. Consider the following cases:

Tara Keil

"I was screaming; I needed help, and I even pounded on the door a few times, but nobody came .... And that's when it hit me—I'm going to have this baby on my own."[5]

In May 2009, Tara Keil (TK) screamed for help from her jail cell. The nineteen-year-old inmate's contractions indicated the imminence of her son's birth. Blood covered her hands and thighs. Amniotic fluid was on the floor of her cell. Despite her screams and pleas for help no one came to render aid. The day before, Keil was pulled over while walking to a friend's home. Within minutes the nine-month pregnant teenager was arrested and whisked to the Dubuke County Jail, charged with violating parole conditions for a prior drug charge. A warrant had been issued for Keil after she stopped meeting regularly with her parole officer.

Despite TK indicating the nearness of her delivery on question 53 of her intake medical questionnaire, staff paid no particular attention to the pregnant girl. According to TK, after pleading to one of the guards that he call a nurse, his response was to ask whether she wanted breakfast or not. With no other options, TK sat on the metal toilet located in her cell and gave birth to her son. By the time of the nurse's arrival, the cell, sink, toilet and other areas were covered in TK's blood, and according to reports, the new mother was visibly shaking and crying. Two days later, the baby was placed in foster care, and TK was given a three-month sentence.

Ambrett Spencer

"I kept praying that she would just open her eyes because she looked like she was alive."[6]

Studies indicate that African American women's pain is usually misdiagnosed or treated with some skepticism on the part of doctors.[7] Ambrett Spencer's (AS) story fits that paradigm. In April 2006, Ambrett, a pregnant inmate at the Maricopa County Estrella Jail in Phoenix, called for assistance at 3 AM, indicating a pain level of 10 based on a scale from 1-10. She alerted jail staff that her medical condition was painful and urgent.

In her case, the nurse ordered immediate action, but the sergeant on duty declined to follow the nurse's order. Instead, AS was shuttled to the infirmary an hour later. But there too, Ambrett, who was incarcerated for driving while intoxicated, was ignored. Her pain was not treated, nor was she taken to a hospital. Her blood pressure decreased, the pain intensified, she grew pale. An hour passed before the nurse on duty decided to call an ambulance. By that time, AS had collapsed, and the nurse was unable to get an intravenous drip into her arm. On arrival, the emergency medical technician noted, "If you are turning that color, you're not getting enough blood to your organs and skin." He was right. AS's baby, Ambria, was born dead.

AS suffered from placental abruption, a condition in which fetuses have a promising rate of survival, but only if the patient receives timely treatment. The nearly four-hour wait for appropriate medical attention may have caused the baby's death. According to John Dickerson, a reporter for an Arizona newspaper, while the number of women in Maricopa jails is relatively low, the complaints made by these women about jail conditions, including water contamination and other matters, should not be dismissed. After all, the local environmental agency found mice fecal matter in the drinking water.[8]

Paula Hale

Paula Hale (PH) was a rape victim and a drug addict.[9] She informed hospital officials about her rape. But she never received rape counseling for the trauma and, like other women and girls with histories of sexual violence in their lives, she treated her depression and anxiety with illegal drugs.[10] Hale's rape resulted in a pregnancy. By deciding to carry her pregnancy to term, she ruled out an abortion and pursued prenatal care for the baby she was carrying. For her, it was a rational decision to seek treatment at the Medical University of South Carolina (MUSC), the only hospital she knew to serve poor black women like her. But, "no one bothered to link her with an appropriate drug treatment program or a trauma institute."[11]

PH did receive prenatal care, but she did not anticipate how dramatically her life and that of her baby would change by making that decision. PH did not realize that by seeking prenatal treatment she would surrender privacy and provide presumptive consent for her medical personnel to waive confidentiality. More specifically, PH did not anticipate that MUSC nurses and doctors would test her and the baby for the presence of illicit drugs. Nor did she foresee that the medical test would become "evidence" of her drug use or turned over to police and prosecutors. As with the twenty-eight other black women snagged by the MUSC, PH was "dragged out of the hospital in chains and shackles."[12] To Lynn Paltrow, Executive Director of National Advocates for Pregnant Women, these haunting episodes conjured images of slavery.[13] Indeed, race seemed to dominate every aspect of pregnant patients' treatment at MUSC. All of the women who were turned over to police for using illegal drugs during pregnancy were black, with only one exception.[14] In the case of the one lone white woman surrendered to police, hospital officials made sure to note on her chart that the white patient "lives with her boyfriend who is a Negro."[15]

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.

Part II: Race, Class and the Illusory Concept of Drug Choice

Studying the choices that pregnant women make, including their drug use, can better assist legislators in crafting good public policy. For example, poor women, especially those who lack medical insurance, do not have access to prescription medication to address depression, anxiety, and other mental health issues. To this class of women, self-medication may seem like the only available option to treat depression and anxiety.[27] The drugs that they consume can be obtained without insurance, are easily accessible, and cheap.[28] For some women, that will mean buying easily available illegal drugs that are sold illegally. Thus, drug choice is an illusory concept. If given the option between treating their addictions with affordable, legal medications, dispensed by physicians, and buying crack on the streets from dangerous drug dealers, pregnant women would likely choose the former option.

However, physicians are sometimes complicit in prosecutorial regimes against pregnant women, and race is sometimes a factor. In Charleston, South Carolina, for example, the collaboration between local police, prosecutors, and the medical staff at the MUSC resulted in the planning and implementation of a covert "Search and Arrest" policy. This policy targeted some women and not others.[29] The secretive plan required doctors and nurses to search pregnant women for evidence of cocaine or crack use.[30] Using public service announcements and advertisements, MUSC staff and local law enforcement encouraged drug-dependent women into the hospital, urging pregnant women to help their developing fetuses by receiving free prenatal services. At first glance, using PSAs to encourage women to seek free prenatal screening seems more carrot than stick.

However, upon hospital staff identifying those with "dirty" urine tests, nurses quickly provided that information to local police and prosecutors.[31] In the process however, doctors and nurses trampled an undiminished expectation of privacy, undermined the physician-patient relationship, and disregarded the search and seizure requirements of the Fourth Amendment. That the policy was only implemented at MUSC, the single hospital in Charleston with a predominantly African American and low-income population, gives some indication that the locus was purposeful and those caught in the dragnet were the intended population.[32]

The "Search and Arrest" policy did however accomplish one goal: it allowed the state, without warrants or probable cause, to conduct nonconsensual searches of pregnant women who sought prenatal care. But the policy did not improve pregnancy outcomes, reduce cocaine use, or increase the number of women successfully completing drug treatment programs as none were offered.[33]

On the other hand, recent studies indicate that net worth influences health outcomes and sheds light on drug and alcohol abuse among whites.[34] These studies could dispel the notion that poor blacks comprise the more significant population of drug users of in the United States.[35] For example, among adults, studies indicate that "annual and current alcohol prevalences generally are highest among whites, at an intermediate level among Hispanics, and lowest among Blacks."[36] Another study conducted in Baltimore indicates that among women with twelve or more years of education, white women are more likely than their black counterparts to be heavy alcohol users.[37] That data, combined with studies from the National Institute on Drug Abuse (NIDA), reveals that white women are more likely to smoke and abuse alcohol during pregnancies.[38] The NIDA study also shed some preliminary light on drug use among racial groups. For the year of the study, the NIDA survey found that an estimated 113,000 white women compared to 75,000 African American women had used illicit drugs during pregnancy.[39] Yet, as one study found, black women are ten times more likely to be reported to a child welfare agency for drug use than white women.[40] This and similar studies indicate that race and wealth continue to influence our normative understandings of mothering and shape our notions of who qualifies as an appropriate mother.

What does this data tell us about the ways in which state resources are utilized to respond to drug dependency among women and social policy commitments to helping fetuses? There are a few possibilities. On one hand, we could read policies that primarily focus on illicit drug use as an effort to save poor and black babies. Viewed through this lens, we could imagine that reproductive policing is an ex ante screening device designed to predict the potential for later child neglect or abuse. Or reproductive policing could be seen as an economic alternative to rehabilitation. Essentially, the state has made a calculated decision that, despite less efficiency, it is better to incarcerate rather than rehabilitate poor, drug-dependent women. Another possibility is that, despite medical studies warning against incarcerating drug-dependent women, legislators have concluded that institutionalization of pregnant women produces a deterrent effect. Unpacked further, it is possible that legislators believe better prenatal resources are available to black women in prison than through state-funded hospitals. But such readings of current drug law policies are irrational.

On the other hand, it is possible to conclude that such policies are not effective, in that arrests occur primarily among poor African Americans, despite compelling evidence that wealthier women engage in substance use during pregnancies, but are not targeted by the state. A revised approach, one that polices a broader spectrum of behaviors that relate to harming fetuses, would likely result in the punishment of more pregnant women, particularly white women. Yet, that approach would be rationally related to the state's purported goals. Rather than shielding political elites within a community from the rules that ensnare poor women, such an approach might better equalize or promote democracy within the context of reproductive policing.

But there is something problematic in a broad, unrestrained approach to addressing maternal drug use. While FDLs reveal hostility toward the privacy interests of poor, usually minority, drug-dependent women, they are an imperfect proxy for achieving social welfare among any group of women. How much better off is a baby that is born in prison, or a toddler that grows up with a mother in prison? Has the state reduced the potential for long-term harm to the child or given greater value to the child's life by imprisoning its mother? Legislators should want to know whether the unintended consequences of this type of reproductive regulation exacerbates rather than reduces harms to children.[41] The evidence suggests that children do not benefit from parental incarceration; children of incarcerated parents are six times more likely to "go to prison."[42]

Thus, a clear distinction must be made. FDLs do not promote life. Nor do FDLs guarantee children a better quality of life. Clarification of the state's goal is an important step in realizing what the law is designed to do as well as what it cannot (ever) accomplish.

If reproductive policing is arbitrary, and disproportionate in enforcement, why have some in the medical community become complicit in its practice? One answer might be the repugnance factor. By this, I mean to suggest that pregnancies are perceived as more communal than private (despite the fact that sex and family-raising are considered private).[43] And, as a communal space, individuals, including doctors and nurses, feel more entitled to comment, critique, and even evaluate the pregnancy. Recent reports published in the American Journal of Obstetrics the Journal of Nurse and Midwifery explain that doctors and nurses are more critical of pregnant women's conduct.[44] In part, the heightened awareness of and attention to behavior during pregnancy might be explained by contempt for pregnant women who breach social and medical expectations. It also might be explained by fear. Physicians and nurses act out of the concern for fetuses and frame the unborn as "innocent" and pregnant drug addicts as "blameworthy." The moral authority against drug-dependent women is heightened in these situations as the "victim" is an "innocent" fetus.

Clearly, for some doctors, the legal status of the fetus is not only elevated to that of the mother, it enjoys greater respect, generosity, and consideration. One author recently suggested that "[t]here can be no 'rule of law' if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings."[45] That women and their fetuses are bound should not be understood to make the lines concerning their behavior brighter and clearer. Rather, the boundedness of women and their fetuses demonstrates the legal complications of disentangling fetal rights from the women who carry them. Taken to its logical conclusion, a woman could be subject to criminal penalties for failure to provide adequate water, nourishment, or a healthy environment to a developing fetus or for attempting to save her life at a risk to the fetus.

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]

B: Dubious Distributional Effects

Across the social spectrum, FDLs have perverse distributional effects. For this reason, scholars highlight equal protection problems to defeat the enactment of such laws, but with varying success. Generally, anti-FDL scholars and activist argue that such laws map unevenly onto women, ignoring the conduct of husbands and boyfriends. Such arguments are persuasive. But there are other distributional impacts worth noting.

Imagine a pregnant woman's every sip of a caffeinated beverage, like iced tea; gulp of carbonated soda; her bite into a chocolate chip cookie or chocolate cake; or even a taste of a lemon-lime soda[53] being a crime against the state. Any reasonable lawmaker should want to flesh this out further. Is that type of conduct the type of behavior the laws are designed to deter or punish? Picture law students, women in the military, women doctors, partners at law firms, commodity traders, and those working in high-stress professions being treated as criminals—if they miscarried—because the death of a fetus is treated as proof of either intent to harm or evidence of negligent endangerment to the fetus.

Here, then, for purposes of distributional equity, all pregnant women who expose fetuses to harmful substances would be or should be (according to a strict reading of what some legislators propose) subject to prosecution. If the twin purposes of FDLs are to reduce preventable risks to fetuses or even to lessen the incidence of low birthweight in babies, then states will exceed the boundaries of their Constitutional authority because the class will be overly broad and prosecution excessive. If justly applied, the effect of fetal harm laws would be to discriminate against between 85% and 90% of women (the percentage of women who are fertile). The only women exempt from prosecution for potentially harming a fetus would be infertile women, who comprise only 15% of the population. They are exempt only because they cannot have babies. The strict liability enforcement mechanism—at least as applied to IC—is unyielding, giving no room to consider personal or even medical externalities.

Medically and socially, the stress of maintaining a pregnancy that avoids miscarriage or low birthweight delivery might be virtually impossible or too costly. In fact, such stress could lead to medical complications. We should seriously scrutinize efforts that would cast our moral and legal commitments to equal opportunity back to an era where race and poverty determined whether the state considered a woman worthy to give birth.[54] In the case of Carrie Buck, the United States Supreme Court, led by Justice Oliver Wendell Holmes, found her unfit to reproduce and held that a Virginia law[55] that permitted the compulsory sterilization of poor, illiterate people to be sufficiently sturdy to pass Constitutional muster.[56] The Court concluded that "three generations of imbeciles are enough," thereby granting Virginia the legal authority to order the sterilization of Carrie[57] and thousands of women thereafter. In Carrie's case, that she was the victim of a rape perpetrated by her employer's nephew was irrelevant; she was poor and her mother was alleged to have been an alcoholic.[58] Sadly, the U.S. eugenics policy became the strategy adopted by the Third Reich in Nazi Germany.[59]

On inspection, how wide is the gap that distinguishes state punishment of poor, drug-dependent women of color for becoming pregnant, from eugenic era policies that institutionalized women like Carrie Buck and released them only after their sterilizations? Both policies emerge from a legislative interest in an idea of the "perfected fetus" and "perfected child." And both policies find the answers to perfecting society (through creating perfect babies and disincentivizing the poor from reproducing) in the physical and emotional punishment of women.

My argument here is not that women are victims of their environments; rather, it is an acknowledgement that neither men nor women maintain absolute control over their environments. (Of course, historically women have maintained less control than men.) Here, then, a woman could be prosecuted for a miscarriage or stillbirth, but the effect (stillbirth) could be linked to any number of causes, including second-hand smoke,[60] domestic violence,[61] living in or near a toxic environment,[62] or the causes can be compounded.[63] Explained differently, the criminal penalties associated with pregnancy would be enough to incentivize avoiding pregnancy altogether. Indeed, it is very difficult to quarantine one's environment or the circumstances in which harms arise during a typical pregnancy. If the risk of pregnancy means incarceration, then one likely effect would be to discourage pregnancy and promote abortions, both of which are unintended and unanticipated consequences.

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.[64] 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."[65] 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.[66] 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.[67] 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.[68] 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.

Other normative problems are raised by the way in which reproduction policing occurs in the United States. Chief among these implications is the distributional unevenness in prosecutions among racial groups. These impacts are unintended, but nevertheless real. For example, black women are more likely to be overrepresented in the prosecution of fetal abusers. As a matter of social policy, such an outcome is one that should be avoided. First among the reasons to avoid the overrepresentation and over-identification of black women as fetal abusers is that black women are more likely to be reported for illicit drug use, but according to the Centers for Disease Control, black women are actually less likely than white women to use illicit drugs like alcohol and cigarettes during pregnancies.[69] Over-policing black women's reproduction will likely have other unintended social consequences, including fostering the perception that black women are less caring mothers, and are more likely to abuse drugs than white women.

Highlighting the race pitfalls of FDL prosecutions brings to light other problems, especially the faulty science that prosecutors rely upon. Prosecutors make scientifically inaccurate claims with FDLs, suggesting a pregnant woman's drug addiction is what causes miscarriages and stillbirths. The emotional power of that type of rhetoric can be persuasive, but incomplete. For example, black women experience higher rates of stillbirths absent any drug use. A 2003 study conducted by the Centers for Disease Control found that between 1990 and 2003 fetal mortality was on the decline, however the fetal mortality rate for black women persisted and was double that experienced by white women.[70] Therefore, a black drug addict's miscarriage could be a false positive for fetal death with a drug related cause. Dr. Marian MacDorman, the study's lead author, reminds us that science is inconclusive about what causes fetal mortality.[71] However, contributing factors can be smoking, maternal obesity, high blood pressure, hypertension, and diabetes.[72] But are we to police these behaviors and health conditions too?

More importantly, the racial disparities resulting from fetal harm policing will result in a new social class: black children being raised in foster care with mothers in prison. The problem with fostering this type of social condition extends beyond the immediate families involved. This issue implicates state resources, as the consequences are not limited to social stigma, but rather, as data suggests, that children of incarcerated mothers are more likely to drop out of school and enter the criminal justice system.[73] In a report produced by the California Research Bureau, Dr. Charlene Simmons warns that "the impact of a mother's arrest and incarceration on a family is often more disruptive than that of a father's arrest and incarceration ... because approximately two-thirds of incarcerated mothers were the primary caregivers for at least one child before they were arrested."[74] An estimated 856,000 children in California have at least one parent in jail.[75] About 80% of women in prison in California have at least two children.[76]

This essay describes some of the legislative and social pitfalls resulting from using sticks rather than carrots to address maternal-fetal health harms. This essay critiques whether FDLs achieve their goals, and whether those goals might be accomplished by less punitive approaches, such as the use of carrots: rehabilitation, counseling, and empathy, to deter illicit drug use among women. Ultimately, FDLs hold women to a different standard than men. And, within the gendered space, FDLs often place poor women at an even more vulnerable status. Because of these outcomes, the stick (criminal) approach to regulating women's pregnancies lacks political rationality and leads to unjustifiable externalities in a civil society, and extra-legal punishments resulting in stigmatization, shame, humiliation, and stereotyping.

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Marginality and Exclusivity in ART Practices - Podcast Description
David Eng, Rayna Rapp, Faye Ginsburg and Michele Goodwin discuss "Marginality and Exclusivity in ART Practices" in this panel discussion moderated by Lesley Sharp. Increased demand for assisted reproductive technology (ART) and transnational adoption has been propelled by a number of factors, including the development of new technologies and changes in familial form - such as childrearing in second or third marriages; lesbian, gay, and transgendered families; and delays in childbearing and subsequent difficulties in conception - that make ART helpful. Other relevant factors include environmental changes that have negatively affected fertility levels, new levels of transnational migration and interaction that have fueled awareness of babies available for and in need of adoption, and concerns about genetic diseases and disabilities. Effectively, the various imperatives and the desires, both cultural and personal, that the use of ART fosters and responds to, have created a "baby business" that is largely unregulated and that raises a number of important social and ethical questions. Do these new technologies place women and children at risk? How should we respond ethically to the ability of these technologies to test for genetic illnesses? And how can we ensure that marginalized individuals, for example, people with disabilities, women of color, and low-income women, have equal access to these new technologies and adoption practices? And, similarly, how do we ensure that transnational surrogacy and adoption practices are not exploitative? These questions and many others on the global social, economic and political repercussions of these new forms of reproduction were the focus of this year's Scholar and Feminist Conference, "The Politics of Reproduction: New Technologies of Life," which took place on February 28, 2009 at Barnard College.

Endnotes

1. This essay is a shortened reflection from an earlier work, "Prosecuting The Womb," published by the George Washington Law Review. That project was presented at Barnard College in 2009, and inspired considerable conversation. Part of that conversation continues in this essay and the comments provided by my esteemed colleagues in this special issue. See Michele Goodwin, "Prosecuting the Womb," George Washington Law Review 76 (2008): 1657. [Return to text]

2. Wendy Chavkin, "Cocaine and Pregnancy—Time to Look at The Evidence," JAMA 285 (2001): 1626. [Return to text]

3. Deborah A. Frank et al., "Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review," JAMA 285 (2001): 1613. [Return to text]

4. See for example:, Andrew J. Wyrobek et al., "Advancing Age Has Differential Effects on DNA Damage, Chromatin Integrity, Gene Mutations, and Aneuploidies in Sperm," (PDF) Proceedings of the National Academy of Sciences 103.25 (2006): 9601. [Return to text]

5. Bekah Porter, "Dubuquer Gives Birth In Cell Alone," The Telegraph Herald 15 May 2009. [Return to text]

6. Ambrett Spencer, quoted in John Dickerson, "Arpaio's Jail Staff Cost Ambrett Spencer Her Baby, and She's Not the Only One," Phoenix New Times 30 October 2008. [Return to text]

7. Margaret Paulson and Anthony Decker, "Health Care Disparities in Pain Management,"Journal of the American Osteopathic Association 15.6 (2005). [Return to text]

8. See Dickerson, John. [Return to text]

9. Lynn Paltrow, "South Carolina: First in the Nation for Arresting African-American Pregnant Women—Last in the Nation for Funding Drug and Alcohol Treatment," National Advocates for Pregnant Women Briefing Paper (2003). [Return to text]

10. Ibid; Renae D. Duncan et al., "Childhood Physical Assault as a Risk Factor for PTSD, Depression, and Substance Abuse: Findings from a National Survey," American Journal of Orthopsychiatry 66 (1996): 437, 443; Sana Loue, "Legal and Epidemiological Aspects of Child Maltreatment: Toward an Integrated Approach," Journal of Legal Medicine 19 (1998): 471, 475-6. [Return to text]

11. Paltrow, Lynn. [Return to text]

12. Ibid. [Return to text]

13. Ibid. [Return to text]

14. Ibid. [Return to text]

15. Ibid. [Return to text]

16. Goodwin, Michelle. [Return to text]

17. See Joel F. Handler, "Constructing the Political Spectacle: The Interpretation of Entitlements, Legalization, and Obligations in Social Welfare History," Brooklyn Law Review 56 (1990): 899, 929-31; Michel Foucault, Discipline and Punish (New York: Vintage Books, 1977): 30-31, which suggests public punishment serves multiple purposes, including the creation of spectacle, shaming, and the assertion and demonstration of power. [Return to text]

18. See Drug Policy Alliance, "Race and the Drug War." [Return to text]

19. In other words, the correlation between fetal death among racial minorities where drug use has been present versus when it has not is understudied. [Return to text]

20. John M. Wallace, Jr., "The Social Ecology of Addiction: Race, Risk, and Resilience," Pediatrics 103 (1990): 1122. [Return to text]

21. Hallam Hurt et al., "Cocaine-exposed Children: Follow-up Through 30 Months," Journal of Developmental and Behavioral Pediatrics 16 (1999): 29. [Return to text]

22. Humberto Fernandez, Heroin (Center City, MN: Hazelden, 1998): 16; see also Julian Durlacher, Heroin: Its History And Lore (London: Carlton Books, 2000): 8. [Return to text]

23. Ibid. Interestingly, 60% of the heroin related arrests in Portland, Oregon were of Chinese. [Return to text]

24. Fernandez, Humberto. [Return to text]

25. John Witherspoon, "Oration on Medicine: A Protest Against Some of the Evils in the Profession of Medicine," Journal of the American Medical Association 34 (1900): 1591; See also, Hamilton Wright, "Report on the International Opium Commission and on the Opium Problem as Seen Within the United States and its Possessions," Senate Document No. 61-377 (1910): 45. For Wright, the opium drug czar of the 1910s, "[o]ne of the most unfortunate phases of the habit of opium smoking in this country [was] the large number of women who have become involved and were living as common-law wives of or cohabiting with Chinese in the Chinatowns of our various cities." As antimiscegenation laws and social customs, focused on preventing whites from cavorting with blacks and other persons of color, were strictly enforced in the United States until Loving v. Virginia, we can assume that Wright was not concerned about the common law relationships between black women and Chinese men, but instead was referring to white women. Comments like Wright's were often used to incite racial animus, and in this case, against the Chinese. [Return to text]

26. Drug policies at that time did not penalize wealthier mothers for abusing drugs, nor were these women depicted as neglectful, uncaring, or irresponsible toward their children. [Return to text]

27. Beth Glover Reed, "Developing Women-sensitive Drug Dependent Treatment Services: Why So Difficult?" Journal of Psychoactive Drugs 19 (1987): 151, 153. [Return to text]

28. Lise Anglin, "Self-Identified Correlates of Problem Alcohol and Drug Use with Comparisons Between Substances," International Journal of Addictions 29 (1994): 285, 287; Ruth E. Davis et al., "Trauma and Addiction Experiences of African American Women," Western Journal of Nursing Research 19 (1997): 442, explicating the overlooked causes of drug dependency among poor black women. [Return to text]

29. See Ferguson v. City of Charleston, 532 U.S. 67 (2001): 70-73, describing MUSC's drug-screening program for pregnant women suspected of using cocaine. [Return to text]

30. Ibid. [Return to text]

31. Ibid, 84-85. [Return to text]

32. This is exemplified by "Project Export," a joint research endeavor between MUSC and SCSU documenting the racial and economic disparities within South Carolina in general and within the I-95 corridor in particular. See Project Export Homepage and Reports. [Return to text]

33. See The Center for Reproductive Rights, "Ferguson v. City of Charleston: A Case Study." [Return to text]

34. Craig Evan Pollack et al., "Should Health Studies Measure Wealth?: A Systematic Review," American Journal of Preventive Medicine 33 (2007): 250. [Return to text]

35. See U.S. Department of Health and Human Services, Office of Applied Studies, "2001 National Household Survey on Drug Abuse: Volume I. Summary of National Findings." [Return to text]

36. See John Wallace; See also National Institute on Drug Abuse, "Drug Use Among Racial/Ethnic Minorities," (PDF) National Institute on Drug Abuse 34 (1995); Denise Kandel et al., "Prevalence and Demographic Correlates of Symptoms of Last Year Dependence on Alcohol, Nicotine, Marijuana and Cocaine in the U.S. Population," Drug and Alcohol Dependence 11.44 (1997): 24, stating that "[a]mong those who smoked [cigarettes] in the last year, blacks and Hispanics are significantly less likely than whites to be dependent, [while] among those who used cocaine/crack within the last year, blacks are more likely than any other group to be dependent."; Stephanie J. Ventura et al., "Trends and Variations in Smoking During Pregnancy and Low Birth Weight: Evidence From the Birth Certificate," Pediatrics 111 (2003): 1176. [Return to text]

37. M. Lillie-Blanton et al., "Black-White Differences In Alcohol Use by Women: Baltimore Survey Findings," Public Health Reports 106 (1991): 124-33. [Return to text]

38. Robert Mathias, "NIDA Survey Provides First National Data on Drug Use During Pregnancy," National Institute on Drug Abuse. [Return to text]

39. Ibid. [Return to text]

40. Ira J. Chasnoff et al., "The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," The New England Journal of Medicine 322 (1990): 1202. [Return to text]

41. The "Mentoring Children With Parents In Prison" reports that children with parents in prison are more likely to have behavioral problems. The children are more likely to experience depression, drop out of school and engage in the type of behavior that leads to juvenile incarceration. See: Tim Pratt, "Mentors Give Children Some Extra Attention," The Evening 10 June 2007; "Big Brothers Big Sisters/Amachi Texas and the Library of Congress Partner to Add Literacy Component to Mentoring Program for Children of Incarcerated Parents," Amachi Texas 18 September 2007; Julia Crouse, "Initiative Seeking to Keep Inmates, Children Together," Herald-Sun 16 January 2008. [Return to text]

42. Ibid. [Return to text]

43. Narrative and anecdotal accounts of unwanted touching during pregnancy are well represented in the media. See Baby Gaga, discussing belly touching. According to one blogger, "I hated when strangers would come up and touch my belly out of the blue. Just walk up and touching me would freak me out;" Touching The Pregnant Belly at PregnancyEtc.Com; Melissa Leonard, Don't Touch My Belly!, PregnancyAndBaby.Com; Candace Murphy, "The Unsolicited Belly Pat That Comes With Being Pregnant," The Oakland Tribune 12 August 2007. [Return to text]

44. See Theresa M. Stephany, "The Pregnant Addict: Treat or Prosecute?," Journal of Nurse-Midwifery 44: 154, commenting that "it is not uncommon to hear dismay or disgust expressed toward women who use drugs or alcohol while pregnant;" William A. Ramirez-Cacho, et al., "Medical Students' Attitudes Toward Pregnant Women with Substance Use Disorders," American Journal of Obstetrics and Gynecology 196 (2007): 86-87. [Return to text]

45. Charles I. Lugosi, "Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence," Issues in Law and Medicine 22 (200&): 119-120. [Return to text]

46. Cathy McKitrick, "House Oks Bill To Criminalize Intentional Miscarriages," St. Lake Tribune 29 January 2010. [Return to text]

47. 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. [Return to text]

48. 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. [Return to text]

49. 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. [Return to text]

50. Ibid. [Return to text]

51. 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. [Return to text]

52. 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. [Return to text]

53. See Nutrition Data, 211 Foods Highest in Caffeine, listing lemon-lime soda as the thirty-seventh most caffeinated food. [Return to text]

54. See Paul Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court and Buck v. Bell (Baltimore, MD: The Johns Hopkins University Press, 2008). [Return to text]

55. Virginia Sterilization Act, 1924 Va. Acts 569, quoted in Buck v. Bell, 130 S.E. n.1 (1925): 516-17. [Return to text]

56. Buck v. Bell, 274 U.S. (1927): 200, 207. [Return to text]

57. Ibid. [Return to text]

58. See James B. O'Hara and T. Howland Sanks, "Eugenic Sterilization," Georgetown Law Journal 45 (1956): 20, 22; Rickie Solinger, Pregnancy and Power: A Short History of Reproductive Politics in America (New York: New York University Press, 2005); Angela Y. Davis, Women, Race and Class (New York: First Vintage Books, 1981); see also The Lynchburg Story (Worldview Pictures, 1993), a documentary that interviews inmates from the Virginia Penal Colony where Carrie was sterilized and institutionalized. [Return to text]

59. See Lombardo, Paul. [Return to text]

60. L. George et al., "Environmental Tobacco Smoke and Risk of Spontaneous Abortion," Epidemiology 17 (2006): 500; David Derbyshire, "Smoking Kills Up To 5,000 Foetuses A Year," Daily Telegraph Online 2 December 2004; Zosia Kmietowicz, "Smoking is Causing Impotence, Miscarriages, and Infertility," British Medical Journal 328 (2004): 7436; Outi Hovatta et al. "Causes of Stillbirth: A Clinicopathological Study of 243 Patients,"BJOG 90 (1983): 691. [Return to text]

61. Leslie A. Morland, "Intimate Partner Violence and Miscarriage," Interpersonal Violence 23 (2008): 652. [Return to text]

62. New York State Office of Public Health, "Love Canal, Public Health Time Bomb: A Special Report to the Governor and Legislature," (NYS Office of Public Health, 1978): 14; See also, "History of Love Canal Waste Controversy," New York Times 21 May 1980; Ingrid Gerhard et al., "Chlorinated Hydrocarbons in Women With Repeated Miscarriages," Environmental Health Perspectives 106 (1998): 675; Kathleen S. Hruska et al., "Environmental Factors in Infertility," Clinical Obstetrics and Gynecology 43 (2000): 821; V.H. Borja-Aburto et al., "Blood Lead Levels Measured Prospectively and Risk of Spontaneous Abortion," American Journal of Epidemiology 150 (1999): 590. [Return to text]

63. The exact causes of stillbirth are not known, however, see: Jess F. Kraus et al., "Risk Factors for Sudden Infant Death Syndrome in the U.S. Collaborative Perinatal Project," International Journal of Epidemiology 18 (1989): 113; The compounding effect is not specifically discussed but has been alluded to in many of the smoking studies: De-Kun Li and Janet R. Daling, "Maternal Smoking, Low Birth Weight and Ethnicity in Relation to Sudden Infant Death Syndrome," American Journal of Epidemiology 134 (1991): 958. [Return to text]

64. 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. [Return to text]

65. Paltrow, "Pregnant Drug Users." [Return to text]

66. Ibid, 1020. [Return to text]

67. See Chasnoff, Ira. [Return to text]

68. Ibid, 1204. [Return to text]

69. Robert Mathias, "NIDA Survey Provides First National Data on Drug Use During Pregnancy," National Institute on Drug Abuse. [Return to text]

70. Centers for Disease Control, "New Study Shows Decline in Still Births; Racial Disparities Persist," Center for Disease Control (2007). [Return to text]

71. Ibid. [Return to text]

72. Ibid. [Return to text]

73. Charlene Wear Simmons, "Children of Incarcerated Parents," (PDF) California Research Bureau 73 (2000): 1. According to Dr. Wear Simmons, children whose parents have been arrested and incarcerated face unique difficulties. Many have experienced the trauma of sudden separation from their sole caregiver, and most are vulnerable to feelings of fear, anxiety, anger, sadness, depression and guilt. They may be moved from caretaker to caretaker. The behavioral consequences can be severe, absent positive intervention—emotional withdrawal, failure in school, delinquency, and risk of intergenerational incarceration. [Return to text]

74. Ibid, 4. [Return to text]

75. Ibid, 2: Stating that approximately 195,000 children currently have a parent in state prison. [Return to text]

76. Ibid. [Return to text]