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Criminalizing Black Pregnancy: The War On Drugs Meets The War On Women

The prosecution of pregnant women for drug use represents a dangerous convergence of the war on drugs and the war on women’s reproductive rights.

Just like the failed policies of the war on drugs, punitive policies for maternal substance use ignore overwhelming scientific evidence and medical knowledge in favor of harsh punishment and stigmatization. And just like the war on drugs, the criminalization of pregnancy targets people of color and the poor.

The Political Landscape

Earlier this week, the Alabama Supreme Court ruled that women can be criminally charged under the state’s chemical endangerment law if they become pregnant and use a controlled substance. The chemical endangerment law, passed in 2006, was intended to deter people from bringing children to places where controlled substances are produced or distributed, such as methamphetamine laboratories. But since 2006, more than 100 women who became pregnant and tested positive for a controlled substance have been arrested — and the majority of these women had healthy pregnancy outcomes, with no evidence of fetal or infant harm.

Alabama joins at least 17 other states that consider drug use during pregnancy to be child abuse under civil child welfare laws. In these states, women can be charged under existing laws that don’t pertain specifically to maternal drug use. There have been hundreds of documented cases of states going after women for allegedly causing harm to their fetuses, though the evidence in most is dubious at best. South Carolina is among the states with the highest number of prosecutions of pregnant women, and earlier this week a 24-year-old mother in Utah was charged with felony child endangerment based on accusations that she used methamphetamine during her pregnancy. In this case, like most others, prosecutors have no evidence that the mother’s drug use affected the health of her pregnancy.

Meanwhile, Tennessee is on the verge of enacting the first law in the country that would specifically authorize the arrest, prosecution, and incarceration of drug-using women — rather than providing them with the health care and treatment they need. Although other states have used so-called “fetal harm laws” to charge women with endangering their children based on suspicions that they used drugs while pregnant, no state has explicitly criminalized drug use during pregnancy. If enacted, Tennessee’s new law will be the most expansive in the nation, explicitly authorizing the state to bring criminal charges against pregnant women because of the confirmed or potential effects of drug use on a fetus. Governor Bill Haslman has until Monday (tomorrow) to veto the bill.

Laws that criminalize pregnancy have a number of very dangerous and far-reaching implications. The definition of “fetal harm” is such cases has been broad: An Indiana woman who attempted suicide while pregnant spent a year in jail before murder charges were dropped last year; an Iowa woman was arrested and jailed after falling down the stairs and suffering a miscarriage; a New Jersey woman who refused to sign a preauthorization for a cesarean section didn’t end up needing the operation, yet was charged with child endangerment and lost custody of her baby. But the vast majority of cases have involved women suspected of using illegal drugs. Those women have been disproportionately young, low-income and African American.

Criminalizing Black Motherhood

The criminalization of pregnancy emerged as a widespread prosecutorial trend at the same time that former President Reagan declared the now-infamous “war on drugs.” During the 1980’s, when hysteria over the supposed ‘crack baby’ phenomenon was at an all-time high, African American pregnant women became the target of vicious media campaigns portraying them as irresponsible, selfish, and lacking in any maternal instinct.

Law professor Dr. Dorothy Roberts describes the historical context of punishing Black motherhood in her essay Privatization and Punishment in the New Age of Reprogenetics:

The view of black women as irresponsible reproducers is deeply embedded in the dominant American culture and reinforced by a disparaging mythology about black mothers. Negative icons of black maternity have included the sexually licentious Jezebel that legitimated white slave masters’ sexual exploitation of their female slaves; the asexual Mammy who, although she cared for her masters’ children, remained under the supervision of her white mistress; the emasculating Matriarch held responsible for the disintegration of the black family; and the sexually irresponsible Welfare Queen who bred children just to fatten her welfare check and then wasted the money recklessly on herself.

Dr. Roberts says that the myth of the pregnant crack addict is the latest addition to this maternal mythology, portraying pregnant Black women addicted to crack cocaine as “careless and selfish women who put their love for crack above their concern for their children.”

The pervasive negative stereotypes embedded within this mythology makes poor Black women especially vulnerable to policies that punish childbearing. According to Dr. Roberts, “these stereotypes of black female sexual and reproductive irresponsibility support welfare reform and law enforcement policies that severely regulate poor black women’s sexual and child bearing decisions. Judges and legislators view poor black women as suitable subjects for harsh reproductive penalties because mainstream society does not view them as suitable mothers in the first place.”

Just like the war on drugs, the concern here was not for the mothers struggling with addiction, or for the health of her pregnancy outcome — rather, the focus was on the problem that these so-called “crack babies” presented to society. Policies to combat maternal drug use were not designed to improve the health of mothers and babies, but to ensure that “irresponsible” mothers didn’t burden society by bringing more “crack babies” into the world.

It took nearly three decades, but the myth of the “crack baby” has now been thoroughly debunked with overwhelming scientific evidence. Studies over the past decade cast serious doubt about the validity of the “crack baby” phenomenon, and more recent evidence solidified that the phenomenon was no more than a myth. In a groundbreaking longitudinal study spanning more than two decades, the results of which were released last summer, researchers at the Albert Einstein Medical Center concluded that there are no statistically significant differences in the long-term health and life outcomes between babies exposed to cocaine in-utero and those who were not.

Despite the shift in thinking within the medical community, cultural change has not come as quickly. The stereotypes of Black motherhood that emerged during the 1980s and ’90s remain today, and the criminalization of drug-addicted pregnant became a permanent solution to a problem that society viewed as a distinctly Black problem.

The Disparate Impact of Punitive Policies

The laws in Alabama, Tennessee, and other states around the nation do not specifically target Black women… but neither do the laws enacted during the war on drugs — and we all know how those turned out. Unfortunately, the evidence shows that the impact of punitive policies for maternal drug use is very similar to the impact of drug laws in general — that is, they are applied unequally, and women of color are disproportionately harmed.

According to one study, conducted in 2001, 80 percent of the 200 pregnant women or mothers who were arrested and charged with crimes related to illegal drug use during pregnancy were Black or Latina. But this isn’t due to higher rates of drug use during pregnancy among Black or Latina women — most studies suggest that the rates of maternal drug use are similar, and some indicate that the prevalence of drug use during pregnancy is highest among White women.

Even though the rates of substance use are similar among Black and White women, state laws that criminalize pregnancy overwhelmingly target Black women. In Florida, where Black and White women use drugs at similar rates during pregnancy, Black women are more than 10 times more likely to be subject to mandatory reporting and criminal prosecution than White women. Socioeconomic disparities in prosecution of pregnant women were also apparent, as poor women were significantly more likely than others to be reported and charged with drug use. The same is true in South Carolina, where  41 of the 42 women arrested under South Carolina’s state-sanctioned mandatory drug-testing program were Black.

A Dangerous Precedent

As I’ve mentioned previously, medical experts overwhelmingly oppose policies that punish, rather than treat, maternal drug use. These laws not only create unjust racial disparities, but they also discourage drug-addicted pregnant women from seeking prenatal care — and research shows that prenatal care can significantly reduce the negative impact of drug use during pregnancy. Threatening women with criminal charges, taking their children away, or putting them in jail makes women fearful to go to the doctor — so instead of getting the care they need, drug-addicted women are more likely to fall out of the system completely.

The criminalization of pregnancy also shifts the responsibility for solving the problem from society to the individual — even though the causes of the problem are unquestionably rooted in societal factors. Dr. Roberts explain this troubling trend, saying that “by identifying procreation as the cause of deplorable social conditions, reproductive punishments divert attention away from the need for social change.”

In a previous article I reviewed the scientific literature showing that drug use is actually not a strong predictor of birth outcomes at all. Other factors, such as poverty and socioeconomic disadvantage, unintended pregnancy, intimate partner violencelimited access to/ low-quality medical care, and — not surprisingly — experiences of racism and racial discrimination, are much more strongly associated with adverse pregnancy outcomes.

As a researcher who studies this very topic in my own work, I can attest to the fact that reducing structural causes of poor birth outcomes is the focus of public health and medical professionals. Shifting the focus to individual causes is an unfounded strategy that will only serve to enhance the flight from care among the women who need it the most. If lawmakers are truly concerned with the health of mothers and children, they should turn to the experts to develop evidence-based policies for maternal drug use.

Three decades after Reagan launched the war on drugs, our nation’s drug problem is soaring and the incarceration rate is at historically high levels — but people of color are bearing the brunt of this burden. Punitive policies for maternal substance use rely on the same misguided logic as the laws implemented during the war on drugs, and the evidence shows that the outcomes are likely to be very similar.

The interconnected efforts of conservative policies aimed at curtailing women’s control over their own reproduction, alongside the targeted attacks on Black pregnancy and motherhood, follow a familiar and destructive historical pattern. At the same time that much of our society is awakening to the incredible harm caused by the war on drugs, we see another part of society threatening to repeat the mistakes of the past. We know where these policies will go because we’ve seen it before — let’s just hope it doesn’t take our lawmakers three decades to figure it out for themselves.


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