On May 11, the Supreme Court of the State of New Mexico turned back the state’s attempt to expand the criminal child abuse laws to apply to pregnant women and fetuses. In 2003, Ms. Cynthia Martinez was charged with felony child abuse “for permitting a child under 18 years of age to be placed in a situation that may endanger the child’s life or health. . .” In bringing this prosecution, the state argued that a pregnant woman who cannot overcome a drug addiction before she gives birth should be sent to jail as a felony child abuser.
I just wrote a big huge final paper on this topic, so I’ll offer some background. Basically, over the past 30 years pregnant women have been prosecuted in several states for using drugs while pregnant. They’re usually prosecuted under child abuse or drug trafficking statutes. These prosecutions have happened even when the child showed no signs of harm. Regina McKnight, a South Carolina woman, was recently convicted of homicide by child abuse after giving birth to a stillborn baby. Her conviction was upheld by the South Carolina State Supreme Court.
The New Mexico Supreme Court has come to the opposite conclusion in a similar case — that the state’s child abuse statutes cannot be used to prosecute drug-addicted mothers for their neo-natal drug use. This is good, as the South Carolina decision was pretty devastating. But the SC decision still stands in SC, and may be used to influence similar cases in other states; luckily, now the NM decision can be taken into account, too. There is still no national consensus on this issue, and women in various states continue to be prosecuted.
No one wants women to use drugs while they’re pregnant. Obviously we do want to protect fetuses from in utero drug exposure. But there are a lot of problems with these cases — equal protection issues, statutory interpretation issues, status crime issues, due process issues, and on and on. If you’re interested, short summaries of some of the many problems are below the fold:
1. Status issues: The U.S. Supreme Court has held that a person cannot be prosecuted for being a drug addict. Prosecuting someone for the illness of drug addiction, they said, is in violation of the 8th Amendment’s bar on cruel and unusual punishment. People can, obviously, still be prosecuted for the sale, possession and purchase of drugs.
Many of the cases involving pregnant drug-addicted women come to light when someone at the hospital reports that a woman appears to be a drug addict or tested positive for drugs; others occur after investigations into a stillbirth or a drug-addicted baby. It’s rare for a woman to be arrested for possession, sale or purchase and then be charged with child abuse. If I told my doctor that I used illegal drugs, I probably would not be reported to the police. I couldn’t be tried for anything, unless the police found drugs on me or had evidence of me buying, selling or otherwise distributing drugs. But if I were simultaneously drug-addicted and pregnant, I could be charged with child abuse.
Pregnancy, like drug addiction, is a status. It is not a crime. And yet prosecutors are arguing that it’s a crime for the two statuses to occur simultaneously. That’s incredibly problematic, even if the women aren’t technically being tried for their addiction.
2. Fetal Personhood — Child abuse and drug trafficking statutes refer to “persons.” For a mother to be tried for child abuse or drug distribution for her neo-natal drug use, the fetus must be considered a person under the law. This is problematic for all the obvious reasons. While establishing fetal personhood for the purpose of criminal prosecutions will not immediately wipe out abortion rights, it lays very strong legal groundwork for eliminating abortion rights in the future. It is very, very difficult to argue that the fetus is a “person” for the purposes of child abuse and drug distribution, but not a person when you’re ending its very existence. I do think that the argument can be made, but only if we radically re-shape the legal grounding for abortion rights, which isn’t going to happen anytime soon and which does not fit into the Roe framework. That is, we would have to assume that the fetus is a person with all the rights and protections that people in this country receive, and from there argue that a person does not have a legal right to use someone else’s body for his own existence, and if a person objects to having their body used, they have a right to remove the attached person. Call me crazy, but I don’t see that argument sitting particularly well with the Roberts court, or with the rest of the American public. So the establishment of fetal personhood is a very bad thing, because if Roe ever does fall, states have already set a legal standard for fetuses to be considered people under the law. It’s not much of a leap to argue that abortion should therefore be illegal.
3. Statutory Interpretation and Due Process: State child abuse and drug trafficking statutes refer to “persons,” as explained above. Prosecutors of drug-addicted mothers often argue that the fetus should be considered a person under the law — the fetus is the child being abused, or the minor who is given drugs. There’s a big question as to whether that’s a reasonable interpretation of the statute, and if pregnant women had fair notice that they were commiting a crime. Now, you don’t have to know something is a crime in order to be prosecuted for it, but there is the issue of whether or not a reasonable person would interpret the statute to include fetuses. I don’t think they would; luckily, several courts agree. Others, like South Carolina, don’t.
And just an interesting side fact — after the fetuses-are-people argument proved to be a losing one, some prosecutors took a more creative tack and argued that the drug distribution occured after birth, in the 90-second period when the baby was outside of the woman’s body but still attached through the umbilical cord. Since the child has been born, there is no question of personhood. There is, however, a big question as to the medical possibility of transmitting drugs through the umbilical cord during that tiny period, and various anatomical issues that strongly suggest it isn’t very likely. But the extent to which prosecutors are willing to go in order to criminalize drug-addicted women is pretty astounding.
4. Public Policy: This isn’t a legal issue, but many courts (including New Mexico’s) have taken it into account in their holdings. Prosecuting women for using drugs while pregnant is very bad public health policy. It discourages drug-addicted pregnant women from seeking treatment. It makes pregnant drug users less likely to get pre-natal care — and poor pre-natal care is strongly correlated with poor baby health, and can be worse for a pregnancy than drug use. And it can be a motivation for abortion of a wanted pregnancy — if you think you’re going to be criminally prosecuted when you give birth, it makes sense to avoid that birth. In other words, prosecuting pregnant women does nothing for children, and in fact puts serious barriers in the way to healthcare access.
5. Equal Protection: This argument would be fairly unlikely to succeed in court, but I think it’s worth making anyway — and I think it’s the most important one. Women of color are disproportionately targeted for these prosecutions. White women and black women use drugs during pregnancy at similar rates (by which I mean there’s only a 1 or 2 percent difference), but the vast majority of criminalized women are black and Hispanic — in one study, researchers found that 90 percent of the prosecuted women were non-white. Child abuse and drug trafficking statutes are facially neutral, but here they’re being applied incredibly disproportionately along racial lines.
And given the history of the devaluation of black motherhood, this is no surprise. Pandagon’s book club read this month is Killing the Black Body by Dorothy Roberts, which you should absolutely read if you’re interested in these issues. She has also written a great many law review articles where she makes similar arguments. One of her points is that black women’s status as mothers has long been attacked and denigrated. While middle-class white women have their rights to not give birth challenged, women of color face challenges in their right to have children in the first place. And these challenges are nothing new — going all the way back to slavery, black women were valued for their manual labor and for producing more workers, but were still considered sub-human. From a Harvard Law Review article by Roberts:
The method of whipping pregnant slaves that was used throughout the South vividly illustrates the slaveowners’ dual interest in Black women as both workers and childbearers. Slaveowners forced women to lie face down in a depression in the ground while they were whipped. This procedure allowed the masters to protect the fetus while abusing the mother. It serves as a powerful metaphor for the evils of a fetal protection policy that denies the humanity of the mother. It is also a forceful symbol of the convergent oppressions inflicted on slave women: they were subjugated at once both as Blacks and as females.
Challenges to reproductive freedom always center around the idea that the woman’s body is not her own, and that the state has a right to interfere with her reproduction. Women of color have faced coercive and involuntary sterilization, and continue to be used as political symbols of the failed family and deviant motherhood. Quoting myself is obnoxious, but I’m going to reproduce what I wrote in a paper about this instead of attempting to re-create it:
Sterilization has also had a devastating historical effect on women of color. Forced and coerced sterilizations have affected millions of American women, with some doctors in the 1970s making their assistance in abortion or childbirth dependent on Black women’s consent to sterilization. In Puerto Rico, American policy led to the sterilization of a full one-third of women of childbearing age by 1965. A 1974 case in Alabama revealed that federal funding underwrote the sterilization of 100,000 to 150,000 poor women every year, some of whom were told they would lose their welfare benefits if they refused to consent to the procedure. Although federal and state policy held that sterilization must be voluntary, women of color were continually encouraged to permanently terminate their ability to have children, with mainstream social policy arguments positing that these women were unable to rely on more temporary birth control methods.
Throughout the 1960s and 1970s, women of color were routinely involuntarily sterilized. According to Roberts:
“During the 1970s sterilization became the most rapidly growing form of birth control in the United States, rising from 200,000 cases in 1970 to over 700,000 in 1980. It was a common belief among Blacks in the south that Black women were routinely sterilized without their informed consent and for no valid medical reason . . . this sort of abuse was so widespread in the south that these operations came to be known as ‘Mississippi appendectomies.’”
The Hyde Amendment, passed in 1976, excludes abortion from the health services covered by federal Medicaid programs. Sterilization is still covered. Low-income women, then, often cannot afford to terminate unwanted pregnancies – pregnancies that they often can’t afford to have in the first place – but can permanently remove their ability to have children. These coercive social policies have contributed to higher rates of sterilization among women of color – and particularly poor women of color – than in their white counterparts.
All of this is propped up by racist constructions of black motherhood (and blackness and brownness in general). In 1965, Daniel Patrick Moynihan published his report “The Negro Family: The Case for National Action,” which blamed the reversal of gender roles for the ills present in black communities. He wrote:
At the heart of the deterioration of the fabric of the Negro society is the deterioration of the Negro family. It is the fundamental cause of the weakness of the Negro community … In essence, the Negro community has been forced into a matriarchal structure which, because it is so out of line with the rest of the American society, seriously retards the progress of the group as a whole.
Reagan’s Welfare Queen continued this characterization, positioning the welfare recipient as a lazy, indulgent, unfit black mother having repeated pregnancies that were burdensome to society. The “crack baby” epidemic of the 1980s only intensified that stereotype — and in hindsight, there really wasn’t much of an epidemic, and many of the problems attributed to crack babies were actually caused by poor pre-natal care. And Moynihan’s report continues to resonate with social conservatives. In 2005 — yes, 2005 — Manhattan Institute Scholar Kay Hymowitz wrote this in the Dallas Morning News:
Read through the megazillion words on class, income mobility and poverty in the recent New York Times series “Class Matters,” and you still won’t grasp two of the most basic truths on the subject:
1. Entrenched, multigenerational poverty is largely black; and
2. It is intricately intertwined with the collapse of the nuclear family in the inner city.
By now, these facts shouldn’t be hard to grasp. Almost 70 percent of black children are born to single mothers. Those mothers are far more likely than married mothers to be poor, even after a post-welfare-reform decline in child poverty. They are also more likely to pass that poverty on to their children. Single motherhood is a largely low-income and disproportionately black problem.
The truth is that we are now a two-family nation, separate and unequal – one thriving and intact, and the other struggling, broken and far too often African-American.
She approvingly cites the Moynihan report, calling it “prophetic.” Then she points to the real problem: Black women are having children without the proper male authority.
Liberal advocates had two main ways of dodging the subject of family collapse while still addressing its increasingly alarming fallout. The first was to talk about children not as the offspring of individual mothers and fathers responsible for rearing them, but as an oppressed class in need of government programs. The second way was to talk instead about the epidemic of teen pregnancy.
There was just one small problem: There was no epidemic of teen pregnancy. There was an out-of-wedlock teen-pregnancy epidemic. Teenagers had gotten pregnant at even higher rates in the past. Back in the day, however, when they found out they were pregnant, girls had either gotten married or given their babies up for adoption.
Not this generation. They were used to seeing children growing up without fathers, and they felt no shame about arriving at the maternity ward with no rings on their fingers, even at 15.
The hostility toward black motherhood has not decreased. The organization C.R.A.C.K. advertises in low-income neighborhoods, encouraging drug addicts to get sterilized in exchange for a couple hundred bucks. They offer no treatment or other resources — they simply pay women to be sterilized or go on long-term birth control. C.R.A.C.K.’s clientele is disproportionately non-white.
There is a long, long history of women of color having their reproductive rights attacked and their very personhood questioned. The prosecutions for neo-natal drug use fall into that pattern. They’re incredibly problematic. I’m glad to see that the New Mexican court made a fair and reasonable decision here.
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