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Jill has been blogging for Feministe since 2005.
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34 Responses

  1. bridgetka
    bridgetka May 24, 2007 at 4:33 pm |

    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.

    Because eighth-graders getting shotgun weddings or having their babies pried out of their hands worked out so well in the past! Is this nut seriously suggesting that everything would be okay if fifteen year olds got married? And O, the shame of not having proper penile authority! WTF!?

  2. twf
    twf May 24, 2007 at 5:03 pm |

    While argument 5 (equal protection) is certainly the most compelling, especially to the type of person likely to be reading Feministe, I think you’re right that it won’t be taken seriously by prosecutors and legislators.

    Argument 3 is the one that I really think has legs. Trafficking? Child abuse? Prosecutors are really stretching these definitions and the associated laws. What I do to my own body right now (I’m 12 weeks pregnant) does not fit into any of those laws.

    If the people and the legislature truly believe that drug use during pregnancy is wrong, and that the state has an interest in pregnant women’s drug use, they should be writing laws to that effect. There should be no need to stretch existing laws. And then, the legislators on the right side of the issue can at least include amendments funding drug treatment for any pregnant woman who requests it. And even demanding that the legislation recognize that the appropriate remedy is treatment, not incarceration. I think the majority of the electorate wants to see mothers treated, not punished. And most people who rail against pregnant drug users seem to be under the impression that anyone wanting treatment gets it, which is nowhere close to the case.

  3. MattC
    MattC May 24, 2007 at 5:43 pm |

    That was a very thorough and well-thought out discussion of the issue. I’ve been doing some reading recently on what types of treatments could be used as alternatives to punishment for women who are pregnant drug addicts. Iris Young wrote a fantastic piece on the subject, though her stance is informed more by political theory than by legal studies. It’s called “Punishment, Treatment, Empowerment: Three Approaches to Policy for Pregnant Addicts”. Though you may have already come across if it in your research.

  4. Heraclitus (Jeff)
    Heraclitus (Jeff) May 24, 2007 at 7:29 pm |

    Wow, this was a very interesting and educational post (although every detail of your penultimate paragraph was pretty abhorrent). I don’t know much about the law, so I’m curious why the equal protection argument wouldnt’ work? Do you have to prove more than equal populations of criminals being disproportionately prosecuted? Is that more a problem with the enforcement than the law? Would the argument be considered too much about history and not enough about the details of the law? And if it’s not taken seriously in court, is it purely academic? My (perhaps incorrect) understanding is that equal protection is supposed to limit what legislatures and such can do, so applying that argument (#5) to new laws, while it may help, seems kind of unsatisfactory. Or am I failing to understand something?

  5. Amanda Marcotte
    Amanda Marcotte May 24, 2007 at 7:45 pm |

    Equal protection has a poor track record in court. The laws aren’t written unequally, but they are enforced unequally, which is harder to really prove in court.

  6. Tony
    Tony May 24, 2007 at 8:39 pm |

    Oh absolutely, throw them in Jail.

    I disagree with the language of the statute though, I don’t think the fetus is a child under 18.

    Nevertheless, get pregnant and you do drugs while there is a fetus growing in you? Better stop or go to jail.

  7. Mighty Ponygirl
    Mighty Ponygirl May 24, 2007 at 9:21 pm |

    What if they smoke? Or drink? Or have a cup of coffee? Or lift a heavy bag? Should it be jail then, or will throwing them in the stocks suffice?

  8. Will
    Will May 24, 2007 at 9:27 pm |

    Tony, Jill’s fourth argument seems to be a compelling answer to “throw them in jail.” Even if doing drugs with a fetus growing in you is a terrible thing to do (and I agree that it is), it still helps neither the fetus nor the mother to prosecute her.

    So even though your “throw them in jail” is probably motivated by concern for the fetus, it seems misguided.

  9. Heraclitus (Jeff)
    Heraclitus (Jeff) May 25, 2007 at 12:21 am |

    So, does that mean laws prohibiting same-sex marriage can be overturned because they’re clearly discriminatory in intent? I’m guessing not, since it’s not happening, but that would seem to follow.

  10. Tapetum
    Tapetum May 25, 2007 at 1:30 am |

    If endangering the fetus became a criminal action an awful lot of very subjective stuff becomes possibly criminal. For instance, about half-a-dozen different people would probably have tried to turn me in during my first pregnancy. Why? Well, at the time I became pregnant I was used to doing what my dojo called “Step Aerobics from Hell” – toss your partner over your shoulders in a fireman’s carry and do step aerobics on a step nearly knee high. So when my doctor told me not to carry more than about half what I normally would, my figuring went “One-half of 180 lbs is 90. Heck, lets be conservative, I won’t carry more than 60.”

    I had people rip 50 lb. bags of dog-food off my shoulder because “You shouldn’t be carrying that much.” One woman scolded me roundly for picking up a 10 lb. printer. I would have been explaining myself to the police on a daily basis.

    We won’t even go into what would happen to women who work with my husband at a chemical plant.

    However, the killer argument to me is #4. Criminalizing being an addict while pregnant helps nobody. Not the addict, not the fetus, not the public. In fact it endangers all those it purports to help by making it dangerous for the mother to seek medical care. Plus, jails are not notorious for their excellent medical care, and the treatment of pregnant, let alone laboring mothers. Many of them are a serious threat to the health and welfare of both mother and child all by themselves. (Chaining the mother, anyone?)

  11. Will
    Will May 25, 2007 at 6:49 am |

    Jeff, I think the trouble with applying the Equal Protection clause to marriage rights is that the equal protection clause is defined in negative terms: the state shall not “deny to any person within its jurisdiction the equal protection of the laws.” No one is stopping queers from getting heterosexual marriages and accessing the same protection as a straight person. So, technically the state probably isn’t denying equal protection.

    It certainly is being an ***hole, and it’s certainly being unfair, and it certainly needs to be fixed, but it might not be violating the 14th amendment.

  12. preying mantis
    preying mantis May 25, 2007 at 7:01 am |

    “…and you just reminded me of something I meant to include in the post and forgot. Damn. But the slippery slope argument is a big deal here — one legislator already tried to make it a crime for a woman to smoke in a car with children, or for a woman to smoke while pregnant. So the concern about criminalizing perfectly legal activities just because they are carried out by a pregnant person is a very valid one.”

    It’s particularly concerning given Congress’s complete and utter lack of consideration for medical evidence when passing bills. The circus that was the passing of the “partial-birth abortion act” that just got upheld made that pretty clear. We don’t even just have to worry about actual, sound, researched, medically-endorsed risky things being made illegal simply because someone’s pregnant–we have to worry about idiot legislators passing laws against pregnant women doing things they think are medically risky.

  13. Around The Sphere May 25, 2007 | The Moderate Voice

    […] st century America.) Prosecuting Pregnant Drug-Addicted Mothers is a big issue. Details at Feministe. Charges of Racism…The Department Of […]

  14. Moira
    Moira May 25, 2007 at 9:39 am |

    Texas recently passed a law forbidding foster parents from smoking in their cars with foster kids in them. An extension of the ban on smoking in the house with children present. There’s not very far to go on that slippery slope.

  15. TinaH
    TinaH May 25, 2007 at 12:40 pm |

    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.

    An honest question: could there be more slippery sloping here because of the drugs used during labor and delivery to ease the pain of the mother? Some of that stuff passes through the placenta, leading to woozy newborns. I’m assuming that qualified professionals can tell the difference between recreational or addicted drug use during pregnancy and pain relief during labor in the infant.

    Or, am I just super-duper paranoid and worried that pain relief during labor could become criminalized? Granted, I have a weird mind. But, it wouldn’t surprise me, because aren’t we supposed to bring forth our children in travail? Genesis something or another.

  16. nik
    nik May 25, 2007 at 1:03 pm |

    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.

    Do they prosecute drug addicts who don’t use drugs? I ask because if they’re prosecuting people for drug use, rather than addiction per se, then status issues are irrelevant – but maybe it opens up questions about mental illness and criminal intent. Prosecuting pregnant women who use drugs but aren’t addicts seems a lot less harsh than prosecuting drug addicts for the same thing.

  17. preying mantis
    preying mantis May 25, 2007 at 1:26 pm |

    “Prosecuting pregnant women who use drugs but aren’t addicts seems a lot less harsh than prosecuting drug addicts for the same thing.”

    A lot of the definitions of “addiction” revolve around people continuing to use a substance in spite of negative consequences or the potential for negative consequences, and addiction does not hinge on being physically dependent on the substance.

    You could very easily make the argument that a woman who, for instance, did not stop using heroin ‘casually’ during pregnancy was an addict because she was willing to risk her pregnancy in order to get high. It’s not by any means a universal argument in the drug treatment industry, but the line between something being a problem and something being an addiction isn’t exactly well-defined.

  18. Cecily
    Cecily May 25, 2007 at 3:37 pm |

    Jill, thanks as always for sharing your law-fu with us laypeople.

    One thing I’m wondering about:

    Proving that a law is applied disproportionately is not sufficient to prove an EP violation.

    How strict is this? For instance, the drastically different sentencing guidelines for crack vs. cocaine don’t have anything about race written into them, but “applied proportionally” to (let’s pretend cops catch a lot of addicts) 80% of the crack-using and cocaine-using populations, they’re terribly racist. Is there a basis for challenging that under law?

  19. Mighty Ponygirl
    Mighty Ponygirl May 25, 2007 at 10:23 pm |

    Just thought this was interesting:

    From this week’s Dear Prudie

    Dear Prudie,
    I am six months pregnant with my first child and am extremely concerned about the effects of secondhand smoke on a newborn, because my mother is a lifelong smoker. We both live in the same town, and she’s excited to have a grandchild close to her that she’ll be able to spend lots of time with. I know my mom would at least make the effort to go outside and smoke when her grandchild is with her. However, I’m very worried about the toxins in her clothes and on her skin from smoking. I’m worried about my child spending time at her house, because she does smoke inside when nobody else is around. I know a conversation about her smoking will make her defensive and upset, but I have to protect my child the best that I can. My husband tells me to just let the issue go because the supposed dangers are not worth the argument, since she’ll go outside to smoke, but Internet research seems to suggest differently.

  20. appletree  » Blog Archive   » Friday Links: ‘Oughta Be Horsewhipped’ Edition

    […] women who use narcotics while pregnant, even in cases where their children are not harmed. Jill Filipovic takes us through the problems inheren […]

  21. mythago
    mythago May 26, 2007 at 11:28 am |

    So, does that mean laws prohibiting same-sex marriage can be overturned because they’re clearly discriminatory in intent?

    Discriminatory on the basis of sexual orientation.

    If they don’t use drugs, then they aren’t drug addicts.

    Drug addicts don’t use 24/7, and people who have stopped using drugs often describe themselves as ‘recovering addicts’. If the original question is about whether having an addiction can be a crime, no.

    Better stop or go to jail.

    I guess on the Tony Planet, all those women who post on mommy boards asking “I went to a party and had a few drinks, and I just found out I’m pregnant, did I hurt my baby?” should not be told “Probably not”, but should be clapped in irons.

  22. bluestockingsrs
    bluestockingsrs May 26, 2007 at 12:28 pm |

    The reason the Equal Protection arguments are less successful is because the Court has established particular rules for enforcing the EP doctrine. The basic idea is that in order for a law to violate the EP clause, it must be discriminatory in its intent — which sounds reasonable enough, but in practice it means that you basically have to prove that someone is out to get you based on your race. It’s almost an impossible standard to meet. Proving that a law is applied disproportionately is not sufficient to prove an EP violation.

    Now, I remember that in Yick Wo the court found that the law was fair on its face but was being applied in a discriminatory manner against the Chinese in SF. Granted, this reasoning was completely abandoned in Plessy a few years later, but it is possible to prove that a law is being enforced unfairly. That whole, “though it be fair on its face” quote from the court.

    In OT news, my name appears on the pass list for the California Bar Exam.

    YAYAYAYAYAYYAY!

  23. preying mantis
    preying mantis May 26, 2007 at 12:36 pm |

    “Just thought this was interesting:

    From this week’s Dear Prudie”

    Dear lord, that woman’s going to let her mother near her infant? What is she thinking? Everyone knows smokers are ogres with a particular taste for the sweet flesh of suckling babes.

  24. mythago
    mythago May 26, 2007 at 1:09 pm |

    Everyone knows smokers are ogres with a particular taste for the sweet flesh of suckling babes.

    What an awful misconception. Smokers are really persecuted innocents.

  25. preying mantis
    preying mantis May 26, 2007 at 2:06 pm |

    “Smokers are really persecuted innocents.”

    But they make whipped-cream out of chilled baby’s blood! They put it on their minced-baby pies! There’s even a Truth ad devoted to the practice!

  26. mythago
    mythago May 27, 2007 at 12:00 am |

    What terrible lies. We all know that second-hand smoke is harmless, and in fact, makes you extra-cool, just like smokers.

  27. mythago
    mythago May 27, 2007 at 12:02 am |

    Oh, and bluestocking, CONGRATULATIONS!

  28. bluestockingsrs
    bluestockingsrs May 27, 2007 at 11:08 am |

    Thanks, mythago.

    It is a pretty big thing. I am beyond excited.

  29. Mnemosyne
    Mnemosyne May 27, 2007 at 11:16 am |

    In OT news, my name appears on the pass list for the California Bar Exam.

    Congratulations! That’s a great accomplishment!

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