The War On Drugs, launched in 1971 by Richard Nixon, has been repeatedly exposed as a failure. Yet, the same failed tactics used to fight drugs continue to be used to retain control over women’s reproduction. Drug laws are increasingly being implemented on the state level as a roundabout method to limit women’s bodily autonomy and carry out anti-choice agendas. Last year, Tennessee passed SB 1391, and became the first state in the U.S. to specifically criminalize drug use during pregnancy. The legislation states that women with babies who test positive for narcotics can be charged and prosecuted for assault. Those women would face up to 15 years of prison time.
Proponents of the bill claimed it was a necessary step towards combating the increase in neonatal abstinence syndrome (NAS) in Tennessee. However, the medical community took issue with the legislation on a number of points, with obstetric and drug specialists stating that risks to newborns have been exaggerated. An investigative article in the American Prospect found that not only is there “no evidence that NAS has long-term consequences for infants,” but that some doctors agree there is a trend of over-treating NAS and that in actuality, close contact with the mother, not isolation, is important for alleviating symptoms. Medical authorities also say that NAS symptoms are temporary, predictable, and treatable—a far cry from State Representative Terri Lynn Weaver’s (R) assertion that “these babies are born and their lives are totally destroyed.” Furthermore, using the term “drug addicted” to describe such babies has been declared inaccurate by medical professionals, yet Republican politicians, conservative prosecutors, and media continue to frame the issue as such in a way that stigmatizes women.
The Tennessee Department of Health’s FAQ sheet on the statute claims it does not “change care or medical treatment provided to pregnant women.” While it may not explicitly do so, the bill can have the detrimental effect of discouraging pregnant women from seeking vital prenatal care and treatment for fear of arrest and prosecution. The context and implications of medical treatment are indeed changed, and as a result there is widespread consensus in the medical community in opposition to the prosecution and punishment of pregnant women. This is not a recent development: as early as 1990, the American Medical Association stated, “Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician’s knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.” The American College of Obstetricians and Gynecologists concurred in a statement on the harms of using punitive measures to combat addiction, asserting that “Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus. Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.”
Not only is the science behind SB 1391 faulty, but the stereotypes and discourses remain consistent: the manufactured “crack baby” hysteria is mirrored, along with the moral condemnation of these mothers.
Female drug users have always been stigmatized, but the criminalization of female users reached a new high when conservative policymakers, led by President Ronald Reagan and faithfully echoed by the media, fabricated a trope of inner-city “crack babies” doomed by their supposedly incompetent mothers: poor women of color. Tennessee’s recently passed legislation shows this framework is far from retired. Representative Weaver, one of the bill’s sponsors, was quoted in a comment calling pregnant drug users “the worst of the worst.” The media storm surrounding the legislation, featuring mug shots of women arrested under the statute on local TV news and on the Internet, has driven pregnant women into hiding to escape public ridicule. According to an investigation by The Nation, 24-year-old Brittany Hudson gave birth in a car instead of the hospital out of fear of arrest and media exposure. In the previous weeks, Hudson had been turned away from two rehab centers already at capacity. As she feared, her mug shot was plastered over the news after she was charged with assault. Tennessee’s law reflects the detrimental view of addiction as a moral failure, rather than the medical disorder research has proven it to be. Just as the “crack problem” was used in the 80s as a vehicle for scapegoating supposedly “deviant” urban citizens experiencing the problems caused by Reagan’s social and economic policies, Tennessee’s statute and its conservative supporters ignore broader structural issues such as poverty, systemic racism, and insufficient health care. The conservative “tough on crime” approach to criminal justice consistently focuses on social control and punishment rather than social justice and access to resources.
In line with the War On Drugs, this legislation disproportionately harms poor people of color, despite conservatives’ colorblind claim that drug policy has nothing to do with race or poverty. The normalization of controlling Black and Brown bodies through institutional apparatuses continues with this expansion of an already overburdened criminal justice system. This trend, illuminated in Lynn Paltrow (whose article on fetal genocide laws can be found in the Spring 2015 issue of The Public Eye magazine) and Jeanne Flavin’s study published in the Journal of Health Politics, Policy, and Law, follows a long-term strategy to unite the War On Drugs and the anti-abortion movement, which results in a disproportionate impact upon low-income Black pregnant women. The study systematically identified and analyzed over 400 cases in which a woman’s pregnancy was the basis for the deprivation of her liberty. Black women comprised over half of the cases, as they were found to be reported to the police by health care providers and arrested at higher rates. As a racist project, the justice system’s latest efforts to criminalize drug users will subject pregnant Black women to higher rates of arrests and incarceration based on systemic racial biases and racial stereotypes of African-American mothers, an issue perhaps most notably elucidated in Dorothy Robert’s seminal book Killing the Black Body.
Tennessee’s law exempts women who enter drug addiction programs while pregnant and complete them post-birth. This addition, included to temper opponents, simply furthers the disparate implementation of the measure and creates a catch-22 for addicted, low-income women who cannot get treatment. Women in rural areas and women struggling financially are threatened with a higher risk of incarceration due to limited access to drug addiction programs (as well as limited access to other options, with 96% of Tennessee counties lacking an abortion clinic). The law does not specify the legal ramifications for a woman who seeks treatment but can’t access one or get into a program, leaving many in a vulnerable position. Nor does the law provide increased funding or opportunities for treatment for pregnant women.
And Tennessee isn’t alone. Since passing the bill last year, conservative lawmakers in Oklahoma and North Carolina have proposed similar legislation.
The Tennessee law is merely one component of a wider, more subtle—and thus perhaps more dangerous—trend. Although Tennessee is the only state that explicitly criminalizes prenatal drug use as an assault, other states are utilizing different drug-related methods to control women’s reproduction. 18 states label drug usage by pregnant women as child abuse under child-welfare statutes. In the case Ex Parte Sarah Janie Hicks in April 2014, the Supreme Court of Alabama ruled that a 2006 child abuse chemical endangerment statute’s reference to “child” includes an “unborn” child, upholding Hicks’ conviction for having a baby that later tested positive for cocaine, despite being healthy. The original purpose of the statute was to prohibit individuals from exposing children to narcotics production and distribution areas, but right-wing organizations, such as Liberty Counsel, and conservative political actors have since pushed for a wider interpretation of the law: one in which a fetus is considered a child and a womb is considered an environment where drugs are produced or distributed. Court decisions such as Hicks function to create precedent for convicting pregnant women for drug use.
Tennessee’s legislation, in conjunction with other drug-related strategies like the expansion of Alabama’s child endangerment statute under Ex Parte Hicks, applies the punitive approach of the War On Drugs to reproductive rights, limiting women’s bodily autonomy and perpetuating the legacy of the our racist carceral system. Lynn Paltrow, executive director of the National Advocates for Pregnant Women, has consistently highlighted how Tennessee’s prenatal drug use law is a continuation of the anti-abortion “personhood” campaign. Notably, both sponsors of the bill, State Senator Reginald Tate (D) and Representative Weaver, were endorsed by Tennessee Right to Life PAC, one of the foremost anti-choice organizations in the state. These legislative encroachments are but one tactic in a state-by-state approach by conservative activists to control reproduction and insert the concept of “personhood” into the legal code in various arenas.
The prosecution of prenatal drug use stigmatizes and locates the blame on individual mothers, distracting attention from poverty, institutionalized racism, a broken carceral system, insufficient health care, and other structural causes. In a coming together of two controversial issues, drug policy and reproduction, conservatives have found an effective strategy to further their agenda through the targeting of pregnant drug users.