Applications Of Feminist Legal Theory

Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy

A ~S) Punishing Drug Addicts Who Have Babies: Women ofColor, Equality, and the Right ofPrivacy DOROTHY E. ROBERTS Prologue A former slave named Lizzie Williams recounted the beating ofpregnant slave women on a Mississippi cotton plantation: "l[']s seen nigger women dat wasfixin' to be confined do somethin'de white folks didn't like. Dey [the white folks} would dig a hole in de ground just big 'nufffa' her stomach, make her lieface down an whip her on de back to keepfrom hurtin ' de child. "1 IN JULY 1989, jennifer Clarise johnson, a twenty-three-year-old crack addict, became the first woman in the United States to be criminally convicted for exposing her baby to drugs while pregnant.2 Florida law enforcement officials chargedjohnson with two counts of delivering a controlled substance to a minor after her two children tested positive for cocaine at birth. Because the relevant Florida drug law did not apply to fetuses , the prosecution invented a novel interpretation of the statute. The prosecution obtained johnson's conviction for passing a cocaine metabolite from her body to her newborn infants during the sixty-second period after birth and before the umbilical cord was cut. Introduction A growing number of women across the country have been charged with criminal offenses after giving birth to babies who test positive for drugs.3 The majority of these women, like jennifer johnson, are poor and Black.4 Most are addicted to crack cocaine .5 The prosecution of drug-addicted mothers is part ofan alarming trend towards greater state intervention into the lives of pregnant women under the rationale ofprotecting the fetus from harm. This intervention has included compelled medical treatment , greater restrictions on abortion, and increased supervision ofpregnantwomen's conduct. 104 Harv. L. Rev. 1419 (1991). Copyright © 1991 by the Harvard Law Review Association. 882 Copyrighted Material PunishingDrug Addicts "'ho Have Bames I 883 Such government intrusion is particularly harsh for poor women of color. They are the least likely to obtain adequate prenatal care, the most vulnerable to government monitoring, and the least able to conform to the white, middle-class standard of motherhood . They are therefore the primary targets of government control. The prosecution of drug-addicted mothers implicates two fundamental tensions. First, punishing a woman for using drugs during pregnancy pits the state's interest in protecting the future health of a child against the mother's interest in autonomy over her reproductive life-interests that until recently had not been thought to be in conflict . Second, such prosecutions represent one of two possible responses to the problem of drug-exposed babies. The government may choose either to help women have healthy pregnancies or to punish women for their prenatal conduct. Although it might seem that the state could pursue both of these avenues at once, the two responses are ultimately irreconcilable. Far from deterring injurious drug use, prosecution of drugaddicted mothers in fact deters pregnant women from using available health and counseling services because it causes women to fear that, if they seek help, they could be reported to government authorities and charged with a crime. Moreover, prosecution blinds the public to the possibility of nonpunitive solutions and to the inadequacy of the nonpunitive solutions that are currently available. The debate between those who favor protecting the rights of the fetus and those who favor protecting the rights of the mother has been extensively waged in the literature .6 This [essay] suggests that both sides of the debate have largely overlooked a critical aspect of government prosecution of drug-addicted mothers. Can we determine the legality of the prosecutions simply by weighing the state's abstract interest in the fetus against the mother's abstract interest in autonomy? Can we determine whether the prosecutions are fair simply by deciding the duties a pregnant woman owes to her fetus and then assessing whether the defendant has met them? Can we determine the constitutionality of the government's actions without considering the race of the women being singled out for prosecution? Before deciding whether the state's interest in preventing harm to the fetus justifies criminal sanctions against the mother, we must first understand the mother's competing perspective and the reasons for the state's choice of a punitive response. This Article seeks to illuminate the current debate by examining the experiences of the class ofwomen who are primarily affected-poor Black women. Providing the perspective of poor Black women offers two advantages. First, examining legal issues...