Who Is the Guilty Party? Rights, Motherhood, and the Problem of Prenatal Drug Exposure

Abstract

Laura Gomez, Misconceiving Mothers: Legislators, Prosecutors, and the Politics of Prenatal Drug Exposure. Philadelphia: Temple University Press, 1997. Pp. x+256. $59.95 cloth; $19.95 paper. Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. New York: Pantheon Books, 1997. Pp. x+384. $26.00 cloth; $14.00 paper. In 1987, California prosecutors used the state's child support statute to charge Pamela Rae Stewart with criminal neglect for using drugs while she was pregnant. With this prosecution Stewart became the first woman in the United States charged with the crime of exposing her fetus to drugs (Gomez 1997; Roberts 1997). In 1989, Florida prosecutors adapted state drug trafficking laws to convict Jennifer Johnson for delivering cocaine to a minor through the umbilical cord (Daniels 1993). And in 1992, South Carolina prosecutors used child abuse protection laws to convict Caroline Whitner with endangering the life of her unborn child by smoking crack cocaine during her pregnancy (Roberts 1997). While these three cases captured national headlines, in the past decade prosecutors have charged more than 200 women with crimes for prenatal drug exposure (Chavkin et al. 1998). Their justification: making prenatal drug exposure a crime would ultimately protect the health and well-being of infants. But should prenatal drug exposure be treated as a criminal offense? Does prosecution really protect the health and welfare of newborns? Should prosecutorial efforts to criminalize prenatal drug exposure be supported by legislative changes? Should the American public support the efforts of legislators and prosecutors to do just that?1 Feminist lawyers, scholars, and activists have answered these questions with resounding no's. Expressing great concern about the popular support for punishment and the legislative and prosecutorial trend toward criminalizing prenatal drug exposure, they argue that criminalization is both an unconstitutional and ineffective response to a very pressing social problem. Criminalization of prenatal drug exposure, opponents suggest, violates women's rights to liberty, privacy, and equality, and fails to meet the standards set by the criminal justice system. These violations are based, in part, on the fact that punitive approaches fail to reduce both the incidence and the harmful effects of drug use during pregnancy (see, e.g., Johnsen 1986; 1992; Gallagher 1987; Harvard Law Rev. 1990; McGinnis 1990). Criminalization and prosecution may, in fact, do more harm than by frightening women away from prenatal care and placing them in jail during their pregnancies. What is needed instead, opponents argue, are alternative interventions such as drug treatment programs and increased access to prenatal care. These interventions, they suggest, are not only more effective at reducing the incidence and effects of prenatal drug exposure but also more respectful of women's rights and cognizant of the healthcare needs of women and children. Despite these powerful arguments, punitive legislation and prosecutions continue. Feminists have concluded, therefore, that such policies are actually attempts to regulate the lives of pregnant women and subordinate women's rights and needs to those of the fetus. Undergirded by idealized notions of motherhood, what Marlee Kline (1995) calls the of motherhood,2 punitive responses to prenatal drug exposure are said to feed on the desire to place the blame for social problems on particular individuals. Prosecutors and legislators use the ideology of motherhood, which presumes that always act in selfsacrificing and caring ways toward their children, in order to distinguish good mothers from bad mothers and innocent victims from guilty parties. Through this process, prosecutors not only identify particular women as criminals, but ultimately reinforce gender hierarchy and hinder attempts to implement alternative policies and practices (see Harvard Law Rev. …