An example of the American 'Harm Maximization Program'
I am convinced and find that a child who is born but whose umbilical cord has not been severed is a 'person' within the intent and meaning of Florida law...I am convinced and find that the term 'delivery' includes passage of cocaine or a derivative of it from the body of the mother into the body of her child through the umbilical cord after birth occurs.
So spoke the Honourable O. H. Eaton, Jr, of the Seminole County Circuit Court, before passing sentence upon Jennifer Johnson, a twenty-three-year-old mother of four, a cocaine abuser, and the first woman- to be convicted by an American court under a drug-trafficking statute for delivering drugs to her infant through the umbilical cord. Johnson was punished for her transgression with a sentence designed to keep her from future temptation: one year of house arrest and fourteen years of closely supervised probation, during which dine she is forbidden to possess controlled substances, associate with others who do, or enter a bar without the permission of her probation officer. If Johnson should become pregnant again during those fourteen years, she must follow a pregnancy care programme approved by the court. She will also be subject to random urine drug tests and warrantless searches of her home during her first year of house arrest.
George Orwell was only a few years off the mark when he selected 1984 as his symbol of state-sponsored social control. America's contemporary War on Drugs has spawned an impressive array of counter-productive measures to curb the demand for illegal drugs. But the persecution of pregnant users is perhaps most emblematic of America's 'harm maximization' approach to its drug problem.
THE CASE AGAINST JENNIFER JOHNSON
Jennifer Clarice Johnson, at the time of her arrest, was a cocaine abuser and had been for about three years. Although she sought treatment for her addiction during her pregnancy, she was unable to find a programme that would accept her. On 23 January 1989, Johnson gave birth to a baby girl. Her labour and delivery were normal and, in the words of the attending obstetrician, the baby 'looked and acted as we would expect a baby to look and act'. Johnson told the obstetrician that she had used cocaine during her pregnancy, a fact which was confirmed by urine drug screens administered to both mother and infant. The hospital then notified a state child protection investigator of the birth of a 'cocaine baby', and the investigator in tum notified the County Sheriff's Office who initiated a criminal investigation which led to Johnson's arrest.
, The case was assigned to Jeff Deen, a publicity conscious county prosecutor In need of a theory upon which to base his novel drug-trafficking case. Since under Florida law a foetus is not a person, he could not charge Johnson with delivering cocaine during the pregnancy itself So instead, he argued that the 'delivery' occurred after the birth during the sixty to ninety seconds before the umbilical cord was clamped.
Judge Eaton was, as he put it, 'convinced', and concluded the sentencing hearing with these uncharitable words:
The fact that the defendant was addicted to cocaine at the time of these offences is not a defense. The choice to use or not to use cocaine is just that — a choice. Pregnant addicts have been on notice for years that taking cocaine may be harmful to their children. This verdict puts pregnant addicts on notice that they have a responsibility to seek treatment for their addiction prior to giving birth. Otherwise, the state may very well use criminal prosecution to force future compliance with the law or, in appropriate cases, to punish those who violate it.
State of Florida v. Johnson (Circuit Court, 13 July 1989)
While Jennifer Johnson is the first to be convicted, she is not tlie only victim of the 'pregnancy police' (McNulty, 1987). By last count, at least fifty women in sixteen states have, in recent months, been arrested for drug use during pregnancy. In South Carolina, where cultivation of lethal tobacco is the major agricultural endeavour, eighteen women have been charged with criminal neglect of their foetuses. Following a protocol developed by the public hospitals, the police, the department of social services, and the prosecutor, these women, all of whom tested positive for drugs, were, within days of giving birth, arrested, handcuffed and taken to jail until they could make bail. Their babies have been taken into 'protective custody' by the state (Goetz et al., 1990).
Less dramatic than the criminal prosecutions, but far more prevalent, are civil proceedings against drug-using new mothers. Hundreds of women have lost custody of their newborns based upon a single positive toxicology at birth.
Typically, these proceedings are triggered by the hospital's report of a positive toxicology to the local or state agency charged with providing services to neglected or abused children. An increasing number of states are enacting laws that redefine 'neglect' to include prenatal exposure to controlled substances. The State of Oklahoma, for example, recently enacted a statute defining 'a deprived child' as 'one born in condition of dependence on a controlled, dangerous substance'. The same law requires the hospital to report chemically dependent children to social services, which in turn must give any evidence of drug abuse to the district attorney. Failure to report constitutes a crime (Okla. Stat. Arm. Tit. 10, Sec. 1101, 1988).
POOR AND MINORITY WOMEN ARE TARGETS
Despite the fact that illicit drug use crosses all income levels and races, poor Black women are by far the predominant victims of the pregnancy police. In a recent study conducted in a Florida county, 380 pregnant women in public clinics and 335 in private care were drug tested. The rate of positive test results was 15.4 per cent among White women and 14.1 per cent among Black women. Yet a Black woman was nearly ten times as likely to be reported for substance abuse as her White counterpart (National Association for Perinatal Addiction Research and Education, 1989).
This bias can be attributed to two factors. First, public clinics and hospitals that primarily serve low-income, often minority women, comply with reporting regulations to a far greater extent than do private hospitals and doctors serving the middle and upper classes. Second, doctors are influenced, either consciously or unconsciously, by a drug user profile based on racial stereotypes and are, therefore, much more likely to test the urine of poor, Black women than of middle-class, White women, in spite of empirical evidence showing comparable patterns of drug use. In South Carolina, one element of the profile used by public hospitals to identify probable drug users is no prenatal or late prenatal care (after twenty-four weeks). This is highly discriminatory since Medicaid (medical insurance for poor people) does not cover prenatal care before nineteen weeks of pregnancy (Goetz et al., 1990).
LACK OF TREATMENT
Judge Eaton's admonition to Jennifer Johnson that 'pregnant addicts have a responsibility to seek treatment' is indicative of either shocking ignorance or indifference to the plight of poor women in need of medical care. In fact, Johnson had sought drug treatment but failed to fmd it. She testified at her trial that she had, on several occasions during her pregnancy- , called for an ambulance out of concern for the baby: 'I thought that...if rtell them I use drugs they would send me to a drug place or something?' But her pleas for help were ignored. As for her prenatal care, as Johnson. put it, 'It wasn't much, but it was enough that I had been checked by the doctor and I know I didn't have any diseases or nothing like that.'
NO PRENATAL CARE FOR THE POOR
In spite of the universal belief that prenatal care is essential to healthy pregnancies and healthy babies, such care does not exist for millions of American women. In fact, access to prenatal care and delivery services has diminished in recent years for poor women, and at the same time the addiction problem has worsened. For example, in San Diego, California, clinics turned away 1,245 pregnant women during a recent three-month period because of limited resources.
The lack of prenatal care has been particularly disastrous for drug-abusing women who are already at special risk. Indeed, quality prenatal care is probably more essential to a good outcome for these women than drug treatment. As one expert has put it, 'In the end, it is safer for the baby to be born to a drug-abusing, anemic or diabetic mother who visits the doctor throughout her pregnancy than to be born to a normal woman who does not' (St Petersburg Times, 1986).
UNAVAILABILITY OF DRUG TREATMENT
Drug treatment for poor, pregnant women is even scarcer than is prenatal care. And the need is enormous. Surveys indicate that the incidence of maternal substance abuse has tripled since 1981, and in this drama, crack cocaine has played a leading role (Chavkin, 1989). Fifteen per cent of 3,000 infants born at Harlem Hospital in New York City were prenatally exposed to cocaine. A study at Boston City Hospital revealed that 17 per cent of delivering women had used cocaine during their pregnancies (Brody, 1988). (It should be borne in mind that the urine screens do not indicate frequency of use or dosage, and there is anecdotal evidence that some women take cocaine during labour in order to speed up delivery; many of these women may not be chronic users.)
It is extraordinarily difficult, even for highly motivated pregnant women, to find drug treatment programmes that will accept them. In New York City, of seventy-eight drug treatment programmes surveyed in 1989, 54 per cent refused to treat pregnant women, 67 per cent refused to treat pregnant women on Medicaid, and 87 per cent had no services available for pregnant wotnen on Medicaid who wanted to stop using crack. Moreover, less than half of the handful of programmes that did accept pregnant women provided or arranged for prenatal care (Chavkin, 1989).
This, then, is the backdrop against which these prosecutions are taking place: no prenatal care, no drug treatment, and no mercy.
THE PROSECUTORS' MISGUIDED THEORY OF DETERRENCE
Deterrence theory is based on the premise that if you punish people for engaging in certain behaviours you will prevent others from doing so. It is clear from their own statements that the prosecutors in these cases believe that their actions will deter not only the defendants, but pregnant women in general, from using drugs. As District Attorney Michael Ramsey of Butte County, California, put it: 'We intend to send a strong message not only to mothers, but to the community at large, that Butte County will not allow drug abuse to affect its babies' Pell, 1988).
Those directly involved in the care of substance-abusing pregnant women differ with D.A. Ramsey over the effects of his so-called message. They are concerned that such punitive actions will not deter addicts from using drugs during pregnancy but will deter them from sharing important information with their doctors and, indeed, from using the health care system at all. Last year a Florida newspaper reported that :
After uniformed officers wearing guns entered Bayfront Medical Center to investigate new mothers suspected of cocaine abuse, doctors reported that they could no longer depend on the mothers to tell them the truth about their drug use because the word had gotten around that the police will have to be notified.
(St Petersbmy Times, 1989)
The head nurse at Greenville Memorial Hospital in North Carolina, which was the site of similar police actions, was blunt in her appraisal: 'I think these prosecutions are dangerous. The mothers won't seek medical help. If they don't seek medical help, we're going to have a lot of dead babies' (Garloch, 1989). There is some anecdotal evidence that more women are giving birth in abandoned buildings in order to avoid detection by the health care system.
But it seems that many of the prosecutors, who are after all elected officials, are animated more by concern for votes than concern for the welfare of 'their' babies. And these 'get tough' measures, in spite of their obvious and extraordinarily counter-productive consequences, do enjoy a considerable measure of popular support. In one poll, 46 per cent of respondents thought that 'prenatal abuse' should be a criminal offence (Glamour Magazine, 1988).
SOURCE OF POPULAR SUPPORT
How is it that. in the final decade of the twentieth century in the advanced industrialized nation of the United States of America, the body politic can so utterly fail to be outraged by these ignorant and barbaric practices? Even our civil rights organizations have been uncharacteristically silent in spite of the policy's blatant racism.
The answer lies in the unfortunate convergence of two powerful social movements: the anti-abortion movement and the anti-drug movement.
These forces on the New Right came to ascendancy during the two-term presidency of Ronald Reagan and continue to wield considerable political power. With fundamentalist Christian groups at its core, the New Right seeks a return to what it calls 'traditional family values'. Drug-talcing and sex outside heterosexual marriage threaten these values and are therefore condemned as morally unacceptable, sinful and deserving of strong condemnation and punishment (Reinarman and Levine, 1989).
THE ANTI-ABORTION MOVEMENT AND FOETAL RIGHTS
The American anti-abortion movement has been a potent political force in the country for more than a decade. Central to the philosophy of the anti-abortion movement is the pseudo-legal concept of 'foetal rights'. In fact, anti-abortion activists describe themselves as civil rights advocates on behalf of 'the unbom'. It has been an uphill battle because firmly embedded in the nation's common law is the 'born alive' rule: a foetus must be born alive in order to secure legal personhood (McNulty, 1987). Traditionally, the law has viewed mother and foetus as an indivisible unit whose legal interests are the same. The anti-abortion movement has been trying to drive a legal wedge between mother and foetus for years.
One of the movement's tactics for establishing foetal rights is to support legal actions that raise the issue, even in the non-abortion context. The criminal prosecution of drug-using pregnant women provides just such an opportunity. Arm Louise Lohr of Americans United for Life Legal Defense Fund had this to say about the prosecution of ICimberly Hardy, a Michigan woman who was charged with delivering cocaine to her baby via the umbilical cord:
You do not have an absolute right to do with your body what you want. The state can require you to have vaccines. There are seat-belt laws, motorcycle helmet laws. Here's a class of people that aren't getting any protection, and it's the unbom.
The 'fight-to-lifers' reason that if you can critnmally prosecute pregnant women for harming their foetuses by ingesting cocaine, then you can prosecute them for 'killing' their foetuses by aborting.
THE ANTI-DRUG MOVEMENT
The origins of America's anti-drug movement were contemporaneous with the anti-abortion movement and also grew out of a backlash against the hedonism of the 1960s (Reinarman and Levine, 1989). The movement, which came into being in the late 1970s and had strong religious overtones, was a loose confederation of drug abuse profes-sionals, parents' groups, individual 'moral entrepreneurs' and govern-ment officials (Zimmer, 1990). Their guiding principles were total intolerance of all illegal drug use and strong support for criminal sanctions. Just after Ronald Reagan took office, Nancy Reagan, on the advice of her public relations advisers, decided to adopt the anti-drug crusade as her own, and met with leaders from the National Federation of Parents for Drug-Free Youth, a coalition of over 4,000 parents' groups (Reinarman and Levine, 1989; Zinuner, 1990). Soon she was riding the circuit, delivering the anti-drug message she coined in that insufferably simplistic sound bite: 'Just Say No.'
The early anti-drug movement's efforts at arousing the American public were not very successful. In fact, as late as 1986, only 2 per cent of the population regarded drugs as the nation's most important problem (Zimmer, 1990). But, in the spring of that year, several events changed everything: tvvo famous young athletes, Len Bias and Don Rogers, died after ingesting cocaine, and crack arrived in our inner cities and was noticed by the media. In a relatively short period of time, the anti-drug movement became an all-out national crusade, and by 1989 a staggering 64 per cent of Americans named drugs as America's most critical problem, the highest percentage ever received by a single issue irk arty public opinion poll (Zimmer, 1990). The drug scare was in full flower.
The government's response
In 1982 President Ronald Reagan declared his war on drugs. His principal war strategy was supply reduction. Enormous sums of money were poured into interdicting. illegal 'drugs entering the country. But billions of dollars a' nd thousands of drug seizures later, the government was forced to concede that 'Despite interdiction's successful disruptions of trafficking patterns, the supply of illegal drugs entering the United States has, by all estimates, continued to grow.'
When George Bush entered office, the country's drug control strategy had already begun to shift from supply reduction to demand reduction. Official rhetoric talked less about seizures of cocaine shipments, and more about drying up domestic demand. In his inaugural speech, Bush, referring to the drug problem, stated grandiosely, 'This scourge will stop'. When queried later by the press, he elaborated: 'The answer to the problem of drugs lies more on solving the demand side of the equation than it does on the supply side, than it does on interdiction or sealing the borders.' A new catch-phrase was coined to capture the essence of this strategy: user accountability. If you use drugs, any drugs, you must pay the penalty.
In the autumn of 1988 Congress passed the Anti-Drug Abuse Act, which, among other things, established hefty civil fines for casual users and the denial of government benefits to convicted drug offenders. The Act also mandated the new president to appoint a so-called Drug Czar to oversee and coordinate national drug policy.
The Drug Czar
In William Bennett, the Bush Administration found the ideal person to direct the new demand reduction programme. As Secretary of Education under Reagan, Bennett had demonstrated his harsh, neo-conservative views admirably. One of his favourite aphorisms was, 'after love, what children need most is order'. As Drug Czar he waged a punishing moral crusade against all drug use and all drug users:
Anyone who sells drugs and anyone who uses them is involved in an international criminal enterprise that is killing thousands of Americans each year...we should be tough on drugs — much tougher than we are now. Whatever else it does, drug use degrades human character...drug users make inattentive parents, bad neighbors, poor students and unreliable employees — quite apart from their common involvement in criminal activity.
Bennett's blame-the-user ideology captured popular imagination just as the drug problem was becoming more and more identified with underclass minorities. Although a very occasional newspaper article will remind us that White suburbanites take illegal drugs too, that message is overwhelmed by the far more common depiction of drugs as an inner city, minority problem. Today's imagery of the 'drug problem' is of gun-toting Black teenage gangs, ghetto crack houses where unspeakable horrors take place, and depraved Black women who prostitute themselves to raise money for their crack, and who give birth to tiny, drug-addicted babies whose pictures are plastered all over our subway cars in extravagantly graphic public service messages warning of the dangers of drugs.
Given this political environment, the criminal prosecutions of Jennifer Johnson, Melanie Green, Marcelle Denise Bruce, Toni Suzette Hudson, Kimberley Hardy, Cassandra Gethers, and other poor Black women are not surprising.
LEGAL AND ETHICAL COMPLICATIONS
We need to be concerned about these women's plight. But the harms caused by criminalizing their pregnancies extend far beyond the women themselves to their families, the medical profession, and the causes of women's rights and civil rights.
Destruction of families by the state
With the lodging of criminal charges, the defendant's newborn is immediately removed from her custody and placed in foster care. Older children may suffer the same fate. For example, when ICimberley Hardy of Muskegon, Michigan, was charged ten days after giving birth, her baby and her two older children, who were five years old and, fifteen months old, were all seized and sent into foster care. There were no allegations of child abuse or neglect against Hardy. Her children were taken away from her based solely on the results of the drug test administered by the hospital and on the assumption that Hardy was an unfit parent because she used drugs.
Turning doctors into medical cops
The pregnancy prosecutions are usually triggered by a hospital's report of a positive toxicology to a star agency. This practice violates both the woman's right to nondisclosure of private information and the physician's ethical obligation to protect doctor—patient confidentiality (Moss, 1989). Only a confidential and trusting relationship enables a physician to leam from the patient all the facts necessary to make a diagnosis and provide appropriate care. Knowing this, many practitioners are simply not reporting drug dependency at birth. But under the laws of some states, the failure to report constitutes a crime. Thus physicians now face the dilemma of either violating the privacy rights of their patients and their own ethical obligations, or running foul of the law.
An attack on women's rights to privacy and autonomy
The US Supreme Court's 1973 decision in Roc v. Wade (410 US 113), that women have a constitutional right to abort a pregnancy, corrected the more than 100-year-old denial of a woman's right to personal autonomy and privacy. It freed women from unwanted pregnancies and thereby afforded them options in life previously reserved for men. The pregnancy prosecutions, by creating an adversarial relationship between the woman and her foetus, return to the state the power to control her behaviour during pregnancy (Johnsen, 1986).
The concept of foetal rights robs women of child-bearing age of rights retained by all other citizens. It also completely ignores the fact that fathers too have a powerful effect on foetal development. We know now that alcohol and drug use have an effect on the quality of a man's sperm (Cohen, 1986). And a man's behaviour can have a powerful effect on the course of a woman's pregnancy. In the United States, one in twelve women are beaten during pregnancy. Yet violent husbands are not being charged with foetal abuse (Pollitt, 1990).
Under Judge Eaton's ruling in the Jennifer JOhnson case, women in Florida who smoke or drink alcohol during pregnancy could be prosecuted, since delivery of alcohol and cigarettes to a minor are criminal offences in that state. A woman in Wyorning was recently charged with criminal child abuse for endangering her foetus by drinking while pregnant, although the charges were subsequently dismissed (Wyoming v. Pfannensteil, County Court of Laramie, 1990). These events conjure up images from Margaret Atwood's prophetic novel, 77re Handmaid's Tale, in which the story's protagonist protests: 'We are two-legged wombs, that's all; sacred vessels, ambulatory chalices.'
Selective prosecution based on race
It is clear that Black women are being singled out for prosecution. Indeed, the American 'war on drugs' is permeated through and through with the racial biases of its 'generals'. Street level enforcement of the nation's drug laws is disproportionately targeted at minority residents. The prison population in the US is close to one million, the highest it has ever been. Fifty per cent of those prisoners are Black men, even though Black men constitute only 3 per cent of the country's population. The war on drugs is primarily a war on people of colour.
Cruel and unusual punishment
The Eighth Amendment to the Bill of Rights of the United States Constitution prohibits the imposition of 'cruel and unusual punishment', a flexible concept that should change to reflect contemporary standards of decency. As long ago as 1925, the United States Supreme Court ruled that drug addiction was, in and of itself, not a crime but a disease (Linder v. United States, 268 US 18, 1925). Then in 1962, in the case of Robinson v. California (370 US 660) the Court struck down a California law that made the mere status of being an addict a crime punishable by a prison sentence. Ruled by the Court: 'We forget the teachings of the Eighth Amendment if we allow sickness to be made a crime and sick people to be punished for being sick. This age of enlightenment cannot tolerate such barbarous action'. The pregnancy prosecutions, while nominally based on trafficking and child abuse laws, in essence punish women for their status as addicts.
The criminalization of pregnant and child-rearing users is the complete antithesis of a harm reduction approach to drug abuse. It greatly magnifies the potential harms to both mothers and infants by driving drug-using women away from the very health care providers who could assist them in having normal pregnancies and healthy babies. It aids and abets the reactionary and anti-woman foetal rights movement. It destroys doctor—patient confidentiality and turns caring physicians into medical cops. It cruelly punishes drug abusers for their chemical dependency. It is blatantly racist in its application.
Worst of all, by blaming victims, the government gets itself conveniently off the hook. Pointing the finger at 'bad momies' diverts people's attention away from the scandalous shortage of treatment facilities for all drug abusers, the dismantling of social welfare programmes, the ever-widening gap between the haves and the have-nots in America. It is 'cruel and unusual punishment' that scapegoats society's most vulnerable members.
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