The construction of pregnant drug-using women as criminal perpetrators.

• Author: Campbell, Nancy D.

"[W]hat the law tells us to do is not as important as what the law tells us to be." (1)

Despite clear lack of intent to harm those whom they carry, drug-using pregnant women have been constructed as de facto criminal perpetrators. When women become noticeably unable or unwilling to carry out their assigned social roles and responsibilities as parents, they have often been demonized as "bad mothers," and criminalized. (2) Women of color who live with poverty have been disproportionately affected by criminalization, (3) which reinforces the view that they are "undeserving" of the right to procreate. (4) Casting pregnant drug users as intentionally harming the fetuses they carry, feticide convictions rest upon the attribution of reckless indifference, "a conscious failure to exercise due care or ordinary care or a conscious indifference to the rights and safety of others or a reckless disregard thereof." (5) Drug use, I argue, falls short of being prima facie evidence of intent to harm, particularly in social circumstances where drug-using economies are endemic. Drug use is highly likely in the social and economic circumstances of the vast majority of defendants in these cases, which follow the contours of the localized political geography of illicit drug use in the United States. (6) It is difficult if not impossible to maintain that drug-taking is a conscious act intended to harm a fetus. The cases I examine in this article signal the limits of tolerance and the increasingly conditional nature of public welfare provision by raising the specter of a generation of urban mothers--and grandmothers--unable to care for their kids. These cases also reflect the policy-making role into which hospitals and the courts have stepped in the face of a legislative void.

Congressional hearings on maternal crack-cocaine use during the late 1980s and early 1990s elucidate the motives behind state and federal attempts to penalize illicit drug use by pregnant women. (7) Women's rights advocates opposed the principle of criminalization behind these hearings, arguing instead for increased health care access through drug treatment tailored to the specific circumstances of pregnant women. (8) The hearings defined the problem as a decline in maternal instinct (9) that had rendered urban drug-using women "unable to manage their childcare responsibilities." (10) Urban women's maternal incapacity placed a novel strain upon social services because "mothers and grandmothers could no longer care for the escalating numbers of drug exposed infants." (11) If the burning question of social policy was--"who should absorb the costs of social reproduction?" (12)--the answer was that drug-using mothers clearly could not. (13) These Congressional hearings highlighted the fear that drug-using women would shift their burdens to the state. (14)

Long used as a potent metaphor for social decline, the figure of the addicted woman encodes compulsion without control, the failures of self-governance, and the overwhelming power of illegitimate desires and insatiable needs. Yet, our view of individual parental responsibility stems from the notion that only those who can govern themselves are "fit" to govern others. Despite their marginalization, addicted women have been held individually accountable by zealous prosecutors for pregnancy "outcomes" over which they have little control. (15) Pregnancy outcomes have come under scrutiny as states have found compelling interests in fetal life and death. Fetal rights proponents owe their momentum to the anti-abortion movement, which strategically salted "the unborn" in numerous policy arenas ranging from child health insurance to separate penalties for the violent assault of a fetus. (16) While prosecutions of pregnant drug-using women may seem separate from the abortion debate, they have galvanized both the pro-prosecution anti-abortionists and the anti-prosecution feminists, civil libertarians, and clinicians who counter them. (17) A flurry of legislative activity in the 1990s yielded widespread recognition that drug treatment for pregnant women was largely unavailable. (18) Advocates led policy makers to understand the well documented inability of the drug treatment system to treat pregnant women. By 1992, the crack epidemic had faded, (19) and legislative and prosecutorial energy declined in most locales. State supreme courts rejected the use of existing child abuse and neglect statutes--or creative charges such as the delivery of controlled substances to babies through the umbilical cord (20)--and did not take kindly to the fact that laws intended to curb drug trafficking were being twisted to another purpose. When the Supreme Court of Florida overturned Jennifer Johnson's drug trafficking conviction in 1992, (21) it joined similar decisions, acquittals, or dismissals in other states. (22) Even in South Carolina, where prosecutorial energy did not decline, the legislature did not explicitly criminalize illicit drug use during pregnancy, despite open encouragement from the South Carolina Supreme Court in the Whitner decision. (23) Thus, courts tended to treat substance abuse during pregnancy as a public health matter rather than one requiring criminal penalties.

South Carolina, however, has persisted in an ongoing effort to reverse the direction of this trajectory by placing behavioral conditions upon pregnant women, requiring cross-reporting between criminal justice and health care settings, and using health care settings to gain access to evidence for criminal prosecutions. (24) Drug-tested as the result of a stealth protocol set up in 1989 at the Medical University of South Carolina (MUSC) in Charleston, South Carolina, Crystal Ferguson and her co-defendants neither knew about nor consented to the tests. (25) Over its five-year life, the MUSC program directly impacted thirty women who were arrested and charged with possession or distribution of cocaine, or child neglect. (26) Advocates vigorously attacked the motivations of program staff, the underlying perceptions of "crack babies" and the "crack-cocaine crisis" that contributed to their motivations, and the lack of drug treatment capacity for women in the region. They raised constitutional questions concerning MUSC's "human subjects research." (27) They also circulated stories that suggested racial targeting had occurred, despite a 1991 study showing that only 0.79% of South Carolina women tested positive for cocaine when they gave birth. (28) While pregnancy has been used to abrogate rights and increase social control, (29) the experience of Crystal Ferguson and her co-defendants resulted from a set of social exclusions and dehumanizing assumptions that transcend the circumstances of this case. Yet the United States Supreme Court responded with a ruling in Ferguson v. Charleston that was but a narrow victory for reproductive rights advocates. (30) As Birgitte Nahas noted, the Court never reached the questions of the constitutionality of South Carolina's characterization of the viable fetus as a person, (31) or of mandatory child abuse reporting laws. (32) The Court ruled that testing pregnant women for drugs without their knowledge or consent constituted unlawful searches and seizures in violation of the Fourth Amendment. (33) This ruling left South Carolina free to explore just how far it could go toward criminalizing women's behavior during pregnancy by scrutinizing pregnancy outcome.

Pregnancy outcome, of course, is determined by many conditions that transcend individual circumstances and affect wider populations, including poverty and lack of access to nutrition and health care. Yet, it is difficult to argue that policies granting fetal rights and rendering women's rights conditional will negatively affect women as a class, because these policies target individual drug-using women. Although there is very little social gain in prosecuting female drug users, that may be beside the point. Feminist political scientists Cynthia Daniels and Rachel Roth suggest that such policies are a form of "symbolic vengeance" that send a symbolic message that some pregnant women threaten the social order. (34) The putative balance between fetal rights and women's rights constructed by fetal rights advocates obscures the real conflict between women and the state. (35) It makes it seem as if fetal rights are not contingent, conditional, or contested, but rather are well established. For this reason, Roth argues for recasting the conflict as one between pregnant women and the state: a "maternal-state conflict." (36)

In Whitner v. State (37) and State v. McKnight, (38) South Carolina courts upheld individual women's convictions. These cases illustrate how maternal-state conflicts play out in a "fetal rights" state. Cornelia Whitner was convicted of criminal child neglect for ingesting cocaine during her third trimester; her healthy, now-teenage son tested positive for cocaine metabolites at birth. (39) Regina McKnight, who sporadically used cocaine during her pregnancy and sought treatment for her drug use, delivered a stillborn child eight-and-a-half months into her pregnancy. (40) She "became the first woman in America to be convicted of homicide by child abuse based on her behavior during pregnancy," and was sentenced to twenty years in prison. (41)

Fetal rights law is reaching a state of maturity in a friendly political climate. We see evidence of its "success" in the Unborn Victims of Violence Act of 2004 (42) and the recent extension of child health insurance to unborn children. (43) Fetal rights proponents have pushed to the extreme, as shown by their use of fetal rights phrases such as "the 'right' of a mother to kill her children" (44) or "addicted to abortion." (45) Although most states count a pregnant mother as a single citizen, fetal rights proponents have sought to create "two litigants" (the pregnant mother and her unborn child). (46) As one...