Unshackling black motherhood.

• Author: Roberts, Dorothy E.
• Position: Symposium: Representing Race

When stories about the prosecutions of women for using drugs during pregnancy first appeared in newspapers in 1989, I immediately suspected that most of the defendants were Black women. Charging someone with a crime for giving birth to a baby seemed to fit into the legacy of devaluing Black mothers.(1) I was so sure of this intuition that I embarked on my first major law review article based on the premise that the prosecutions perpetuated Black women's subordination.(2) My hunch turned out to be right: a memorandum prepared by the ACLU Reproductive Freedom Project documented cases brought against pregnant women as of October 1990 and revealed that thirty-two of fifty-two defendants were Black.(3) By the middle of 1992, the number of prosecutions had increased to more than 160 in 24 states.(4) About 75% were brought against women of color.(5)

In Punishing Drug Addicts Who Have Babies: Women of Color, Equality and the Right of Privacy,(6) I argued that the prosecutions could be understood and challenged only by looking at them from the standpoint of Black women. Although the prosecutions were part of an alarming trend toward greater state intervention into the lives of pregnant women in general, they also reflected a growing hostility toward poor Black mothers in particular. The debate on fetal rights, which had been waged extensively in law review articles and other scholarship, focused on balancing the state's interest in protecting the fetus from harm against the mother's interest in autonomy. My objective in that article was not to repeat these theoretical arguments, but to inject into the debate a perspective that had largely been overlooked. It seemed to me impossible to grasp the constitutional injury that the prosecutions inflicted without taking into consideration the perspective of the women most affected. Nor could we assess the state's justification for the prosecutions without uncovering their racial motivation.

Taking race into account transformed the constitutional violation at issue. I argued that the problem with charging these women with fetal abuse was not that it constituted unwarranted governmental intervention into pregnant women's lifestyles -- surely a losing argument considering the lifestyles of these defendants.(7) Instead I reframed the issue: the prosecutions punished poor Black women for having babies.(8) Critical to my argument was an examination of the historical devaluation of Black motherhood.(9) Given this conceptualization of the issue and the historical backdrop, the real constitutional harm became clear: charging poor Black women with prenatal crimes violated their rights both to equal protection of the laws and to privacy by imposing an invidious governmental standard for childbearing.(10) Adding the perspective of poor Black women yielded another advantage. It confirmed the importance of expanding the meaning of reproductive liberty beyond opposing state restrictions on abortion to include broader social justice concerns.

Most women charged with prenatal crimes are pressured into accepting plea bargains to avoid jail time.(11) When defendants have appealed their convictions, however, they have been almost uniformly victorious. With only one recent exception,(12) every appellate court to consider the issue, including the highest courts in several states, has invalidated criminal charges for drug use during pregnancy. Yet none of these courts has based its decision on the grounds that I argued were critical. Most decisions centered on the interpretation of the criminal statute in the indictment. These courts have held that the state's laws concerning child abuse, homicide, or drug distribution were not meant to cover a fetus or to punish prenatal drug exposure. The Supreme Court of Florida, for example, overturned Jennifer Johnson's conviction in 1992 on the ground that the state legislature did not intend "to use the word `delivery' in the context of criminally prosecuting mothers for delivery of a controlled substance to a minor by way of the umbilical cord."(13) Other courts rejected the prosecutions on constitutional grounds, finding that the state had violated the mothers' right to due process or to privacy.(14) The defendants' race, however, has not played a role in the courts' analyses.(15)

Thus, attorneys have successfully challenged the prosecutions of prenatal crimes in appellate courts without relying on arguments about the race of the defendants. But failing to contest society's devaluation of poor Black mothers still has negative consequences. Renegade prosecutors in a few states continue to press charges against poor Black women for exposing their babies to crack.(16) Many crack-addicted mothers have lost custody of their babies following a single positive drug test.(17) The continuing popular support for the notion of punishing crack-addicted mothers leaves open the possibility of a resurgence of prosecutions and the passage of punitive legislation. In this essay, I want to explore the strategies that lawyers have used on behalf of crack-addicted mothers to evaluate the importance of raising issues of race. Some lawyers and feminist scholars have tried to avoid the degrading mythology about Black mothers by focusing attention on issues other than racial discrimination and by emphasizing the violation of white, middle-class women's rights. I argue, however, that we should develop strategies to contest the negative images that undergird policies that penalize Black women's childbearing.

1. THE SOUTH CAROLINA EXPERIMENT

   Despite the fact that most prosecutors renounce a punitive approach toward prenatal drug use, South Carolina continues to promote a prosecutorial campaign against pregnant crack addicts. The state bears the dubious distinction of having prosecuted the largest number of women for maternal drug use.(18) Many of these cases arose from the collaboration of Charleston law enforcement officials and the Medical University of South Carolina (MUSC), a state hospital serving an indigent, minority population. In August 1989, Nurse Shirley Brown approached the local solicitor, Charles Condon, about the increase in crack use that she perceived among her pregnant patients.(19) Solicitor Condon immediately held a series of meetings, inviting additional members of the MUSC staff, the police department, child protective services and the Charleston County Substance Abuse Commission, to develop a strategy for addressing the problem. The MUSC clinicians may have intended to help their patients, but larger law enforcement objectives soon overwhelmed the input of the staff. The approach turned toward pressuring pregnant patients who used drugs to get treatment by threatening them with criminal charges. As Condon expressed it: "We all agreed on one principle: We needed a program that used not only a carrot, but a real and very firm stick."(20) Condon also pressed the position that neither the physician-patient privilege nor the Fourth Amendment prevented hospital staff members from reporting positive drug tests to the police.(21)

   Within two months MUSC instituted the "Interagency Policy on Cocaine Abuse in Pregnancy" ("Interagency Policy"), a series of internal memos that provided for nonconsensual drug testing of pregnant patients, reporting results to the police, and the use of arrest for drug and child abuse charges as punishment or intimidation.(22) Although the program claimed "to ensure the appropriate management of patients abusing illegal drugs during pregnancy,"(23) its origin suggests that it was designed to supply Condon with defendants for his new prosecutorial crusade. The arrests had already begun by the time the hospital's board of directors officially approved the new policy. Hospital bioethicists later criticized the hasty process orchestrated by Condon for neglecting the careful internal deliberation one would expect of a program affecting patient care.(24) Condon personally broadcast the new policy in televised public service announcements that advised pregnant women, "not only will you live with guilt, you could be arrested."(25)

   During the first several months, women were immediately arrested if they tested positive for crack at the time they gave birth. Then the Interagency Policy set up what Condon called an "amnesty" program: patients who tested positive for drugs were offered a chance to get treatment; if they refused or failed, they would be arrested. Patients who tested positive were handed two letters, usually by Nurse Shirley Brown: one notified them of their appointment with the substance abuse clinic; the other, from the solicitor, warned that "[i]f you fail to complete substance abuse counselling, fail to cooperate with the Department of Social Services in the placement of your child and services to protect that child, or if you fail to maintain clean urine specimens during your substance abuse rehabilitation, you will be arrested by the police and prosecuted by the Office of the Solicitor."(26)

   The policy offered no second chances. Women who tested positive for drugs a second time or who delivered a baby who tested positive were arrested and imprisoned.(27) Depending on the stage of pregnancy, the mother was charged with drug possession, child neglect, or distribution of drugs to a minor. Uncooperative women were arrested based on a single positive test.

   The Interagency Policy resulted in the arrests of forty-two patients, all but one of whom were Black.(28) Disregarding the sanctity of the maternity ward, the arrests more closely resembled the conduct of the state in some totalitarian regime. Police arrested some patients within days or even hours of giving birth and hauled them to jail in handcuffs and leg shackles.(29) The handcuffs were attached to a three-inch wide leather belt that was wrapped around their stomachs. Some women were still bleeding from the delivery. One new mother complained, and was told to sit on...