The third post in this three-part series on Drugs, Women, and Families is based on the valuable research of Jamie Feyko, who during my drug law seminar investigated how pregnant women with substance use disorders are treated in the United States. In short, they are blamed, villainized, and punished. The trend toward criminally charging pregnant women who use drugs with crimes began in the 1980s and has been growing ever since. Feyko’s review of major cases reveals the extent to which politics and racism drive this phenomenon. But she also contextualizes this history within a set of cultural assumptions about motherhood and pregnancy that leave many women with few options for treatment and care.
The first woman charged criminally for drug use during pregnancy was an impoverished 27-year-old with little access to prenatal care. After Pamela Rae Stewart’s son died shortly after birth and allegedly tested positive for methamphetamine, she was prosecuted under a California “failure-to-care” statute. Aimed at parents who failed to pay child support, this law stipulated that parents’ legal obligation to care for children began at the moment of conception. The judge in Stewart’s case found that the statute was misapplied, but he wrote that “under narrowly defined circumstances” the Legislature could “restrict the actions of pregnant women.” As Feyko writes, Stewart’s defenders including the ACLU were like a canary in a coal mine when they warned that mothers struggling with addiction might increasingly be criminalized.
And that is exactly what happened when the specter of the “crack baby” clambered into the public sphere in the late 1980s. Prosecutors, lacking statutes forbidding the use of drugs during pregnancy, brought charges under child abuse statutes or under “delivery to a minor” sections of drug laws. State appellate courts overturned convictions by ruling that a fetus was not a child or that drugs could not be “delivered” by the umbilical cord—except in South Carolina, where the state supreme court ruled that a fetus was a child. A clandestine partnership between law enforcement and nurses at a Charleston public hospital to drug-test infants operated freely from 1989 until 2001, when the Supreme Court ruled it violated the Fourth Amendment in Ferguson v. City of Charleston.
A trend toward charging mothers with homicide or attempted homicide for using drugs or alcohol while pregnant took off in the late 1990s. Reversing the homicide conviction of a young woman in Wisconsin who had struggled with alcoholism during her pregnancy, an appeals court noted the “extended continuum of maternal behavior which potentially risks harm to a fetus” and asked where the line might be drawn. As Feyko writes, “At its extreme end, failure to seek or inability to access proper prenatal care could result in criminal prosecution—despite the reality that prenatal medical care is financially or geographically inaccessible to many pregnant women, especially poor women of color, who are routinely targeted in these criminal prosecutions.”
However, South Carolina in 2003 affirmed its earlier decision that a fetus is a child when its supreme court upheld the conviction of a woman for “homicide by child abuse” after authorities attributed the death of her stillborn child to her use of rock cocaine. Alabama held that a viable fetus is a child under a state statute criminalizing “chemical endangerment” of children in 2013. The trend of criminalization thrives in the same states where abortion rights are under attack.
These prosecutorial trends continue to unfurl in an acrimonious U.S. political environment. At least one researcher has proposed that the U.S. system of electing prosecutors is to blame, with many pursuing drug-using mothers for political purposes, to signal that they are tough on crime and upholding “family values.” Racism also plays a role. In a study of women prosecuted during pregnancy between 1973 and 2005, 59% were women of color and 71% were low income.
In her research paper, Feyko asked the reader to consider these developments in light of the “impossible ideal” of motherhood in our times. She writes:
Mothers are expected to do it all, be it all, have it all. And these unachievable expectations begin before a child is even born. If something goes wrong during pregnancy, we immediately blame the mother. The word “miscarriage” implies a failure: the prefix “mis-” means “badly; wrongly,” so for a woman to suffer what medicine calls a “miscarriage” presumes the mother “badly” or “wrongly” carried her fetus. The word attaches blame to a common, often inexplicable and unpreventable occurrence, and the blame is placed squarely on the mother’s shoulders while she is grieving the loss of a pregnancy. Terms like “inhospitable uterus” and “hostile uterus” are frequently used to explain ongoing infertility. Again, these terms blame women by deeming their uteruses “inhospitable” or “hostile” environments for sperm to enter or for embryos to implant. These medical terms not only communicate to women there is something wrong with them; this language also communicates to women that their infertility or their inability to carry a pregnancy to term is somehow their own fault.
This culture of blame becomes even more magnified when mothers struggle with addiction.
I think Feyko is right. We must consider the societal context and the need for protection of those who are most affected by constitutionally questionable drug policies.
I would add that mothers are particularly vulnerable to the political wrath of anti-abortionists. Drugs have been a symbol of criminality and immorality for so long that it is unsurprising but still terribly troubling to notice they role drugs seem to play in the pursuit of fetal personhood. At some point we should truly take stock of all the aspects of citizenship that have been tarnished or broken in our irrational pursuit of a drug-free populace.
Feature Image: Laura Dern starred as a pregnant repeat offender in the 1996 film Citizen Ruth. “You sicken me,” a judge tells Ruth in this scene after her 16th arrest for paint huffing on the street; she is charged with felony endangerment of her fetus.
Sarah Brady Siff is visiting assistant professor at the Moritz College of Law at The Ohio State University, in affiliation with the Drug Enforcement and Policy Center (DEPC). She is a historian of modern U.S. law and politics specializing in the history of drug control. The DEPC is supporting her work on two book manuscripts. “Tough on Dope: Crime and Politics in California’s Drug Wars” is a survey of local and state drug prohibition efforts from 1850 to the mid-1960s, including issues of federalism and constitutional law. “Weed Killers: Cannabis Eradication in the United States” covers the unsuccessful, century-long campaign of American marijuana prohibition with an emphasis on agricultural and environmental policy as well as law enforcement. Siff’s 2019 article “Burn, Sell, or Drive: Forfeiture in the History of Drug Law Enforcement” in the Ohio State Law Journal proposes that customary drug-related seizure and forfeiture practices in the United States are rooted in founding-era tax law.