Misguided Retribution: Criminalization of Pregnant Women Who Take Drugs
| Date | 01 September 2005 |
| Published date | 01 September 2005 |
| DOI | 10.1177/0964663905054909 |
| Author | Vicki Toscano |
| Subject Matter | Articles |
03 054909 Toscano (bc-s) 12/7/05 3:21 pm Page 359
MISGUIDED RETRIBUTION:
CRIMINALIZATION OF
PREGNANT WOMEN WHO
TAKE DRUGS
VICKI TOSCANO
School of Law, University of Miami, USA
ABSTRACT
This article addresses the attempts to use criminal punishment to respond to pregnant
women who take drugs in the United States. Although many have discussed why this
approach is harmful, none have done so by examining the effects of the underlying
philosophical justification for punishment appealed to in these cases, that of retribu-
tion. I examine explicitly the discourse created by the retributive criminal punishment
of pregnant women in a way that has not been done before. I show that this discourse
works to promote fetal personhood, individualizes blame for fetal harm, and high-
lights pregnant women as the primary source of fetal harm. Ultimately, this discourse
perpetuates an ideology that forces women to have to bear all of the costs associated
with pregnancy and allows the political community, and society as a whole, to ignore
any areas of collective responsibility that it may have to promote successful repro-
duction. Even if criminalization of pregnant drug users fails as a legal remedy, as it
mostly has in the USA, or is not even attempted, as is the case in the UK, the discourse
about pregnancy perpetuated by retributive punishment of pregnant drug users must
be directly challenged as a useful way of understanding the social issue of reproduc-
tion. This article is an attempt to lay out that challenge.
KEY WORDS
feminism and reproductive rights; fetal rights; gender equality; maternal drug use;
reproductive rights; retribution
SOCIAL & LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(3), 359–386
DOI: 10.1177/0964663905054909
03 054909 Toscano (bc-s) 12/7/05 3:21 pm Page 360
360
SOCIAL & LEGAL STUDIES 14(3)
INTRODUCTION
PHENOMENATHATare identified by communities as social problems are
as much created as discovered. This process is political and, thus, has
political implications. This is true for pregnant women who take drugs,
which came to be recognized as an important social problem in the 1980s in
the United States and was identified and defined by the media, medical
scientists, political leaders and the law. The solutions originally proposed to
handle this problem in the USA tended to focus on criminal punishment of
pregnant women themselves although this legal approach has failed in all but
one state (see Whitner v State (1997)). Nonetheless, even with the seeming
failure of this punitive approach, the characterizations of pregnancy implicit
in this approach have not been sufficiently examined or challenged and
continue to affect decision-making about reproduction today. Therefore, a
thorough examination of the characterization of women’s responsibilities
vis-à-vis pregnancy perpetuated by criminal punishment of pregnant drug
users is essential. Even for countries that have historically chosen less
punitive means to deal with issues surrounding reproduction, like the UK,
this examination is useful in highlighting certain assumptions about preg-
nancy that may lead to devastating consequences for women if accepted by
policy-makers in areas other than criminalization.
It is important to recognize that although the attempts to criminalize
pregnant drug users have largely failed in the USA,1 this is not due to a rejec-
tion of the assumptions underlying criminalization. The rejection of legis-
lation specifically making criminal the use of drugs by pregnant women was
due primarily to medical support for the claim that fetal health is not bene-
fited by criminal punishment of pregnant women. The primacy of fetal inter-
ests in the maternal–fetal dyad was not rejected; instead fetal interests became
the basis for the rejection of the use of the criminal law to deal with the
problem. Additionally, although many feminist scholars did argue against
criminalization due to its impact on women’s rights, no one has yet engaged
in a thorough examination of the underlying philosophical justification for
criminal punishment in this case. Nor has adequate attention been given to
the implications this justification has for the characterization of pregnant
women’s rights and responsibilities. Without this examination, the concep-
tualization of pregnancy implicit in the attempts to criminally punish
pregnant drug use remains unchallenged and may be appealed to again both
in the USA and abroad as the battles over pregnancy continue.
It is important to contextualize the attempts to criminalize pregnant drug
users in the USA. This issue must be understood primarily as a battle over
fetal personhood and the legal rights that may be claimed on behalf of a fetus
itself. Attempts to gain recognition of fetal rights, as rights that accrue to a
fetus independent of rights of the pregnant woman, have occurred as part of
a larger strategy to undermine abortion rights in the United States. For
example, these battles range from the partial birth abortion ban, to access to
emergency contraception and safe abortions, from restrictions on women’s
03 054909 Toscano (bc-s) 12/7/05 3:21 pm Page 361
TOSCANO: PREGNANT WOMEN WHO TAKE DRUGS
361
exposure to substances that may cause fetal harm to tort liability for harm
caused in utero, from defining a fetus as a child for purposes of healthcare
insurance to creating a new category of homicide that recognizes a fetus as a
separate victim. All of the varied attempts to redefine fetal rights and inter-
ests tend to frame issues around concerns for the fetus. Similarly, many of
these attempts obscure the effect that a greater recognition of fetal rights will
have on women’s ability to be full and equal members of society. It is essen-
tial to reframe these continuing attempts to gain recognition of fetal rights to
focus on the women whose bodies are the fronts upon which these battles
are waged. Each attempt to gain recognition of fetal rights must be examined
from the perspective of the consequences this recognition has on the rights
and responsibilities of women. In this article, I examine the discourses about
pregnancy and the maternal–fetal relationship perpetuated by the attempts
to criminally punish pregnant drug users and its implications for women’s
rights under the law.
In Section I of this article, I discuss the politically charged depiction of the
social problem of pregnant women who take drugs in the United States. In
Section II, I describe the various legal responses to this problem in the USA
and the role of the medical establishment in the fight against criminalization.
I show that the medical response has not fully and successfully challenged
the conceptualization of pregnancy upon which these criminal responses
rely. Finally, in Section III, I examine explicitly the discourse created by the
retributive criminal punishment of pregnant women in a way that has not
been done before. I show that this discourse works to promote fetal person-
hood, individualizes blame for fetal harm, and highlights pregnant women as
the primary source of fetal harm. Ultimately, this discourse perpetuates an
ideology that forces women to have to bear all of the costs associated with
pregnancy and allows the political community, and society as a whole, to
ignore any areas of collective responsibility that it may have to promote
successful reproduction. Even if criminalization of pregnant drug users fails
as a legal remedy, as it mostly has in the USA, or is not even attempted, as is
the case in the UK, the discourse about pregnancy perpetuated by retribu-
tive punishment of pregnant drug users must be directly challenged as a
useful way of understanding the social issue of reproduction. If this does not
occur, the opportunity to recognize that reproduction is a social activity
whose costs can be distributed across wider society and the possibility for
women’s equality will be lost.
I: EARLY SCIENTIFIC AND MEDIA PORTRAYAL OF PREGNANT
WOMEN WHO TAKE CRACK
During the 1980s, crack cocaine was ‘discovered’ by the US community
primarily via depictions in the media (Gomez, 1997: 11).2 Crack was
characterized as the drug of choice for the urban poor and particularly
African American women.3 It was depicted as more addictive than cocaine,
03 054909 Toscano (bc-s) 12/7/05 3:21 pm Page 362
362
SOCIAL & LEGAL STUDIES 14(3)
encouraging prostitution, killing women’s maternal instincts, and creating a
new underclass of children called ‘crack babies’ (pp. 15–16). These depictions
were accompanied by images of infants shaking and barely strong enough to
cry and nurses and other attendants discussing how these infants lacked
normal reactions to human touch and would, no doubt, suffer from develop-
mental disabilities including lack of a moral conscience as they grew older
(Coles, 1993; Hutchings, 1993). The ultimate ugly image which lingered just
behind these depictions was immoral, crack-addicted women peddling their
bodies for crack, getting pregnant, and creating swarms of crack-addicted
infants who would be the next generation’s miscreants, criminals and welfare
cases.
There exist many harmful drugs that pregnant women have used with as
much or more frequency during different times than crack including alcohol,
tobacco, heroin, and amphetamines. Yet, no drug has excited as much media
or public attention as did crack in the 1980s. For example, within eleven
months of the first mention of crack in the media in 1986, six of the nation’s
largest news magazines and...
MISGUIDED RETRIBUTION:
CRIMINALIZATION OF
PREGNANT WOMEN WHO
TAKE DRUGS
VICKI TOSCANO
School of Law, University of Miami, USA
ABSTRACT
This article addresses the attempts to use criminal punishment to respond to pregnant
women who take drugs in the United States. Although many have discussed why this
approach is harmful, none have done so by examining the effects of the underlying
philosophical justification for punishment appealed to in these cases, that of retribu-
tion. I examine explicitly the discourse created by the retributive criminal punishment
of pregnant women in a way that has not been done before. I show that this discourse
works to promote fetal personhood, individualizes blame for fetal harm, and high-
lights pregnant women as the primary source of fetal harm. Ultimately, this discourse
perpetuates an ideology that forces women to have to bear all of the costs associated
with pregnancy and allows the political community, and society as a whole, to ignore
any areas of collective responsibility that it may have to promote successful repro-
duction. Even if criminalization of pregnant drug users fails as a legal remedy, as it
mostly has in the USA, or is not even attempted, as is the case in the UK, the discourse
about pregnancy perpetuated by retributive punishment of pregnant drug users must
be directly challenged as a useful way of understanding the social issue of reproduc-
tion. This article is an attempt to lay out that challenge.
KEY WORDS
feminism and reproductive rights; fetal rights; gender equality; maternal drug use;
reproductive rights; retribution
SOCIAL & LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(3), 359–386
DOI: 10.1177/0964663905054909
03 054909 Toscano (bc-s) 12/7/05 3:21 pm Page 360
360
SOCIAL & LEGAL STUDIES 14(3)
INTRODUCTION
PHENOMENATHATare identified by communities as social problems are
as much created as discovered. This process is political and, thus, has
political implications. This is true for pregnant women who take drugs,
which came to be recognized as an important social problem in the 1980s in
the United States and was identified and defined by the media, medical
scientists, political leaders and the law. The solutions originally proposed to
handle this problem in the USA tended to focus on criminal punishment of
pregnant women themselves although this legal approach has failed in all but
one state (see Whitner v State (1997)). Nonetheless, even with the seeming
failure of this punitive approach, the characterizations of pregnancy implicit
in this approach have not been sufficiently examined or challenged and
continue to affect decision-making about reproduction today. Therefore, a
thorough examination of the characterization of women’s responsibilities
vis-à-vis pregnancy perpetuated by criminal punishment of pregnant drug
users is essential. Even for countries that have historically chosen less
punitive means to deal with issues surrounding reproduction, like the UK,
this examination is useful in highlighting certain assumptions about preg-
nancy that may lead to devastating consequences for women if accepted by
policy-makers in areas other than criminalization.
It is important to recognize that although the attempts to criminalize
pregnant drug users have largely failed in the USA,1 this is not due to a rejec-
tion of the assumptions underlying criminalization. The rejection of legis-
lation specifically making criminal the use of drugs by pregnant women was
due primarily to medical support for the claim that fetal health is not bene-
fited by criminal punishment of pregnant women. The primacy of fetal inter-
ests in the maternal–fetal dyad was not rejected; instead fetal interests became
the basis for the rejection of the use of the criminal law to deal with the
problem. Additionally, although many feminist scholars did argue against
criminalization due to its impact on women’s rights, no one has yet engaged
in a thorough examination of the underlying philosophical justification for
criminal punishment in this case. Nor has adequate attention been given to
the implications this justification has for the characterization of pregnant
women’s rights and responsibilities. Without this examination, the concep-
tualization of pregnancy implicit in the attempts to criminally punish
pregnant drug use remains unchallenged and may be appealed to again both
in the USA and abroad as the battles over pregnancy continue.
It is important to contextualize the attempts to criminalize pregnant drug
users in the USA. This issue must be understood primarily as a battle over
fetal personhood and the legal rights that may be claimed on behalf of a fetus
itself. Attempts to gain recognition of fetal rights, as rights that accrue to a
fetus independent of rights of the pregnant woman, have occurred as part of
a larger strategy to undermine abortion rights in the United States. For
example, these battles range from the partial birth abortion ban, to access to
emergency contraception and safe abortions, from restrictions on women’s
03 054909 Toscano (bc-s) 12/7/05 3:21 pm Page 361
TOSCANO: PREGNANT WOMEN WHO TAKE DRUGS
361
exposure to substances that may cause fetal harm to tort liability for harm
caused in utero, from defining a fetus as a child for purposes of healthcare
insurance to creating a new category of homicide that recognizes a fetus as a
separate victim. All of the varied attempts to redefine fetal rights and inter-
ests tend to frame issues around concerns for the fetus. Similarly, many of
these attempts obscure the effect that a greater recognition of fetal rights will
have on women’s ability to be full and equal members of society. It is essen-
tial to reframe these continuing attempts to gain recognition of fetal rights to
focus on the women whose bodies are the fronts upon which these battles
are waged. Each attempt to gain recognition of fetal rights must be examined
from the perspective of the consequences this recognition has on the rights
and responsibilities of women. In this article, I examine the discourses about
pregnancy and the maternal–fetal relationship perpetuated by the attempts
to criminally punish pregnant drug users and its implications for women’s
rights under the law.
In Section I of this article, I discuss the politically charged depiction of the
social problem of pregnant women who take drugs in the United States. In
Section II, I describe the various legal responses to this problem in the USA
and the role of the medical establishment in the fight against criminalization.
I show that the medical response has not fully and successfully challenged
the conceptualization of pregnancy upon which these criminal responses
rely. Finally, in Section III, I examine explicitly the discourse created by the
retributive criminal punishment of pregnant women in a way that has not
been done before. I show that this discourse works to promote fetal person-
hood, individualizes blame for fetal harm, and highlights pregnant women as
the primary source of fetal harm. Ultimately, this discourse perpetuates an
ideology that forces women to have to bear all of the costs associated with
pregnancy and allows the political community, and society as a whole, to
ignore any areas of collective responsibility that it may have to promote
successful reproduction. Even if criminalization of pregnant drug users fails
as a legal remedy, as it mostly has in the USA, or is not even attempted, as is
the case in the UK, the discourse about pregnancy perpetuated by retribu-
tive punishment of pregnant drug users must be directly challenged as a
useful way of understanding the social issue of reproduction. If this does not
occur, the opportunity to recognize that reproduction is a social activity
whose costs can be distributed across wider society and the possibility for
women’s equality will be lost.
I: EARLY SCIENTIFIC AND MEDIA PORTRAYAL OF PREGNANT
WOMEN WHO TAKE CRACK
During the 1980s, crack cocaine was ‘discovered’ by the US community
primarily via depictions in the media (Gomez, 1997: 11).2 Crack was
characterized as the drug of choice for the urban poor and particularly
African American women.3 It was depicted as more addictive than cocaine,
03 054909 Toscano (bc-s) 12/7/05 3:21 pm Page 362
362
SOCIAL & LEGAL STUDIES 14(3)
encouraging prostitution, killing women’s maternal instincts, and creating a
new underclass of children called ‘crack babies’ (pp. 15–16). These depictions
were accompanied by images of infants shaking and barely strong enough to
cry and nurses and other attendants discussing how these infants lacked
normal reactions to human touch and would, no doubt, suffer from develop-
mental disabilities including lack of a moral conscience as they grew older
(Coles, 1993; Hutchings, 1993). The ultimate ugly image which lingered just
behind these depictions was immoral, crack-addicted women peddling their
bodies for crack, getting pregnant, and creating swarms of crack-addicted
infants who would be the next generation’s miscreants, criminals and welfare
cases.
There exist many harmful drugs that pregnant women have used with as
much or more frequency during different times than crack including alcohol,
tobacco, heroin, and amphetamines. Yet, no drug has excited as much media
or public attention as did crack in the 1980s. For example, within eleven
months of the first mention of crack in the media in 1986, six of the nation’s
largest news magazines and...
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