There’s a long story called “The Criminalization of Bad Mothers” by Ada Calhoun that was in yesterday’s New York Times. It’s about prosecution practices in Alabama where a law designed to protect kids from exposure to meth labs is routinely used to prosecute women who use drugs while pregnant. Perhaps it is only tangentially related to my topics here, but I think it’s worth a look and a few thoughts. (If you’re wondering, I’ll do this first and then get over to comments that are waiting.)
The crime in Alabama is chemical endangerment of a child and its a Class A felony, which means it carries a heavy penalty–mandatory ten years to life. This is true without regard to whether any harm comes to a child. It appears to be undisputed that the law was enacted in 2006 response to situations where adults built meth labs (very dangerous indeed) near children but according to the article there have been around 60 prosecutions of new mothers since then. (I’d like to know how that compares to the number of prosecutions of people for actually building meth labs, but I don’t think I saw that in the article.)
It seems to me that prosecuting new mothers must be pretty simple. If the child tests positive for exposure to drugs at birth, then the woman who just gave birth must be guilty. After all, the law:
prohibits a “responsible person” from “exposing a child to an environment in which he or she . . . knowingly, recklessly or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance or drug paraphernalia.”
The constitutionality of applying the law to pregnant women is currently on appeal, which is the taking off point for the article.
Let me start by stating the obvious: no one is arguing that exposing a fetus in utero to drugs is a good idea. It’s wrong–I think everyone agrees with that. The questions here really are about whether this approach to the problem is a good idea.
This critical question can also be raised in the topics closer to the core of my blog. So for example, two people could agree that the use of gametes from anonymous providers is a bad idea, but disagree about what to do about that. It’s crucial to recognize that the good/bad question is separate from the “what do we do about it question” (which you only reach if you pick “bad.”)
With that in mind let me return to the NYT article. What happens if you impose severe sentences on women who give birth to infants with drugs in their systems? Surely some women change their behavior in order to avoid punishment–but they do so in various ways. Some stop using drugs. (Just as an aside, if they switch to alcohol it appears to me they can escape prosecution even though we all know that fetal exposure to alcohol can be very damaging. So it isn’t clear to me that this is always a good thing.) Some don’t stop early in their pregnancies but stop later in their pregnancies–or at least plan to. (Notice the account of the woman who had this as her plan and was arrested after she gave birth early.) Some avoid giving birth in a hospital–they give birth at home, say. And some get abortions. Surely all of these things happen.
Now perhaps we can be happy where women make that first choice–to stop using drugs (though I do worry about switching to alcohol.) But we are talking about addictive substances here and so stopping isn’t easy for some people, which is why some women will make other choices. It seems to me that in order to judge the value of the prosecutions we really need to know which things happen how much of the time. If you tell me that most women give up drugs when they learn about the law then I’m going to evaluate this differently than if you tell me that most women avoid proper prenatal and birth care.
That’s just one point, of course, though a very important one. There are others. These prosecutions obviously have implications for the control of pregnant women in particular and possibly women more generally. These issues are explored in the article and are worth thinking about.
Relevant here, it seems to me, is that pregnancy is different and that it feeds into our ideas about motherhood and gender. Consider this clip from Mitch Floyd, who is described as the most aggressive prosecutor of these cases:
Addiction is “a very powerful force,” he told me.“However, there’s a force that’s more powerful than that to me, and that is a child is helpless, and God has put one person on this planet to be the last-line defense, to be the fiercest protector of that child, and that is its mother. My wife would literally claw someone’s eyes out — fight you to the death for our children. I mean, that’s just what mothers are supposed to do. When that child’s ultimate protector is the one causing the harm, what do you do?”
Notice that he doesn’t say “parents”–he says “mothers.” Mothers alone are ultimate protectors of their children, whether the children are born or in utero. And because mothers are ultimate protectors, mothers have special obligations–and the failure to live up to those obligations is criminal. Harsh judgement is appropriate.
I’d really like to know of Floyd is as enthusiastic about prosecuting men who build meth labs. (Those are doubtless much more difficult cases, but that’s not the point.)
I know I’ve gone on long enough–but the article really did make me think. If mothers (and mothers alone) are as Floyd describes, that it certainly seems like a good reason to regulate pregnancy a lot more seriously than we do. That’s a pretty scary notion from my perspective.