Criminalizing Pregnancy and the Problem Of Bad Mothers

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.

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15 responses to “Criminalizing Pregnancy and the Problem Of Bad Mothers

  1. I agree it’s very important to be aware that thinking something is a bad idea does not necessarily translate into believing it should be made punishable by law. I actually have a three-tier system of thinking about these issues – what’s a bad idea only for you (drinking heavily), what’s a bad idea because it harms others (lying and cheating on your spouse), and what’s such a bad idea that it should be, and usually is, illegal (murder).

    I also agree turning idealized gender stereotypes into law is definitely a bad idea.

    I think abortion is a bad idea and believe there’s a human being in there that should ideally not be harmed (does Alabama law allow abortion and up to what point? If a child is harmed while in utero and not yet legally a citizen guaranteed protection under the law, how can these cases even stand?), but I think that to involve the law here and make the unborn child a legal person would lead to horrible things – like the case described above.

    This reminds me of case of the Alaskan mother who reported domestic abuse, only to be charged with “breastfeeding while drunk” or something like that there’s no law against. Idealized mother myths hurt women.

    Controlling and regulating pregnant women is a scary notion indeed. Couldn’t do bedrest and lost the high-risk pregnancy? Seen having a glass of beer after dinner? Not too regular on your prenatal appointments? Off with her head!

    In my country, health care is available to all who meet certain criteria. Hospital birth is free – however, if you don’t happen to be in your place of residence, only emergency care is free. A woman who went into labor two weeks early while visiting friends was told she had to pay for the hospital birth because “pregnant women should not be going far from home.” This, naturally, caused quite an uproar. There seems to be a universal tendency to diminish the human rights of a pregnant woman.

    Taking drugs while pregnant? A bad idea. How about prosecuting the people who surrounded the pregnant woman and were – let’s face it, in this still very patriarchal world – probably more responsible for the situation she was in. Because her boyfriend/husband and his friends probably owned and operated the lab. And “endangering the health of a pregnant woman” makes more logical legal sense as a charge than “endangering the health of an unborn child that the mother can legally abort.”

  2. It is such a dangerous slippery slope that it scares me. It will make birthing and prenatal care (when these babies need it the most) go underground – it would be the only choice. A baby born addicted (not just exposed at the end of the pregnancy) needs so much care that it could not be done at home.

    Trying to regulate a womens actions during pregnancy also means they are not free – not finding the right words but what is next? This whole gamut of legislation in different states regarding womens rights in the past year is alarming. The personhood amendments they are trying to get on the books basically does the same as this law regarding freedom.

    On the other hand, methodone is a controlled substance that the baby would test positive for at birth – yet the withdrawal from heroin can be very dangerous to the fetus. Would that mother be charged? With what exactly – following the doctors orders to not withdraw from heroin cold turkery to protect the fetus?

    I agree that drinking is not the solution and is very harmful as well.

    Further down the slippery slope- but what about cigarettes, coffee, OTC medications, and even some foods would be on the table like too much tuna due to mercury levels…it really is never ending…

    • This law doesn’t put us on a slippery slope. This law stems from a slippery slope.

      Alabama residents enthusiastically supported the magical notion of mommy and daddy and the special roles they play as part of the reasoning for supporting Alabama’s constitutional ban on same-sex marriage. This law, as evidenced by the comments from the prosecutor, stems from that magical thought. The law is simply one trail from that slippery slope.

      • If Alabama were seriously concerned about the well-being of children in this situation then you might think they’d make birth control readily available to women struggling with addiction. I’m assuming here that birth control is preferable to abortion (which I think it is, personally) and that you have to recognize that there are fertile women out there who are struggling with addiction and who aren’t celibate (which there are). I haven’t checked, but I’d just guess off-hand that Alabama is not a state that ensures easy access to birth control. This is part of what makes me think the policy is generally punative and aimed at controlling women rather than protecting children.

  3. Oh, my! Tuna, sushi, feta cheese! It hadn’t even occurred to me! Very scary.

  4. I think a pregnant woman does stand in a unique position vis-a-vis the developing fetus. There are times when I think it matters and needs to be taken into account. And it is true that the mother taking drugs has a different effect on the fetus than does the father taking drugs.

    But these things can things can be true and they can lead to different ways of thinking about how you treat pregnant women. And the tone of the stuff in that article is all about control and retribution. It’s the sort of reasoning that could lead to The Handmaid’s Tale and it makes me quite uneasy.

    Feta cheese, though? What’s wrong with feta cheese?

  5. So the mother caused the baby to be born addicted, who then was treated and recovered. So the state caused all of her children to be without a mother for ten years. Perhaps they were subsequently not treated and were scarred emotionally forever. Who did the greater disservice to the children?

    • You rock. The state did the disservice.

    • I’m confused by this comment. The baby died. And, the mother hasn’t gone to prison, since she’s out on appeal.

    • It seems like in most individual cases this is not going to work out well for the kids involved. I take it that the justification is largerly about deterrence–that treating a small number of women harshly will make a larger number of women change their behavior in ways that we actually like. There are many places where one could question the soundness of the reasoning–and your comment suggests one.

      The problem you identify is actually one that comes up in other circumstances. Sometimes enforcing the law means considering whether to cause harm to an individual in order to achieve some greater good. Apart from the fact that you might want to know a lot more detail (the number of those directly harmed, the potential for good to result to different group of people, the number of people likely to benefit in the end), you can question the wisdom of the general trade-off. But as I say, this is something you’ll see other places if you’re watching for it.

  6. Give birth at home I guess.

  7. It would be very difficult to argue that the best interest of the unborn child are at the center of this issue, as the mother might be better off aborting the child or having it alone in the woods or something (not that this is necessarily always such a bad idea).

    I guess the prosecution feels children born addicted or with issues resulting from drug abuse will then be treated using the taxpayers’ money – and this is where it becomes a problem.

    Which I can’t pretend not to understand, but I wish there were less hypocrisy about it.

    • There’s a discussion that might be somewhat analogous here: https://julieshapiro.wordpress.com/2008/09/26/news-in-brief-how-parentage-ends-in-nebraska/

      This is about what are sometimes called “Baby Moses” laws. (Love the name.) The idea is that sometimes frightened teenage mothers (that’s the sterotypical case it comes up in) will abandon their infants. That’s a bad thing to do and it is, in fact, generally criminal. But many states have created some sort of safe-harbor. If you abandon the child at a fire station, say, then you cannot be prosecuted.

      The idea here is that this acknowledges a sad reality and at least tries to watch out for the well-being of the children most directly involved. The chances of a baby getting good care are far better if its left at a fire station than if it is left in a dumpster. I guess you can also see this as an acknowledgement that this bad thing–the abandonment of newborns–will happen and we want to make the best of it. I think you could take the same approach with regard to drug-use during pregnancy and create an incentive for women to seek proper care and treatment. It rather the opposite approach to what Alabama has chosen, of course. And one can rightly ask which one will work better as well as a whole host of questions about collateral consequnces and costs.

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