Chapter 4 and 5 PDF - Making Reproduction a Crime

Chapter 4 MAKING REPRODUCTION A CRIME \'n February 2, 1992, twenty-eight-year-old Cornelia Whitner gave birth to a heahhy baby boy named Kevin at Easely Baptist Medical Center in Pickens County, South Carohna. When the hospital staff discovered traces of cocaine in the baby\'s urine, they notified child welfare authorities. Two months later, Whitner was arrested for \"endangering the life of her unborn child\" by smoking crack while pregnant. On the day of her hearing, Whitner met briefly in the hallway with her court-appointed attorney, Cheryl Aaron, for the first time. Aaron advised Whitner to plead guilty to the child neglect charges, promising to get her into a drug treatment program so that she could be re- united with her children. Aaron, who had previously prosecuted pregnant addicts herself as a Pickens County prosecutor, did not think to challenge the application of the child neglect statute to a fetus or the constitutionality of the charges brought against her client. In fact, scores of women across the country arrested for smoking crack while pregnant had similarly pled guilty to charges of child abuse, dis- tribution of drugs to a minor, or lesser offenses. They w\^ere typically placed on probation and required to get drug treatment. In this case, the lawyer\'s advice turned out to be terribly mistaken. The April 20 hearing before Judge Frank Eppes started abruptly. \"Is this a crack baby?\" the judge asked Whitner gruffly. \"Why wouldn\'t you just take a pistol and put it in your mouth and blow\^ your head off?\"i Whitner replied by pleading for help with her drug problem. Aaron went on to explain that her client was in counseling and had stayed off drugs since Kevin\'s birth. The baby was in good health. All Whitner wanted was to be placed in a residential treatment facility. Turning a deaf ear. Judge Eppes simply responded, \"I think I\'ll just MAKING REPRODUCTION A CRIME 151 let her go to jail. \' He then sentenced Whitner to a starthng eight-year prison term. On the other side of the country, Darlene Johnson, a twentyseven-year-old mother of four, stood before California Superior Court judge Howard Broadman for sentencing.\^ She was eight months pregnant at the time. Johnson had already pled guilty to three counts of felony child abuse for whipping her six- and four-year-old daughters with a belt for smoking cigarettes and poking a hanger in an electrical socket. A child welfare report mentioned scars and bruises on the girls\' bodies. Because Johnson had a prior criminal record for petty theft and credit card forgery, she faced serving time in state prison. At first Judge Broadman indicated he would grant Johnson\'s request for probation, Avhich was also the recommendation of the probation officer assigned to the case. Then, noting that Johnson might become pregnant again while receiving \^velfare, he made an unexpected proposition: he gave Johnson a choice between a seven-year prison sentence or only one year in prison and three years on probation, with the condition that she be implanted \^vith Norplant. Johnson, whose appointed attorney was not present at the time, questioned the implant\'s safety. Judge Broadman assured her that Norplant was not experimental (the FDA had approved the contraceptive less than a month before) and that its effects could be re- versed by \"just tak\[ing\] the thing out.\" \"It\'s a thing that you put into your arm and it lasts for five years. \... It\'s like birth control pills, ex- cept you don\'t have to take them every day,\" \^vas the judge\'s only description of the device.\^ Caught off guard and fearing the prospect of spending the next seven years in prison, Johnson agreed. Johnson returned to Judge Broadman eight days later when she learned from the public defender that her diabetes, high blood pressure, and other health problems made it dangerous for her to use Norplant and that the order might violate her constitutional rights. Broadman refused to rescind the order on grounds that Johnson had voluntarily agreed to its terms and that \"\[i\]t is in the defendant\'s best interest and certainly in any unconceived child\'s interest that she not have any more children until she is mentally and emotionally prepared to do so.\"\^ Broadman was not even moved by an expert\'s declaration that Norplant was contraindicated for someone with Johnson\'s health condition or statement that it would be \"medically irresponsible\" for any doctor to insert Norplant in a woman\'s arm under such coercive circumstances. The ACLU joined Johnson\'s appeal of Broadman\'s order, arguing 152 KILLINGTHEBLACKBODY that State-coerced birth control violated the fundamental right to procreate. The California attorney general filed a five-page brief agreeing that Johnson\'s acceptance of the Norplant condition was not kno\^ving or voluntary. The case caused a national stir ---not the least of which occurred in Broadman\'s own courtroom \^vhen an antiabortion activist fired a shot that narro\^vly missed the the judge\'s head, muttering \"Norplant kills babies.\" Ultimately an appellate court dismissed Johnson\'s appeal as moot after Johnson violated the terms of her probation by testing positive for drugs and was remanded to prison.\^ 00 States have recently turned their attention to reproduction as a focus for criminal punishment. The cases of Cornelia Whitner and Darlene Johnson represent two controversial \\vays in which the criminal justice system is penalizing pregnancy ---the prosecution of women for exposing their babies to drugs in the womb and the imposition of birth control as a condition of probation. These criminal cases, which have multiplied over the past decade, have two things in common: both punish women, in effect, for having babies and both unduly in- volve poor Black women. In what way do these cases punish pregnancy? When a pregnant woman is arrested for harming the fetus by smoking crack, her crime hinges on her decision to have a baby. She can avoid prosecution if she has an abortion. If she chooses instead to give birth, she risks going to prison. Similarly, when a judge gives a defendant the choice between Norplant or jail, incarceration becomes the penalty for the defendant\'s decision to remain fertile. If she violates probation by becoming pregnant, she will be sent to prison. Prosecutors and judges see poor Black \^vomen as suitable subjects for these reproductive penalties because society does not view these women as suitable mothers in the first place. Previous chapters have described how\^ birth control policy has at- tempted to curtail the numbers of Black children based on the premise that Black fertility is the cause of social problems. In criminal cases, the government more directly punishes Black mothers for their children\'s difficulties. In this chapter, I explain \^vhy this combination of crime, race, and reproduction gravely threatens Black people\'s w\^el- fare as w\^ell as our concept of procreative liberty. MAKING REPRODUCTION A CRIME 153 PUNISHING CRACK ADDICTS FOR HAVING BABIES A growing number of \^vomen across the country have been indicted for criminal offenses after giving birth to babies \^vho test positive for drugs.\^ The majority of these women, hke Corneha Whitner, are poor and Black. Most are addicted to crack cocaine. Charges of \"prenatal crime\" used to occur twice a decade. Then, in the mid-1980s, prosecutors decided to tackle the panic over an alleged explosion of \"crack babies\" by prosecuting their mothers. Between 1985 and 1995, at least two hundred women in thirty states were charged \^vith maternal drug use. Creative statutory interpretations that once seemed little more than the outlandish concoctions of conservative pundits were used to punish women. The charges have included distributing drugs to a minor, child abuse and neglect, reckless endangerment, manslaughter, and assault with a deadly weapon. At the same time, state legislators seized upon the issue as a hot political item. Eighty-two percent of Americans questioned in a 1989 ABC poll agreed that \"a pregnant w\^oman who uses crack cocaine and addicts her unborn child should be put in jail for child abuse.\" \^ In 1990, law\^makers in thirty-four states debated bills concerning prenatal substance abuse.\^ In California alone, some twenty different bills relating to the problem of drug use during pregnancy were pending before the legislature at one time.\^ Melanie Green, a Black \^voman, was arrested in Rockford, Illinois, \^vhen her baby died of oxygen deprivation two days after birth. She v\^as charged with involuntary manslaughter on the ground that the baby\'s death was \"linked to co- caine exposure late in the pregnancy.\" When the grand jury failed to indict Green, the Illinois state legislature adopted the Infant Neglect and Controlled Substances Act of 1989, making the state\'s civU child abuse and reporting statutes apply to new\^borns \^vho test positive for drugs. \^\^ A proposed bill making drug use during pregnancy a felony failed to pass. The prosecution of drug-addicted mothers is part of an alarming trend toward greater state intervention into the lives of pregnant women under the rationale of protecting the fetus from harm. In- creasingly, the interests of the fetus are pitted against those of the mother. Courts have allowed children to bring tort suits against their mothers for prenatal negligence. Pregnant women have been compelled to undergo cesarean sections, blood transfusions, and other medical interventions for the sake of the fetus. Employers have ex- 154 KILLINGTHEBLACKBODY eluded fertile women from certain jobs to prevent fetal exposure to w\^orkplace hazards. In addition, the U.S. Supreme Court has approved greater restrictions on abortion. As the antiabortion move- ment portrayed the fetus as a separate person and the medical profession treated the fetus as an independent patient, the fetus ac- quired more and more legal rights of its own, often against the pregnant woman carrying it. The protracted battle between those who favor protecting the rights of the fetus and those who favor protecting the rights of the mother has been waged in the media, the courtroom, and the streets. Legal scholars often approach the issue by weighing the state\'s inter- est in protecting the fetus against the mother\'s interest in her own bodily autonomy. But can we determine whether the prosecutions are fair simply by deciding upon the duties a pregnant Avoman owes to her fetus and then assessing w\^hether the defendant has met them? Both sides of the debate have largely overlooked a critical aspect of government prosecution of drug-addicted mothers. Just as important to this controversy as the politics of fetal rights is the politics of race. Race entered the debate in the form of the crack epidemic and the frightening image of the \"crack baby \" that helped to define it. Race also provided the backdrop of hostility toward Black mothers that made prosecuting pregnant women permissible. A leading advocate for women charged with prenatal crimes recently stated that \"for the first time in American history... what a pregnant Avoman does to her own body becomes a matter for the juries and the court.\" \^\^ But, as we saw in Chapter 1, a pregnant slave woman\'s body was subject to legal fiat centuries ago because the fetus she was carrying already belonged to her master. The criminal regulation of pregnancy that occurs today is in some ways unprecedented. Yet it belongs to the continuing legacy of the degradation of Black motherhood traced in previous chapters. The prosecutions are better understood as a way of punishing Black \^vomen for having babies rather than as a way of protecting Black fetuses. CREATING THE CRACK EPIDEMIC Crack cocaine exploded on the American scene in the early 1980s, and its abuse quickly rose to epidemic proportions.\^\^ A 1985 New York Timed story about a local drug treatment program identified crack for the first time in print media, referring to teenagers\' \"cocaine depen- MAKING REPRODUCTION A CRIME 155 dence resulting from a new form of the drug called \'crack,\' or rocklike pieces of prepared \'freebase\' (concentrated) cocaine.\" \^\^ Crack (named for the crackling sound it makes as it burns) immediately became popular in the inner cities. Because crack \^vas smoked rather than snorted, it produced an instantaneous high. It was also cheap. While a gram of po\^vdered cocaine cost over \$50, individual \"rocks\" of crack could be purchased for a tenth that amount. Crack\'s apparent confinement to inner-city neighborhoods made it the perfect target for Reagan\'s ferocious War on Drugs and the media\'s disparagement of Black Americans. The media soon imbued crack \^vith phenomenal qualities: it \^vas instantly addicting, it intensified the sex drive, and it turned users into violent maniacs. While pow\^dered cocaine \^vas glamorized as a thrilling amusement of the rich and famous, crack was vilified for stripping its underclass users of every shred of human dignity. \^\^ By June 1986, Newdweek had declared crack to be \"The Plague Among Us,\" which its editor in chief vowed to cover \"as a crisis, reporting it as aggressively and returning to it as regularly as \^ve did the struggle for civil rights, the \^var in Vietnam, and the fall of the Nixon presidency.\" \^\^ iNewdweck and Time each ran five cover stories on the crack crisis in that year alone.) Federal spending on the nation\'s drug problem skyrocketed from \$200 million in the 1970s to \$13 billion in 1992, most devoted to la\^v enforcement. One of crack\'s peculiar qualities appeared to be the drug\'s appeal to vv\^omen.\^\^ Approximately half of the nation\'s crack smokers are fe- male. The concern about w\^omen\'s crack use w\^as no doubt exaggerated by gender stereotypes that make female drug addicts more disturbing than male drug addicts. (Women are actually more likely to be addicted to alcohol or pills.) Still, most crack-addicted \^vomen are of childbearing age, and many are pregnant, which contributed to the huge increase in the number of newborns testing positive for drugs observed in hospitals during the late 1980s. In many urban hospitals, the number of drug-exposed infants quadrupled between 1985 and 1990. But crack was by no means the only drug involved. New\^s of this surge in maternal drug use broke in 1988 \\vhen the National Association for Perinatal Addiction Research and Exlucation (NAPARE) published the results of a study of babies in hospitals across the country. NAPARE found that 1 1 percent of newborns in thirty-six hospitals surveyed \^vere affected by their mothers\' illegal drug use during pregnancy. \^\^ In several hospitals, the proportion of drug-exposed infants was as high as 15 and 25 percent. Extrapolating these statistics to the population at large, it was estimated that as 156 KILLINGTHEBLACKBODY many as 375,000 drug-exposed infants are born every year. \^\^ This fig- ure covered all drug exposure nationwide and did not break down the numbers based on the extent of drug use or its effects on the ne\^vborn. The media parlayed the NAPARE report into a horrific tale of damage to hundreds of thousands of babies. A review of ne\^vspaper accounts of the drug exposure data reveals a stunning instance of journalistic excess. Even the most careful reporters felt free to make vv\^ildly exaggerated claims about the effects of prenatal drug use. Although NAPARE s figures referred to numbers of infants expoded to, not banned by, maternal drug use, the Loj Angeled Timed \^vrote about 375,000 babies \"tainted by potentially fatal narcotics in the Avomb each year.\"\^\^ Some articles attributed all 375,000 cases to crack, al- though experts estimate that 50,000 to 100,000 newborns at most are exposed specifically to cocaine (both powdered and crack) each year.\^\^ (In one editorial the figure ballooned to 550,000 babies having \"their fragile brains bombarded with the drug.\"\^\^) \"Crack was even responsible for the creation of an entirely new\^, and now leading, cate- gory of child abuse: exposure of babies to drugs during pregnancy,\" the Lod Angeled Timed claimed in a front-page story ---as if crack were the only drug used by pregnant women.\^\^ The press often gave medically inaccurate descriptions of crack\'s impact on children. The New York Timedy for example, stated that pregnant women were \"producing a ne\\v generation of innocent addicts, \" erroneously implying that babies exposed prenatally to crack are all born automatically hooked on the drug.\^\^ Having whipped up a panic over crack exposure, the media next created the drama\'s leading characters ---the pregnant addict and the crack baby, both irredeemable, both Black. The pregnant crack addict was portrayed as an irresponsible and selfish w\^oman w\^ho put her love for crack above her love for her children. In ne\^vs stories she \^vas often represented by a prostitute, who sometimes traded sex for crack, in violation of every conceivable quality of a good mother. The chemical properties of crack were said to destroy the natural impulse to mother. \"The most remarkable and hideous aspect of crack cocaine seems to be the undermining of the maternal instinct,\" a nurse was quoted as observing about her patients. \^\^ The pregnant crack addict, then, Avas the exact opposite of a mother: she w\^as promiscuous, uncaring, and self-indulgent. She was also Black. In the focus on maternal crack use, which is stereotypically associated with Blacks, the media left the impression MAKING REPRODUCTION A CRIME 157 that the pregnant addict is typically a Black woman. Even more than a \"metaphor for women\'s alienation from instinctual motherhood, \"\^\^ the pregnant crack addict was the latest embodiment of the bad Black mother. The monstrous crack-smoking mother was added to the iconography of depraved Black maternity, alongside the matriarch and the welfare queen. Crack gave society one more reason to curb Black women\'s fertility. The crack baby \^vas equally hopeless. Always pictured trembling and shrieking in an overcrov\^\^ded hospital ward, the crack baby suf- fered from multiple ailments that often killed him. But these images that induced pity for the helpless victim were eclipsed by predictions of the tremendous burdens that crack babies were destined to impose on law\^-abiding taxpayers. Permanently damaged and abandoned by their mothers, they w\^ould require costly hospital care, inundate the foster care system, overwhelm the public schools \^vith special needs, and ultimately prey on the rest of society as criminals and \^velfare dependents. It w\^as estimated that Americans were already spending an additional \$200 million a year \"to keep up \^vith the crack onslaught,\" leading to the startling prediction that crack babies \"\^vill cost this nation \$100 billion in remedial medical and developmental costs over the next decade. \"\^\^ The crack baby\'s emotional impairment set this casualty of maternal drug use apart from all others. In addition to medical complications, crack babies were supposed to suffer from irreversible neurological damage that \^varped their very character. Nurses re- ported that these infants stiffened when they were cuddled, displaying \"emotional detachment\" and \"impaired human interaction.\"\^\^ Teachers described the school-age children alternatively as expressionless zombies or uncontrollable demons prone to sudden temper tantrums.\^\^ The crack baby, then, was as unnatural as his mother: just as the pregnant crack addict had no maternal instinct, the crack baby lacked an innate social consciousness. This frightening portrait of damaged crack babies may have caused as much harm as the mothers\' crack use itself. The data on the extent and severity of crack\'s impact on babies are highly controversial, to say the least. At the inception of the crisis numerous medical journals reported that babies born to crack-addicted mothers suffered a variety of medical, developmental, and behavioral problems.\^\"\^ But more recent research reveals that these early studies were seriously flawed.\^\^ The initial results were made unreliable by the lack of controls and the selection of poor, inner-city subjects at high risk for 158 KILLINGTHEBLACKBODY unhealthy pregnancies. Maternal crack use often contributes to un- derweight and premature births. This alone is reason for concern. But many of the problems seen in crack-exposed babies are just as likely to have been caused by other risk factors associated with their mothers\' crack use, rather than the crack itself. Women who smoke crack are often poor, homeless, malnourished, sick, and physically abused. They may smoke, drink, and use other il- legal drugs besides crack. They are also likely to receive little or no prenatal care. Researchers cannot tell us which of this array of hazards actually caused the terrible outcomes they originally attributed to crack. Babies born under these wretched conditions are likely to be unhealthy w\^hether or not their mothers smoke crack. Nor can re- searchers authoritatively determine the percentage of infants exposed to crack in the \^vomb who actually experience these consequences.\^\^ It is impossible to predict, for example, if a child whose mother smoked crack will suffer any adverse medical effects at all. Some findings of earlier studies, such as a high incidence of sudden infant death syndrome and stroke, were not replicated in subsequent, more careful research. Moreover, some researchers have found that the harmful effects of prenatal crack exposure may be temporary and treatable. \^\^ A Northwestern University study of pregnant cocaine addicts found that comprehensive prenatal care may improve the outcome of pregnancies complicated by cocaine abuse.\^\^ Research has also discovered dramatic differences in the effects of maternal alcohol abuse depending on the mother\'s socioeconomic status. Although all \^vomen in a study drank at the same rate, the children born to low-income women had a 70.9 percent rate of fetal alcohol syndrome, compared to a 4.5 percent rate for those of upper-income w\^omen.\^\'\' The main reason for this disparity was the pregnant women\'s nutrition. While the wealthier women ate a regular, balanced diet, the poorer women had sporadic, unhealthy meals. Crack is not good for anyone. But these studies suggest that its potentially harmful consequences for babies can be minimized, or even prevented, by ensuring proper health care and nutrition for drug-dependent mothers. The medical community\'s one-sided attention to studies sho\^ving detrimental results from cocaine exposure added to the public\'s dis- torted perception of the risks of maternal crack use.\^\^ For a long time, journals tended to accept for publication only studies that supported the dominant view of fetal harm. Research that reported no adverse effects \^vas ignored, even though it was often more reliable. The num- MAKING REPRODUCTION A CRIME 159 ber of articles concerning crack\'s impact was also unprecedented. Medical journals published four times as many papers concerning prenatal cocaine exposure as had been published concerning the prenatal effects of the heroin epidemic a decade earlier. \^\^ Now experts are denouncing the earlier rush to judgment. Revie\^ving the literature of the past decade, two researchers conclude: \"We think it is clear now\^, from a multitude of studies, that the effect of prenatal cocaine exposure is minimal at birth and is probably limited to minor growth deficits. \"\^\^ My point is not that crack use during pregnancy is safe, but that the media exaggerated the extent and nature of the harm it causes. News reports erroneously suggested, moreover, that the problem of maternal drug use was confined to the Black community. A public health crisis that cuts across racial and economic lines was transformed into an example of Black mothers\' depravity that warranted harsh punishment. It is doubtful that the medical profession\'s about-face on crack ex- posure will have much impact on the public\'s perception of the \"epidemic\' The image of the crack baby\^---trembling in a tiny hospital bed, permanently brain-damaged, and on his way to becoming a parasitic criminal ---is indelibly etched in the American psyche. It vv\^ill be hard to convince most Americans that the caricature of the crack baby rests on flimsy, exaggerated data. Unfortunately, many will refuse to believe that it is not primarily crack that is destroying the health of poor Black children. THE STATE\'S PUNITIVE RESPONSE The crisis of drug-exposed babies cried out for action. State prosecutors, legislators, and judges around the nation responded, and their response was punitive. They have punished women who use drugs while pregnant by jailing them during their pregnancy, by seizing cus- tody of their babies at birth, and by prosecuting them for crimes. The most common penalty for a mother\'s prenatal drug use is the permanent or temporary removal of her baby.\^\^ Thousands of lowincome Black mothers have lost custody of their babies on the basis of a solitary drug test. About a dozen states have enacted statutes that require the reporting of positive newborn toxicologies to child welfare authorities, and many hospitals interpret child abuse reporting laws, passed thirty years ago in all fifty states, to require them to report 160 KILLINGTHEBLACKBODY positive results. In some states, a positive drug screening automatically triggers neglect proceedings to obtain custody of the baby As a result, child abuse and neglect petitions containing allegations of the mother\'s drug use quadrupled in New York City between 1986 and 1989, paralleling the onset of the crack epidemic.\^\^ Crack exposure is now the leading grounds for newborn foster placement in that city.\'\^\^ In cities across the country, policymakers are debating whether new\^borns w\^hose mothers smoke crack should be taken to foster care right away.\'\^\^ More and more agencies snatch drug-exposed babies from their mothers immediately after birth, pending an investigation. In the subsequent custody determination, a positive neonatal toxicology often raises a strong presumption of parental unfitness. Several states have facilitated this process by expanding the statutory definition of neglected children to include infants who test positive for controlled substances at birth. But a positive toxicology (which may be false) reveals only that the mother ingested drugs shortly before the delivery. It tells us nothing about the extent of the mother\'s drug use, any harm to the baby, or the mother\'s parenting abilities. Exjuating evidence of maternal drug use \^vith child neglect circumvents the in- quiry into the mother\'s competence to care for her child that is cus- tomarily necessary to deprive a parent of custody. This could mean separating a mother from her newborn based on occasional ---or even a single instance of--- drug use. Some mothers have lost custody of their older children as well. Of course, the state should remove babies from drug-addicted mothers when they are at risk of harm. But it is also harmful to chil- dren to be wrongfully taken from their mothers on insufficient evidence of unfitness, often to be cast into a more perilous foster care system. A recent class action law\^suit against the Illinois child welfare service alleged that children in foster care \"frequently have been shuffled among six or more temporary living arrangements for two or more years and hundreds of them have been victims of neglect or abuse at an increasing rate. \"\"\^\^ When foster homes run out, children are \"\^varehoused\" in over- crowded and dangerous shelters and newborns are \"boarded\" in hospital wards. The \"crack babies\" who are being removed from their mothers in droves are, of course, the most difficult to place with families. La\^vsuits filed in Illinois, New Jersey, and New York charged that state child welfare agencies w\^ere needlessly confining crackexposed newborns to hospitals for months at a time rather than plac- MAKING REPRODUCTION A CRIME 161 ing them in foster care or residential centers/\^ The shortage of drug treatment services and other support for drug-dependent mothers makes it difficuk for them to regain custody of their children. By the time competent mothers are ultimately reunited with their children, the severing of their bond in the first moments of life has already in- flicted tremendous damage. Commentators such as Abe Rosenthal of the New York Timed, who call for the immediate, permanent seizure of \"poisoned babies, \" seem oblivious to these painful consequences, as w\^ell as to the w\^ide-scale disruption these removals have unleashed on the Black community.\^\^ Another penalty is the \"protective\" incarceration of pregnant drug addicts charged w\^ith unrelated crimes. In 1988, a Washington, D.C., judge sentenced a thirty-year-old Black w\^oman named Brenda Vaughn, w\^ho pleaded guilty to forging \$700 w\^orth of checks, to jail for the duration of her pregnancy.\^\^ The prosecutor had agreed to probation, the typical penalty for such a minor offense. Instead Judge Peter H. Wolf stated at sentencing that he w\^anted to ensure that the baby w\^ould be born in jail to protect it from its mother\'s drug abuse: \"I\'m going to keep her locked up until the baby is born because she\'d tested positive for cocaine w\^hen she came before me.... She\'s apparently an addictive personality, and I\'ll be darned if I\'m going to have a baby born that w\^ay. \" Although the Vaughn case w\^as picked up by the press, defendants\' drug use during pregnancy often affects judges\' sentencing decisions in unnoticed cases. It does not matter to these judges that the conditions in America\'s jails are hazardous to fetal health. Women in prison often live in filthy and overcrowded spaces, eat poorly, are exposed to contagious diseases and violence, get little or no prenatal care, and have easy access to drugs ---hardly a protective environment for a developing fetus. Civil commitment offers another avenue for judges to mandate treatment for pregnant substance abusers. Minnesota is the only state so far to pass a law specifically authorizing civil commitment of pregnant women \^vho engage in the \"habitual and excessive use\" of drugs. Physicians in Minnesota v\\\^ho suspect their pregnant patients of drug use must test them and report positive results to government authorities. The la\^v also encourages anyone w\^ho has reason to believe a pregnant w\^oman is using drugs to turn her in. Pregnant w\^omen w\^ho fail to get treatment on their own have been detained in the hospital against their w\^ill after court proceedings. In other states, pregnant 162 KILLINGTHEBLACKBODY women have been involuntarily confined under ordinary state civil commitment laws that apply to drug-dependent or mentally ill persons. Taking a more innovative route, some judges have taken custody of the fetuj through the juvenile court system to protect it from the mother\'s drug use. An Illinois judge compelled a pregnant heroin user to enter drug rehabilitation by making her fetus a ward of the state, ruling that the woman \^vas abusing it.\"\*\^ In Waukesha County, Wisconsin, Children\'s Court judge Kathryn Foster ruled that a viable fetus was a child entitled to protection under the state\'s child welfare laws and detained the crack-addicted mother in an inpatient treat- ment center. (The Wisconsin Supreme Court reversed the detention order on April 22, 1997.)\^\^ A juvenile court judge in Ohio similarlyordered a pregnant woman to be placed in a \"secure drug facility\" to guard the fetus from the woman\'s cocaine use.\"\^\^ Finally, district attorneys across the country grabbed the opportunity to become front-line champions in the assault on drug use during pregnancy. In the late 1980s, criminal cases brought against women for prenatal drug exposure began to hit the headlines. THE FIRST CONVICTION When Judge O. H. Eaton, Jr., issued a verdict in a Florida courtroom on July 13, 1989, it may have seemed like a run-of-the-mill drug-trafficking conviction. But it \\vas a landmark decision. It w\^as this country\'s first criminal conviction of a mother for exposing her baby to drugs while she was pregnant.\'\'\^ Jennifer Clarise Johnson, a twenty-three-year-old Black \^voman, gave birth to her son, Carl, in 1987, and to her daughter, Jessica, in 1989. Both babies appeared healthy and normal at birth. Because Johnson had admitted to her doctors that she smoked crack shortly before the deliveries, the babies were tested. Both tested positive for metabolites of cocaine. The Florida state attorney\'s office, which had recently embarked on a policy of prosecuting women for prenatal drug use, decided to press for a conviction. Next to South Carolina, Florida has initiated the most prosecutions for drug use during pregnancy in the country. The state charged Johnson with two crimes: two counts of delivering a controlled substance to Carl and Jessica, a crime carrying a potential thirty-year sentence, and one count of felonious child abuse against Jessica. (Judge Eaton later threw out the child abuse charge MAKING REPRODUCTION A CRIME 163 because there was insufficient evidence that Jessica was actually harmed by her mother\'s drug use.) Because the relevant Florida drug la\^v did not apply to fetuses, the prosecution had to prove that Johnson had delivered cocaine to her children after they Avere born. The prosecutor overcame this roadblock by inventing a novel interpretation of the statute. Assistant state attorney Jeff Deen built his case of drug delivery through the testimony of the obstetricians who attended the births, Drs. Randy Tompkins and Mitchell Perlstein. Dr. Tompkins, \\vho delivered Jessica, testified that even after delivery \"maternally altered\" blood circulates between the placenta and the baby through the still- attached umbilical cord. He estimated that from forty-five to sixty seconds elapsed from the time the baby had completely emerged to the clamping of the umbilical cord. Tompkins added that once Jessica w\^as delivered from the birth canal she \^vas a person and no longer a fetus, even though the umbilical cord vv\^as still attached.\^\^ Perlstein, v\^ho delivered Carl, testified to similar facts \^vith respect to Carl\'s birth. \^\^ Deen also put the county medical examiner on the stand, who testified that a nearly unpronounceable cocaine derivative called benzoylecgonine remains in the bloodstream in decreasing amounts for forty-eight to seventy-two hours after cocaine is ingested.\^\^ Deen patched together this testimony, along vv\^ith Johnson\'s admission that she smoked crack \^vithin hours of both deliveries, to establish an unprecedented application of the drug law\^. He argued that Johnson had passed the cocaine metabolite to her babies through their umbilical cordd after they were born, in the sixty seconds before the cords were cut. Deen\'s case Avas built on shaky ground. First, his statutory argument posed serious due-process problems. True, Deen succeeded in presenting a theory that could be stretched to fit the \^vords of the statute. But the plain reading of the drug delivery law did not give Johnson fair warning that it prohibited her conduct during pregnancy. There was also a gaping hole in the circumstantial evidence against Johnson. The state\'s entire case hung on proving the presence of the cocaine metabolite in the umbilical cord blood during the critical sixty-second window. Even Deen\'s own witness conceded that the best way to be sure of what substances \\vere flowing through the umbilical cord \^vould have been to test a blood sample from the cord it- self. But there was no record of such a test being performed. How then could the doctors tell whether the cocaine found in the babies\' 164 KILLINGTHEBLACKBODY urine after they were born had been passed from Johnson after their birth or before? In fact, Dr. Stephen Kandall, a neonatologist at Beth Israel Medical Center in New York and president of the New York Pediatric Society, testified for the defense that it was impossible to tell from a newborn\'s urine sample precisely when drugs entered the body. Although it was theoretically possible that a tiny amount of co- caine metabolite traveled through the baby\'s umbilical cord after delivery, it was also possible that none Avas transferred during those crucial seconds. Judge Eaton disregarded both problems with the state\'s case against Johnson. After a brief three-hour recess, he found Johnson guilty of delivering cocaine to her children. She was sentenced to one year of residential drug treatment and fourteen years probation. Although he spared Johnson jail time. Judge Eaton imposed a number of conditions to monitor her personal life. She had to submit to ran- dom drug testing, remain employed, and notify officials if she became pregnant. She was barred from frequenting any bar or restaurant that served alcohol. Johnson\'s conviction also carried the threat of incarceration should she fail to meet any of the probation conditions. THE SOUTH CAROLINA EXPERIMENT The State of South Carolina bears the dubious distinction of prosecuting the largest number of w\^omen for maternal drug use. 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 she perceived among her pregnant patients. That very month, the solicitor of Greenville County, in another part of the state, had announced a policy of prosecuting mothers whose babies tested positive for drugs, a story important enough to make front-page news.\^\^ Condon immediately held a series of meetings that brought in additional 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 had intentions of helping their patients, but their input was soon overshado\^ved by la\^v enforcement objectives. The approach turned tow\^ard pressuring pregnant patients w\^ho used drugs to get treatment MAKING REPRODUCTION A CRIME 165 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.\" Condon also pressed the position that neither the physician-patient privilege nor the Fourth Amendment to the U.S. Constitution, which prohibits warrantless searches and seizures, prevented hospital staff from reporting positive drug tests to the police. Within two months MUSC had instituted the Interagency Policy on Cocaine Abuse in Pregnancy (Interagency Policy), a series of in- ternal 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.\^\^ Although the program claimed \"to ensure the appropriate management of patients abusing illegal drugs during pregnancy, \" \^\^ its origin suggests that it was designed to supply Condon \^vith 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 ex- pect of a program affecting patient care.\^\^ Condon personally broadcast the new policy in televised public service announcements that advised pregnant \^vomen, \"not only w\^ill you live with guilt, you could be arrested. \"\^\^ During the first several months, \\vomen who tested positive for crack at the time they gave birth were immediately arrested. Then Condon added an \"amnesty\" program to the Interagency Policy: patients testing positive for drugs were offered a chance to get treat- ment; if they refused or failed, they would be arrested. Patients \^vho tested positive \^vere handed two letters, usually by Nurse BroAvn: one notified them of their appointment with the substance abuse clinic; the other, from the solicitor, \^varned them, \"If you fail to complete substance abuse counseling, fail to cooperate with the Department of Social Services in the placement of your child and services to protect your 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. \"\^\^ The policy offered no second chances. Women who tested positive for drugs a second time or w\^ho delivered a baby who tested positive were arrested and imprisoned. Depending on the stage of pregnancy, the mother was charged with drug possession, child neglect, or distribution of drugs to a minor. Uncooperative women who declined 166 KILLINGTHEBLACKBODY treatment were arrested based on a single positive result. Crystal Ferguson, for example, requested an outpatient referral because she had no one to care for her two sons at home; she was arrested for failing to comply with Nurse Brown\'s order to enter a t\^vo-\^veek residential program with no child care. The Interagency Policy resulted in the arrests of forty-two patients, all but one of w\^hom were Black. (Nurse Brovv\^n noted on the chart of the sole vv\^hite woman arrested that her boyfriend was Black.) The arrests were scenes one might imagine in some totalitarian regime, not the sanctity of a maternity ward. Police arrested some patients within days or even hours of giving birth and hauled them off to jail in handcuffs and leg shackles. \^\^ The handcuffs were attached to a three-inch wide leather belt that was wrapped around their stomachs. Some \^vomen \^vere still bleeding from the delivery. One ne\"w mother w\^ho complained was told to sit on a towel when she arrived at the jail. Another reported that she was grabbed in a chokehold and shoved into detention. The day after giving birth, Ellen Laverne Knight was handed papers to sign instead of her baby. \"Nurse Brown was a bitch,\" Knight recalled. \"She came and said I had to go into a room to talk to someone. It was the police. They said I have a right to remain silent. I found out I was going to jail. They brought me my clothes, they handcuffed me, they put a sheet over my hands, they pushed me out in a wheelchair. I spent the night in city jail without a sanitary napkin. \"\^\^ Needless to say, these arrests meant tearing new\^born infants away from their mothers at a crucial time for bonding and nurturance. Women who were pregnant at the time of their arrest sat in jail cells waiting to give birth. When they went into labor, they were rushed by ambulance to the hospital, where they continued to be treated like prisoners. Lori Griffin was transported \^veekly from the jail to the hospital in handcuffs and leg irons for prenatal care. Three weeks after her arrest, she went into labor and was taken, still in handcuffs and shackles, to MUSC. Once at the hospital, she w\^as kept handcuffed to her bed during the entire delivery. \^\^ This ruthless desecration of maternity signifies the depths to which poor Black mothers have sunk in society\'s estimation. The sight of a pregnant Black woman bound in shackles is a modern-day reincarnation of the horrors of slave masters\' control of slave women\'s w\^ombs. Of course, the women\'s circumstances are different, as are the regulators\' precise interests in guarding the fetus. But there is an eerie link between these degraded Black mothers of Charleston, South Car- MAKING REPRODUCTION A CRIME 167 olina, and their foremothers v\^ho were forced to breed for slaveholders less than two centuries ago. Thinking about an expectant Black mother chained to a belt around her swollen belly to protect her un- born child, I cannot help but recall how whites forced their pregnant slaves to lie face do\^vn in a hole to protect the fetus \^vhile they \^vhipped the mother\'s back. Once again, Black women give birth in chains ! THE COUNTERASSAULT Most v\^omen charged with prenatal crimes are pressured into accepting plea bargains to avoid jail time. These cases quietly slip av\^ay v\^ithout appellate scrutiny. When \^vomen have appealed, ho\^vever, they have almost alv\^ays been victorious. With one exception, every appellate court to consider the issue, including the highest court in several states, has invalidated criminal charges for drug use during pregnancy. Most decisions center on the court\'s interpretation of the criminal statute cited in the indictment. Courts have held that the state\'s child abuse, homicide, or drug distribution law \^vas not meant to cover a fetus or to punish prenatal drug exposure. The Florida Supreme Court, for example, thre\^v out Jennifer Johnson\'s conviction in 1992 on the ground that the state legislature had not intended \"to use the \^vord \'delivery\' in the context of criminally prosecuting mothers for delivery of a controlled substance to a minor by way of the umbilical cord.\"\^\^ A few courts have held that prosecuting a w\^oman for conduct during pregnancy violates her constitutional right to privacy. State legislatures have also rejected the punitive bills that proliferated in the late 1980s. While some states have included prenatal drug exposure in their civil child neglect laws, none has explicitly made it a crime. Some states have enacted instead laws designed to increase women\'s access to drug treatment. For example, in 1991 Missouri adopted legislation that mandates treatment and education for pregnant addicts v\^hile expressly prohibiting the use of information about their drug use as a basis for criminal prosecution. This legislative trend, ho\^vever, has not deterred prosecutors from bringing charges under statutes that are already on the books. By operating on their o\^vn, rather than by legislative mandate, renegade prosecutors can more easily avoid the scrutiny entailed in passing a law and impose their personal notions of criminal justice in a discriminatory fashion. 168 KILLINGTHEBLACKBODY After winning a number of state court victories, Lynn Paltro\^v, di- rector of special litigation for the Center for Reproductive Law and Policy in Ne\^v York, decided to take the offensive. In October 1993, Paltrow filed in federal district court a class action lawsuit against the City of Charleston and MUSC on behalf of Crystal Ferguson and an- other Black woman who had been jailed under the Interagency Policy. \^\^ The plaintiffs demanded \$3 million for violations of a number of constitutional guarantees, including the right to privacy in medical in- formation, the right to refuse medical treatment, the right to procreate, and the right to equal protection of the law regardless of race. The complaint was supported by declarations from an impressive array of national and local experts, among them Dr. Barry Zuckerman, chairman of the Department of Pediatrics at Boston University School of Medicine and one of the most prolific writers on the subject of prenatal substance abuse; Jay Katz, professor emeritus of Law\^, Medicine, and Psychiatry at Yale Law School, who authored the in- fluential book on medical ethics, The Silent World of Doctor and Patient; and Louise Haynes, the former director of the Office of Women\'s Services at the South Carolina Commission on Alcohol and Drug Abuse. Federal Judge C. Weston Houck nevertheless refused to halt the program pending trial, stating, \"I think the public is concerned about children who, through no fault of their own... are born addicted.\" On January 8, 1997, the federal jury in Fergiuon rejected the plaintiffs\' claims that the hospital had violated their Fourth Amendment and equal protection rights. The federal government became involved several months after the federal lawsuit was filed. The National Institutes of Health found that the Interagency Policy constituted research on human subjects, which MUSC had been conducting without federally mandated re- view and approval.\^\^ The hospital had embarked on an experiment designed to test the hypothesis that threats of incarceration would stop pregnant women from taking drugs and improve fetal health. Yet it had never taken the required precautions to ensure that patients were adequately protected; indeed, it had surreptitiously collected confidential information about them and given it to the police. The Civil Rights Division of the Department of Health and Human Services (HHS) also began investigating w\^hether MUSC had violated the civil rights of its Black patients by discriminating against them in referring patients to the solicitor for arrest and prosecution. In October 1994 ---five years after the policy\'s inception ---MUSC dropped the program as part of a settlement agreement with HHS. MAKING REPRODUCTION A CRIME 169 Under threat of losing millions of dollars in federal funding, the hospital dismantled its joint venture with the solicitor\'s office and the police. Despite the federal reprimand, MUSC\'s collaboration with prosecutors retains enthusiastic support in South Carolina. Condon\'s cru- sade against pregnant addicts as a circuit solicitor helped him win a landslide victory for state attorney general in November 1994. Newly elected, Condon, a Republican, launched a blistering attack on the Clinton administration in the pages o\^ Policy Rei\^lew, the journal of the conservative Heritage Foundation.\^\^ In \"Clinton\'s Cocaine Babies --- Why Won\'t the Administration Let Us Save Our Children?\" he ac- cused the HHS investigation of shutting down \"one of the first \'crack baby\' prevention programs in the nation\" in order to cater to politically correct liberals and feminists. \"Unfortunately, the policy of the Clinton administration is to protect, not the children, but the \'rights\' of the mothers to escape the consequences of their actions,\" he wrote. Condon claimed that the program\'s success at getting \"scores\" of women off drugs made it a model that other states sought to emulate. But the lack of reliable documentation makes it impossible to verify his claims. It is just as likely that any decline in positive test results was caused by drug-dependent vv\^omen avoiding MUSC\'s clinic out of fear of arrest. And if the policy \^vas motivated by concern for the chil- dren, w\^hy mention that most of the patients are on welfare and that \"a single cocaine baby can run up a lifetime tab of \$ 1 million in medical and educational costs\"? In the summer of 1996 the South Carolina Supreme Court delivered to Condon the boost he needed to revive his assault on pregnant crack users. THE WHITNER SETBACK Cornelia Whitner, the South Carolina \^voman sentenced to eight years in prison for child abuse, did not initially appeal her conviction. She had been locked up for nineteen months in Leath Correctional Institution before a lawyer from the local ACLU contacted her through Cheryl Aaron about challenging her conviction. Lynn Paltrow, the lawyer who filed the federal class action lawsuit, flew to South Carolina to help represent Whitner. Whitner\'s lawyers filed a petition for postconviction relief claiming that the trial court lacked jurisdiction to accept a guilty plea to a nonexistent offense. The rele- 170 KILLINGTHEBLACKBODY vant criminal statute punished the unlawful neglect of a child, not a fetus, they argued. The judge \\vho heard the petition \^vas persuaded. On November 22, 1993, Judge Larry Patterson threw out the conviction and re- leased Whitner from prison. Attorney General Condon filed a notice of appeal that day. On the other side, major medical, public health, and women\'s organizations, including the American Medical Association and its South Carolina affiliate, the American Public Health Association, the National Council on Alcoholism and Drug Dependence, and NOW Legal Defense and Education Fund, joined in amicus briefs opposing prosecution of women for prenatal drug use. On July 15, 1996, the South Carolina Supreme Court dealt a disastrous blo\^v to the antiprosecution effort. In a 3 to 2 decision, the court reinstated Whitner\'s conviction, holding that a viable fetus is covered by the child abuse statute. \^\^ The court based its conclusion on prior case la\^v that recognized a viable fetus as a person. South Carolina courts, for example, allowed civil actions for the wrongful death of a fetus. The key criminal la\\v precedent was State i\\ Home, decided in 1984, concerning South Carolina\'s homicide law. The defendant Home had repeatedly stabbed his wife, who was nine months pregnant, in the neck, arms, and abdomen. The woman survived, but the fetus had died by the time doctors performed an emergency cesarean section. The court upheld Home\'s conviction for voluntary manslaughter, extending liability for killing a fetus from the civil to the criminal context. According to the Whitner court, these precedents dictated its interpretation of the child abuse statute: \"\[I\]t would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse.\" Moreover, punishing fetal abuse would further the statute\'s aim of preventing harm to children. \"The consequences of abuse or neglect that take place after birth,\" the court reasoned, \"often pale in comparison to those resulting from abuse suffered by the viable fetus before birth.\" The two dissenting judges noted that the majority\'s ruling was in- consistent with a 1995 decision that construed \"child\" in another provision of the Children\'s Code concerning adoption to mean \"a child in being and not a fetus.\" They argued that other parts of the child neglect law, such as the list of acts that constitute harm, seemed to con- template an already-born child. The majority\'s mistake, according to MAKING REPRODUCTION A CRIME 171 the dissenters, was to look for guidance in the common law of tort and feticide rather than in the relevant statutory language itself. Besides, the South Carolina legislature\'s failure to pass several proposed bills to punish drug use during pregnancy proved that law\^makers did not intend the child neglect statute to cover such conduct. There w\^as yet another inconsistency: the state abortion statute --- the only la\^v that specifically regulates a pregnant woman\'s conduct to\^vard the fetus ---also treats a viable fetus differently from a child in being. \"A pregnant \^voman, under the majority opinion, no\^v faces up to ten years in prison for ingesting drugs during pregnancy,\" the dissenting opinion pointed out, \"but can have an illegal abortion and receive only a two-year sentence for killing her viable fetus. \" On the other hand, the decision apparently allovv\^s a woman to use drugs until the twenty-fourth week of pregnancy \^vithout risking arrest ---even though harm can occur during the first two trimesters as well. The decision meant that Cornelia Whitner \^vas returned to jail to serve out the remaining six years of her sentence. It also meant abandoning her son, no\^v a healthy four-year-old living with her aunt. Four other vv\^omen indicted on similar charges also faced being sen- tenced to prison terms. But Whitner s, ramifications are far more devastating. The holding opens the door for a ne\^v Avave of prosecutions in South Carolina, as well as in other states that wish to follow its lead. Paul Lx)gli, the Illinois prosecutor who tried to charge Melanie Green with manslaughter, publicly applauded the decision. \"This is a landmark, precedent-setting decision, \" Attorney General Condon ex- claimed. \"This decision is a triumph for all those \^vho want to protect the children of South Carolina.\" As the state\'s chief law enforcement officer, Condon has visions of replicating his Charleston experiment in other hospitals across South Carolina. The ruling also opens up a Pandora\'s box. If harm to a viable fetus constitutes child abuse, then an endless panoply of activities could make pregnant women guilty of a crime. \"There are not enough jail cells in South Carolina to hold the pregnant women who have a drug problem, drink a glass of \\vine vv\^ith dinner, smoke cigarettes \... or decide to go to work despite their doctor\'s advice that they should stay in bed,\" Paltro\^v pointed out. \"Thousands of women are now child neglecters.\" Of course, the state of South Carolina will not go after thousands of pregnant women on child neglect charges. It will not even prose- 172 KILLINGTHEBLACKBODY cute all the pregnant women who abuse drugs and alcohol. Instead, it will escalate its crusade against the women it has prosecuted in the past ---poor Black women who smoke crack. I now turn to the reasons behind this blatant racial discrimination. THE PROSECUTIONS\' RACIAL BIAS Poor Black women nationwide bear the brunt of prosecutors\' punitive approach. According to a 1990 memorandum prepared by the ACLU Reproductive Freedom Project, 70 percent of the fifty-two cases documented at that time involved Black defendants.\^\^ The dis- proportionate prosecution of Black women could be seen most clearly in the states that had initiated the most cases. In Florida, ten out of eleven criminal cases had been brought against Black vv\^omen. Similarly, of eighteen women in South Carolina charged with either criminal neglect of a child or distribution of drugs to a minor, seventeen were Black. The racial disparity has not diminished in subsequent years.\^\^ The reason Black \\vomen are the primary targets of prosecutors is not because they are more guilty of fetal abuse. A study of twentyfour hospitals conducted by the South Carolina State Council on Maternal, Infant, and Child Health in 1991 found that high percentages of pregnant women were abusing marijuana, barbiturates, and opiates ---drugs used primarily by white women.\^\^ MUSC\'s own record showed that drug use among pregnant patients was evenly distributed among white and Black women. Yet nearly all of the women the hospital reported to the solicitor were Black. These local surveys showing little difference in rates of substance abuse among Black and white women during pregnancy parallel national statistics. Rather, this discriminatory enforcement is a result of a combination of racism and poverty. Poor \\vomen, who are disproportionately Black, are in closer contact with government agencies, and their drug use is therefore more likely to be detected. Black women are also more likely to be reported to government authorities, in part because of the racist attitudes of health care professionals. In the end, it is these w\^omen\'s failure to meet society\'s image of the ideal mother that makes their prosecution acceptable. MAKING REPRODUCTION A CRIME 173 Who Gets Reported To charge drug-dependent mothers \^vith crimes, the state must be able to identify those who use drugs during pregnancy. Because indigent Black women are generally under greater government supervision ---through their associations \^vith public hospitals, welfare agencies, and probation officers ---their drug use is more likely to be detected and reported/\^ These women are already enmeshed in a social \^velfare structure that makes them vulnerable to state monitoring of every aspect of their lives. Hospital screening practices are particularly to blame. The government\'s main source of information about prenatal drug use is hospitals\' reporting of positive infant toxicologies to child welfare or la\^v enforcement authorities. This testing is performed almost exclusively by public hospitals that serve poor minority communities. Charleston\'s Interagency Policy, for example, was developed specifically for the only hospital in the area accessible to indigent Black patients. In addition, the policy applied only to the Medicaid patients attending the obstetrics clinic; it Avas not enforced against the hospital\'s private patients. Everyone on the hospital staff knew\^ that only Black women \^vere subject to the policy.\^\^ Condon tried to explain away the program\'s blatant racial targeting as the innocent re- sult of demographics. \"It is true that most of the women treated were black,\" he conceded. \"The hospital serves a primarily indigent population, and most of the patient population is black. \"\^\^ But why had Condon singled out MUSC as the lone site for the punitive program? Surely hospitals with a white clientele also had pregnant patients who abused drugs. One of the \^vomen arrested in Greenville County noted the unfairness: \"The only patients in the hospital who this is happening to are on Medicaid. There are private patients v\^ho are doing drugs and nothing is done about that. If the idea is to protect the babies, they should be protecting all babies. \"\^\^ Private physicians w\^ho treat more affluent women tend to refrain from testing their patients for drug use, and certainly would not re- port them to the police. Officials of private hospitals told federal in- vestigators in a nationwide survey that they did not consider the problem serious enough to warrant implementing a drug screening protocol.\^\^ These doctors have a financial stake in securing their patients\' business and referrals. It is also more likely that their patients are their friends, neighbors, and business associates or come from the 174 KILLINGTHEBLACKBODY same social circle/\^ Physicians who practice in fancy offices, therefore, identify and empathize with their patients. They may find it hard to suspect their patients of drug use. Even if they do, they see their patients\' addiction as a disease requiring treatment, not a criminal act deserving punishment. They would be appalled at the notion of handing each patient a warning that the office was collaborating vv\^ith the police and that she might be arrested based on test results. Moreover, hospitals decide whom to screen for drug use by applying criteria that are more likely to select Black women. One factor that commonly triggers an infant toxicology screen is the mother\'s failure to obtain prenatal care, a factor that correlates strongly with race and income. \^\^ Black women are twice as likely as white w\^omen to begin prenatal care late in their pregnancies or receive none at all, owing to financial and other barriers. Worse still, many hospitals have no formal screening procedures, relying solely on the suspicions of health care professionals. The protocol used at Greenville Memorial Hospital, for example, lists as risk factors that trigger testing no or limited prenatal care and \"behavior strongly suspect of recent drug abuse during prenatal visits and/or delivery.\" The Florida reporting statute does not require documentation of maternal drug use but only \"reasonable cause to suspect it.\" This discretion allows doctors and hospital staff to perform tests based on their stereotyped assumptions about the identity of drug addicts. \^\^ Women who smoke crack report being abused and degraded by hospital staff during the delivery. Their experiences suggest that staff often harbor a deep contempt for these women born at least partly of racial prejudice. The indigent Black patients in Greenville, for example, held a common belief that the hospital nurses intentionally ignored them during labor and withheld pain medication despite their cries for help, as if to punish them for using drugs. \"You\'re supposed to hurt\" was often the nurses\' response.\^\^ \"K, \' a twenty-four-year-old woman from Brooklyn, recounted a similar experience: Bad... they treat you bad.... That was like I had my daughter, when the nurse came, and I w\^as having the stomach pain and my stomach was killing me. I kept callin and callin and callin. She just said you smokin that crack, you smoke that crack, you suffer.\'\'\^ According to court documents in the FergLUon case, Nurse Brown, the chief enforcer of the Charleston Interagency Policy, frequently ex- MAKING REPRODUCTION A CRIME 175 pressed negative views about her Black patients to drug counselors and social workers, including her belief that most Black \^vomen should have their tubes tied and that birth control should be put in the \^vater in Black communities.\^° (The federal jury nevertheless re- jected the patients\' equal protection claim.) It is not surprising that these nurses would turn their Black patients in to the police. Evidence of Racial Bias In fact, health care professionals report Black women who use drugs during pregnancy more readily than they report their white patients. This racial bias was demonstrated in a study of pregnant women in Pinellas County, Florida, published in the prestigious New England Journal of Medicine.\^\^ Researchers studied the results of toxicologic tests on pregnant w\^omen who received prenatal care in public health clinics and in private obstetrical offices in Pinellas. Florida had adopted a policy requiring hospitals to report to local health departments evidence of drug and alcohol use during pregnancy. The study found that there was little difference in the prevalence of substance abuse by pregnant women along either racial or economic lines, nor \^vas there any significant difference found between public clinics and private offices.\^\^ If anything, the rate of positive results for white \^vomen (15.4 percent) \^vas slightly higher than that for Black w\^omen (14.1 percent). Despite similar rates of substance abuse, however. Black women \^vere ten tinud more likely than \^vhites to be re- ported to government authorities. Both public health facilities and private doctors were more inclined to turn in Black \^vomen than white \^vomen for using drugs while pregnant. Perhaps some of the disparity was due to the severity of symptoms displayed by Black infants or the signs of crack intoxication displayed by Black women. But the striking difference in the reporting rates suggests that racial prejudice and stereotyping must be a factor. Studies in other states have uncovered a similar racial disparity in the test- ing and reporting of prenatal drug use despite equal rates of substance abuse.\^\^ This willingness to turn in pregnant Black drug users corresponds to a long history of disregard for Black female patients\' autonomy.\^\"\^ In past centuries, doctors experimented on slave women before practicing ne\^v surgical procedures on white women. Marion Sims, for ex- ample, developed gynecological surgery in the nineteenth century by 176 KILLINGTHEBLACKBODY performing countless operations, \^vithout anesthesia, on female slaves purchased expressly for his experiments. In the 1970s, it was revealed that doctors had coerced hundreds of thousands of Black \^vomen into agreeing to sterilization by conditioning medical services on consent to the operation. More recently, a survey published in 1984 found that 13,000 Black women in Maryland v\^ere screened for sickle-cell anemia \^vithout their consent or the benefit of adequate counseling. We can add MUSC\'s unethical research on its pregnant Black patients to this legacy of medical experimentation on the bodies of Black \\vomen without their consent. Doctors have also been more willing to override Black patients\' au- tonomy by performing forced medical treatment to benefit the fetus. Doctors and hospital administrators have petitioned courts on numerous occasions to order procedures, such as cesarean sections and blood transfusions, against the patient\'s will. Many commentators have argued that judicial decisions that alloAv doctors to operate without consent equate women with inert vessels, valuing them solely for their capacity to nurture the fetus.\^\^ But closer examination reveals that part of the reason pregnant patients\' wishes are so easily subordinated has to do with race and class. A national survey published in 1987 in the New England Journal of Medicine discovered twenty-one cases in which court orders were sought, in eighteen of \^vhich petitions were granted.\^\^ Eighty-one percent of the \^vomen involved w\^ere w\^omen of color; all w\^ere treated in a teaching-hospital clinic or \\vere receiving public assistance. Judges and doctors dismiss these \^vomen\'s reasons for refusing medical treat- ment by calling them angry, irrational, fearful, stubborn, selfish, and uncooperative. Just as doctors more readily breach the confidentiality of pregnant Black patients by reporting their test results, they more readily violate the autonomy of pregnant Black patients by forcing them to undergo unwanted medical procedures. Why Crack? Added to this biased reporting is the type of substance abuse that brings pregnant women under scrutiny. It is telling that, out of the universe of maternal conduct that can injure a fetus, prosecutors have chosen to focus on crack use. The singling out of pregnant women\'s crack addiction for punishment cannot be justified by either its prevalence or the degree of harm to the fetus. MAKING REPRODUCTION A CRIME 177 Numerous maternal activities are potentially harmful to the developing fetus, including drinking alcohol and coffee, taking prescription and nonprescription drugs, smoking cigarettes, failing to eat properly and being obese, playing certain sports, and residing at high altitudes for prolonged periods.\^\'\' Conduct by people other than the pregnant woman can also threaten fetal health. A pregnant \^voman\'s exposure to secondary cigarette smoke, sexually transmitted and other infectious diseases, environmental hazards such as toxic chemicals, radiation, and lead, and physical abuse can harm the fetus. The injury to a fetus from excessive alcohol far exceeds the harm from crack exposure. Heavy drinking during pregnancy can cause fetal alcohol sydrome, characterized by serious physical malformations and mental deficiencies. In fact, prenatal alcohol exposure is the most common known cause of mental retardation in this country.\^\^ Crack does not cause anything near this pattern of severe defects. The incidence of fetal exposure to drugs other than crack is high as well. A survey of 2,200 w\^omen \^vho gave birth at the University of Washington Hospital in Seattle from March 1989 to March 1990 and who used drugs during or immediately before pregnancy revealed that 20 percent smoked marijuana (associated with impaired fetal development and reduced gestational length),\^\^ 16 percent used cocaine (po\^vdered and crack), and 9 percent used heroin, methadone, or amphetamines.\^\^ The National Institute on Drug Abuse\'s 1990 Household Survey suggests that about 73 percent of women drank alcohol during pregnancy and 17.4 percent smoked marijuana, \^vhereas only 4.5 percent used cocaine. A 1989 study of 2,278 highly educated women found that 30 percent consumed more than one drink a \^veek w\^hile pregnant.\^\^ In fact, the state could make a far more solid case for prosecuting pregnant \^vomen vv\^ho smoke cigarettes. Cigarette smoking has been more firmly linked than crack to spontaneous abortions and sudden infant death. In addition, researchers have held cigarettes responsible for a greater reduction in infant birth weight than crack, as well as for a larger number of affected children.\^\^ If prosecutors did charge women with this crime, we should find a disproportionate number of w/pLte defendants: 18 percent of white mothers smoke cigarettes during pregnancy, compared with 14 percent of Black mothers.\^\^ The Neu\' York Timed recently ran a story about the grow\^ing popularity of methamphetamines ---also known as crank, speed, or meth --- among rural and suburban women in the West and Midwest.\^\"\^ \"The biggest difference between crack and crank,\" the Timed reporter 178 KILLINGTHEBLACKBODY noted, \"is the constituency: crank users are mainly white.\" At a conference held in San Francisco to discuss the drug, researchers from the National Institute of Justice reported that crank users arrested in eight Western cities were more likely to be women than men. The ef- fects of female crank addiction have been seen in maternity wards. Senator Dianne Feinstein of California told the conference participants that more babies born at one Sacramento hospital have been ex- posed to methamphetamines than to crack. An outreach \^vorker in Spokane, Washington, found that about 40 percent of the 335 pregnant women she placed in drug treatment programs in the last few years \^vere addicted to crank. I cite these statistics not to suggest that pregnant women who smoke, drink, or get high on crank should join crack-addicted mothers behind bars. Rather, these statistics show that targeting crack use during pregnancy unfairly singles out Black women for punishment. Drug use can be found among pregnant women of all socioeconomic, racial, and ethnic backgrounds, but inner-city Black communities have the highest concentrations of crack users. \^\^ The Pinellas County study, for example, found that Black women tested positive more fre- quently for cocaine use during pregnancy, whereas white w\^omen tested positive more frequently for marijuana. Although there are white crack smokers, the public\'s image of the pregnant crack addict is distinctively Black. Selecting crack abuse as the primary fetal harm to be punished, then, has a discriminatory impact that cannot be medically justified. With 375,000 drug-exposed babies born every year, the prosecution of a few hundred women must be more symbolic than a real attempt to solve the problem. Could it be that blaming Black mothers who smoke crack serves other societal purposes? First, choosing these particular mothers makes the prosecution of pregnant \^vomen more palatable to the public. Prosecutors have se- lected women whom society views as undeserving to be mothers in the first place. If prosecutors had brought charges instead against wealthy white women addicted to alcohol or pills, the policy of criminalizing prenatal conduct would have suffered a hasty demise. The Charleston solicitor recognized as much when he confessed, \"there\'s not enough political will to move after pregnant women who use alcohol or cigarettes. There is, though, a political basis for this interagency program. Leaders can take a position against crack. \"\^\^ Can you imagine a white woman dragged in leg shackles from a suburban hospital hours after giving birth? Society is much more willing to con- MAKING REPRODUCTION A CRIME 179 done the punishment of poor Black women who fail to meet the middle-class ideal of motherhood. Americans view white mothers w\^ho use drugs in a completely dif- ferent light. The lovable Meg Ryan played an alcoholic mother, Alice Green, in the 1994 movie When a Man Lo\\\>ed a Woman. Alice\'s addiction makes her a dreadful mother: she forgets the kids\' appointments, leaves most of the parenting to her husband and nanny, and smacks her daughter across the face \^vhen the eight-year-old catches her guzzling vodka from a bottle. No doubt Alice drank while she w\^as pregnant. At one point, Alice arrives home drunk after running errands only to realize that she has misplaced the younger daughter some- \^vhere along the way. What struck me most about the movie was that the mother remains the sympathetic heroine throughout the movie, despite her atrocious care for her children. While audiences knew Alice desperately needed treatment for her drinking problem, it probably never occurred to them that she should be arrested or that her daughters should be taken a\^vay from her. The ending is \^vhat we w\^ould expect for a -white, middle-class mother: she overcomes her addiction at a pastoral rehabilitation clinic and is reunited \^vith her children. In addition to legitimizing fetal rights enforcement, prosecuting crack-addicted mothers shifts public attention from poverty, racism, and a deficient health care system, implying instead that poor infant health results from the depraved behavior of individual mothers. Poverty ---not maternal drug use ---is the major threat to the health of Black children in America. When Newdweek charged that \"\[d\]rug addiction among pregnant women is driving up the U.S. infant mortality rate, \" it blamed Black mothers for a trend that predated the crack epidemic.\^\^ Poor Black mothers are thus made the scapegoats for the causes of the Black community\'s ill health. Punishing them assuages the nation\'s guilt for an underclass of people whose babies die at rates higher than those in some Third World countries. Making Black mothers criminals appears far easier than creating a health care system that ensures healthy babies for all our citizens. The prosecution of Black mothers addicted to crack complements the distribution of Norplant and other long-acting contraceptives to women on welfare. Both policies lay the blame for Black children\'s problems on Black women having babies. While charging crack users with crimes punishes them for Black children\'s poor health, pressuring Black women to use Norplant restrains them as a way of cur- 180 KILLINGTHEBLACKBODY tailing Black children\'s poverty. Portraying Black mothers as irre- deemable drug addicts who are their children\'s vv\^orst enemy supports the view that population control is the only ansAver to Black people\'s plight. PUNISHMENT FOR HAVING A BABY Recognizing this backdrop of biased reporting and historical devaluation of Black motherhood, \^ve can better understand prosecutors\' reasons for punishing drug-dependent mothers. I vievs\^ these prosecutions as punishing these women, in essence, for having babies. Judges such as the ones who convicted Cornelia Whitner and Jennifer Johnson are pronouncing not so much \"I care about your baby \" as \"You don\'t deserve to be a mother.\" It is important to recognize at the outset that the prosecutions are premised on a Avoman\'s pregnancy and not on her illegal drug use alone. Prosecutors charge these defendants, not with drug use, but \^vith child abuse or drug distribution through the umbilical cord --- crimes that only pregnant drug users can commit. At Jennifer Johnson\'s sentencing, the prosecutor made clear the nature of the charges against her: \"About the end of December 1988, our office undertook a policy to begin to deal with mothers like Jennifer Johnson \... as in the status of a child abuse case. Your Honor.... We have never viewed thuf ad a drug cade. \" \^\^ Moreover, pregnant women receive harsher sentences than drugaddicted men or women who are not pregnant. The drug user\'s pregnancy not only greatly increases the likelihood that she w\^ill be prosecuted, but also greatly enhances the penalty she faces upon conviction. In most states, drug use is a misdemeanor, while distribution of drugs or child abuse is a felony. \^\^ The unla\^vful nature of drug use should not be allowed to obscure the basis of the crimes at issue. The legal rationale underlying the prosecutions does not depend on the illegality of drug use. Harm to the fetus is the crux of the government\'s legal theory. Criminal charges have been brought against women for conduct that is legal but was alleged to have injured the fetus. For example, Pamela Rae Stewart, a Avhite \\voman in San Diego, was charged with criminal neglect in part because she failed to follow her doctor\'s orders to stay off her feet and refrain from sexual intercourse while she was pregnant. \^\^\^ MAKING REPRODUCTION A CRIME 181 When a drug-addicted Avoman becomes pregnant, she has only one reahstic avenue to escape criminal charges: abortion. Seeking drug treatment is usually not a viable alternative. It is unlikely that the pregnant addict will be able to find a drug treatment program that \^vill accept her. Even if she does, she may not be able to overcome her addiction in time. Even if she successfully completes drug counseling before the birth, she may still be charged for drug use that occurred before she \^vas able to kick her habit. The threat of prosecution may coerce some w\^omen to terminate the pregnancy rather than risk imprisonment. In February 1992, Martina GrejAvind was charged vs\^ith reckless endangerment for sniffing paint fumes Avhile she w\^as pregnant. \^\^\^ Twelve days after her arrest she had an abortion and the charges were dropped. A woman who has an abortion will probably avoid criminal liability altogether. Even an illegal third-trimester abortion carries a lower penalty than crimes of prenatal misconduct. In South Carolina, for example, a drug-using woman who aborts a viable fetus faces a jail term of two years, compared to a possible ten-year penalty for child abuse if she gives birth to the baby. Women w\^ho are punished for drug use during pregnancy, then, are penalized for choosing to have the baby rather than having an abortion. It is the choice ofcarrying a pregnancy to term that is being penalized. Looked at this w\^ay, we can see that \^vhen the state convicts pregnant Black women for smoking crack it is punishing them for having babies. IDENTIFYING THE CONSTITUTIONAL ISSUE Seeing the prosecutions as punishment for reproduction changes the interests at stake. In the Johnson case, the prosecutor framed the constitutional issue as foUo\^vs: \"What constitutionally protected freedom did Jennifer engage in when she smoked cocaine?\" \^\^\^ That was the w\^rong question. Johnson w\^as not convicted of using drugs. Her \"constitutional right\" to smoke cocaine was never at issue. Johnson w\^as prosecuted because she chose to have a baby while she was smoking crack. Had she smoked crack during her pregnancy and then had an abortion, she would not have been charged with a crime. The correct question, then, is \"What constitutionally protected freedom did Jennifer engage in when she decided to have a baby, even though she w\^as using drugs?\" 182 KILLINGTHEBLACKBODY Understanding the prosecution of drug-dependent mothers as punishment for having babies clarifies the constitutional right at stake. The woman\'s right at issue is not the right to abuse drugs or to cause the fetus to be born with defects. It is the right to choose to be a mother that is burdened by criminalizing conduct during pregnancy. This view of the constitutional issue reveals the relevance of race to the resolution of the competing interests. Race has historically determined the value society places on a \^voman\'s right to choose motherhood. The devaluation of Black motherhood gives the right to decide to bear a child unique significance. Prosecutions of drug-addicted mothers infringe on two aspects of the right to reproductive liberty. First, they infringe on the right to choose to bear a child, which is essential to an individual\'s personhood and autonomy. This freedom implies that state control of the decision to carry a pregnancy to term can be as pernicious as state control of the decision to terminate a pregnancy. The constitutional right of privacy has been interpreted to protect intimate or personal affairs that are fundamental to an individual\'s identity and moral personhood from unjustified government intrusion. \*\^\^ At the forefront of the development of the right of privacy has been the freedom of personal choice in matters of marriage and family life.\'\^\"\^ Once an interest is included in the right of privacy, the government needs a compelling reason to infringe it. Although the right of privacy is at the center of an intense jurisprudential debate, it is universally recognized to include the decision to bear a child. As the Supreme Court stated in Euietutadt i\\ Baird, \"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unw\^arranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.\" \'\^\^ The right of privacy protects both the choice to bear children and the choice to refrain from bearing them. The historical experiences of Black women illustrate that the dual nature of this right goes beyond the logical implications of making a choice. Punishing a woman for having a baby as well as forced maternity at the behest of the state violates her autonomy over the self-defining decision of whether to bring another being into the world. Even under the Court\'s current analysis, which distinguishes between direct and indirect governmental interference in reproductive decisionmaking, government intrusion as extreme as criminal prosecution \^vould unduly infringe on protected autonomy. Criminal prose- MAKING REPRODUCTION A CRIME 183 cutions of drug-addicted mothers do more than discourage a choice; they impose a severe penalty on the drug user for choosing to complete her pregnancy. Second, the prosecutions infringe on reproductive liberty by imposing an invidious government standard for procreation. Government standards for childbearing are one way that society denies the humanity of subordinated groups. The first approach emphasizes a \^voman\'s right to autonomy over her reproductive life; the second highlights a woman\'s right to be valued equally as a human being. In other \\vords, the prosecution of crack-addicted mothers infringes upon both a mother\'s right to make decisions that determine her individual identity and her right to equal respect as a human being by rec- ognizing the value of her motherhood. In the last chapter, I \^vill elaborate these violations of traditional liberal notions of liberty and offer a redefinition of reproductive liberty informed by concern for racial equality. PROTECTING BLACK FETUSES? Finding that the prosecutions infringe upon women\'s constitutionally guaranteed freedom to bear a child shifts the burden onto the government to justify its punitive actions. There is good reason to question the government\'s justification for the prosecutions ---the concern for the welfare of unborn children. I have already discussed the selectivity of the prosecutions with respect to poor Black women. This focus on the conduct of one group of \^vomen vv\^eakens the state\'s asserted rationale for the prosecutions. There is more reason to be suspicious. The history of state neglect of Black infants casts further doubt on the professed concern for the \^velfare of the fetus. When a nation has always closed its eyes to the circumstances of pregnant Black \^vomen, its current expression of in- terest in the health of unborn Black children must be vievv\^ed \^vith dis- trust. The most telling evidence of the state\'s disregard of Black children is the high rate of infant death in the Black community. In 1989, the mortality rate of infants born to Black mothers was 18.6 deaths per thousand births--- more than twice that for infants born to white mothers (8.1). Although the national rate has declined in the 1990s, the racial gap is widening: in 1992, the rate was 16.8 for Black infants, compared to 6.9 for whites. \^\^\^ That is higher than the infant death rate in Costa Rica, Cuba, and Singapore, as well as in some 184 KILLINGTHEBLACKBODY tw\^enty other industrialized countries. In Ne\^v York City, while infant mortality rates in upper- and middle-income areas \^vere generally less than 9 per thousand in the late 1980s, the rates exceeded 19 in the poor Black communities of the South Bronx and Bedford-Stuyvesant and reached a staggering 27.6 in Central Harlem. \^\^\^ Black babies in the nation\'s capital die at a rate triple that of the country as a \^vhole.\^\^\^ The main reasons for these high mortality rates are poverty and in- adequate health care, including health care for pregnant Avomen.\^\^\^ Granted maternal crack use contributes to low birth weight, a leading cause of infant death. But crack is a small and recent addition to an old story. The conditions of poverty ---poor nutrition, shoddy housing, vulnerability to disease, and stress ---threaten the healthy development of a fetus. Babies born into poverty (half of Black children) are also more susceptible to deadly illnesses such as influenza and pneumonia. Most Black women who are pregnant face financial and other barriers to receiving proper health care.\^\^\^ Only half of all Black mothers in America receive adequate prenatal care; and they are twice as likely as white women to get deficient prenatal care or none.\'\^\^ The inability to pay for health care services is the major stumbling block. \"\^ Most poor women depend on overextended pubHc hospitals for prenatal care because of the scarcity of neighborhood physicians who accept Medicaid. The number of obstetricians and gynecologists willing to accept Medicaid or uninsured patients is decreasing. In fact, obstetricians and gynecologists are less likely than most primary and secondary care physicians to accept Medicaid patients. \'\^\^ A quarter of Black Americans fall between the cracks, earning just enough to make them ineligible for Medicaid but working at low-paying jobs that do not offer health insurance. \^\^\"\^ Women falling into these categories delay commencing prenatal care until later in pregnancy and make fewer visits to the doctor than Avomen with private insurance. Institutional, cultural, and educational barriers also deter poor minority women from using the few available services. Black women\'s access to prenatal care actually declined during the 1980s due to funding cuts, at the very time prosecutors initi- ated their crackdo\^vn on pregnant addicts. \'\^\^ The number of Black infant deaths could be reduced dramatically by a national commitment to ensuring that all pregnant women re- ceive high-quality prenatal care. Programs specifically designed to provide prenatal care to low-income, high-risk women have sue- MAKING REPRODUCTION A CRIME 185 ceeded in substantially reducing the rates of low birth weight and high infant mortality. In 1990, a White House Task Force on Infant Mortality recommended eighteen specific measures costing a total of \$480 million a year to reduce infant mortality. It proposed expanding Medicaid to cover 120,000 additional pregnant \^vomen and children in lo\^v-income families, increasing federal spending on prenatal care, and requiring states to provide a uniform set of Medicaid benefits to pregnant women. \^\^\^ More widespread health care services are also needed: prenatal care alone cannot reverse the effects of a woman\'s lifetime of poor health or ensure that children will remain healthy after they are born. Instead, \^velfare cuts threaten to rip this safety net from under an even greater number of lo\^v-income families. Harvard law professor Randall Kennedy, who is Black, disagrees. Kennedy believes that the prosecutions are an example of the criminal justice system protecting Black citizens, something, he argues, Black communities need more of. Acknowledging that Black w\^omen are charged in disproportionately high numbers, Kennedy asks: \"If, however, the racial demographics of the offending statistics \^vere re- versed\^ if upwards of 80 percent of the \^vomen prosecuted w\^ere white ---\^vould that not raise the disturbing possibility that la\^v en- forcement authorities were demonstrating more empathy for the sufferings of white infant victims than black infant victims of criminality?\" The problem concerning la\^v enforcement in Black neighborhoods, Kennedy says, is not excessive policing and invidious punishment; it is \"a failure of the state to provide black communities vv\^ith the equal protection of the la\^vs.\"\^\^\'\' Charleston police chief Reuben Greenberg, also Black, contends that opponents of the Interagency Policy \"don\'t care about the race issue. \" Like Kennedy, he sees prosecuting crack-addicted mothers as a benefit to Black children: \"I \^vas glad that somebody was finally doing something to help kids in the black community. It was giving kids a chance vv\^ho otherwise w\^ould not have anything close to an equal playing field. At least at the point of birth, that child ought to be given the best opportunity for a full and productive life.\"\^\^\^ As might be expected. Attorney General Condon is fond of holding up Greenberg s endorsement of his punitive program to discredit charges of racial discrimination. But the fact that repressive policies find support among Blacks does not make them any less racist. Supreme Court justice Clarence Thomas, for example, has consistently voted \^vith the Court\'s most conservative members to reach 186 KILLINGTHEBLACKBODY decisions that, according to most civil rights activists, thwart the cause of racial justice. White people also disagree about w\^hich policies best advance their interests. What matters is that the \^veight of medical research, public health expertise, and sheer common sense demonstrates that Professor Kennedy, Police Chief Greenberg, and others who believe that incarcerating pregnant \^vomen benefits Blacks are simply wrong. I will address the prosecutions\' negative health consequences in a moment. But first these supporters must answer a simple question: If a policy of putting pregnant women in jail really led to healthier children, \\vouldn\'t we see at least an equal number of white mothers behind bars? Is it really credible that conservative Southern prosecutors are more interested in saving Black babies than white babies? Just as we should be skeptical of the spread of Norplant to Black \^vomen and teens on the pretext of enhancing their reproductive freedom, we should be skeptical of prosecutions of Black women on the pretext of protecting unborn Black children from harm. The belief that putting pregnant addicts in jail will help their chil- dren is grounded in a naive faith in the neutrality of the criminal justice system. Professor Kennedy\'s premise that Blacks benefit from greater law enforcement overlooks America\'s history of using criminal laws to subjugate Blacks. Slave codes created a separate set of crimes for slaves that were sanctioned by public punishment not applicable to whites and included behavior that was legal for whites. The law defined as criminal any conduct performed by Blacks that threatened \^vhite supremacy, such as learning how to read and write. After Emancipation, white lawmakers soon realized that they could return their former chattel to the condition of slaves by imprisoning them for criminal offenses. The Thirteenth Amendment\'s prohibition of involuntary servitude included an exception for citizens convicted of a crime. Prison officials in Lx)uisiana \"wondered aloud whether the real reason for sending blacks to prison \'upon the most trivial charges\' \^vas not \'the lo\\v, mean motive of depriving them of the right \[s\] of cit- izenship.\' \"\^\^\^ Reconstruction legislatures sought to maintain their control of freed slaves by passing criminal laws directed at Blacks that made petty larceny a serious offense. As a result. Southern prison populations swelled and became for the first time predominantly Black. The prison population in Georgia, for example, tripled from 432 to 1,441 within two years after a hog-stealing la\^v w\^as enacted. \^\^\^ Many critics of national drug policy argue that the \"War on Drugs\" MAKING REPRODUCTION A CRIME 187 serves a similar purpose today. By selecting petty drug offenses as the target for a massive la\^v enforcement effort, the government facilitates the incarceration of millions of inner-city Blacks. The threat of draconian penalties even for mere possession forces most defendants --- guilty or innocent ---to plead guilty. Although Blacks account for only 12 percent of the nation\'s drug users, between 80 and 90 percent of those arrested for drug offenses are young Black males. \^\^\^ The United States has achieved the highest incarceration rate in the world by imprisoning Black men for nonviolent drug-related crimes. The prosecutions of poor Black mothers are an even more egregious instance of government manipulating the criminal la\^v on the basis of race. This is not a case of extending to the Black community the benefit of a criminal la\^v that already protects whites. Prosecutors invented the crime of prenatal drug use in the 1980s in order to casti- gate poor Black mothers who smoke crack. Kennedy\'s hypothetical positing of 80 percent of the vv\^omen prosecuted as w\^hite instead of Black does not vv\^ork because it is unimaginable. There are few w\^hite \"infant victims of criminality\" because their mothers are not perceived as criminals. This is not a neutral offense that just happens to be applied more often to one group rather than the other. This criminal law\^ is virtually \'Tor Blacks only.\" FINDING DRUG TREATMENT Many Americans support the prosecution of pregnant addicts based on the mistaken belief that it is easy for these w\^omen to find treatment for their problem. These mothers deserve to be punished for hurting their children, it is thought, because they have irresponsibly kept smoking crack \^vhen help \^vas available to them. The Charleston solicitor, for example, justified bringing criminal charges against MUSC patients on the grounds that they had refused the hospital\'s offer of drug treatment. Prosecution, he contended, was the last resort after a rehabilitative approach failed. But had Charleston officials really done everything they could to treat patients\' addiction? Women caught using drugs were simply handed a piece of paper announcing their drug treatment appointment. No provision vv\^as made for transportation to the treatment center or for child care. In fact, there was not a single residential treatment center for pregnant addicts in the entire state at the time 188 KILLINGTHEBLACKBODY the Interagency Policy was instituted. \^\^\^ For a long time Charleston residents, including Police Chief Greenberg, fought to keep a residential treatment center supported by a federal grant from locating in the city. Patients faced similar circumstances in Greenville. It \\vas two years after the Greenville solicitor started prosecuting women that the county opened a residential treatment facility for pregnant, Medicaideligible women ---a facility with only ten beds to deal with an esti- mated 1,500 drug-affected births ayear.\*\^\^ There w\^as no attempt to get \^vomen into treatment until after they gave birth to a baby \^vho tested positive and were charged with a crime --- after their drug use may have had its harmful effects. The situation in Florida was no different. There were only 135 spaces available for over 4,000 substance-abusing women in the state at the time of Jennifer Johnson\'s conviction. Protecting the welfare of drug addicts\' children requires adequate facilities for the mothers\' drug treatment. Yet a drug addict\'s pregnancy serves as an obstacle to obtaining this help. Most treatment centers either refuse to treat pregnant women or are effectively closed to them because the centers are ill-equipped to meet the needs of pregnant addicts. Most hospitals and programs that treat addiction ex- clude pregnant women on the grounds that their babies are more likely to be born with health problems requiring specialized prenatal care. Program directors feel that treating pregnant addicts is worth neither the increased cost nor the risk of tort liability should a woman sue the clinic for harm to the baby\'\^\'\' This blanket preclusion of an entire class of people, however, is contrary to the way health care facilities typically evaluate prospective patients. Dru

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