Guess Who Profits When You Can Throw Pregnant Women in Jail for Using Drugs?

Pregnancy holds a special space in most societies; it is a biological necessity for species preservation and represents the promise of future generations. Pregnancy is thought by many to bestow upon women an extra layer of societal protection and care. Social conventions dictate that pregnant women be given priority seating on buses, trains and other forms of transport and in lines for rest rooms and priority rescue during natural disasters. We believe ourselves to be solicitous and helpful to pregnant women and accord them an extra measure of respect.

But in many ways in the United States the treatment of pregnant women has been and continues to be class specific. Poor and working-class women often find pregnancy a difficult time, especially if they have jobs that don’t offer health care benefits, sick time or maternity leave. Those challenges can make pregnancy difficult enough without the extra worry of health care providers and/or aggressive prosecutors looking over your shoulders and sometimes even examining your urine to make sure you aren’t engaging in activities they consider ‘harmful’ to your fetus. In the aftermath of the crack cocaine media hysteria of the 1980s, laws that were enacted to give more protection to women who were physically assaulted while pregnant – began to be used against pregnant women. Punitive prosecutors and anti-choice advocates promoted the idea that the most dangerous place for certain children is their mother’s womb.

This month saw an escalation in this perversion of “protection” when Tennessee Governor Bill Haslam signed legislation that will allow women in the state to be charged with assault for harm to their fetus or newborn that can be attributed to the mother’s use of illegal drugs beginning July 1st. Haslam signed the legislation after “extensive conversations with experts including substance abuse, mental health, health and law enforcement officials,” he wrote in a statement. “The intent of this bill is to give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs.”

“This law brings treatment to the worst of the worst,” say state representative Terri Weaver, who sponsored the bill in the House. “It’s heartbreaking if you’re a police officer, and you see a woman is seven or eight months pregnant and shooting heroin. There is an individual inside that belly that has no choice but to take whatever goes into it.”

“Tennessee has become one of the top states for babies born addicted,” says Weaver, who introduced the bill in the House. The legislation is just the latest in Tennessee’s series of efforts to deal with a rise in infants born with Neonatal Abstinence Syndrome (NAS), which is a group of problems akin to the effects of withdrawal.

However, as reported by The Daily Beast, the new legislation does not get at the source of problem – prescription drug abuse:

Another major problem with Tennessee’s proposed law is that it ignores the fact that legally prescribed narcotics can also result in NAS. Though the Tennessee Department of Health declined to comment for this article, its commissioner, Dr. John Dreyzehner, has previously said that although NAS is a problem in his state, abuse of illegal narcotics really isn’t the root of it. “In Tennessee we know that 60 percent of the babies born to mothers, the babies that develop Neonatal Abstinence Syndrome, their mothers had a prescription for the medication they were taking,” he said.

But doctors and lawyers interviewed for this article said it is not always easy to definitively conclude what substance produced NAS in a child. Thus, there is potential for women to be wrongly charged under this new law, even if they were taking legally obtained drugs.

There are 177 addiction treatment centers in Tennessee, but only two offer prenatal care on site. Only 19 offer any services for pregnant women. Methadone, the evidence based treatment known to work best for pregnant women who are using opiates is not among the treatment options available.

Governor Haslam may have had “conversations with experts” but clearly he wasn’t listening. The legislation has been roundly criticized by health care professionals, substance abuse treatment providers, child welfare advocates and even administration officials who responded thusly when asked about the proposal:

“Under the Obama administration, we’ve really tried to reframe drug policy not as a crime but as a public health-related issue, and that our response on the national level is that we not criminalize addiction,” said Michael Botticelli, acting director of the White House Office of National Drug Control Policy. “We want to make sure our response and our national strategy is based on the fact that addiction is a disease.”

Proponents of the measure point to the mandated review of its efficacy and impact after two years and that it classifies the new crime of ‘fetal assault as a misdemeanor instead of a felony as ameliorating factors. Somehow I think that’s a distinction without a difference for women who would forego prenatal care and not risk arrest for any reason, not to mention the notorious tendency of prosecutors to overcharge in order to facilitate plea agreements. Once the door is open to criminalizing women’s behavior during pregnancy, it’s hard to limit the impact. One can’t help but wonder whether there is any connection between Tennessee becoming the first state to enact legislation that would make women subject to criminal punishment because they became pregnant and failed to meet societal expectations and its distinction as the corporate headquarters of the nation’s largest private prison company – Correctional Corporation of America (CCA) – which already operates 3 of the state’s 14 prisons.

Since its founding in 1983, CCA has profited from federal and state policies that have led to a dramatic rise in incarceration in the United States — a rise of 500 percent over the past thirty years (the U.S. population has only increased by 40%). Although it claims that it has not lobbied for bills that extend or increase sentences for prisoners, for nearly two decades CCA participated in and even led the task force of the American Legislative Exchange Council (ALEC) that pushed bills like so-called “truth-in-sentencing” and “three strikes” legislation as models for states to adopt across the nation. CCA and its hired lobbying firms have spent about $30.9 million lobbying Congress and federal agencies from 1998 to August 2013 on bills relating to immigration, detention, and private prisons.

CCA wields tremendous political influence in Tennessee under the current administration. In 2011 Gov. Bill Haslam found nearly $31 million in recurring money to keep open a CCA prison in West Tennessee while making deep cuts to other areas such as TennCare and higher education. His decision stood in sharp contrast to his predecessor, Democratic Governor Phil Bredesen who had sought to close the facility. According to the websiteInfluence Explorer, which tracks political contributions, Governor Bill Haslam was among the top four recipients of campaign contributions from CCA – remarkably, two of the other four top recipients are also Tennessee elected officials – Senators Lamar Alexander and Bob Corker. Earlier this month Trousdale County entered into contracts for a new 2,500 bed state prison in Hartsville, Tennessee that will be run by CCA.

“We’re very pleased, obviously, with the outcome of Trousdale County’s vote the other night, and we’re encouraged by the process,” said Steve Owen, Public Affairs Director for CCA. “And we’re looking forward to helping the state of TN to meet its expressed correctional needs, and helping Trousdale County in that effort—while at the same time, bringing very positive economic impact to Trousdale and the surrounding counties.”

The expressed correctional needs of Tennessee now include the potential incarceration of pregnant and childbearing women for ‘harming’ their fetus by using illegal drugs while pregnant. Of course we now know there’s no such thing as a “crack baby” and exposure to cocaine in utero while not advisable, is not nearly as harmful to fetal development as smoking cigarettes or drinking alcohol, neither of which will get a pregnant woman arrested and hauled before a judge. But hey – why let science get in the way of a making profit from the warehousing of human beings?

More than 40 years after Roe v. Wade established a woman’s constitutional right to a zone of privacy around her reproductive decisions, pregnant women are targets of various forms of state intrusion and restriction of their rights and privacy. There has been a steady and relentless campaign to erode those rights not limited to women’s access to abortion, it is a campaign against reproductive justice:

The reproductive justice framework – the right to have children, not have children, and to parent the children we have in safe and healthy environments — is based on the human right to make personal decisions about one’s life, and the obligation of government and society to ensure that the conditions are suitable for implementing one’s decisions is important for women of color.

It represents a shift for women advocating for control of their bodies, from a narrower focus on legal access and individual choice (the focus of mainstream organizations) to a broader analysis of racial, economic, cultural, and structural constraints on our power.

Reproductive Justice addresses the social reality of inequality, specifically, the inequality of opportunities that we have to control our reproductive destiny. Our options for making choices have to be safe, affordable and accessible, three minimal cornerstones of government support for all individual life decisions.

Most people who care about reproductive justice are aware of the many actions by state lawmakers throughout the country to restrict women’s access to abortion by various means including: creating new restrictions on abortion providers; mandating waiting periods, pre-abortion counseling and medically unnecessary sonograms and requiring women to have special insurance to cover the costs of abortions. Not satisfied with making it more difficult for women to get access to both contraception services and legal terminations, anti-choice advocates now seek to make women criminally liable for the outcomes of their pregnancies.

These are not isolated incidents, they’ve become increasingly common as pregnant women are used as pawns in the fight to erode reproductive justice. As documented in a recent report by National Advocates for Pregnant Women, in the decades since Roe v. Wade there have been hundreds of criminal and civil cases involving the arrests, detentions and equivalent deprivations of pregnant women’s physical liberty between 1973 and 2005. The consequences to pregnant women included: arrests; incarceration; increases in prison or jail sentences; detentions in hospitals, mental institutions and drug treatment programs; and forced medical interventions, including surgery. State authorities have used a variety of measures including feticide laws and anti-abortion laws recognizing separate rights for fertilized, eggs, embryos and fetuses as the basis for depriving pregnant women – whether they were seeking to end a pregnancy or go to term – of their physical liberty.

As noted in a recent column by Rachel Cohen:

The crusade against women’s reproductive rights has been led by politicians and organizations that claim to cherish the “right to life” and champion women’s role as mothers. But the reality made painfully clear by the NAPW’s report is that the anti-choice right wants women to be treated as second-class citizens, denied the right to health care, personal liberty and the right to control their own bodies and lives.

In all, just over half of the women whose stories are collected in the report are Black. Nearly three-quarters of those facing legal charges were represented by indigent defense. African-American women have suffered a long legacy of barbaric discrimination–from the separation of families under slavery to the early 20th century eugenics movement that pushed through laws in 32 states allowing the sterilization of women judged “unfit to breed.” Today, poor Black single mothers are scapegoats for all manner of social problems. In particular, the war on drugs has served as a vehicle for the attack, with drug convictions serving as the excuse for terminating parental rights of incarcerated mothers.

And yet, ironically, the chief proponent of the new Tennessee law criminalizing pregnant women is an African-American state legislator, Representative John DeBerry, a local business person and ordained minister who also sponsored a new law that punishes educators who promote or condone “gateway sexual activity” as well as the ‘don’t say gay’ bill and a bill to ban unmarried couples from adopting children. Representative DeBerry a committed Christian, believes it is his duty to bring Biblical beliefs into the public sphere. During an interview with a local Christian radio show, he said America had lost its way by abandoning traditional Christian values, including the sanctity of life. In his view pregnant women don’t have the “right to make choices” about the life they are carrying within:

Similar but more strident sentiments are expressed in the concurring opinion by the Chief Justice Moore of the Alabama Supreme Court affirming the criminal appeals court ruling that the use of the word “child” in the chemical-endangerment statute includes all children, born and unborn, and furthers the state’s policy of protecting life from the earliest stages of development. As jubilantly reported by the website Liberty Counsel:

“In an age where some judges do not know the difference between the Declaration of Independence and the Constitution, or do not even care, finally the Alabama Supreme Court springs forth with a ray of light,” said Mat Staver, Founder and Chairman of Liberty Counsel. “The opinions by Chief Justice Roy Moore and Tom Parker are well-reasoned, grounded in history and natural law, and completely demolish the fallacies of the U.S. Supreme Court’s abortion decisions. One day soon the United States Supreme Court’s abortion opinions will come toppling down like a house of cards. Then we will look back at history like we now do with Nazi Germany and wonder why our generation was so blind to the personhood of the preborn child,” said Staver. The concurring opinions by Chief Justice Roy Moore and Justice Tom Parker are particularly significant because they reveal the flaws in the U.S. Supreme Court’s abortion decisions, beginning with the 1973 case of Roe. v. Wade. Excerpts of their concurring opinions are set forth below:

“Denominated in the United States Code as one of the ‘Organic Laws of the United States of America,’ the Declaration acknowledges as ‘self-evident’ the truth that all human beings are endowed with inherent dignity and the right to life as a direct result of having been created by God.”

“God, not governments and legislatures, gives persons these inherent natural rights . . . Government, in fact, has no power to abridge or destroy natural rights God directly besets to mankind and indeed no power to contravene what God declares right or wrong.”

“As the gift of God, this right to life is not subject to violation by another’s unilateral choice.”
“From local to international, all law flows from the divine source: it is the law of God. The law of nature and of nature’s God binds all nations, states, and all government officials—from Great Britain to Germany to Alabama—regardless of positive laws or orders to the contrary.”

“States have an affirmative duty to protect unborn human life under the Equal Protection Clause of the Fourteenth Amendment.”

“Any state’s discriminatory failure to provide legal protection equally to born and unborn persons under, for instance, its statutes prohibiting homicide, assault, or chemical endangerment violates, therefore, the Equal Protection Clause of the United States Constitution.”

“Because a human life with a full genetic endowment comes into existence at the moment of conception, the self-evident truth that all men are created equal and are endowed by their Creator with certain unalienable rights encompasses the moment of conception. Legal recognition of the unborn as members of the human family derives ultimately from the laws of nature and nature’s God, who created human life in His image and protected it with the commandment: ‘Thou shall not kill.’”

Like the puppeteer, the life being manipulated here is incapable of acting on its own. It has no free agency and is totally dependent on the woman who nurtures and nourishes it. To set them in opposition to each other and ascribe independent agency and rights to a fetus makes as much sense as asserting a puppet can speak without a ventriloquist and awarding it the right to sue for wage theft.

Rep. John J. DeBerry, Jr. says it’s about giving tough love to these women:

“At the end of the day we’re still talking about criminal behavior and I think that as a society we’re bending over backwards to give these people a way out without going to jail,”

In DeBerry’s view being pregnant while imperfect is a crime. I guess DeBerry missed the part where Jesus advised, ” let he who is without sin cast the first stone”.

Who benefits from promoting the fiction of ‘fetal personhood’? It does nothing to empower children, who lack the agency to be ‘persons’ politically, but it is an effective tool to disempower women and the people, who love, support and depend on them, including the children they already have. The reality is ‘fetal personhood’ seeks to accomplish similar results as the “3/5 compromise” on the personhood of slaves – facilitate the economic and sexual exploitation of vulnerable women for the political and financial benefit of others.

I end with Jay Smooth of Ill Doctrine discussing yet another tactic by the anti-reproductive rights movement to persuade the public to end women’s access to safe, legal abortions and the full range of reproductive health care. Surprisingly, it’s a tactic we should all get behind as it represents a rare win-win for all.

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