January 12, 2001

By Lynn Paltrow

The first person I saw when I arrived at the Second National Harm Reduction Conference in Cleveland, Ohio last October was the Reverend Howard Moody. Reverend Moody is a great hero of mine, and not only because of his current work organizing clergy to speak out against the drug war. As a reproductive rights litigator, I came to learn of his very critical and radical work to help legalize abortion. When abortion was illegal in this country -- and to say free abortion on demand was as radical as it is to say today "free drug treatment on demand"

-- Rev. Howard Moody and Arlene Carmen organized the Clergy Consultation Service. At that time, the number of parishioners who were suffering with unwanted pregnancies and who were desperate for safe abortion services overwhelmed many clergy members. In response, Reverend Moody announced that the clergy consultation service would refer women who asked for their help to abortion providers. The clergy members identified those providers legal outside of this country and illegal ones here -- who were the safest. The clergy members made referrals even though to do so was against the law. The clergy members were willing to be arrested for helping the women who sought their advice and support. Perhaps this will remind some of you of today¹s activists working for needle exchange and access to medical marijuana.

But, I think the fact that Reverend Moody and I both found our way to a harm reduction conference says something about the intersection of war against abortion and the war on drugs. I can't speak for Reverend Moody, but I know I found my way here in part because it has become obvious to me that by linking the war on reproductive rights with the war on drugs, our adversaries are making gains that they could not otherwise have made.

We have a common struggle and common enemies and must therefore be willing to work together to stop policies that undermine public health, public confidence in the criminal justice system, and the well-being of children and families.

In 1973, in the Roe v. Wade decision, the United States Supreme Court recognized a woman's fundamental right to choose to have an abortion. In order to reach that decision, the court specifically held that fetuses are not persons and therefore women's lives and health may not be subordinated to their interests. Since that decision, anti-abortion activists have worked extensively to overturn that Roe v. Wade . One way has been to try to have fetuses recognized as persons under the law. If treated as legal persons, abortion would have to be outlawed as murder.

Until very recently their fetal rights efforts were largely unsuccessful. But today, by linking fetal rights claims to the issue of drugs, they have achieved one of their greatest victories. In the late 1970's prosecutors began arresting pregnant women with substance abuse problems. Building on anti-abortion arguments, they claimed that fetuses were really "children" with rights. Building on drug war propaganda, they asserted that women with addictions could easily stop their drug use, and by failing to do so were abusing their unborn children. For many years, lawyers were able to convince courts to dismiss these cases. But, by linking fetal rights arguments with the war on drugs, anti-choice activists have now obtained an unprecedented and ominous victory. In October of 1997, in a case called Whitner v. State, the South Carolina Supreme Court, held that a viable fetus is a person and as a result a pregnant woman who uses an illicit drug may be prosecuted as a child abuser and sentenced to ten years in jail.

The holding in Whitner goes to the heart of today's abortion debate, lending support to the anti-abortion position that fetuses are persons and that pregnant women's health and freedom may be subordinated to those rights. Right wing legal groups (such as the American Center for Law and Justice), conservative pundits (like Rush Limbaugh), and opportunistic politicians have seized on Whitner and related cases as the long-awaited chance to overturn Roe v. Wade. The opinion has provided grounds for the South Carolina State Attorney General to assert that he now has legal authority to make all post-viability abortions murder and to put the women who have them and their doctors to death. In other words, fetuses in South Carolina became persons through the backdoor of the drug war.

The opinion has done something else as well. By linking the war on drugs and the anti-abortion wars, the decision in Whitner effectively overturns another Supreme Court decision, California v. Robinson. In 1964 the Supreme Court held that people couldn't be arrested simply for having the status of being addicts. While subsequent cases have made clear that you can arrest people for being in possession of even the smallest quantity of an illegal substance, the Supreme Court's decision recognized that it would be cruel and unusual punishment to lock people up simply because they are addicted to a drug. But the women who are in jail right now in South Carolina are not there because they were found to possess illegal drugs -- they are there because they were addicts who were pregnant. As a result of the Whitner decision, the little bit of constitutional protection that still exists for people with substance abuse problems is being eroded as a result of the war on reproductive rights.

The growing battle to end legal abortion coincided with the Reagan-Bush "war on drugs" and the unprecedented media coverage of the "crack crisis." Pregnant women became an appealing target for law enforcement officials who were losing the war on drugs, and to the public who had been convinced by the media's sensational, distorted reporting of scientific research that crack use during pregnancy caused significant and irreparable damage to the developing fetus.

Not only the public, but judges as well, read biased and inaccurate news accounts of cocaine¹s effects and assumed that every child born to a drug-using woman would be devastated. If you had a child who had a health problem and a positive drug test for cocaine, then everyone assumed that cocaine caused the problem. This of course is terrible science that failed to control for many other factors that might have explained the poor health outcome. Or, you might find that the child wasn¹t even exposed to cocaine in the first place.

The research simply doesn¹t support many of the things that people have come to believe about the effects of prenatal exposure to cocaine. Rather than causing the permanent mental, neurological damage that excessive exposure to alcohol can cause, cocaine appears to act more like cigarettes, contributing to a less healthy pregnancy, but not necessarily causing specific permanent harms or any harm at all. Philip Coffin's piece, for the Lindesmith Center, Cocaine and Pregnancy does a terrific job of summarizing current research on the issues. Nevertheless, the myth that cocaine is always damaging is pervasive and controls judges and policy makers alike.

The media created "crack babies" and continues to portray their mothers - primarily poor, inner city and African American - as depraved women who voluntarily ingest crack to poison their children. All of this helps prose-cutors who want to deflect attention from their inability to stem the tide of illegal drugs, and to the anti-choice forces whose goal has been to develop "fetal rights" superior to and in conflict with the rights of women.

The prosecution of pregnant women who use drugs has been fueled by some of the most highly charged and deeply entrenched political issues of our day, including not only reproductive freedom and drug policy but also America¹s long tradition of racism and the legacy of slavery. Most of the women, especially in South Carolina, who have been arrested are African-American. The Southern Regional Infant Mortality Project did a survey and found that the typical drug using woman in the south is in fact a white woman, in her thirties, divorced or never married, with two or three children, dependent on an illicit drug and alcohol. Despite the fact that white women use drugs more frequently, black women in states that have mandatory civil reporting are ten times more likely to be reported.

In South Carolina, criminal justice officials and the Medical University of South Carolina sat down together and developed a policy of arrest and prosecution specifically targeted at black women. Almost everything you read, even the critical material, will tell you that this policy offered treatment to women first, and only if they didn¹t go to treatment would they be arrested. That is simply not true. In fact in 1989 there was not a single drug treatment program in the state setup to meet the needs of pregnant women or even to reach out to them. Once they put the policy in place, African-American women who had been coming in for prenatal care and who had been testing positive for drugs, and who had never been counseled or referred for drug treatment, were arrested and taken to jail in chains and shackles, still bleeding from giving birth.

What was this policy about? It¹s about the intersection of reproductive rights and drug policy and the fact that racism pervades our culture. The white nurse who administered the policy in South Carolina, admitted that she thought that mixing of the races was against god¹s will. Every single woman who was arrested out of that hospital was African-American except for one white woman who gave birth to a mixed race baby. In that patient¹s records the nurse made a special note of the fact that the patient "lives with her boyfriend who is a Negro." We did get the policy stopped briefly, because the nurse and others published an article purporting to show that their punitive policy worked. We argued that the study was not only totally without scientific basis, but that it also constituted illegal research on human subjects. Without their knowledge or consent, a group of low-income African-American women were subjected to an experiment to test the hypothesis that throwing pregnant women and new mothers in jail would somehow get them to stop using drugs. I believe that this is one of the worst examples of inhuman research on people since the Tuskegee syphilis experiments. The National Institutes of Health thought it egregious enough to put the hospital on probation, and the Office of Civil Rights came in and got them to stop arresting women. But now with the Whitner decision, they are back in business.

Although the Whitner case represents the culmination of years of prosecutorial focus on pregnant cocaine users, the decision itself was not limited to illegal drug use. Women in South Carolina can now be arrested for engaging in any other behavior that might endanger a viable fetus, including drinking alcohol. The Whitner ruling turned virtually all pregnant women in South Carolina into potential criminals. Because the state has a mandatory child abuse reporting law, the Whitner decision also had the effect of turning all of the state's health care and social service providers into mandated child abuse reporters when they learn that a pregnant patient uses drugs or engages in any behavior that may endanger the fetus. Although everyone is supposed to be guaranteed confidentiality if they seek drug treatment, South Carolina has apparently carved out an exception for women, by ‹ again -- linking the wars on abortion and drugs. The result has been to drive pregnant women in South Carolina out of the health and social service systems endangering their health and that of their future children.

The effect of Whitner decision has also been to put more mothers in jail. Melissa Ann Crawley is one of them. Like Cornelia Whitner, she was arrested when her healthy newborn tested positive for cocaine. Although Ms. Whitner begged for inpatient drug treatment and was given 8 years in jail instead, Ms. Crawley was luckier and got five years of probation. While on probation, however, she was beaten up by her boyfriend, she called for help. In response to her fourth and most desperate call to the police, they arrested both of them on a city domestic violence charge. That arrest constituted a probation violation for the child abuse charge and Ms. Crawley had to go back to jail to serve out her original five year sentence. We argued that the original child abuse charges were inappropriate because that statute was intended to apply to fetuses not children. We won, until the Supreme Court ruled in the Whitner case. What did that mean? During the time she was out of jail, Ms. Crawley was able to get treatment, and in fact was drug free. She was home working part time and raising her healthy three young children. She was not on welfare. But as a result of the Whitner decision she had to go back to jail at taxpayer expense to serve out her sentence.

Mr. Charles Conden, the South Carolina Attorney General who sees himself as the "defender of god, the south and the unborn" can be proud, I guess of imprisoning mothers and destroying families. Mr. Conden, who assured the public that the Whitner decision meant only that women who use illegal drugs would go to jail, has not addressed the fact that women in South Carolina have been arrested for drinking alcohol. The familiar argument that he and others make is that "we¹re just trying to get them into treatment". But many women are never offered treatment in the first place and even the prosecutors admit there is insufficient treatment available. Moreover why is it that prosecutors are deciding what drug treatment and what healthcare people should get. How did they get to be the decision-makers on statewide health care policy?

The prosecutions of pregnant women reveal that both law enforcement officials as well as many judges believe that addiction is a choice and that treatment is readily available. Similarly they believe that pregnant women have been able to make choices regarding their pregnancies. They assume that women have easy and free access to abortion and other reproductive health services. Many judges do not understand what addiction is and that neither drug treatment nor abortion are available on demand.

The reproductive rights, drug policy and harm reduction communities need to work together to educate the courts and the public about the real life circumstances of people who in fact want to lead healthy and responsible lives. The Right Wing in this country seems to understand the power of linking the issues and so must we. Let me give another example. In California, a private program of sterilization or norplant implantation receives largely positive press because it supports sterilization of drug addicted women who might become pregnant. The fact that such women might have healthy babies and might be good and loving mothers is not discussed. Nor is the fact that many have probably been turned away from drug treatment programs. And of course it is assumed that every child they might have had would have been severely damaged. A eugenics program that suggests that limiting the births of certain unfit people will somehow solve serious social problems ought to be looked at very closely, not lauded by a less than critical press and public.

For nearly a decade legislatures across the country have been considering a range of punitive laws regarding pregnant women and drugs. Every bill proposed to treat fetuses as children for purposes of a state's child abuse laws and every bill to punish pregnant addicts had been defeated, in large measure because of strong opposition from leading medical groups and health care providers. In 1998, however, legislatures began enacting punitive laws over the strenuous objections of medical groups. After the Whitner and other decisions the Wisconsin legislature passed legislation declaring that unborn children from the moment of fertilization are covered by the state's child protection statute which, among other things, would permit a police officer to take into custody a pregnant woman who he or she viewed as endangering the unborn child by the use of alcohol or an illegal drug.

Many other legislatures are also considering punitive legislation. The republicans and conservatives, who opposed restrictive tobacco legislation, need to look tough on drugs while they continue their attacks on abortion and poor people. The prosecution of pregnant women gives them points on all of these fronts. Our efforts to stop the dangerous and counterproductive war on drugs and women will need to be sophisticated and coordinated. It will also have to be enduring.

It took hundreds of years to end slavery. It took nearly eighty years to win the vote for women. We will not win the battle for sane drug policy or for women's equality and reproductive freedom in five or ten years. Change comes about over the course of lifetimes. I hope you will join me in committing yourselves to a lifetime of activism so that we can make change happen.

Lynn Paltrow is the Director of the National Advocates for Pregnant Women, NYC, a Program of the Women's Law Project.