Using the “War on Drugs” to Arrest Pregnant Women

The War On Drugs, launched in 1971 by Richard Nixon, has been repeatedly exposed as a failure. Yet, the same failed tactics used to fight drugs continue to be used to retain control over women’s reproduction. Drug laws are increasingly being implemented on the state level as a roundabout method to limit women’s bodily autonomy and carry out anti-choice agendas. Last year, Tennessee passed SB 1391, and became the first state in the U.S. to specifically criminalize drug use during pregnancy. The legislation states that women with babies who test positive for narcotics can be charged and prosecuted for assault. Those women would face up to 15 years of prison time.

Tennessee State Rep Terri Lynn Weaver (R). image via Flickr

Tennessee State Rep Terri Lynn Weaver’s (R) new law specifically criminalizes pregnant women who use drugs, threatening them with massive jail sentences if their doctors find out. image via Flickr

Proponents of the bill claimed it was a necessary step towards combating the increase in neonatal abstinence syndrome (NAS) in Tennessee. However, the medical community took issue with the legislation on a number of points, with obstetric and drug specialists stating that risks to newborns have been exaggerated. An investigative article in the American Prospect found that not only is there “no evidence that NAS has long-term consequences for infants,” but that some doctors agree there is a trend of over-treating NAS and that in actuality, close contact with the mother, not isolation, is important for alleviating symptoms. Medical authorities also say that NAS symptoms are temporary, predictable, and treatable—a far cry from State Representative Terri Lynn Weaver’s (R) assertion that “these babies are born and their lives are totally destroyed.” Furthermore, using the term “drug addicted” to describe such babies has been declared inaccurate by medical professionals, yet Republican politicians, conservative prosecutors, and media continue to frame the issue as such in a way that stigmatizes women.

Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician’s knowledge of substance abuse could result in a jail sentence rather than proper medical treatment.

The Tennessee Department of Health’s FAQ sheet on the statute claims it does not “change care or medical treatment provided to pregnant women.” While it may not explicitly do so, the bill can have the detrimental effect of discouraging pregnant women from seeking vital prenatal care and treatment for fear of arrest and prosecution. The context and implications of medical treatment are indeed changed, and as a result there is widespread consensus in the medical community in opposition to the prosecution and punishment of pregnant women. This is not a recent development: as early as 1990, the American Medical Association stated, “Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician’s knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.” The American College of Obstetricians and Gynecologists concurred in a statement on the harms of using punitive measures to combat addiction, asserting that “Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus. Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.”

Not only is the science behind SB 1391 faulty, but the stereotypes and discourses remain consistent: the manufactured “crack baby” hysteria is mirrored, along with the moral condemnation of these mothers.

Female drug users have always been stigmatized, but the criminalization of female users reached a new high when conservative policymakers, led by President Ronald Reagan and faithfully echoed by the media, fabricated a trope of inner-city “crack babies” doomed by their supposedly incompetent mothers: poor women of color. Tennessee’s recently passed legislation shows this framework is far from retired. Representative Weaver, one of the bill’s sponsors, was quoted in a comment calling pregnant drug users “the worst of the worst.” The media storm surrounding the legislation, featuring mug shots of women arrested under the statute on local TV news and on the Internet, has driven pregnant women into hiding to escape public ridicule. According to an investigation by The Nation, 24-year-old Brittany Hudson gave birth in a car instead of the hospital out of fear of arrest and media exposure. In the previous weeks, Hudson had been turned away from two rehab centers already at capacity. As she feared, her mug shot was plastered over the news after she was charged with assault. Tennessee’s law reflects the detrimental view of addiction as a moral failure, rather than the medical disorder research has proven it to be. Just as the “crack problem” was used in the 80s as a vehicle for scapegoating supposedly “deviant” urban citizens experiencing the problems caused by Reagan’s social and economic policies, Tennessee’s statute and its conservative supporters ignore broader structural issues such as poverty, systemic racism, and insufficient health care. The conservative “tough on crime” approach to criminal justice consistently focuses on social control and punishment rather than social justice and access to resources.

Tennessee’s law reflects the detrimental view of addiction as a moral failure, rather than the medical disorder research has proven it to be.

In line with the War On Drugs, this legislation disproportionately harms poor people of color, despite conservatives’ colorblind claim that drug policy has nothing to do with race or poverty. The normalization of controlling Black and Brown bodies through institutional apparatuses continues with this expansion of an already overburdened criminal justice system. This trend, illuminated in Lynn Paltrow (whose article on fetal genocide laws can be found in the Spring 2015 issue of The Public Eye magazine) and Jeanne Flavin’s study published in the Journal of Health Politics, Policy, and Law, follows a long-term strategy to unite the War On Drugs and the anti-abortion movement, which results in a disproportionate impact upon low-income Black pregnant women. The study systematically identified and analyzed over 400 cases in which a woman’s pregnancy was the basis for the deprivation of her liberty. Black women comprised over half of the cases, as they were found to be reported to the police by health care providers and arrested at higher rates. As a racist project, the justice system’s latest efforts to criminalize drug users will subject pregnant Black women to higher rates of arrests and incarceration based on systemic racial biases and racial stereotypes of African-American mothers, an issue perhaps most notably elucidated in Dorothy Robert’s seminal book Killing the Black Body.

Tennessee’s law exempts women who enter drug addiction programs while pregnant and complete them post-birth. This addition, included to temper opponents, simply furthers the disparate implementation of the measure and creates a catch-22 for addicted, low-income women who cannot get treatment. Women in rural areas and women struggling financially are threatened with a higher risk of incarceration due to limited access to drug addiction programs (as well as limited access to other options, with 96% of Tennessee counties lacking an abortion clinic). The law does not specify the legal ramifications for a woman who seeks treatment but can’t access one or get into a program, leaving many in a vulnerable position. Nor does the law provide increased funding or opportunities for treatment for pregnant women.

And Tennessee isn’t alone. Since passing the bill last year, conservative lawmakers in Oklahoma and North Carolina have proposed similar legislation.

Tennessee’s prenatal drug use law is a continuation of the “personhood” campaign. Both sponsors of the bill, Sen. Reginald Tate (D) & Rep Weaver, were endorsed by Tennessee Right to Life PAC, one of the foremost anti-choice organizations in the state.

The Tennessee law is merely one component of a wider, more subtle—and thus perhaps more dangerous—trend. Although Tennessee is the only state that explicitly criminalizes prenatal drug use as an assault, other states are utilizing different drug-related methods to control women’s reproduction. 18 states label drug usage by pregnant women as child abuse under child-welfare statutes. In the case Ex Parte Sarah Janie Hicks in April 2014, the Supreme Court of Alabama ruled that a 2006 child abuse chemical endangerment statute’s reference to “child” includes an “unborn” child, upholding Hicks’ conviction for having a baby that later tested positive for cocaine, despite being healthy. The original purpose of the statute was to prohibit individuals from exposing children to narcotics production and distribution areas, but right-wing organizations, such as Liberty Counsel, and conservative political actors have since pushed for a wider interpretation of the law: one in which a fetus is considered a child and a womb is considered an environment where drugs are produced or distributed. Court decisions such as Hicks function to create precedent for convicting pregnant women for drug use.

Tennessee’s legislation, in conjunction with other drug-related strategies like the expansion of Alabama’s child endangerment statute under Ex Parte Hicks, applies the punitive approach of the War On Drugs to reproductive rights, limiting women’s bodily autonomy and perpetuating the legacy of the our racist carceral system. Lynn Paltrow, executive director of the National Advocates for Pregnant Women, has consistently highlighted how Tennessee’s prenatal drug use law is a continuation of the anti-abortion “personhood” campaign. Notably, both sponsors of the bill, State Senator Reginald Tate (D) and Representative Weaver, were endorsed by Tennessee Right to Life PAC, one of the foremost anti-choice organizations in the state. These legislative encroachments are but one tactic in a state-by-state approach by conservative activists to control reproduction and insert the concept of “personhood” into the legal code in various arenas.

The prosecution of prenatal drug use stigmatizes and locates the blame on individual mothers, distracting attention from poverty, institutionalized racism, a broken carceral system, insufficient health care, and other structural causes. In a coming together of two controversial issues, drug policy and reproduction, conservatives have found an effective strategy to further their agenda through the targeting of pregnant drug users.

The Stuff of Which Religious War is Made

Gregory M. Aymond, the Roman Catholic Archbishop of New Orleans

Gregory M. Aymond, the Roman Catholic Archbishop of New Orleans

Gregory M. Aymond, the Roman Catholic Archbishop of New Orleans, has declared economic war on anyone who participates in the construction of a new regional Planned Parenthood facility in New Orleans.

Yet another Catholic prelate denouncing an abortion provider might seem to some like a small, if dramatic, moment in the so-called culture war—but I think this incident may be a bellwether.

The archdiocesan newspaper Clarion Herald front-paged Aymond’s open letter, in which he declared that the Archdiocese and its related institutions will not do business with anyone, Catholic or non-Catholic, “involved in the acquisition, preparation and construction of this facility.” Aymond makes clear that even in the era of Pope Francis, the theocratic impulses that drive the so-called culture war are undiminished. “The archdiocese, including its churches, schools, apartments for the elderly and nursing homes,” he decreed, “will strive in its privately funded work not to enter into business relationships with any person or organization.”

Here is the key section in which the Archbishop declares he will punish not only Catholics but non-Catholics, even to the point of economic ruin:

This policy applies to all businesses, regardless of religious affiliation or non-affiliation. Our fidelity to Church teaching and our conscience necessitates this stance.

There is no justification, including economic hardship that will make a direct or indirect relationship with Planned Parenthood, or any abortion provider, acceptable.

The significance of this should not be underestimated. Aymond is the leader of the majority religious institution in the state’s largest city, and he has made clear he is willing to use its economic leverage against any person or business that defies him.

This was treated as unremarkable in an account published by Catholic News Service (the ostensibly independent news agency of the U.S. Conference of Catholic Bishops), and syndicated to Catholic publications nationwide. CNS reported that Benjamin Clapper, executive director of Louisiana Right to Life, was surprised but pleased by all of this.

“It should be a model for other religious leaders, not only in this state but in other areas,” Clapper said. “Most of the time, people expect the bishop to say things and to teach principles, but I don’t believe most people expect a bishop to make this real-life, declarative statement that actually impacts the corporate world.”

As dramatic as Aymond’s declaration certainly is, it is unclear how much economic leverage he actually has. Also, such tactics aren’t new, as businesses are often pressured by anti-choice activists not to do business with abortion providers. What is notable here, as Louisiana Right to Life leader Clapper observes, is that religious leaders don’t usually get directly involved, let alone lead the way.

Abortion is a legal and constitutionally protected medical procedure. It is considered a moral and responsible choice by many mainstream religious institutions and organizations, notably those affiliated with the Religious Coalition for Reproductive Choice, most of them Protestant or Jewish.

Aymond and his church have the right to their view of abortion of course, but others—religious and non-religious alike—are not under any moral or legal obligation to agree. Yet Aymond’s decree targets people who conduct normal business activities in keeping with the law and their own religious and moral conscience, regardless of the economic havoc it creates. This fundamental lack of respect for pro-choice religious and secular traditions, and for the civil and constitutional rights of all Americans, shows that at least this Catholic culture warrior is escalating, rather than moderating, his approach to the culture war.

As unlikely as it may be, we can hope that Aymond’s newly aggressive anti-choice efforts will turn out to be a local tempest in a teapot. But it is worth noting that this is the stuff of which religious war is made.

From a Place of Privilege: Abortion, Male Victims, and Ultrasounds

A 2006 Political Research Associates article by Eleanor J. Bader, “Male Victims of Abortion: New Theme of Right to Life Committee,” documents a gathering of the National Right to Life Committee (NRLC), during which over 500 anti-choice members met for several days to strategize. In addition to the typical arguments against abortion—pushing parental consent, chastising Planned Parenthood, and promoting anti-choice policies at the U.N.—some newer ones were on the docket. Most significantly, the idea that a woman should be required to have an ultrasound before she is allowed to have an abortion and an argument overemphasizing an emotionally charged stance: “male victims of abortion”.

The organization also touted its successes, including a then-recent outlawing of dilation and extraction procedures. Bader reflects on how less-radical posturing has helped the NRLC achieve such measures: “[t]hey’re content to lobby their representatives and work behind the scenes, rather than in front of clinic doors. Given their electoral successes and their Supreme Court majority, they see their star ascending and they couldn’t be happier.”

Ultrasounds a Legal Reality

‘Successes’ like this have continued and have been accelerating at an alarming rate over the past few years. The NRLC’s position on ultrasounds is now a legislative reality. In three states, a woman having an abortion must first submit to an ultrasound that her provider is then required to show and describe. In seven states, the woman must have the ultrasound, and the provider has to offer to show and describe it. Almost half of the 50 states involve ultrasounds in their abortion processes in some way or another.

In the instance of a first-trimester abortion, the semester during which 88 percent of all abortions are carried out, an ultrasound is medically unnecessary. Ultrasounds also add significant costs to the already expensive process—a typical ultrasound costs around $850.

Mandated ultrasounds dramatically and disproportionately affect poor women—the additional cost incurred may be enough on its own to prevent a woman from having an abortion. Not to mention that this is often paired with the fact that the most accessible clinic is hundreds of miles away round trip, a consequence of other TRAP laws.

The Guttmacher Institute points out that mandatory ultrasounds are little more than an attempt to emotionally manipulate women, and explains that “the requirements appear to be a veiled attempt to personify the fetus and dissuade a woman from obtaining an abortion.” If a woman hasn’t already been prevented from having an abortion due to the costs or difficulties surrounding ultrasounds, and has made it all the way to the doctor’s office, the emotional roadblock still stands in her way.

Lila Rose, president of the anti-choice group LiveAction

Lila Rose, president of the anti-choice group LiveAction

Many anti-choice groups promote ultrasounds for this very reason. LiveAction, Lila Rose’s brainchild, released an article in February titled “Ultrasound images change lives, save hearts.” The article, while attempting to espouse the virtues of ultrasounds and their ability to dissuade 78% of women from having a planned abortion, reveals how truly horrible these ultrasounds can be.

The anecdotes provided include a woman who was raped, but felt she had to have the child of her rapist once she saw it in a real-time ultrasound. Another tells the story of a woman who made “the long drive from another country for an abortion appointment,” walked past protesters into the clinic, and came out later crying, because the ultrasound she had seen made the nine week fetus too real for her to abort. Even if these women were ultimately happy with their decision (there is no indication that they are and LiveAction, of course, skews the stories towards an anti-choice stance), the stories paint a picture of women who had decided to abort, and decided not to because of the ultrasound.

“Male Victims of Abortion” Stance Comes from a Place of Privilege

The NRLC’s conniving utilization of the argument that men are victims of abortion holds particular weight because, as Bader observes of the men who spoke out about abortion’s affects, “[h]earing them speak is unsettling because it is impossible to tell someone that their feelings are illegitimate.”

Victims of physical and sexual abuse, women of color, low-income women, and women of certain religions are particularly endangered by this argument. In such situations, a woman may either desperately need to keep the prospective parent out of her life or may be in no position to decide their involvement. Arguing that the person not carrying the fetus should have a legal right to decide what happens to it puts these women at a higher risk than they already are by opening the door to yet another level of abuse.

A hypothetical example resulting from this would be a religious woman who is living with both her husband and her family. Her religion prohibits her from both abortion and questioning her husband’s stances, two practices that are enforced by her family’s presence in her life. The idea that the man gets to choose is already a reality for her, reinforcing this by law will essentially destroy the shred of autonomy she has left. This may force her to have a baby she does not want or is not ready for, or seek out another means of abortion (which is both highly unsafe and could land her in jail).

This serves to reinforce the idea that the Right’s target demographic are young to middle-aged heterosexuals of economic and social privilege. It presumes that the partners have a functional, non-abusive relationship, the means to pay for proper prenatal care and child support, are in good health, and can access adequate reproductive health services.

To come at the situation from a holistic and realistic standpoint would force the Right to admit that their policies have catered exclusively to people of privilege, essentially destroying a substantial amount of the arguments they pit against the cause. This “kick ‘em while they’re down” strategy shows us the flip-side of intersectionality: the Right utilizes this theory to understand how to use oppression, rather than to understand how to alleviate it.

While men’s pain should not be rendered illegitimate, it’s important to recognize that this emotional appeal is yet another vehicle the Right uses to mobilize people against women’s rights. The emotional pain a male partner may experience should never be discounted, but it’s not salient to a women’s bodily autonomy and right to make her own choices about her body.

Looking Forward

While NRLC-aligned ideologies continue to gain ground, as they have since the release of Bader’s article in 2006, it will become ever more essential to point out the true breadth and reach of such Draconian rollbacks.

Even the personhood campaign has recently gained some ground  in the reproductive health arena, so I would not be surprised if the GOP, taking advantage of the momentum they currently have, takes the “male victims of abortion” stance to the next level and attempts to put forth legislation  requiring consent from both prospective parents, rather than just the one who is carrying the child.

Looking forward, we should keep an eye on this and strive to recognize and point out the ways in which the NRLC’s stances no only effect all women, but have the most impact on those who are already suffering.

Profiles on the Right: The Knights of Columbus

Knights of Columbus

The Knights of Columbus, founded in 1882, is the largest Catholic fraternity almost 2 million members worldwide. It was created in-part to provide affordable life insurance for Catholics, but the organization also focuses on policy issues, including a “pro-life” stance and a steadfast opposition to marriage equality. The Knights of Columbus are part of the “establishment,” with members including House Speaker John Boehner, former Governor Jeb Bush and Justice Samuel Alito. President John F. Kennedy was also a member. While this organization’s concerns are much broader than abortion and equal marriage, its financial heft campaigning on these topics is substantial.

The Knights of Columbus, in their own name, have chosen to celebrate an individual who committed many atrocities against the Native Americans he encountered. The lobbying of the Knights was instrumental in ensuring national recognition of Columbus Day, a holiday that is controversial today. The Knights are also largely responsible for the introduction of the phrase “under God” into the Pledge of Allegiance in the 1950s, the removal of which has repeatedly been attempted and still continues to fail.

Their most transparent campaign is their attempts to deny reproductive rights, both through aiding widely denounced “crisis pregnancy centers” which feed women false or misleading information about their options, or funding other anti-choice groups. This is not a new phenomenon, a 1989 report documented possible misuse of bingo proceeds in supporting anti-choice groups in Wisconsin. A 1992 New York Times article documents a plan to construct a “tomb of the unborn child” in every diocese in the country. Knights of Columbus groups at all levels are campaigning for legislation to limit access to abortion, and they are very open about their campaigning, with a “culture of life” umbrella constituting one of their three stated “Public Policy Issues.”

The “culture of life” campaign has been instrumental in the “ultrasound initiative”, which provides ultrasounds that allow expecting mothers to “recognize the miracle of life”. The Knights have also been strong supporters of Marches for Life, particularly in the U.S., Canada, and the Philippines, and they even go as far as to argue that support for abortion restrictions is bi-partisan.  Despite their claim to be bi-partisan, the group has strongly supported some of President’s Trump’s policies, including his May 2017 executive order for “religious liberty.”

In contrast to their prominent anti-abortion movement, the Knights’ campaign against equal marriage is given reduced publicity, to the point that a report researching their funding of anti-LGBTQ efforts had to examine their IRS filings, as opposed to a convenient profile outlined on their website. The report, by Equally Blessed, a coalition of four Catholic organization supporting LGBTQ people, highlights their funding against marriage equality in 12 states, including roughly $1.9 million to the National Organization for Marriage (NOM: PRA Profile here). During the campaign over Proposition 8 in California, the Knights of Columbus donated around $1 million to the Yes on 8 campaign.

In 2017, the Knights anti-LGBTQ efforts were highlighted by a report published by The National Catholic Reporter, which discussed how the Knights have donated to The Becket Fund For Religious Liberty, an organization working to legalize LGBTQ discrimination. The Knights of Columbus have also donated to The National Catholic Prayer Breakfast, where a bishop last year “described LGBT human rights as a “demonic gender ideology.”” The Knights also supported medical ethics workshops where speakers advocated for “curing” those who identify as gay or transgender through counseling.

The Knights of Columbus have responded to claims that they are anti-LGBTQ by suggesting that their spending against equal marriage is only a small proportion of their total spending. While they spent $1 billion during the timeframe the report examined, “only” $15.8 million went towards anti-LGBTQ efforts. From disaster relief, to helping fund the Special Olympics, the Knights of Next ProfileColumbus are in many cases a charitable force for good. Nevertheless, their massive and continued efforts against the rights of women and LGBTQ individuals far overcasts any goodwill they may have hoped to earn.

Updated: 4/10/18.

From The Archives: Laying Siege to the Last Abortion Clinic in Mississippi

The Jackson Women's Health Organization Photo credit: ROGELIO V. SOLIS/AP

The Jackson Women’s Health Organization
Photo credit: ROGELIO V. SOLIS/AP

Back in 2006, contributor Michelle Goldberg wrote an article for the Public Eye Magazine discussing the attacks on, and the resiliency of the last standing women’s health clinic in Mississippi. As new developments continue to unfold, the piece remains as relevant today as it was when it was first written.

The siege of Mississippi’s last remaining abortion clinic has been fought for nine years, bringing the state perilously close to lacking abortion provision. From threatening demonstrations outside the clinic by organizations like Operation Save America, to recent judicial battles over complying with targeted abortion regulations, the anti-choice movement in Mississippi has been trying to ensure that the Jackson Women’s Health Organization will be closed down. Thanks in part to the amazing effort of its staff and volunteers, Mississippians are still able to exercise their reproductive rights. At this time of widespread anti-choice legislation in many states, the existence of only a single abortion clinic in Mississippi reminds us both that we are not far from a position where some won’t have access to a safe and legal abortion, and that there is still time to counter the anti-choice movement and ensure that safe and legal abortion is available in every state.

While the Mississippi anti-choice movement does everything it can to block women’s civil rights, the state also happens to have second highest rate of teenage pregnancy in the country and widespread child poverty. Access to abortions is already limited by the high cost and long travel times, and if women were forced to travel out of state, the cost would only increase and more women would be priced out of their reproductive rights.

With abortion clinics closing at an unprecedented rate, largely due to targeted regulation, communities across the country face loss of access not only to abortion but to the basic healthcare and contraceptive care these clinics often provide. Where anti-choice protests and threats have failed to close these clinics, small pieces of legislation dictating requirements that are near-impossible to implement have forced them to close. Whilst the Jackson Women’s Health Organization faces severe problems with sidewalk anti-choice protesters, including death threats, the work of volunteers in supporting women against this backdrop of intimidation helps negate their effect.The protesters’ actions are certainly unpleasant, but these protests tend not to close clinics, although they may dissuade patients. Similarly, legislation that enforces waiting times, invasive ultrasounds, and the reading of medically inaccurate warnings aims to prevent women from choosing or going through with an abortion. In many cases, it is punitive legislation” that makes it very difficult for abortion clinics to operate, and is forcing them to close.

The statement by an Terri Herring, president of Pro-Life Mississippi,that “this is so we can lay the groundwork and set the stage, then any state can do so” underlines the symbolic importance of the possible closure of the Jackson clinic. Whilst there may be larger deserts of abortion provision, for Mississippi to potentially have no abortion provision undermines Roe vs. Wade and could lead to similar legislation and legal challenges in other states. The report reminds us that, “the right to an abortion doesn’t mean much if there’s no way to get one.”


Read our full 2006 report by Michelle Goldberg (