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African American mothers' substance abuse: punishment over treatment?

In the never-ending "war" on drugs, the battle over maternal substance abuse, always on shifting and contested ground, is escalating.

Medical researchers have become increasingly vocal in their protests against criminal sanctions for pregnant women's illicit drug use. (1) Armed with compelling research summarizing more than a decade of study, they offer evidence that while drug abuse can and sometimes does compromise the health of exposed infants and children, * the problem is neither as prevalent nor as damaging to a child's development as earlier reports indicated. (2)

That research strongly suggests that the social environment can be as damaging as drug use. Most critically, medical researchers argue that prenatal care reduces the risks of exposure to drugs in utero. (3)

Based on this evidence, they call for an end to criminal sanctions on the grounds that the threat of punishment is more of a barrier to prenatal care than a deterrent to drug abuse. (4) Yet helping expectant drug abusers to get prenatal care is not a focal point of policy--punishment is.


A survey of drug treatment and rehabilitation programs in the United States reveals that after a relatively short-lived increase in such programs for pregnant women, intervention strategies to control prenatal drug abuse are increasingly punitive as opposed to therapeutic. (5)

Untold numbers of women continue to lose custody of their children in jurisdictions where drug use is considered prima facie evidence that they are unfit mothers. (6) Today women who abused cocaine while pregnant languish in American prisons such as those in South Carolina, setting an ominous precedent.

After a protracted legal battle, in March of 2001, in a 6-3 decision, the United States Supreme Court ruled in Ferguson v. City of Charleston (532 U.S. 67) that South Carolina's policy of testing women for drugs without warrants or their consent was an unconstitutional search.

According to Justice Stevens, who delivered the opinion of the Court, this policy, allegedly adopted for reasons of health, was especially egregious because its "immediate objective...was to generate evidence for law enforcement." (7)

Signaling that the legal battle is far from over, two months later South Carolina demonstrated its intention to continue to choose punishment over treatment when a jury convicted a woman of homicide in the death of her stillborn child in 1999. (8) An autopsy revealed evidence of cocaine in the infant's system. The mother was sentenced to 12 years imprisonment in spite of the fact that experts could not provide unequivocal evidence that cocaine caused the baby's death.

To add to the irony, even South Carolina's prosecutor in this case agrees that "there is not enough money--there aren't enough resources--committed to drug and alcohol treatment." (9) In fact, critics charge that South Carolina ranks last among the states in availability of drug treatment and report that when the drug testing policy was initiated in Charleston, the hospital that conducted the tests refused to treat pregnant drug abusers. (10)

Obviously, the battle over the criminalization of drug abuse during pregnancy is not over. Lawyers advocating for so-called "crack moms" will have to return to the South Carolina Supreme Court to appeal that court's ruling that using cocaine when a fetus is viable is a criminal offense.

(The authors write that criminal prosecutions have been tried in at least 30 states and that all the cases with the exception of South Carolina have now been overturned. That is why they used South Carolina as an example: the state has the potential to set a legal precedent that could start prosecutions across the country all over again. --Editor)


The usual conservative-liberal dichotomy that defines the relationship between the social environment and maternal drug abuse offers illusory and simplistic notions of the environment and then serves up a limited range of policy options.

Conservatives, for example, claim that prenatal substance abuse is the product of a self-generating community of dependent, undisciplined, and undeserving deviants. It is a relatively short step from insisting that welfare and other social supports be withheld to endorsing the notion that these women should be punished.

Liberals claim that this problem is the result of a racially stratified social system that distributes its resources inequitably. They argue that we can resolve the problem with a more equitable distribution of resources such as jobs, housing, and health care.

But advocating for urban communities, the poor, and those addicted to drugs in a conservative climate is simply not politic. Consequently, federal and state anti-drug budgets continue to support law enforcement over treatment and prevention. Most significantly, treatment for pregnant women remains exceedingly scarce.

What both liberals and conservatives ignore is that the social environment is not fixed but is constructed out of ordinary practices and everyday decisions made in arenas far from the inner cities in which a disproportionate share of poor women are trapped.


The warnings of medical experts and critics of punitive prenatal drug testing policies remain compelling: the threat of prosecution or of losing their children is likely to act as a deterrent for women who right otherwise seek the prenatal care vital to their health as well as that of their infants. (11)

New criminal charges emerge and punitive policies that do nothing to help expectant mothers or their children endure because prenatal substance abuse is one of the growing numbers of public health and other social problems in which "the realm of the private is permeated with real or public politics." (12)

The politics of race, in particular, legitimate punishment as a policy option, usually under the guise of upholding family values. Sometimes it is explicitly based on an essential belief in the inferiority of Black people. (13) Of the more than 200 women in 30 states who have been prosecuted to date for prenatal drug abuse, estimates are that from 70 to 80 percent are Black. (14)

In the recent Supreme Court case, nine of the 10 plaintiffs were Black and all of them were poor. A greater share of African American as opposed to European-American mothers who seek prenatal care are tested for drug use (15) and lose custody of their children, often without hearings, investigations, or any of the trappings of due process. (16)

It is at the intersection of the triple axes of oppression-- race, class, and gender subordination--that the health and well-being of Black women and their children have been compromised well beyond the bounds of individual women's culpability or the collective burden of racism.


As social scientists, we argue that while a second generation of research focusing on the social environment is necessary, it is not sufficient to generate policies designed to help mothers and their children. It is imperative that this new research agenda recognize and contest the ways that gender, race, and class oppression organize the social meaning of women's addiction, construct prenatal drug abuse as a distinctive problem, and position poor African American women as targets of punitive sanctions in ways that set them apart from African American men, European-American women, and other Black women with greater resources at their disposal. **

We contend that since the South Carolina precedent is so broadly constructed, it is bound to have a pernicious effect, rendering all women and especially poor African American women "potentially criminally liable for myriad acts." (17)

Even before this decision, women were prosecuted for having sex while pregnant and failing to keep doctor's appointments, and jailed because there were no drug treatment programs available. (18) *** Charles Condon, the politically ambitious attorney general of South Carolina, is already threatening to impose criminal sanctions for the use by pregnant women of legal substances such as cigarettes and alcohol.

In spite of the fact that America has historically considered maternal illicit substance use a public health problem, in this highly politicized social climate the simplistic policy of punishing prenatal drug abuse was born. The "crack mother" made it expedient to construct people in trouble as people who make trouble. (19)

Through the analytic lens of inter-sectionality, we content that interlocking gender, race, and class inequalities and the institutional powers that fuel them constructed the "crack mother" as a social phenomenon that overshadows and obscures the problems of maternal substance abuse.

We argue further that non-punitive policies cannot be developed without uncovering the social relations of domination which structure social inequality, shape institutional power, and (dis)organize our thinking (20) so that, for more than a decade, America has allowed punishment to override healthful, alternative strategies that do protect children.

In short, we are at a crossroads, a critical moment in our efforts to define the problem of maternal substance abuse and what we, as a society, will do about it. As social scientists, women, and mothers, we find it unacceptable to choose to continue down the punitive path, running the risk of punishing more and more women for more and more offenses while ignoring the opportunities for prevention and intervention generated by almost two decades of research.

Alternatively, we believe that there is, at hand, sufficient empirical evidence to develop a policy agenda that will protect the health as well as the rights of pregnant and parenting substance abusers and their children.


Our goal is to take the first step toward a new policy agenda that liberates mothers, children, and this society from non-productive, punitive interventions and that charts a course toward health-based policies that help mothers to help their children.

The approach to the problem of maternal substance abuse should be based on a better empirical foundation by recognizing its complexities, including the role of race, class, and gender oppression. We consequently suggest that a full range of public health-oriented prevention and intervention strategies should be devised.

We propose alternative research and policy agendas based on quantitative and qualitative data designed to resist and ultimately dismantle gender, race, and class subordination, a necessary milestone on the road to healthful, affirming policies on maternal substance abuse.

(This article was adapted with permission by the publisher and authors from the upcoming book Dehumanizing Discourse, Anti-Drug Law, and Policy in America: A "Crack Mother's" Nightmare.)


* We cast a wide net when we refer to that group of children who are "drug-exposed" because the effects of maternal substance abuse are as much social as they are biological, if not more so. We define "drug-exposed" children as those whose mothers or fathers ever used cocaine during the mother's pregnancy or any rime during the life of the child.

** Black feminist theory is inclusive in that it accounts for Latinos, Native Americans, Asians and other similarly situated groups. These comparisons reflect our particular focus on poor African American women.

*** In 1985, Pamela Rae Stewart, a European-American woman, was charged with taking barbiturates and failing to follow doctor's orders to refrain from sexual intercourse. The case was dismissed in 1987 on the grounds that existing statues did not cover these offenses. In 1988, an African American woman was convicted of forgery in Washington, DC, but was imprisoned chiefly because she was addicted and pregnant and because the judge, determined to intervene in her drug-taking, could find no treatment program that would accept her.


(1.) C. Marwick, "Challenging Report on Pregnancy and Drug Abuse," Journal of the American Medical Association, vol. 280, no. 12, pp. 23-30,1039-40.

(2.) D.A. Frank, et al., "Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review," Journal of the American Medical Association, vol. 285, no. 12, pp. 1613-25.

(3.) M. Dicker and B. A. Leighton, "Trends in the U.S. Prevalence of Drug-Using Parturient Women and Drug-Affected Newborns, 1979 through 1990," American Journal of Public Health, vol. 84, no. 9, pp. 1433-38; M. A. Hawk, "How Social Policies Make Matters Worse: The Case of Maternal Substance Abuse," Journal of Drug Issues, vol.24 (Summer), pp.517-526; B. M. Lester, et al., "Studies of Cocaine-exposed Human Infants," In C. L. Wetherington, V. Smeriglio, and L. Finnegan, Editors, Behavioral Studies of Drug-exposed Offspring: Methodological Issues in Human and Animal Research, Research Monograph 164 (Rockville, MD: National Institute on Drug Abuse, 1996), pp. 175-210. Web site: pdf/monographs/monograph164/175210_Lester pdf; B. M. Lester, L. L. LaGasse, and R. Seifer, "Cocaine Exposure and Children: The Meaning of Subtle Effects," Science, vol. 282, no. 5389, pp. 633-34; T. Randall, "'Intensive' Prenatal Care May Deliver Healthy Babies to Pregnant Drug Abusers," Journal of the American Medic al Association, vol. 265, no.21, pp. 23-30, 2773-74; P H. Shiono, et al., "The Impact of Cocaine and Marijuana Use on Low Birth Weight and Preterm Birth: A Multicenter Study" American Journal of Obstetrics and Gynecology, vol. 172(1 Pt 1), pp. 19-27.

(4.) B. M. Lester, L. LaGasse, et al., "Studies of Cocaine-exposed Human Infants," pp.175-210; C. Marwick, "Challenging Report on Pregnancy and Drug Abuse," pp. 23-30,1039-40.

(5.) W. Chavkin, V. Breitbart, D. Elman, and P. H. Wise, "National Survey of the States; Policies and Practices Regarding Drug-Using Pregnant Women," American Journal of Public Health, vol. 88, no. 1, pp. 117-19.

(6.) D. R. Neuspiel, T. M. Zingman, V. H. Templeton, P. DiStabile, and E. Drucker, "Custody of Cocaine Exposed Newborns: Determinants of Discharge Decisions," American Journal of Public Health, vol. 83, no. 12, pp. 1726-29; D. B. Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Vintage Books, 1997).

(7.) L. Greenhouse, "Justices, 6-3, Bar Some Drug Tests," The New York Times, March 22, 2001, p. A1.

(8.) B. Herbert, "In America," Media Awareness Project Report (New York: The New York Times, 2001).

(9.) Ibid.

(10.) E. Schnapper, "Washington Fares Only Slightly Better in Treating Drug Users," Media Awareness Project (Seattle, WA: Seattle Post-Intelligencer, 2001).Web site:

(11.) M. A. Hawk, "How Social Policies Make Matters Worse: The Case of Maternal Substance Abuse," pp. 517-526; L. M. Paltrow, "Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines the Health of Children," in C. L. Wetherington and A. B. Roman, Editors, Drug Addiction Research and the Health of Women (Rockville, MD: National Institute on Drug Abuse, 1998) pp. 467-501. Web site: 502_Paltrow.pdf.

(12.) W. Lubiano, "Black Nationalism and Black Common Sense: Policing Ourselves and Others," in W. Lubiano, Editor, The House That Race Built: Black Americans, U.S. Terrain (New York: Pantheon Books, 1997).

(13.) D. E. Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty.

(14.) M. A. Hawk, "How Social Policies Make Matters Worse: The Case of Maternal Substance Abuse," pp. 517-526; L. M. Paltrow, "Criminal Prosecutions against Pregnant Women: National Update and Overview," Reproductive Freedom Project (New York: American Civil Liberties Union Foundation, 1992); J. Petrow, "Addicted Mothers, Drug-exposed Babies: The Unprecedented Prosecution of Mothers under Drug-Trafficking Statutes," New York Law School Law Review, vol. 36, no. 4, pp. 576-607; D. E. Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty.

(15.) I.J. Chasnoff, H. J. Landress, and M. E. Barrett, "The Prevalence of Illicit-drug or Alcohol Use during Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," New England Journal of Medicine, vol. 322, no. 17, pp. 1202-0616.

(16.) D. R. Neuspiel, T. M. Zignman, V. H. Templeton, P. DiStabile, and E. Drucker. 1993. "Custody of Cocaine-exposed Newborns: Determinants of Discharge Decisions," American Journal of Public Health, vol. 83, no. 12, pp. 1726-29; D. E. Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty.

(17.) A. R. Dubler, "Monitoring Motherhood," Yale Law Journal, vol. 106, no. 3, pp. 935-40.

(18.) C. Lusane, Pipe Dream Blues: Racism and the War on Drugs (Boston: South End Press, 1991); K. Moss, 1991. "Substance Abuse during Pregnancy," Harvard Women's Law Journal, vol. 13, 1991, pp. 278-99; D. E. Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty.

(19.) C. Reinarman and H. Levine, Crack in America: Demon Drugs and Social Justice (Berkeley: University of California Press, 1997).

(20.) C. Guillaumin, Racism, Sexism, Power, and Ideology (New York, Routledge, 1995).


* Advocates for Youth

* Alan Guttmacher Institute (AGI)

* American College of Obstetricians and Gynecologists

* Centers for Disease Control and Prevention's National Center for Health Statistics

* National Campaign to Prevent Teen Pregnancy

* National Organization on Adolescent Pregnancy, Parenting, and Prevention (NOAPPP)

* Planned Parenthood Federation of America (PPFA)

* Sexuality Information and Education Council of the United States
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Author:Banks, Rae
Publication:SIECUS Report
Geographic Code:1USA
Date:Feb 1, 2002
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