Pregnancy, Drugs & the State

Against the Current, No. 34, September/October 1991

Iris Young

THE WAR AGAINST Iraq wiped out discussion about most domestic social problems for more than six months. In response to increasing pressure, we are now seeing the Bush administration address domestic problems by promoting programs to crack down on crime rather than expanding funding for existing and new social services. As the recent Supreme Court decision upholding life sentences for first-time offenders dealing drugs indicates, a renewed punitive offensive in the “war on drugs is part of this trend.

According to some estimates, as many as 350,000 babies born every year in the United States are affected by their mother’s drug use during pregnancy.(1) The effects of such drug use usually makes the first few months—and sometimes years—of a baby’s life uncomfortable with pain, fidgetiness, sleeplessness, and other disorders. Babies born of drug-using mothers sometimes have smaller bodies and brains than they would otherwise have. Sometimes they are permanently retarded or physically impaired.(2)

The horror of the harm brought to “crack babies” and babies affected by other drugs has fueled controversy among law makers, prosecutors, medical providers and child protection agencies over the proper policies for reducing this problem. Simply put, the controversy concerns whether a punitive approach or more compassionate treatment represents the most morally appropriate and effective response.

In this article, I will argue that a punitive approach to drug-using mothers is ineffective and misogynist I Will discuss what appropriate, effective social service drug treatment for pregnant drug users should mean, and explain how far current policy presently is from providing such services. Finally, I offer five criteria that in my opinion can help make treatment programs empowering, rather than pacifying and normalizing—as many now tend to be. I welcome responses to the ideas in this paper from ATC readers.(3)

Current controversies surrounding policy toward pregnant drug users take place within the context of a debate about “fetal right? and increasing pressure on pregnant women to do everything they can to provide the perfect womb. Stories abound of restaurant workers refusing to serve drinks to pregnant women. Women have been forced by court order to remain in bed for the sake of their developing fetuses. While the general issues of fetal rights and maternal responsibilities are definitely relevant to policy approaches toward drug-using pregnant women, for reasons of space and focus I will restrict my discussion here to actions and attitudes directed toward pregnant addicts.

At least eight states now include drug exposure in utero in their definition of child abuse and neglect,(4) Some states, such as Michigan, have made this offense a felony—even when they do not prosecute simple drug use.(5) In several states without such laws, prosecutors have employed existing drug-trafficking laws to file criminal charges against women who used cocaine or other controlled substances during pregnancy.(6) Between 1987 and 1990 nineteen states and the District of Columbia instigated more than fifty criminal proceedings against drug-using mothers. Several have been found guilty and sentenced to as many as five years in prison.(7) The vast majority of these cases involved a woman of color, even though studies show that white women use drugs at least as much as do women of color(8).

Even more common than criminal prosecution is court-ordered removal of the baby at birth—without trial or hearing—solely on the grounds that the mother or infant had a positive drug test at the time of birth. Child removal on these grounds is increasing even though there is a severe shortage of foster homes in many areas of the United States. Despite the complaints of many lawyers and medical professionals that such procedures violate both privacy rights and proper medical use of the tests, a number of states require healthcare professionals to report to the local welfare agency pregnant women who have or are believed to have used a controlled substance during pregnancy.(9)

Punitive responses to the problem of drug-exposed infants have significant support among policy makers, law enforcement officials, and the general public.(10) A just reaction of outrage at the damage done to innocent persons at least partly accounts for such support. A terrible wrong is being done to these babies, which is creating a huge burden on already overburdened health, education and social service systems. The mother’s drug-using actions are clearly the primary cause of these wrongs, so it seems reasonable to hold her legally responsible for them. There are good reasons, however, for saying that punishing pregnant addicts is ineffective, unfair, and sexist.

A punitive approach to the problem of pregnant addicts is ineffective in preventing the birth of drug-affected babies. Jailing women does not necessarily prevent them from using drugs; indeed, jail often provides easier access to drugs. The threat of punishment, moreover, is rarely a deterrent to drug use. There is little reason to think that women deliberate the costs and benefits of getting pregnant versus taking drugs, or that they weigh the benefits of taking drugs while they are pregnant against the costs of possible punishment.

A punitive approach to drug-using pregnant women does appear to have one important deterrent effect, however: it deters women from getting good prenatal care. Because drug-using pregnant women’s fetuses and babies are often particularly high risk, they need prenatal attention more than most Experts claim that when health professionals are aware of a woman’s drug use, its harmful effects on infants can be offset in part by good prenatal care in a supportive, non-punitive atmosphere.(11)

Punishing pregnant addicts is also unfair, in several ways. It targets women’s use of drugs—and not men’s—even though some studies have shown that men’s use of addictive substances can affect their genes and semen, potentially harming their offspring. For example, one study found that when a father drank an average of two or more drinks daily one month prior to conception—or had at least five drinks on one occasion—there was a decrease of 137 grams in the infant’s birth weight.(12) In some states, pregnant women are being targeted for prosecution for their drug use, even though other drug users are not prosecuted.

Finally, punishing pregnant addicts appears to presuppose that these women have chosen to get pregnant or carry a child. But ours is a society in which heterosexual intercourse itself is often not free for women. Access to contraception is not easy for all women, especially poor or young women. Even when they have access, U.S. moralism, fear or ignorance often make them reluctant to seek or use contraception. And, of course, contraception sometimes does not work.

Under these circumstances, I contend, a great many women cannot be said to choose pregnancy. With rapidly decreasing access to abortion for all women in the United States—but especially for young or poor women—fewer and fewer women have a choice about whether to carry a fetus to term. It is grossly unfair to punish women for the crime of pregnancy when they have so little choice over conception.

A punitive attitude toward pregnant addicts may also involve misogynism—expressing an unconscious rage at the mother who is not always there for her child. Dorothy Dinnerstein argues that in a society characterized by mother-dominated infant care, both adult men and women often carry an unconscious hatred fostered by resentment of their mothers, which is then displaced onto women in general. The pre-ego infant is needy and desiring, and the mother can never be completely and fully there for it The mother’s absence—the permanent disappointment that the mother is not always there—is an existential trauma of mortality. The social fact of the relative absence of men from infant care allows the unconscious to scapegoat women for a trauma that is part of the human condition as such.(13)

The level of anger directed against pregnant addicts is far higher than that felt toward most criminals. It is not just anyone who has harmed this baby by shoot-mg it up with cocaine. It’s the child’s mother. The mother is supposed to be the one who sacrifices herself, who will do anything for her child, who will preserve and nurture it That’s what mothering means. The rage directed at pregnant addicts identifies with the child, unconsciously recalling the feeling we all had as children of rage toward mothers who were not always there for us, did not always respond to our needs and desires, and sometimes pursued their own purposes and desires.

While it has its own misogynist logic, a punitive approach to pregnant addicts is also symptomatic of the way U.S. culture generally tends to approach social problems. Ours is the weakest welfare state in the Western world, and current ideological and material conditions have been rapidly weakening it even further Responses to need, suffering and crime tend to blame the victim. The more urgent a social problem becomes, the more state action seems motivated to “go after” people with state violence and the arm of the law, instead of trying both to change the social conditions that nourish suffering and crime and provide help to meet the needs of those whose needs are not otherwise met In any forum available, progressives in the United States must challenge the blaming, punitive attitude toward social problems, and try to persuade others that expanding social services is the only viable moral and political answer to destitution, crime, and social dislocation.

Thus the only and best answer to the problem of “crack babies” is vastly expanded expenditures on drug-treatment services that might help substance-using pregnant women reduce or eliminate their drug use and reorient their lives away from drug dependency. The availability of drug treatment for any person who seeks it is severely limited in the United States. Waiting lists for private programs are often months or even years long, and the cost of treatment is often prohibitive, even for those who are not poor.

While some health insurance programs fully reimburse for drug treatment, most offer only partial reimbursement In most states Medicaid will reimburse only a portion of the cost of drug treatment—sometimes less than half. Large expenditures of public money are thus needed to set up new drug-treatment services and expand existing ones, as well as to provide services for those individuals who cannot afford them. In this age of deficit reduction coupled with no tax increases, however, funding for drug treatment services is likely to remain virtually nonexistent unless there is a concerted social movement demanding this funding.

There are particular problems of access to drug treatment for women and especially pregnant women. Many programs either accept only men, or are designed with men’s lives primarily in mind. Most drug-treatment programs make no provision for child care, thus making it difficult for single mothers to participate.(14) Many will not admit pregnant women, because they have obstetrical services and fear liability for the babies to be born.(15) Those that will accept pregnant women nevertheless often have waiting lists that extend many months beyond a woman’s due date.

Comprehensive residential programs specifically designed for mothers and mothers-to-be—which include obstetrical services, child care in residence, counseling, job training, and training in other skills—are rare. Designing and supporting such comprehensive programs is both the most effective way to prevent the birth of babies harmed by their mothers’ drug use, and the most humane approach toward the women.

I would like to suggest that people committed to undermining oppression cannot simply call for more funding for treatment specifically oriented to the needs of women and pregnant women. For in modern welfare state societies, social services often introduce forms of domination more subtle but no less real than the repression inherent in state coercions and punishments. Therapeutic services like drug treatment often exercise what Michel Foucault refers to as normalizing power.(16) That is, they define those in treatment as deviant with respect to a norm, and seek through therapy to bring them in conformity with dominant norms.

The relation of women to the institutions and experts who administer treatment is usually one of dependence and vulnerability; they are usually powerless against coercion or threats of coercion. The problem is that this power is often obscured and mystified by the claims to scientific knowledge that the experts make. Through therapeutic talk, moreover, treatment programs enlist the subject herself in the production of and accommodation to this power.

In this situation—where the experts are active and the patient is passive—therapeutic practices interpret the particular needs and experiences of the person in terms of general clinical and administrative theory. Normalizing practice defines her history and the particular attributes of her situation as a “case” —a particular configuration of instances of generalized measures of the normal and the deviant In defining the case and prescribing the treatment for it, the experts redefine her needs without her active participation, in a discourse foreign to het As Nancy Fraser argues, these therapeutic methods tend to be individualizing and depoliticizing, imposing a monological “scientific” definition of needs rather than one achieved through active and social self-determination.(17)

Especially when the subject of treatment is the “mind” or “spirit,” therapeutic norms can be infiltrated with social norms that function to enforce and reproduce relations of privilege and oppression. The treatment approach toward pregnant addicts may often work to adjust them to dominant social norms of being “good” women and workers—in ways that serve the dominant interests of order under circumstances of oppression.

In treatment, certain potentially oppressive norms of the “good” woman and the “good” mother are likely to be applied. A woman’s chastity is likely to be expected, along with a chaste appearance and sense of grooming. Her progress toward normality may be measured according to her development of a demure comportment, a soft, pleasant voice, and a cheerful presence. She may be trained and encouraged in “good housekeeping,” and she will be evaluated according to her ability to develop habits of neatness—together with a sense of decorative cheer in domestic surroundings.

One part of her therapy is likely to consist in developing her as a competent and willing worker: cultivating habits of getting up and getting to work on time, following orders and meeting deadlines, proper self-presentation in interview settings, etc. Drug treatment programs for young and poor addicts will frequently include a certain amount of job training, but often only for “basic skills” in sorts of work that may be quite sex-typed: A woman will be taught basic secretarial skills, for example.

There is no question that the acquisition of many of these skills are necessary for survival and a decent life in our society. Assuming them as basic norms, however, reinforces a work ethic and sex stereotyping that reproduce relations of capitalist and male privilege. Enlisting the client’s aid in her own adjustment to dominant norms depoliticizes her problem. Her deviance is constituted as having its source in her individual self, obscuring the likely social sources of her pain and neediness.(18)

Service providers need to think about how programs can be designed to empower women and not merely to help them adjust to dominant norms. The meaning of empowerment in this context—as well as the practical difficulties involved in constructing programs that are democratic, egalitarian, and enlist the active participation of clients in the definition of their needs—is a daunting task. In conclusion, I will simply offer five elements that I think should be contained in programs aiming at empowerment.

First, respect for the liberty and privacy of clients. A client should enter treatment voluntarily and have the liberty to leave it when she chooses. Once in a treatment program, moreover, she should not be forced to accept certain elements in order to have access to others. Treatment programs should not require that clients adopt a perspective, self-label, or woridview as a condition of treatment.

Many programs require participants or residents to go through a standardized pattern of tests, therapies and services as a condition of entrance and retention. Rather than implementing such requirements, programs should be oriented to offer a broad range of therapies and services, along with advisors who explain the services and their purposes.

Treatment programs should also preserve privacy rights. Results of drug tests and other medical tests should be strictly confidential. Residential programs should provide clients living space and space for keeping personal property that is private—from other clients and from providers. Clients using out-patient services should not be subjected to an invasion of their privacy.

Second, programs should be actively structured so as to counteract the individualizing, depoliticizing tendencies typical of bureaucratic and therapeutic processes. Women should be encouraged to move from an understanding of their situation as one involving personal problems to an understanding of how others have similar personal problems that are socially constituted by similar structural conditions.

Women’s understanding of their lives, that is, can be politicized through collective discussions with other women who are similarly situated. In the women’s movement, some battered women’s services have developed group “consciousness raising” processes whose aim is fostering and understanding that the “personal is political.” Such formats might be extended to programs for substance-using women.

Third, drug treatment programs should contain serious, structured, evaluative feedback from clients. Mechanisms for client evaluation of programs and providers should be regularly applied, and evaluations should have some institutionalized influence over the design of the programs and the job evaluation of providers. Such structured client evaluation enhances clients’ self-respect and fosters their reasoning, articulating and discussing skills. It also adjusts in a small way the inevitable power differential between clients and service providers.

Fourth, another important way to avoid the individualizing tendencies of bureaucratic therapies is to situate treatment in a context of neighborhood, community, and personal networks. Programs that wrench a person entirely out of a community and put her in a rural, total institution create an unreal situation that does little to help an addict maintain or renew social support for herself and her children. In the course of her treatment, she should have support services available for her children, as well as having her children with hen Community organizations should be interlocked with treatment programs in neighborhood-based social networks to mediate the needs of residents.(19)

Finally, treatment programs and policies should include opportunities for the performance of meaningful work during the treatment time. Many addicts have careers or satisfying jobs. They should be able to either pursue their work while in treatment, or, at least, take only a short break from it. Many addicts, however, do not work or do not have meaningful work. By meaningful work I mean work that issues in recognizable results, which develops the skills of the worker, and from which the worker derives significant benefit. Residential drug-treatment programs in particular ought to have meaningful work as a component.

No doubt a great many service providers wish to empower their clients. But if Foucault is correct in claiming that bureaucratic and therapeutic institutions are usually normalizing, providers should recognize that empowering clients is very difficult within service-providing institutions. An empowering approach to policy for pregnant addicts entails struggle—by service providers, by clients to whom they listen, and by the rest of us who seek a more just world for women.


  1. See Jan Hoffman, ‘Pregnant, Addicted–and Guilty?’ The New York Times Magazine, August 19, 1990, 34.
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  2. Emmalee S. Bandstra, M.C., “Medical Issues for Mothers and Infants Arising from Perinatal Use of Cocaine,’ in Drug Exposed Infants and Their Families: Coordinating Responses of the Legal, Medical and Child Protection System, American Bar Association Center on Children and the Law, Washington, D.C., 1990.
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  3. I am grate Gil for the comments made by Dianne Feeley and Peter Drucker on an earlier version of this paper.
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  4. These states include Illinois, Indiana, Minnesota, Nevada, Florida, and Oklahoma. See Dorothy & Roberts, ‘Drug Addicted Women Who Have Babies,’ Trial, April, 1990, 56-61.
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  5. See Hoffman; see also Mark Curriden, Toe v. Wade does not prevent criminal prosecution of prenatal child abuse,’ ABA Journal, March 1990, 51-53.
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  6. In March 1987 a Toledo, Ohio grand jury indicted a woman for child endangerment because her baby was =with a cocaine addiction. Police in Phoenix Arizona sought to prosecute a woman on child abuse charges for allegedly using cocaine In the last stages of pregnancy. In South Carolina, one state prosecutor initiated charges against four women whose infants were born drug dependent Walter B. Connolly and Alison B. Marshall, ‘Drug Addiction, Pregnancy and Childbirth: Legal Issues for the Medical and Social Services Communities,’ in Drug Exposed Infants and their Families, op. cit.
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  7. See Hoffman.
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  8. Testimony of Paltrow, Moss and Crockett before House Select Committee on Children, Youth and Families on Substance Abuse and Treatment, April 1989; Deborah S. Pinkey, “Racial Bias Found in Drug-Abuse Reporting,” American Medical News, Vol. 32, Oct 6, 1989, 4.
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  9. These states include Minnesota, Oklahoma and Utah. See testimony of Paltrow, Moss and Crockett for arguments against these policies; see also Bonnie I. Robin-Vergeer, “The Problem of the Drug-Exposed Newborn: A Return to Principled Intervention,’ Stanford Law Review, 42, February 1990, pp.745-809; she argues for investigation into parental fitness.
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  10. A survey of fifteen southern states by the Atlanta Constitution found that seventy-one percent of the 1,500 people polled favored criminal penalties for pregnant women whose illegal drug use injured their babies. See Mark Curriden, “Roe v. Wade Does Not Prevent Criminal Prosecution of Parental Child Abuse,” ABA Journal, March 1990, 51- 53.
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  11. Andrew Skolnick “Drug Screening in Prenatal Care Demands Objective Medical Criteria, Support Services, “Journal of the American Medical Association, Vol. 264, July 18, 1990. Researchers conclude that care provided in the framework of support rather than judgment can improve the outcome for drug-abusing pregnant women. Such an approach is difficult to institute in states where physicians are required to report evidence of drug use during pregnancy to authorities. See also Ira J. Chasnoff, President, National Association for Perinatal Addiction, testimony before House Select Committee for Children, Youth and Families, July 1989.
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  12. Ruth & Little and Charles F. Sang, “Father’s Drinking and Infant Birth Weight: Report of an Association,” Teratology, 36,1987, 59-65.
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  13. Dorothy Dinnerstein, The Mermaid and the Minotaur, Harper and Row, 1975.
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  14. See “Substance Abuse Treatment for Women: Crisis in Access,” Health Advocate, No. 160, Spring 1989.
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  15. A much-cited study by Wendy Chavkin of seventy-eight drug-treatment programs in New York City found that 54% refused to treat pregnant women, 67% refused to treat pregnant women on Medicaid, and 87% had no services available to pregnant women on Medicaid addicted to crack. Testimony of Wendy Chavkin presented to House Select Committee on Children, Youth and Families, 271 .1989.
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  16. Michel Foucault, Discipline and Punish, Random House, 1977; History of Sexuality, Random House, 1980.
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  17. See “Women, Welfare and the Politics of Need Interpretation,” In Unruly Practices, University of Minnesota Press, 1989.
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  18. Edwin M Schur, Labeling Women Deviant: Gender, Stigma and Social Control, Temple University Press, 1983, 194-197.
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  19. On this point see Jean Bethke Elshtain, “Pregnancy Police—If You Are an Addict It’s Now a Crime to Give Birth,” The Progressive, December 1990, 26-28.
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September-October 1991, ATC 34