Who is the guilty party? Rights, motherhood, and the problem of prenatal drug exposure

Law & Society Review, 2000 by Zivi, Karen D

Gomez contends that there were two powerful arguments that checked legislative and prosecutorial attempts to criminalize prenatal drug exposure-reproductive rights arguments and public health arguments. Both of these explicitly countered the association of pregnant drug users with stereotypical represents tions of and assumptions about bad mothers. That is, both arguments attempted to represent the voices and experiences of pregnant drug users to undermine the charges of criminal intent and selfish behavior. These arguments, Gomez argues, not only put drug treatment forth as a more efficacious alternative to the problem, but also, and perhaps more importantly, contested and even displaced the bad mother/innocent victim dichotomy used to justify criminalization. Gomez's findings, however, suggest something more complicated than simply the successful contestation of crack baby and guilty bad mother images (1997:121). Her interview data suggest, although Gomez herself does not develop this point, that maternal ideology made its way into oppositional arguments as well as the justificatory ones. In fact, Gomez's findings reveal that women's needs and rights were less often defended and quite often obscured by arguments opposing criminalization.

Kathy Kneer, a lobbyist who worked closely with the coalition opposing criminalization, explained her role as "figur[ing] out how to leverage the system to come out with something that we like at the end" (Gomez 1997:46). Though Kneer's goal was clearly to oppose punitive policies and gain approval for policies designed to improve the availability of drug treatment and other social services for pregnant women, what is interesting is the justification for these ends. According to Kneer, in order to convince legislators to reject criminalization, she had to make it clear that criminalization was not in the best interest of the infants. Explaining that she implored legislators to act in a manner that would best protect infants, Kneer says nothing about convincing them to take women's rights seriously. And while the latter may have been central to her attack on criminalization, as Gomez suggests it was, her statements do not support this reading. Rather, these statements suggest that fetal health remained the primary concern of all parties involved.

This attention to infant needs and the absence of the language of women's rights or even women's needs is quite evident in Gomez's review of physicians' arguments as well. Physicians, one interviewee told Gomez, "dealt the fatal blow" to a 1989 bill that would have made it possible to convict women of manslaughter for giving birth to drug-addicted infants (53). Gomez's discussion of physicians' arguments reveals that doctors were far less concerned with women's rights, or even women's care, than with infant care and physician autonomy. Though some legislators reported being influenced by an equality argument put forth by doctors (an argument that raised the question of whether legislators should choose to single out prenatal drug exposure as a crime, while ignoring the dangers associated with prenatal exposure to alcohol or tobacco), the tenor of physicians' arguments focused more on infant care. According to Gomez's findings, doctors opposed criminalization because (1) it would drive women away from prenatal care and drug treatment; (2) they did not want to act as police and thereby threaten the patient-doctor relationship of trust; and (3) they did not want their power in the area of reproduction challenged (49-50). The elision of women's needs becomes clear in one interviewee's comment: "What physicians have to say about the women they treat is powerful testimony; a physician testifying on what to do to save these fetuses has special credibility . . ." (Gomez 1997:59).