The War on Drugs and The War on Abortion:

Some initial thoughts on the connections, intersections and the effects

Lynn M. Paltrow*

While many people view the war on abortion and the war on drugs as distinct, there are in fact many connections and overlaps between the two. Their history, the strategies used to control and punish some reproductive choices and those to control the use of certain drugs, the limitations that exist to access to reproductive health care and drug treatment, and the populations most harmed by those limitations are remarkably similar. These similarities are particularly apparent where the issues coalesce in the regulation and punishment of pregnant, drug-using women.

Those who are concerned about fundamental issues of social justice may be losing ground, missing opportunities to build coalitions and strengthen arguments by failing to recognize the similarities among and relationships between the issues.

A comparison of the efforts to control reproduction and some (but significantly, not all) drug use reveals much about those who seek to control both and about their true agendas. If efforts to control reproduction and drugs are rooted in forms of bigotry and prejudice that are essentially the same, neither drug addiction nor pregnancy should be a basis for scapegoating some individuals or for dividing progressive coalitions. If efforts to control both reflect a common political agenda, and are used to draw attention away from real underlying issues-like poverty, race discrimination, and lack of a coherent national health-care policy then those who fight against each must recognize that they have a common cause and develop a more comprehensive strategy that addresses both as fundamental issues of social justice rather than as single, separate and special interest issues. Finally, if some people - African American women - are particularly harmed by these efforts to control reproduction and some drug use,  ^( )  there is both an opportunity and a need to develop interventions that respond effectively and specifically to these harms and to the barriers they face.

Only by recognizing those shared aspects of measures to control reproduction and drug use can we have the opportunity to develop more effective responses to each. While some of the parallels that are drawn in this examination may be inapt, and more cogent ones might be added by people better versed than this author in drug control policy and the history of reproductive rights, the similarities discussed here are intended to stimulate further exploration and discussion.

I. Controlling Reproduction, Controlling Drugs

Throughout history, women have sought to control their reproduction regardless of cultural, religious or family proscriptions against contraception, abortion and child bearing. ^( )  Similarly, people have always sought to alter their state of consciousness through a wide range of mind-altering experiences and drugs, some of them associated with religious rites. ^( )  Thus, one obvious connection between the two subjects is that both relate to what people do and have always done, with or to their own bodies, even in the face of severe restrictions. Both also reflect the extremes of the human experience. On the one hand, sex and drugs can give people mind expanding, life affirming, ecstatic experiences. ^( )  Each, however, can be associated with violence, abuse, and despair. A woman's relationship to her sexuality and her ability to reproduce may be affected deeply and permanently by experiences of incest, molestation and rape, all far too common in the lives of American women. ^( )  Similarly, for those who turn to drugs to numb the pain of such experiences, ^( )  drug use frequently becomes chaotic, dangerous and out of control. ^( )  Thus, efforts to address sexuality, reproduction and drug use all require responses that take into account an extremely broad range of experience and the disparate needs that emerge from that experience. To state the obvious, both issues are marked by controversy, passion and politics. The temperament of that controversy however is surprisingly similar. What has been written about drug issues applies with equal descriptive accuracy to reproductive health issues: They are both "hopelessly intertwined with deeply ingrained notions of morality and sin, religious-style certitude, and righteous indignation . . ." ^( ) 

II. Prohibition

Both abortion and certain drugs have been outlawed at various times in American history. Another similarity: Even when outlawed and enforced through draconian measures, the effect of efforts to prohibit both abortion and drug use have been notoriously and consistently unsuccessful. ^( )  Not only do women continue to have abortions and people continue to use those drugs that have been outlawed, the criminalization of these activities results in flourishing illegal markets, ^( )  and a deeply ingrained cynicism toward the government authority that attempts to enforce the law. ^( ) 

III. Justifying Control and Punishment

Reproduction and drug use share many commonalties when it comes to justifications for prohibition and regulation. In both cases, various forms of stigma and prejudice, including but not limited to those based on race, ethnicity, and gender, have been employed to justify such control. For example, abortion became illegal in the United States, in part based on appeals to xenophobia and nativism. ^( )  As Carole Joffe summarizes: "The drive to criminalize abortion, which started in mid-century and peaked by the early 1880's, when all the states had enacted antiabortion statutes, stemmed from a variety of motivations, including societal anxiety about the declining birth rates of Anglo-Saxon women in comparison to those of newly arriving immigrants." ^( )  Similarly, efforts to sterilize certain populations have been justified by various forms of stigma and prejudice, including but not limited to those based on class and race. ^( )  With respect to laws aimed at drug use, they too have been based on appeals to racist fears, in many instances unambiguously so:

Racism was called into play early on. ÝPopular literature of the time shows that racist propaganda, which played on white men's insecurities about their own power, flourished at the end of the 19th century. ÝAmong other things, the notion that using cocaine would heighten the desire of black men to rape white women was widely proclaimed. ÝThe same was held to be true with regard to the use of opium by Chinese men. ÝFears of "hopped up Negroes" and "opium smoking Chinamen" fueled anti-drug sentiment, especially in the South and West. ÝDespite the fact that, at the time, the majority of addicts were actually those white housewives hooked on patent medicines, the alleged threat to "our women," viewed as poor innocents, was used to heighten moral outrage over intoxication. ^( ) 

More recently, enforcement and increased penalties for using certain drugs were seen during the Nixon administration as a way of controlling particular populations, specifically youth and black people. ^( ) 
Today, the expansion of the war on drugs has been justified, at least in part by images of crack-using women, particularly pregnant African American women. By associating crack and its alleged harms with low-income African American women, ^( )  people have been willing both to believe vast amounts of misinformation about cocaine's effects ^( )  and to respond with a variety of proposals for punishing pregnant women and new mothers ^( )  rather than with calls for medical investigation, improved treatment and services including financial support for the women whose problems are significantly related to poverty. ^( )  Whether addressing abortion or drugs, efforts to criminalize and punish also relied on the pretense that is was necessary to protect middle class white women and to reinforce their traditional place in society. The original efforts to outlaw abortion were led by physicians of the newly formed American Medical Association who wanted to establish their professional status by taking "control [of] the terms under which 'approved' abortions were performed."  ^( )  By taking abortion out of the control of women and away from the physicians' business competitors, - healers, homeopaths and midwives, - doctors could monopolize this area of medical practice. Among the arguments the doctors used to justify this campaign was that abortion represented a threat to male authority over women. As the authors of an 1871 AMA report asserted about women who had abortions:

She becomes unmindful of the course marked out for her by Providence, she overlooks the duties imposed on her by the marriage contract. She yields to the pleasures - but shrinks from the pains and responsibilities of maternity; and, destitute of all delicacy and refinement, resigns herself, body and soul, into the hands of unscrupulous and wicked men. Let not the husband of such a wife flatter himself that he possesses her affection. Nor can she in turn ever merit even the respect of a virtuous husband. She sinks into old age like a withered tree, stripped of its foliage; with the stain of blood upon her soul, she dies without the hand of affection to smooth her pillow. ^( ) 

Carrying these views forward, doctors in the 1930's claimed that "if women know they can destroy the fetus very easily, they become lax in their sexual morals." ^( ) 
Similarly, "[d]rug policy was constructed by dominant groups" as a mechanism for preserving "white women's innocence." ^( )  Assertions that white women would be raped by men of color on drugs perpetuated racist views of men of color, mythologized the effect that certain drugs have, and simultaneously portrayed white women as vulnerable and in need of protection, thus ignoring their status as moral agents, and distracting attention from victimization they might be encountering at the hands of white men. In addition, drug policy itself has been used to reinforce stereotypes about different groups of women. Nancy Campbell elucidates how at various times, "white women are represented as using drugs to remain functional, orderly, and clean, while women of color who use drugs are depicted as the nonproductive inhabitants of chaos, decay, and squalor." ^( )  Similarly Campbell notes that during the 1950's, "[a]ddicted white women were diagnosed with personality disorders; addicted women of color were 'sociopathically disturbed' and hence more 'deviant.'" ^( ) 
The control of both drug use and reproduction have thus been justified by resort to popular prejudices and particular fears about certain populations and in turn used to reinforce deeply embedded stereotypes about the particular populations.

IV. Controlling Speech about Drugs and Reproduction

Indirect methods of control, including restrictions on free speech concerning the beneficial uses of contraception, abortion and those drugs deemed illegal are also remarkably similar. In 1961, Justice William O. Douglas observed that "the right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion." ^( )  This, however, has been anything but obvious when it comes to state regulation of information about both reproductive health care and drugs. To the contrary: government leaders have sought vigorously to suppress the dissemination of information about drugs and devices known unequivocally to save lives and to improve health and well-being. In 1873 the Comstock law labeled advice on contraception and abortion "obscene, lewd, lascivious, and filthy." ^( )  This law, among other things, made it a crime to transport by the public mail system material including:

Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral use; and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion, or for any indecent or immoral purpose. ^( ) 

Until 1965 it was still illegal for Connecticut doctors, in the privacy of their offices, to advise married couples that contraception could prevent unwanted pregnancy and the health risks associated with it. ^( )  Until 1977 restriction on the sale and advertisement of contraception were still on the books in New York State and elsewhere. ^( )  Even today, US Supreme Court doctrine permits speech restrictions on the provision of reproductive health information - abortion - by doctors in certain government programs. As recently as 1991, the United State Supreme Court upheld "the gag rule" which, prohibits a project funded under Title X - the federal program that funds family planning programs across the country - from engaging in activities that encourage, promote or advocate abortion as a method of family planning. ^( )  Using a very similar strategy, the federal government, in response to passage of California's Proposition 215, "the Compassionate Use of Marijuana Act," threatened doctors with criminal prosecution, loss of Medicaid and Medicare payments and revocation of their federal prescription drug licenses if they advised their patients about medical benefits of marijuana. ^( )  This 1996 law provides, in part, that:

Seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. ^( ) 

Despite extensive evidence of the beneficial effects of marijuana, ^( )  it remains classified as an illegal drug whose distribution sale and medical prescription are all illegal under federal law. ^( )  In May 2001, the United State Supreme Court rejected the argument that medical marijuana distributors could use a medical-necessity defense to the federal law criminalizing marijuana. While the court did not strike down California's compassionate use act, or address the availability of a medical necessity defense for the patients who somehow manage to get medical marijuana, the Court based its decision, in part, on the 1970 congressional finding that marijuana has "no currently accepted medical use."  ^( )  Thus even when it is clear that certain drugs or contraceptive devices could improve people's health, the government has used control over medical practice as a mechanism for preventing dissemination of that knowledge and information.

V. Access to Reproductive Health Care and Drug Treatment

In both arenas, the state not only restricts information about medically safe and useful procedures, it also restricts access to them. In the case of reproduction, access to abortion, contraception and other reproductive health care is deliberately blocked or limited. In the case of drug use, access to treatment and other approaches that can reduce the harmful effects of drug use are deliberately blocked or limited. For example, even though abortion is now legal, and has long been recognized as safe, ^( )  access is extremely limited as the result of a wide variety of restrictive laws. As Joffe explains:



Some 84 percent of all U.S. counties are without abortion facilities. The number of U.S. hospitals where abortions are performed decreased by 18 percent between 1988 and 1992, and less than one third of the nation's hospitals with the capability to perform abortions (defined as hospitals that offer obstetrical services) do so. ^( )  The majority of ob/gyns presently in practice do not perform abortions, and most residents in this specialty are not routinely being trained in abortion procedures. ^( ) 



All sorts of restrictions exist in the abortion context for procedures that are safe and medically approved - from mandated counseling unrelated to the patient's needs, to unnecessary waiting periods, to notification requirements designed to delay and intimidate. ^( )  Until September 28, 2000, RU486, a medication known to be both safe and effective in inducing early abortion was banned in America, despite years of favorable research results in the U.S. and experience in other countries. ^( )  Similarly, access to safe and effective treatment for drug addiction is deliberately limited in America today.  ^( )  "Methadone is the most effective treatment for heroin addiction, yet government regulations largely block its prescription by primary-care physicians and its sale by pharmacies, instead limiting methadone distribution to special clinics (which tend to be poorly staffed and inconveniently located)." ^( )  Methadone's benefits "have been established by hundreds of scientific studies," ^( )  and yet:
. . . Methadone can be prescribed exclusively by "comprehensive treatment programmes," and not by physicians in their private offices, in hospital clinics, in community health centres, etc. Collectively, these programmes can accommodate less than 15% of those whom methadone treatment might help. ^( ) 

Likewise, abortion services are now largely limited to free standing clinics. Although this was not the result of specific federal legislation as in the case of methadone treatment, ^( )  the isolation of abortion services from mainstream medical care similarly leaves patients and staff without adequate access to abortion services and, in addition, permits patients and staff to be easily targeted for violence and harassment. ^( )  Particular harms of these systems are startlingly similar, including harrowing stories of both methadone patients and abortion patients having to travel hundreds of miles to the "nearest clinic." ^( )  While communities across the country have been using zoning laws to keep abortion clinics from opening, similar laws have long been used to prevent the establishment of methadone programs. ^( )  Moreover, efforts in both arenas, to give people greater access to health care through private physicians face serious hurdles. For example, although it was hoped that the availability of RU486 would enable significant numbers of women to get procedures from private physicians, abortion restrictions on the books may make the delivery of such services illegal,  ^( )  just as private physicians still cannot prescribe methadone. ^( ) 
Access has also been blocked to many "harm reduction" techniques that have proved effective both in terms of public health and cost savings.  ^( )  Proponents of harm reduction recognize:

[O]vercoming drug addiction is usually a difficult and gradual process. [Harm reductionists] seek to turn public policy away from punitive criminal justice approaches and toward providing drug abusers with information and assistance that can help them reduce consumption and minimize the risks associated with their continuing drug use. Harm reductionists favor drug treatment over imprisonment and favor broadening drug treatment to include non-abstinence-based models. ^( ) 

As Ethan Nadelmann explains, "[h]arm-reduction innovations include efforts to stem the spread of HIV by making sterile syringes readily available and collecting used syringes." ^( )  Making clean needles available to injection drug users through needle exchange programs ^( )  and permitting their sale at pharmacies ^( )  have proven highly effective in curtailing the transmission of HIV/AIDS and hepatitis. ^( )  This has also been shown to be an important first step in helping drug users obtain drug information, treatment, detoxification, social services and primary health care. ^( )  Moreover, numerous public health groups including the American Medical Association, the National Institutes of Health, the Centers for Disease Control and Prevention, and the Institute of Medicine, have endorsed needle exchange programs. ^( )  Despite the fact that government sponsored research has shown that such programs do not lead to increased drug use and does have numerous positive health effects, the federal policy prohibits use of its funds for such life-and cost-saving measures. ^( ) 
The common governmental orientation toward control and punishment in both drug policy and reproductive health care policy is reflected in the funding priorities of each. The $16 billion dollar budget for drug law enforcement, interdiction and supply reduction represents two thirds of the total federal budget addressing drug use in this country. ^( )  And while the government ignores the need for treatment, the lack of treatment for women is even more acute.  ^( ) 
Similarly, the government refuses to fund abortion services for poor women, ^( )  while ensuring that funding is available for permanent sterilization services for the same population of women. ^( )  The government has failed to increase adequately funding for the Title X family planning program, and fails to require private insurers to provide adequate coverage of contraceptive services and supplies. ^( ) 

In stark contrast to the situation in other developed nations, where contraceptives are easily affordable under universal health insurance systems, contraceptive supplies and services are expensive in this country and American women must rely on a variety of fragmented systems and programs to help them cover these costs. ^( ) 

The federal government has also permitted the states to deny increased "welfare" payments to a woman who conceives and bears another child while she is on welfare, ^( )  and state funding for a range of women's reproductive health care - including screening and treatment for cervical cancer, sexually transmitted diseases, HIV prevention for women and obstetrical and gynecological care for low-income women - reflect a policy of extreme neglect. ^( ) 

VI. Interfering with Medical Practice and the Medical Profession's Response

According to AMA ethical guidelines, a fundamental element of the Patient-Physician relationship includes the patient's "right to receive information from physicians and to discuss the benefits, risks, and costs of appropriate treatment alternatives." ^( )  These guidelines also state that, "[p]atients should receive guidance from their physicians as to the optimal course of action" and that patient's have a right to confidentiality. ^( ) 

Many restrictions on both reproductive health care and certain drugs interfere with the physician's ability to follow these guidelines as well as their ability to prescribe treatment that may be most beneficial to the patient. For example, the "gag rule" on Title X providers would prevent doctors in these programs from mentioning abortion even if that was deemed to be the optimal medical course of action for a patient. Similarly, mandatory and scripted abortion consent laws force doctors to act as government spokespersons, in effect expressing the State's "preference for childbirth over abortion." ^( )  A doctor, for example, might have to inform a woman about state published materials describing the availability of child support from the father, ^( )  even if the pregnancy resulted from a rape or the woman had already spent years unsuccessfully attempting to collect child support for the children she already had.

Numerous states have passed what have been labeled "TRAP" regulations: Targeted Regulation of Abortion Providers. ^( )  "TRAP" laws regulate the medical practices or facilities of doctors who provide abortions by imposing burdensome and unnecessary requirements that are not mandated for comparable medical services. ^( )  Examples of these regulations are rules permitting state agencies to copy and remove patient records, jeopardizing patient confidentiality, or mandating unique structural or administrative specifications that are not medically warranted and that increase costs so significantly that doctors are dissuaded from providing abortion services. ^( ) 

Attempts by the federal government to silence California doctors and prevent them from recommending medical marijuana would also prevent doctors from discussing with their patients the "optimal course of action." Drug laws in the United States also interfere with doctors' ability to provide the care deemed most appropriate for a patient. In England, doctors have at times had "broad discretion to prescribe whatever drugs help addicted patients manage their lives and stay away from illegal drugs and their dealers." ^( )  This is not the case in the United States. And, according to Mike Gray, as a result of drug law enforcement, doctors are extremely limited in their ability to prescribe narcotic pain medication to patients who need it and have largely "abandoned" patients with chronic pain who need ongoing narcotic painkillers "just to get out of bed." ^( ) 

Despite these and other intrusions on medical practice in the name of abortion regulation and the war on drugs, the medical community has been relatively accepting of these measures. As discussed earlier, it was in fact the medical community that initially sought criminalization of abortion. And while leading medical groups did, nearly a century later, take positions supporting reform of such laws, ^( )  Carol Joffe argues, that today, "it is the medical community itself, and not [radical antiabortion groups like] Operation Rescue, that bears chief responsibility for the present marginalization of abortion provision."  ^( )  Similarly, Mike Gray argues that the medical profession made it easy for laws criminalizing certain drugs, originally disguised as tax regulations, to replace professional medical judgment:

It may seem strange that a guild as powerful as the American Medical Association would allow a bunch of Treasury men to wade into their profession and start telling them how to write prescriptions, but the fact is most doctors found the narcotics issue disgusting. Addiction wasn't studied in medical school, nobody seemed to know much about it, and the only experience for most physicians these days was the occasional junkie who showed up wild-eyed, unwashed, and desperate, terrorizing everybody in the waiting room. Every word from his mouth was likely to be a lie and if you turned your back he'd clean the place out. (The average physician would probably have been astounded to know that only a decade before, many of the wretched desperados had held down jobs, owned homes, and raised families.) The medical profession was more than happy to turn this ugly problem over to the Treasury Department. ^( ) 

Today, education in medical school about both abortion and addiction remains extremely limited. Only 12 percent of United States residency programs in obstetrics and gynecology require routine training in first trimester abortions. ^( )  Less than one percent of the curriculum in United States medical schools is devoted to drug abuse and addiction. ^( ) 

VII. "Epidemics" of drugs and pregnancy

Very often, identical language is used to describe and define the terms of the public discussion about both drugs and reproduction. In the recent past, both the use of cocaine and pregnancy by teenagers have been reported and decried as "epidemics." Virtually everyone has heard about the crack "epidemic" of the 1980's. This term was used by policy-makers and media moguls to suggest that crack use was rampant across all strata of the U.S. population and as a justification for more punitive law enforcement measures. Government data and research into actual use patterns, however reveal that overall cocaine use was in fact down during this period and that "if the word 'epidemic' is used to mean a disease or disease-like condition that is 'widespread' or 'prevalent' then there has never been an epidemic of crack addiction (or even crack use) among the vast majority of Americans." ^( )  As authors Reinerman and Levine explain, a more proper use of the word epidemic would be to describe the extensive use of alcohol and tobacco. ^( ) 

Significantly, during almost exactly the same period, the press and activists coined the term - an "epidemic of teen pregnancy." As Kristin Luker explains, "[b]y the early 1980's Americans had come to believe that teenagers were becoming pregnant in epidemic numbers." ^( )  "Ironically (in view of all [the] media attention,) births to teenagers actually declined in the 1970s and 1980s." ^( )  In fact in the 1980's "contrary to prevailing stereotypes - older women and white women were slowly replacing African Americans and teens as the largest groups within the population of unwed mothers." ^( )  Correctly applying the terminology required the conclusion that the "real 'epidemic' occurred when Dwight Eisenhower was in the White House and poodle skirts were the height of fashion." ^( )  While there actually was no epidemic of cocaine use or teenage pregnancy, the use of that language did serve political purposes. As Reniarman and Levine argue:

Crack was a godsend to the Right. They used it and the drug issue as an ideological fig leaf to place over the unsightly urban ills that had increased markedly under Reagan administration social and economic policies. "The drug problem" served conservative politicians as an all-purpose scapegoat. They could blame an array of problems on the deviant individuals and then expand the nets of social control to imprison people for causing the problems. ^( ) 

Similarly, Kristin Luker observed that "pregnant teenagers made a convenient lightening rod for the anxieties and tensions in American's lives. Economic fortunes were unstable, a postindustrial economic order was evolving, and sexual and reproductive patterns were mutating. Representing such teenagers as the epitome of society's ills seemed on quick way of making sense of these enormous changes." ^( )  More specifically, poverty could be blamed on the "sexual and reproductive decisions that poor [teenaged] women make." ^( ) 

Luker's research demonstrates that early childbearing was not a widespread phenomenon and that it would not impoverish women who were not already poor. ^( )  As she concluded: "Childbearing among teenagers has relatively little effect on the levels of poverty in the United States. But income disparities have become a pervasive fact of American life, and it is scarcely surprising that when experts . . . labeled 'teenage pregnancy' a fundamental cause of poverty, Americans were willing to listen." ^( ) 

Both drug and pregnancy epidemics are used to redirect attention to "individual deviance, immorality, or weakness" ^( )  and away from fundamental, pervasive problems like unemployment, poverty, racism and sexism that drastically reduce individuals' ability to exercise choice and maintain control over their lives. ^( ) 

VIII. Just Saying No to Comprehensive Sex and Drug Education Programs

Similarities also exist in government endorsement of and funding for prevention programs. Candid and comprehensive education programs that distinguish between the use and abuse of drugs, and that accept the inevitability that some young people will experiment with drugs and engage in sexual activity, can help prevent unwanted pregnancies and harmful drug use. ^( )  Nevertheless, our government has chosen, in both arenas, to limit support exclusively to programs based on abstinence only, fear-based models that have proven to be at best ineffective - and possibly counterproductive. ^( ) 

In the late 1970's and early 1980's, the federal government began funding abstinence only drug education programs, instituting as official policy, former First Lady, Nancy Reagan's "just say no" slogan. ^( )  The DARE program is a prototype of this approach. ^( ) 

Since 1990, DARE has received over $8 million in direct federal funding plus millions more in state and local funds. Approximately 20,000 police officers have delivered drug education to an estimated 25 million youth as part of the DARE program. Evaluation after evaluation has shown "no long term effects resulting from DARE exposure." ^( ) 

Negative assessments of the program are by no means limited to particular interest groups. A recent report from the United States Surgeon General concluded that:

DARE is the most widely implemented youth drug prevention program in the United States. It receives substantial support from parents, teachers, police, and government funding agencies, and its popularity persists despite numerous well-designed evaluations and meta-analyses that consistently show little or no deterrent effects on substance use. Overall, evidence on the effects of the traditional DARE curriculum, which is implemented in grades 5 and 6, shows that children who participate are as likely to use drugs as those who do not participate. ^( ) 

Indeed, in light of the overwhelming evidence of lack of success, DARE program directors have finally acknowledged that their strategy "has not had sufficient impact and say they are developing a new approach to spreading their message." ^( )  Despite evidence that abstinence only models did not work in the drug arena, the federal government chose to support comparable abstinence only models in sex education. ^( )  The welfare laws of the 1990's committed:

nearly $850 million in public funds over five years . . . to promote abstinence for anyone who is not married and to reward states that reduce out-of-wedlock births and abortions among all women in the state. Moreover, the law guarantees these large expenditures of public funds without any evidence that the strategies it embraces will have their intended effects and without any specific plans to evaluate their impact to determine whether any of the funded programs are worthy of continuation and replication. ^( ) 

Similarities between drug abstinence and sex abstinence programs are not accidental. As a leading proponent of sexual abstinence programs, Janet Parshall, of the Family Research Council, explicitly stated that: sex education programs should resemble the "Just Say No" anti-drug programs. ^( )  This is so despite the fact that:

The scant research conducted on abstinence-only education (all aimed at teenagers) suggests that such programs have little or no effect on initiation of sexual intercourse, but researchers say too few data exist to make a definitive judgment. What is clear from the research is that more comprehensive sexuality education programs that provide information about both abstinence and contraception, teach communications skills and provide access to family planning services do have some effect: They are more likely both to persuade adolescents to delay the initiation of sexual intercourse and to lead to greater contraceptive use among teenagers when they become sexually active. ^( ) 

The extent to which the same abstinence only philosophy underlies both drug and sex education programs is demonstrated in the government's Girl Power! Campaign. Originally conceived as an anti drug program, it was simply "repackaged" as a teen pregnancy prevention program in response to welfare reform laws that directed the secretary of DHHS to implement an abstinence based "strategy for preventing out-of-wedlock teenage pregnancies." ^( ) 

IX. The Mythology of Choice: Reproduction and Drug Addiction

The term "choice" is often applied to both reproductive decision-making and to drug use. Women have a right to "choose" to have an abortion and drug addicts make a "choice" to use drugs. In both areas, however, it is a term that obscures the lack of choice that many people have and the larger economic and institutional barriers that deny people, and disproportionately deny people of color, particularly low-income women of color, the ability to make consumer-like choices.

This particular similarity is best exemplified in cases in which efforts to control both reproduction and drugs coalesce through the punishment and prosecution of pregnant drug-using women. Since the late 1970's, approximately 200 women have been arrested based on their status as pregnant, drug-using women, thousands of others -and their families- are being affected by state laws that equate a pregnant woman's drug use with evidence of civil child neglect, and new calls for sterilization of drug using women are receiving significant media attention and private financial support. ^( )  These laws, policies and practices combine the seemingly unrelated arguments that fetal rights should be recognized under the law ^( )  and the argument that the war on drugs should be expanded to women's wombs.

In one of these cases, a young African American woman who used cocaine while pregnant was charged under a statute that made it a crime to "deliver" drugs to a minor. ^( )  The state argued successfully at trial that the statute could be applied to the delivery of drugs through the umbilical cord. Although this conviction was ultimately reversed, the woman, Jennifer Johnson, was initially sentenced to 15 years of probation.

At sentencing the judge justified the verdict on two separate but interdependent grounds: she deserved punishment both because "the defendant . . . made a choice to become pregnant and to allow those pregnancies to come to term" and because the "choice to use or not to use cocaine is just that - a choice." ^( ) 

"Choice" is a popular term that is equally inappropriate whether used in discussions about illicit drugs or reproductive rights. In the context of reproduction, the word choice as used by the judge contained numerous assumptions and judgments about Ms. Johnson. In making these pronouncements, the judge assumed that the intercourse that resulted in the pregnancy was voluntary. He assumed that she had "chosen" not to use contraceptives, assumed that despite their imperfections she would not have become pregnant if she had used them, and assumed that contraceptive services were easily accessible to her. The judge also assumed that she made a choice not to have an abortion and clearly believed that was the wrong decision. He undoubtedly ignored that fact that Florida, where Ms. Johnson lived does not fund abortion services - thus making an abortion inaccessible even if her moral and ethical beliefs had allowed her to seek termination of the pregnancy. Hiding behind the language of "choice" the judge felt justified in punishing a low income African-American woman for having a child.  ^( ) 

The judge also felt that her drug use was merely a matter of "choice" and self control and thus should be punished as well. The United States Supreme Court ^( )  and the health community, ^( )  however, have long recognized that drug addiction is an illness that generally cannot be overcome without treatment. The American Medical Association has unequivocally stated: "it is clear that addiction is not simply the product of a failure of individual willpower. Instead, dependency is the product of complex hereditary and environmental factors. It is properly viewed as a disease, and one that physicians can help many individuals control and overcome." ^( ) 

In the context of reproductive rights, the term "choice" has increasingly come under attack for the very reasons suggested by the lower court's statements in the Johnson case. The term simply does not reflect the reality of many women's lives. As Ricki Solinger argues in her new book, devoted to critiquing the language of "choice":

When Americans began to refer to reproductive liberty by the simple name "choice," they obscured the fact that millions of women in the United States - and abroad - lived in conditions of poverty and oppression that precluded many of the kinds of choices that middle-class American women thought of as a matter of personal decisionmaking. Then and now, many Americans have glossed over this: poor and/or culturally oppressed women in the United States and abroad may lack the money to "choose" abortion. They may live where abortion is inaccessible, illegal, or life-threatening. They may lack the resources to feed the children they have, much less a new baby. They may want to be mothers but lack the resources to escape stigma, punishment, or death for having a baby under the wrong conditions. They may lack the resources to avoid pregnancy from sexual violence. Can women in any of these circumstances be described as in a position to make a choice, a private, personal choice in the way that middle-class Americans generally use that term? ^( ) 

Similarly, the language of choice when applied to drug use allows the government to evade responsibility for the lack of drug treatment and the social and economic circumstances that contribute to addictive and dangerous drug use. As Nancy Campbell argues:

Ö policy-makers disclaim their own responsibility by attributing policy failure to human nature, immorality, or bad behavior [choices] on the part of the governed. Ö Holding individuals responsible for addiction reproduces deeply held American notions of personal responsibility, risk, vulnerability, and productive citizenship. But not all individuals have the means or the capacities to discharge the responsibilities of citizenship and social reproduction. The uneven distribution of the means to realize autonomy, reduce vulnerability and violence, and carry out responsibilities is simply disregarded in drug policy. ^( ) 

X. Child Protection

In both arenas, reproductive rights and drugs, calls for prohibition and punishment are often justified by the claim that such punitive approaches are necessary to save the children. In the drug arena, ongoing criminalization of certain drugs and the refusal to fund many harm reduction approaches is justified by the claim that such measures are necessary to keep young people from obtaining drugs or viewing them as tolerable in any way. For example, a primary reason given by the Clinton administration's drug Czar for not funding needle exchange programs was the claim that such programs would send a message to children that drugs are acceptable.  ^( )  Similarly, arguments for continuing the war on drugs are frequently based on the claim that harsh and total criminalization is necessary to protect children. As the Altoona police chief argued in a letter to the editor:

. . . when young people get the message that drugs are helpful and should be legalized, their drug usage increases.Ý Legalization tells our children that adults believe that drugs can be used responsibly and even for fun.Ý With such an atmosphere it becomes difficult, if not impossible, to reach children and convince them that "doing drugs" is dangerous. ^( ) 

And, recently, President Bush, when asking for the largest budget in history for drug control, seeking "approximately $19 billion in total federal drug control funding," the Acting Director of the Office of National Drug Control Policy (ONDCP) justified this predominantly law enforcement budget explaining, "[t]he President's budget will allow us to better protect our youth and our safety." ^( ) 

In the case of reproductive rights - the children are embryos and fetuses who must be saved from death that results from abortion and even contraception. Claims that abortion is child-murder are simply too numerous to cite, but there is a recent notable example of applying child abuse rhetoric to contraceptive services. In May of 2001, Representative Chris Smith called Planned Parenthood Federation "Child Abuse Incorporated." ^( )  By its own self description, Planned Parenthood is "the world's largest and oldest voluntary family planning organization."

The claim of child protection is particularly apparent where the issues coalesce, in the case of pregnant drug using women. Numerous approaches including arrest, sterilization and other violation of fundamental constitutional rights have been justified in the name of children's rights.

In Whitner v. South Carolina, ^( )  the Supreme Court of South Carolina declared that viable fetuses are "persons," and as a result, the state's criminal child endangerment statute applied to a pregnant woman who used an illicit drug or engaged in any other behavior that might endanger the fetus. ^( )  In Ferguson v. City of Charleston, the defendants argued that a hospital policy of secretly searching pregnant women for evidence of drug use and then turning that information over to the police did not violate the Fourth Amendment's prohibition on unreasonable searches because the search served the special need of protecting children. ^( )  Although the US Supreme Court recently rejected this argument, finding that the policy was in fact about criminal punishment, not treatment, a draconian program of dragging pregnant and newly delivered mothers out of their hospital beds in chains and shackles had nevertheless been in effect for five years based on claims of children's rights. ^( ) 

Child protection is also a claimed rationale for the C.R.A.C.K. program. In 1994, Barbara Harris founded C.R.A.C.K. ("Children Require A Caring Kommunity") after unsuccessful efforts to convince the California state legislature to pass a law that would punish women who give birth to drug exposed infants. ^( )  When a bill to make it a crime to give birth to a "drug baby" died in committee, ^( )  Ms. Harris created a non-profit organization that offers $200 to any drug-addicted or alcoholic woman who agrees to be sterilized or to use a long acting contraceptive such as Norplant or Depo-Provera. Her rationale is that the children suffer and would be better off having never been born.

The group's literature and statements until recently, portrayed all drug exposed children as severely damaged. The organization's web site provides examples only of stillbirths, or children born with "severe disabilities (deaf, feeding tubes, one in a wheelchair)." ^( )  The C.R.A.C.K. program targets one group of women, ^( )  women who use drugs, and launched a significant public relations campaign ^( )  that focuses not on those barriers that prevent them from making reproductive choices or on the barriers to drug treatment - but rather on the harm they do to their children, the cost to society of their supposed irresponsibility, and on the value of controlling certain women's reproduction as a solution to complex public health and economic problems.

C.R.A.C.K. supporters suggest that alternative approaches, such as drug treatment, increasing access to contraception and abortion services, and responding to the social conditions of poverty that many of the women face are simply too costly or time consuming compared with their child protection "solution." ^( ) 

Although, as of early 2001, the program had reached a relatively small number of women, fewer than 400, ^( )  C.R.A.C.K. has received significant media attention and appears to be a powerful force in promoting the principle that underlies both the war on drugs and efforts to control reproduction: that complex social problems including child health and welfare, poverty and ill-health can be blamed on individual "choices" and solved through quick fix solutions like sterilization or prohibition. ^( ) 

Similarly, child protection has been the rationale for an increasing number of states to pass laws that treat a pregnant woman's drug use as evidence of parental neglect and unfitness. ^( )  "While bills proposing criminal penalties have failed, eighteen states have amended their civil child welfare laws to address the subject of a woman's drug use during pregnancy." ^( )  Some of these statutes treat a single positive drug test as the basis for presuming parental unfitness. ^( )  Recent court decisions, relying on medical misinformation, have also expanded the scope of their civil child welfare laws to reach the conduct of pregnant women. ^( )  In fact, research has found no significant difference between addicted and non-addicted mothers in childrearing practices and addicted and drug-using mothers have been found to look after and care adequately for their children. ^( )  Thus these cases and statutes permit significant state intrusion on certain women's lives and families without protecting children from actual harm. ^( ) 

These state laws and policies have resulted in removal of custody from women who on occasion smoked marijuana and from those women who tested positive for legal drugs prescribed by doctors during labor and delivery. ^( ) 

In both the drug and reproductive arenas punitive policies do not benefit real children. To the contrary: they increase public costs related to incarceration and foster care, and do so at the expense of drug treatment and other forms of health care. Indeed, South Carolina's punitive approach to pregnancy and drug use coincides with a new and significant increase in statewide infant mortality figures. ^( ) 

Moreover, as Jean Schroedel documents, states most protective of fetal rights are the ones least likely to support health, education and welfare programs that actually benefit children. ^( )  Similarly, drug prohibition has, by in large, failed to reduce drug use by young people. ^( ) 

XI. Efforts to control both hurt everyone, but especially African-American Women

Laws criminalizing and unnecessarily controlling illicit drug use and reproduction hurt a wide expanse of the population. As many commentators have noted, the war on drugs in particular has "shattered" numerous lives, placing hundreds of thousands of non-violent drug offenders into a criminal justice system that destroys families and fails to reduce drug use. ^( ) 

The drug war's effects extend far beyond those who use illegal drugs. For example "one of the saddest by-products of the drug war - people who legitimately need narcotic painkillers and find it almost impossible to get them." ^( )  "Victims of accidents, botched surgery, degenerative diseases - sometimes require massive doses of drugs like morphine just to get out of bed" but too often find that the "medical profession, terrorized by federal drug agents," has abandoned them. ^( )  Other examples include people who have died in various police sponsored drug raids on private homes using excessive force and no-knock laws, ^( )  people who did not use illegal drugs but who have lost personal property under civil forfeiture laws that permit the government to seize property based on suspicion, rather than proof of involvement with illegal drugs, ^( )  people who are kicked out of public housing because one person in the household was identified as possessing drugs, ^( )  the thousands of people subjected to suspicionless searches while driving on the nation's highways, ^( )  and countless employees ^( )  and students subjected to urine drug screens. ^( )  And, increasingly, people who do use drugs are not only at risk of arrest, but also subject to loss of a wide array of government support including welfare, ^( )  housing ^( )  and federal college loans. ^( ) 

Perhaps most obvious is the unprecedented rate of incarceration in the United States. Today, more than 2 million people are behind bars ^( )  and the U.S. nonviolent prisoner population is larger than the combined populations of Wyoming and Alaska. ^( )  By the end of 1998, there were 5.9 million adults in the "correctional population"; a rubric that encompasses people who are incarcerated, on probation or on parole. ^( ) 

The increase in prison population is directly linked to the war on drugs. ^( )  The decision to address drug issues through a predominately criminal justice approach has profound effects on virtually everyone in our society. As Angela Davis explains:

As prisons take up more and more space on the social landscape, other government programs that have previously sought to respond to social needs -such as Temporary Assistance to Needy Families - are being squeezed out of existence. The deterioration of public education, including prioritizing discipline and security over learning in public schools located in poor communities, is directly related to the prison "solution." . . .[The prison industrial complex] devours the social wealth that could be used to subsidize housing for the homeless, to ameliorate public education for poor and racially marginalized communities. ^( ) 

Expenditures on a wide range of drug interdiction programs including but not limited to incarceration "cost American taxpayers billions of dollars that otherwise might be devoted to improving housing, education, employment opportunities and access to health care (one of every six residents in the world's wealthiest nation has no health insurance!)" ^( )  While the war on drugs and the closely related war on reproductive freedom both have far reaching impact on all people in the United States, these effects fall disproportionately on certain populations.

While black, Hispanic, and white Americans use illegal drugs at comparable rates, there are dramatic differences in the application of criminal penalties for drug offenses. African Americans are more than 20 times as likely as whites to be incarcerated for drug offenses, and drug-related emergency department visits, overdose deaths, and new HIV infections related to injecting drugs are many times higher for blacks than whites. ^( ) 

The drug war has increasingly been recognized as a mechanism for controlling and punishing certain populations - particularly African Americans. Joseph McNamara, former San Jose police chief, put it succinctly: "The drug war has become a race war." ^( )  More than 70 percent of the imprisoned populations are people of color. Moreover, the war on drugs has provided justification for an extensive system of profiling, surveillance, and harassment of African Americans in the United States today. ^( )  And while women continue to represent a minority of those behind bars, in recent years their numbers have increased at nearly double the rate for men. ^( )  This dramatic and disproportionate increase has a great deal to do with the war on drugs. ^( )  Drug offenses accounted for half (49%) of the rise in the number of women incarcerated in state prisons from 1986-1996 and Black and Hispanic women represent a disproportionate share of those sentenced for drug offenses. ^( )  "From 1986 to 1991, the number of black female drug offenders in state prison rose by 828%, Hispanic women by 328%, and white non-Hispanic women by 241%." ^( ) 

At the end of 1999, the number of women held in state or federal prisons, had risen to 90,668, an incarceration rate of almost 60 per 100,000 or 1 out of every 1,695 U.S. females. More than 10% of the female prison population has been sentenced to federal institutions, and most women incarcerated in the federal system were there for drug offenses. The majority of these women had little or no prior criminal record and were directly involved in dealing or possessing only a relatively small amount of drugs. More than 80% were sentenced under mandatory minimum sentencing laws . . . Approximately 70% of these women were mothers of one or more children under the age of 18. ^( ) 

Imprisonment has profound effects both on the women and the children for whom they are responsible. Two-thirds of the women in prison are mothers to children under the age of 18. ^( )  A 1991 survey found that 10% of the women prison inmates reported that their children were living in a foster home or children's agency. ^( )  Unnecessary separation of children from these mothers is not only enormously expensive in fiscal terms but is traumatic and harmful for all involved; it bodes ill for the next generation. ^( ) 

Separation of children from their primary caretaker-parents can cause harm to children's psychological well-being and hinder their growth and development; many infants who are born shortly before or while their mothers are incarcerated are quickly separated from their mothers, preventing the parent-child bonding that is crucial to developing a sense of security and trust in children. ^( ) 

The harm that results from refusing to fund public health measures such as needle exchange also falls most heavily on African America women and children, who are now the fastest growing population of people becoming infected with HIV. ^( )  Again, there is a direct parallel with restrictions on reproductive health care, which also disproportionately affect African American women. As Dorothy Roberts explains:

This connection between denying reproductive choice and oppression will necessarily be the hardest for poor women and women of color. Because of poverty, these women have fewer real options and are dependent on government funds to realize the decisions they make. Because the government is more involved in their lives through their use of public facilities and bureaucracies, they are more susceptible to government monitoring and supervision. Because it is harder for them to meet the ideal middle-class standard of what a woman or mother should be, society is more likely to approve of, or overlook, punishing them for making reproductive decisions. Because they have less access to lawyers, the media and advocacy organizations, and because society has convinced many that they are powerless, they are less likely to challenge government restrictions of their rights. Reproductive freedom is a right that belongs to all women; but its denial is felt the hardest by poor and minority women. ^( ) 

Similarly, African American women leaders in the 1980's wrote an open letter to African-Americans explaining:

More than other Americans, we know what it is to be without reproductive options - to be forced to reproduce, as our forebears were in slavery; to be sterilized against our will or knowledge; and to be victims of crude abortion practices when the procedure was illegal . . . African-American women and other women of color have the most to lose if access to legal abortion is denied in any way. ^( ) 

African American women in particular are caught at the intersection where the war on reproductive rights and the war on drugs meet. Despite the fact that substance abuse crosses all race and class lines, ^( )  African-American women have been targeted for harsh and punitive prosecutorial responses and account for the vast majority of those arrested. ^( )  While this disproportionality has been true nationwide, nowhere is it more apparent than in South Carolina. In Charleston, the Medical University Hospital ("MUSC") instituted a policy of reporting and facilitating the arrest of pregnant women who tested positive for cocaine. ^( )  Although the hospital claimed that their policy was required by state law, their hospital, a public teaching institution with a patient population base that is 70 percent African American, was the only one to systematically adopt and carry out such searches. Women were selectively searched, through urine drug screening, for evidence of cocaine use. If they tested positive, they were taken out of hospital in chains and shackles, evoking sharp modern images of black women in slavery. All but one of the thirty women arrested at the hospital was African American. ^( )  The white nurse, Shirley Brown, who implemented the program admitted that she believed mixing of the races to be against "god's way," ^( )  and noted in the medical records of the one white woman arrested pursuant to the policy that she lived "with her boyfriend who is a Negro." ^( )  Thus every woman arrested was either African American or gave birth to a mixed-race baby.

Medical staff at MUSC, working in collaboration with the prosecutor and police, in effect conducted an experiment to see if threats of arrest and actual arrest would be effective tools in deterring pregnant women's drug use. ^( )  The subjects of this Tuskegee-like experiment: poor black women. ^( )  As one local journalist observed: "The women were part of an unprecedented experiment between medical and law enforcement entities suffering the noble delusion that pregnant women would stop using drugs if they were sufficiently punished. The manner by which these dubious social cures were administered reads like something out of a C-grade Nazi movie."  ^( )  This policy was challenged in a federal civil rights action, Ferguson et al. v. City of Charleston, filed in 1994. One of the few people to speak up against the policy when it was first instituted was the Medical Director of the hospital's Neonatal Intensive Care Unit, Celeste Patrick. Dr. Patrick wrote a letter to the president of MUSC, Dr. Edwards, raising numerous concerns about the fairness and efficacy of the policy, which she described as "thinly veiled discrimination against a class of poor, black women who do not have the resources to defend themselves."  ^( ) 

The racial bias at the heart of many of these cases is also apparent in the statement a South Carolina state court judge made while reviewing the prosecution of a woman who had used cocaine while pregnant. He said:

You know, we've got enough trouble with normal children. Now this little baby's born with crack. When he is seven years old, they have an attention span that long [holding his thumb and index finger an inch apart]. They can't run. They just run around in class like a little rat. Not just black ones. White ones too. ^( ) 

Not only are the children viewed as animals, the mothers are as well. Throughout the Ferguson case, the policy of testing and arresting was justified as a "carrot and stick approach." ^( )  As explained by defendant Charles M. Condon, the carrot was treatment and the stick was the threat of arrest.  ^( )  This metaphor derives from an approach used to motivate donkeys and mules to carry their loads. ^( )  The women subject to the policy - whether stigmatized as African American - as most in fact were, or as drug users, or simply as mothers - were to be handled as obstinate beasts of burden.  ^( )  Disturbing animal metaphors also pervade the C.R.A.C.K. program. Its founder insists on comparing drug using pregnant women to dogs: "I'm not saying these women are dogs, but they're not acting any more responsible than a dog in heat." ^( )  She has also stated "we don't allow dogs to breed. We spay them. We neuter them. We try to keep them from having unwanted puppies, and yet these women are literally having litters of children." ^( ) 

The C.R.A.C.K. program leadership vehemently denies that it is racist. ^( )  Whether intentional or not, however, the choice of the name, C.R.A.C.K., a form of cocaine widely associated with African Americans, clearly suggests an emphasis on black women. Moreover the program's own data reflect a focus on African Americans. Although they make up approximately 12% of the population, and use drugs at about the same rate as people of other races, fully 40% (157 of a total of 392) of the women paid by the C.R.A.C.K. program to date, are African American. Adding other non-white people who have been paid, more than half are people of color.

African American women are also far more likely to be tested for the presence of drugs under civil child abuse reporting statutes even though white women have been shown to use illegal drugs at a higher rate. ^( )  This is one reason why African American women and their children are greatly over represented in the child welfare system:

In January 1999, Black children made up forty-five percent of the foster care population although they were only fifteen percent of the general population under age eighteen. The disparity is even more alarming in the nation's big cities. Removal of children because of maternal substance abuse has contributed significantly to the increase in numbers of poor Black children pouring into foster care.  ^( ) 

Thus, while punitive restrictions on certain drugs and reproductive options have consequences on all people, both have particularly harsh and disproportionate effect on African American women and families.

XII. Conclusion

Those who are concerned about fundamental issues of social justice may be losing ground, missing opportunities to build coalitions and strengthen their respective arguments by refusing to recognize the relationship between the drug policy and reproductive rights issues. Single-issue organizations are understandably concerned that their legitimacy or respectability even among their own constituencies will be tainted if they stretch too far and take a position on what appears to be a drug case, or an abortion-rights case, or both.

The "Right" however, seems to understand the fundamental similarities all too well and is willing to exploit a range of intersectional issues ^( )  to promote its broad agenda. As Nancy Campbell argues "Neoconservative groups such as the Heritage Foundation or the American Enterprise Institute (AEI) use such policy debates as welfare reform, crime control, immigration, and illicit drug policy to gain an advantage in reproductive rights debates and cultural conversations about family formation." ^( )  Samuel Friedman suggests that drug policies that ignore medical recommendations and maximize harm serve useful political purposes for those in power. Drug war polices use " 'divide and rule' politics in which 'scapegoating' divides and distracts potential opposition." ^( )  He believes that:

Politically, scapegoating drug users distracts attention from policies that aggravate the problems people face. Blaming unsafe streets, AIDS, poor services in hospitals, and the existence of children who act out in school on drug user's immorality points to certain solutions that are in tune with a belt-tightening, competition-oriented, fundamentalist world-view. More police, longer prison sentences, and family values, and also points to an analysis that says that problems are the result of guilty individuals. This distracts attention from the structural problems that cause problems for people and communities, such as the economic situation ...governments that accept the need for profitability as a "given"; cutbacks in education, health, and welfare; racism and sexism.  ^( ) 

Nancy Campbell, likewise observes that "[w]hile evidence mounts that U.S. drug policy is seriously flawed, it has proven immune to charges of failure. This immunity stems from the utility of illicit drug policy in reinforcing class-and-race-based social divisions." ^( )  The issue of drug using women is similarly seen by some commentators as an effective tool in a larger conservative political agenda. As Sheigla Murphy and colleagues argue:
...pregnant drug users served as ideological offensives in the United States war on drugs. Pernicious images of drug using mothers having babies for the sole purpose of qualifying for government handouts in order to buy drugs and then neglecting and abusing these children were promulgated by the media and politicians. This contributed to the passage of legislation and funding allocations that resulted in the wholesale reduction of social welfare services to all poor women and children. The war on drugs has always been a war on the poor, particularly people of color. In 2001 it is very clear that drug use and drug users have played a very important role in defining women and children's poverty as an individual behavioral problem rather than the result of structural economic inequities. ^( ) 

Dorothy Roberts argues that this issue advances both anti-abortion politics and the kind of government withdrawal of social supports articulated by Friedman and Murphy.

In addition to legitimizing fetal rights enforcement, prosecuting crack-addicted mothers shifts public attention from poverty, racism, and a deficient health care system, implying instead that poor infant health results from the depraved behavior of individual mothers. Poverty - not maternal drug use - is the major threat to the health of Black Children in America. ^( ) 

Focusing again on both issues simultaneously, through pregnant drug users, it is clear that combining both political hot-button topics has been a highly successful strategy for advancing specific goals of the right regarding drugs and reproduction. The South Carolina Whitner v. State, decision for example, reflects enormous gains for both those who oppose abortion, as well as those who support the war on drugs. The holding in Whitner goes to the heart of today's abortion debate, lending support to the anti-abortion position that fetuses have rights and that pregnant women's health and freedom may be subordinated to those rights. Indeed, conservative pundits, like Rush Limbaugh and opportunistic politicians seized on Whitner as the long-awaited chance to undermine and potentially overturn Roe v. Wade. The opinion has provided grounds for the South Carolina State Attorney General's office to assert that it now has legal authority to make all post-viability abortions murder and to put to death women who have them, as well as the doctors who perform them. ^( ) 

By focusing on pregnant women and harm to fetuses, the Whitner decision also creates a basis for prosecuting people solely because they suffer from the disease of addiction - opening new terrain in the war on drugs. 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 people can be arrested for possession of even the smallest quantity of an illegal substance, the Supreme Court's 1964 decision recognized that it would be cruel and unusual punishment to lock people up simply because they have a problem with drugs. But Cornelia Whitner was imprisoned for precisely this reason - not because she was found with drugs in her possession - but because medical tests performed at the time of delivery suggested that she was an addict.

The need to address the policies and practices at this intersection is clear. Drug policy reform efforts to de-stigmatize drug users and to shift emphasis from punishment to treatment cannot succeed if myths regarding "crack babies" and "crack mothers" destroying a generation of children are left unchallenged. Similarly, efforts to protect reproductive freedom cannot succeed as long as the rhetoric of the drug war is able to pit fetal rights against women's legal status as autonomous persons. Without a comprehensive strategy to undo decades of misinformation and political posturing about both pregnancy and drug use, an ever-widening circle of women will be caught in increasingly punitive, intrusive, and coercive government controls that hurt rather than help women and their families.

Looking more broadly, the effectiveness of scapegoating drug users and certain pregnant women is clear. For example, if attention can be focused on selfish drug users, women who want abortions, or women who have too many children, it is unlikely that an effective coalition for a meaningful national health care system will ever get organized. If child welfare problems can be blamed on drug-using parents, or welfare mothers, or teens and drug users having too many children, then meaningful reform of the child welfare system, that will require addressing poverty and educational opportunity and pervasive violence in the lives of women, is unlikely ever to occur. ^( ) 

Taking on these issues in a coherent manner affords a unique opportunity to develop the support of a broad coalition of organizations and communities in the struggle for reproductive freedom, drug policy reform and a more just society. We also have the opportunity to develop programs and institutions that recognize the ways in which intersecting issues and identities create barriers to treatment, recovery and well-being.

Following Mari Matsuda's advice, it is by listening to the actual experiences of those people who "experience life on the bottom" that we can have a basis for "defining the elements of justice." ^( )  Many drug-using pregnant women experience that life, and by listening to their experiences, we have the opportunity to develop an agenda and programs that are more effective and responsive. ^( )  Few people fall into any one category. Drug treatment programs and shelters for women are often less effective than they should be, not because they can't work - but rather because they do not address comprehensively people who have more than one identity ^( )  - and in this case more than one problem. ^( )  A person can be a woman, of color and both addicted and pregnant, or battered and addicted, ^( )  or all of these and also lack the income that makes it possible to have housing, transportation and child care necessary to take advantage of any treatment that might be available. ^( )  Comprehensive programs that acknowledge and respond to the multiple and overlapping identities and issues have far greater evidence of success then those that do not. ^( )  In order to be fully effective, these programs must necessarily consider and respond to the particular circumstances, prejudices and stigmas African-American and other women of color face.

By recognizing the similarity in the issues concerning reproductive rights and the drug war there is an opportunity not only for a deeper understanding of each issue, but also a basis for developing analysis and action that can counteract the dominating forces of punishment and prohibition and begin to build coalitions and movements toward preserving and expanding those social programs that can in fact empower women, preserve families, and create a more just society.

* Lynn M. Paltrow, JD is Executive Director of the National Advocates for Pregnant Women, an organization dedicated to protecting the rights and interests of pregnant and parenting women and their children. Information about NAPW can be found at www.advocatesforpregnantwomen.org. This essay is based on remarks prepared for and presented at two conferences; Womenís Rights as Human Rights: Intersectional Issues of Race and Gender Facing Women of Color, Southern University Law Center, Baton Rouge, Louisiana, and The 3rd National Harm Reduction Conference, Communities Respond to Drug Related Harm, Miami, Florida. The author wishes to acknowledge and thank Robert G. Newman, MD and Professor Sylvia Law for their insight and generous help in shaping this article, and also thanks to Karla Momberger and Tanya Vishnevsky for their research assistance. She is very grateful as well to Mary Hartnett, Suzanne Sangree, Professor Nan D. Hunter, Deborah Small, Wyndi M. Anderson, the Ford Foundation, the Open Society Institute, the Lindesmith Center/Drug Policy Foundation, and the Harm Reduction Coalition for their support and their recognition of the importance of intersectional issues. Finally, the author thanks the Southern University Law Review staff and her family for their patience.