Guest blogger du jour: Jill Morrison on laws that punish pregnant women
Originally posted on Feministing.com, 1/29/2007
Jill Morrison is Senior Counsel at the National Women's Law Center and was a speaker at the NAPW conference on the panel "How might you be prosecuted? Let me count ways: Punishing pregnant women based on claims of fetal rights and the war on drugs."
I am the kind of attorney that doesn't actually have clients. I work for the National Women's Law Center on policies that impact people, but it is rare for me to actually meet those people. Well, the Summit of the National Advocates for Pregnant Women brought me face to face with the amazing women who have had their basic constitutional rights snatched from them. Why? Because they were addicted to drugs.
In case you're wondering, being addicted to drugs is not a crime, only the stuff you do is a crime, not who or what you are at a given point in time. So-
Being an addict: not a crime
Possessing drugs with the intent to take them, give them away or sell them: all crimes.
Being an alcoholic: not a crime
Driving while intoxicated: a crime
Despite this fact, all over the country, women are being prosecuted for "crimes"? based only on their (1) being pregnant and (2) testing positive for drugs. No one else can be tested and prosecuted just for having drugs in his or her system. To get around what they obviously see as a shortcoming in the law, prosecutors charge pregnant women with "delivery of drugs to a minor" and "child endangerment" even though the laws clearly were not meant to be used in these cases.
This violates pregnant women's constitutional rights, since (1) the laws are applied differently to them than anyone else, (2) they have no reason to know that these laws apply to what they are doing, (3) women have pled guilty to crimes that aren't really crimes, and (4) the Supreme Court has held that punishing someone for being addicted to drugs or alcohol is both cruel and unusual punishment, since addiction is an illness. Not only is it unconstitutional, it doesn't do a thing to help babies or their mothers. Threats of prosecution just scare women away from drug treatment and prenatal care.
I've filed legal briefs in a few cases to help women who were being prosecuted, but I've never heard their stories from them, face-to-face. And I have to admit: even after working on this issue for a few years, I never really thought about the women who've been prosecuted as being the best advocates for their own cause. My co-presenters at the conference, Mary Barr and Tayshea Aiwohi are awesome. They both created organizations to help women who are where they once were. Tayshea faces massive local resistance to her mission: opening homes for families in recovery from addiction so she could use your support.
This conference gave me a much needed reminder me of our common cause, and how much women can help themselves and direct their own lives when simply given the chance.