Lately, articles have been circulating about the control and punishment of pregnant people for crimes like fetal homicide or assault on a fetus, an issue that we’ve been talking about here for years. In these stories, women are arrested or incarcerated for ignoring doctor’s orders, using illegal drugs while pregnant, or even for experiencing uncontrollable health conditions like miscarriage. Lawmakers are justifying these actions as necessary to protect “unborn life” but, as we saw in the recent case of the Wisconsin woman who landed in jail without prenatal care for 17 days, these laws are not necessarily achieving their stated goal and are instead functioning to oppress women.

In their powerful New York Times op-ed last month, authors Lynn M. Paltrow and Jeanne Flavin list stories in which women are arrested for seemingly arbitrary or unpreventable causes of miscarriage or still birth. One woman was arrested for falling down a set of stairs and inducing a miscarriage, another for delaying a cesarean section which providers thought had caused the still birth of one of her twins. In another case, a young pregnant woman attempted suicide and lost her pregnancy. As a result, she was imprisoned for “homicide by child abuse.”

The case of Tennessee’s SB 1391 is a great example of a law designed to criminalize pregnant people but not to protect children. In a piece for The Investigative Fund, Rachael Levy and Rosa Goldensohn break down the new law, which allows for pregnant people to be charged with assault on a fetus and imprisoned for up to 15 years for using criminalized drugs while pregnant. The law was not accompanied by any changes in the dismal state of drug treatment programs in Tennessee, nor any accommodations for pregnant people seeking treatment.

In fact, many women in Levy and Goldensohn’s piece were turned away from treatment centers because they were pregnant. Many tried to quit using drugs cold turkey, a very difficult and dangerous feat that can hurt the fetus or cause miscarriage. Others left the state, avoided seeking prenatal care, or even gave birth outside of hospitals for fear of being arrested or losing their children.

One pregnant woman interviewed in the piece was denied by 30 different treatment centers before she attempted to get clean on her own. In excruciating pain, she feared that she could lose her pregnancy, and took enough heroin to keep her body stable before driving to Mississippi where she could access maintenance treatment. She still lost custody of her baby after giving birth. Since then, she has begun using again and overdosed twice. You can read more of these sick stories in some of our previous coverage.

Babies born with drugs in their system may experience neonatal abstinence syndrome (NAS), when they go through withdrawal from the drugs the mother took. Symptoms include sleep problems, excessive crying, and fever, but they do not cause long-term harm nor lead to death. What can severely harm fetuses is preventing pregnant people from accessing prenatal care, forcing them to give birth in unsafe conditions, or leaving them no other drug treatment option than stopping cold turkey. Children can also suffer from being separated from their mothers, having a parent incarcerated, as well as from the cycle of poverty that incarceration and untreated drug addiction often exacerbates.

But it shouldn’t be too surprising that Tennessee’s SB 1391 is not succeeding in protecting fetuses or children because it was not designed to do so. The law was created to oppress and incarcerate women.

Our justice system works to criminalize other people in a similar fashion. Supporters of the War on Drugs claim that the criminalization of communities of color is necessary to reduce drug use, but illicit drug use has barely increased and violent crime has decreased during the time that our prison system has exploded in size. And though they make up the majority of those incarcerated on drug charges, people of color are not more likely than other groups to use illicit drugs (spoiler alert: white people are).

In her book The New Jim Crow, Michelle Alexander discusses this disconnect: “From a historical perspective, however, the lack of correlation between crime and punishment is nothing new. Sociologists have frequently observed that governments use punishment primarily as a tool of social control, and thus the extent and severity of punishment is often unrelated to actual crime patterns.”

Mass incarceration and criminalization of marginalized people does not increase public safety, reduce drug addiction, or protect fetuses.

It protects power.

Women are one of the the fastest growing prison populations not because they have suddenly begun to commit more crimes but because mass incarceration is becoming increasingly profitable, and is increasingly being relied upon as a tool of social control. Our growing prison (and detention) population puts money in the hands of private prison corporations and incapacitates and disenfranchises the very communities that might vote or organize against those in power: folks of color, women, queer and trans folks, etc.

If those in power truly wanted to protect unborn babies, they would defend their mothers, support their fathers, and empower their communities.

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