Julia Patterson, the state senator who introduced the bill in late January, says her goal is to "end the cycle of agony that is created when drug addicted mothers give birth to damaged children." Another bill she is working on would limit women to only two chances. While public health officials and women's advocacy groups share her obvious concern, they do not support her strategy. Their reasons are threefold.
5278 Violates Rights
In 1991, Washington voters adopted Initiative 120 which proclaims: "it is the public policy of the State of Washington that...every individual has the fundamental right to choose or refuse birth control." Similarly, the U.S. Supreme Court declared the right to procreate one of society's "basic civil rights". In Skinner vs Oklahoma (1942) the Court struck down an Oklahoma law which authorized the sterilization of certain convicted felons. In addition, courts have repeatedly upheld the right to refuse medical treatment under the doctrine of informed consent. In Rochin vs California (1952) Rochin, a suspected drug dealer, was forced to regurgitate two capsules which would be used as evidence against him. Courts have consistently likened this sort of violation of informed consent rights to violence and battery.
Patterson and advocates of the bill have countered this argument by suggesting that addicted women who continue to have children "should possibly be candidates for losing their civil rights." This comes as very little surprise, considering that criminals in the United States have historically been granted rights that pregnant women have been denied. In at least 21 cases before 1987, pregnant women were forced against their will to undergo medical procedures, including cesarean sections.
While such drastic measures may seem far off, 5278 could, according to the Northwest Women's Law Center (NWLC), lead to "physical or court-ordered control over a woman" which "is inconsistent with women's liberty and privacy rights."
Public advocacy groups argue that under the new bill, a woman who refuses to undergo the Norplant operation could be both held in contempt and incarcerated. If she continues to refuse, the court would have to restrain her in order to continue with the procedure. Because the bill forbids early removal and offers no escape clause, additional problems may arise if women report any of the side-effects associated with Norplant. Symptoms include chronic bleeding, cramping, migraine headaches, severe weight gain, fatigue and dizziness, and have prompted over 400 lawsuits representing 50,000 women nationwide.
Reporting has been Discriminatory
Black, Asian and Hispanic women comprised a disproportionate number (86 percent) of the forced surgery victims mentioned previously. Opponents of mandatory Norplant legislation claim that it, too, will result in discrimination.
The passage of bill 5278 would initially spur four pilot programs around the state. In each community, doctors would be responsible for reporting addicted mothers to the authorities. A similar system of detection is used in Florida, where a 1990 study found gross racial discrepancies in mandatory reporting. While white and black women tested positive for drugs at equal rates, black women were reported to authorities ten times more often. Poor women have likewise been reported at much higher rates than their middle-class counterparts.
Opponents of the bill also suggest that mandatory Norplant legislation is itself discriminatory-along gender lines. Lonnie Johns-Brown of the National Organization for Women suggests that the bill ignores the fetal effects of paternal drug use. While Patterson agrees that "it may seem like a biological injustice" to target women, she believes it boils down to a "biological reality" in which mothers "expose infants to their blood stream." Johns-Brown and others counter with the fact that fathers are very often supplying addicted mothers with drugs throughout their pregnancies.
Punitive Approaches Don't Work
Although Patterson insists her goal is not to punish addicted mothers, involuntary contraceptive implants will undoubtedly be perceived as punitive by their recipients. An overwhelming amount of evidence has shown that punitive measures are not only ineffective in curing addiction, but also implicated in driving women away from the health system. Both the American Medical and American Public Health Associations recognize that fear deters women from obtaining essential pre-natal care. Thus, critics maintain that children's health interests are not best served by penalizing mothers.
At an even more basic level, opponents of such legislation insist that this punitive measure masks and ignores one of the root problems-Washington's inadequate drug treatment programs. Johns-Brown argues that Washington's system does not facilitate a preventative approach to addiction during pregnancy. Lack of child care, according to Johns-Brown, is one of the most formidable barriers faced by addicted mothers. Additionally, while an estimated 70 percent of addicted women have complex histories of abuse, many programs are ill-equipped to address their multiple needs as women, addicts and mothers.
Fortunately, pregnant women are given first priority in Washington's publicly funded treatment programs, according to Ken Stark, director of the division of Alcohol and Substance Abuse in the Department of Social and Health Services. However, out of 22 private drug treatment programs in the Seattle area, only half accept pregnant women and only two were accepted by Medicaid.
Norplant and Acceptable Motherhood
As the fetal rights movement has gained momentum in the U.S., women are increasingly viewed in opposition to the fetuses they carry. Ironically, addicted mothers in Washington might consider themselves lucky. An estimated 200 women in more than 30 other states have already been arrested and criminally charged under child abuse laws for drug use or other behavior during pregnancy. Such bittersweet luck could, however, quickly turn sour. Many fear that the passage of a mandatory Norplant measure could open the door for more interference in women's reproductive lives.
With the introduction of 5278, Washington became one of the many states to jump on the mandatory-Norplant bandwagon since the drug's approval in 1990. In 1991, an article in the Philadelphia Inquirer became the first to suggest that Norplant be used as a prerequisite for receiving welfare benefits. That same year Jennifer Johnson became the first woman sentenced to three years on the contraceptive for cocaine use. Not coincidentally, she is black, on welfare, and already the single mother of a large family.
Cultural rhetoric presents such women as irresponsible and undeserving. One editorial letter to the Oregonian links single motherhood to such diverse problems as "low self-esteem, poverty, child abuse, alcoholism, drug abuse, delinquency, crime [and] teen pregnancy." For those who want to curtail the reproductive rights of certain groups of women these powerful social myths of the welfare mom or the selfish "monster" mother can be easily exploited and translated into legislation. Indeed, a 1992 Washington Senate bill suggested offering payments to "women on welfare who are sterilized." Similarly, mandatory Norplant has become a loaded weapon in the war against the "bad mother."
However, many are looking for a new definition of the problem, one that looks at the deeper issues involved in drug use during pregnancy. For critics, Norplant is only a perfunctory salve for the deeper social wounds of poverty and addiction. According to the NWLC, targeting individual women "merely restricts women's rights without a sufficient benefit." In place of mandatory contraception legislation, opponents call for a new focus. The NWLC suggests concentration on "prevention, improved accessibility of treatment, and increased accessibility of child care for women in treatment."
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Contents on this page were published in the March/April, 1997 edition of the Washington Free
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WFP, 1463 E. Republican #178, Seattle, WA -USA, 98112. -- WAfreepress@gmail.com
Copyright © 1997 WFP Collective, Inc.
The reproductive rights of women addicted to drugs or alcohol have, once again, become the focus of legislation. Washington senate bill 5278-currently in committee-would require "involuntary use of long-term pharmaceutical birth control" (i.e., Norplant) for women who give birth to drug-addicted children.
