Why not retribution? the particularized imagination and justice for pregnant addicts

Journal of Law, Medicine and Ethics

Volumn 32, Issue 1, 2004, Pages 89-99

  Eckenwiler, Lisa ^a,b,c,d,e  

^a OLD DOMINION UNIVERSITY   (United States)

^b UNIVERSITY OF TENNESSEE   (United States)

^c UNIVERSITY OF WISCONSIN MADISON   (United States)

^d UNIVERSITY OF ILLINOIS AT CHICAGO   (United States)

^e LOYOLA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

DRUG DEPENDENCE; DRUG USE; ECONOMICS; HUMAN; IMAGINATION; JUSTICE; MORALITY; POLITICS; PREGNANCY; PUNISHMENT; REVIEW; ADDICTION; FEMALE; GENETICS AND REPRODUCTION; LEGAL APPROACH; LEGAL ASPECT; PREGNANCY COMPLICATION; PREGNANCY OUTCOME; PRISON; SOCIAL JUSTICE; UNITED STATES;

COCAINE;

GENETICS AND REPRODUCTION; LEGAL APPROACH;

COCAINE; FEMALE; HUMANS; IMAGINATION; PREGNANCY; PREGNANCY COMPLICATIONS; PREGNANCY OUTCOME; PRISONS; PUNISHMENT; SOCIAL JUSTICE; SUBSTANCE-RELATED DISORDERS; UNITED STATES;

EID: 2942672873     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2004.tb00452.x     Document Type: Review

References (108)

1. R. Mistry, A Fine Balance (New York: Vintage, 1997), at 556.
2. State v. McKnight, 2003 WL 173715 (S.C.). The United States Supreme Court has since refused to hear an appeal.
3. Whitner v. South Carolina, 492 S.E.2d 777 (S.C. 1997), cert denied, 523 U.S. 1145 (1998).
4. See Alan Guttmacher Institute, State Policies in Brief As of February 1, 2003: Substance Abuse in Pregnancy, and State Responses to Substance Abuse among Pregnant Women. Available at 〈http://www.agi-usa.org〉 (last visited March 7, 2003); L.M. Paltrow, D.S. Cohen and C.A. Carey, Year 2000 Overview: Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs (Philadelphia: Women's Law Project, 2000).
5. See Alan Guttmacher Institute, State Policies in Brief As of February 1, 2003: Substance Abuse in Pregnancy, and State Responses to Substance Abuse among Pregnant Women. Available at 〈http://www.agi-usa.org〉 (last visited March 7, 2003); L.M. Paltrow, D.S. Cohen and C.A. Carey, Year 2000 Overview: Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs (Philadelphia: Women's Law Project, 2000).
6. See Id. As well, see J.R. Schroedel and P. Fiber, "Punitive Versus Public Health Oriented Responses to Drug Use by Pregnant Women," Yale Journal of Health Policy, Law, and Ethics 1 (2001): 217-235.
7. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105; and Pub. L No. 105-89, 111 Stat. 2115 (1997).
8. Ferguson v. City of Charleston, 121 S. Ct. 1281 (2001).
9. The so-called Partial Birth Abortion Ban Act of 2003, Public Law No. 108-105, 11-5-03, is the most recent of these. In addition, the State Children's Health Insurance Program deems the fetus an "unborn child" and therefore eligible for benefits under the law. See: State Children's Health Insurance Program Final Rule. 67 Fed. Reg. 191: 61955-74, (October 2002). The charter for the Department of Health and Human Services Secretary's Advisory Committee on Human Research Protections refers to embryos and fetuses as human subjects. Available at 〈http://ohrp.osophs.dhhs.gov/sachrp/charter. pdf〉 (last visited January 16, 2004). The Unborn Victims of Violence Act - S. 1019, HR 1997 - is still another attempt, as are the fetal homicide laws of some twenty-eight states. See 〈http:// www.nrcl.org/unborn_victims/ statehomicidelaws092302.html〉 (last visited January 10, 2004).
10. The so-called Partial Birth Abortion Ban Act of 2003, Public Law No. 108-105, 11-5-03, is the most recent of these. In addition, the State Children's Health Insurance Program deems the fetus an "unborn child" and therefore eligible for benefits under the law. See: State Children's Health Insurance Program Final Rule. 67 Fed. Reg. 191: 61955-74, (October 2002). The charter for the Department of Health and Human Services Secretary's Advisory Committee on Human Research Protections refers to embryos and fetuses as human subjects. Available at 〈http://ohrp.osophs.dhhs.gov/sachrp/charter. pdf〉 (last visited January 16, 2004). The Unborn Victims of Violence Act - S. 1019, HR 1997 - is still another attempt, as are the fetal homicide laws of some twenty-eight states. See 〈http:// www.nrcl.org/unborn_victims/ statehomicidelaws092302.html〉 (last visited January 10, 2004).
11. See: N. Lewis, "The 2002 Elections: Judicial Nominees; Stalled Nominations to the Bench Suddenly Get a New Life," New York Times, November 7, 2002, at B5; and "Expecting a Vacancy, Bush Aides Weigh Supreme Court Contenders," New York Times, December 27, 2002, at A1; N. Lewis, "Bypassing Senate for Second Time, Bush Seats Judge," New York Times (Feb. 21st, 2004): at A1, A9.
12. See: N. Lewis, "The 2002 Elections: Judicial Nominees; Stalled Nominations to the Bench Suddenly Get a New Life," New York Times, November 7, 2002, at B5; and "Expecting a Vacancy, Bush Aides Weigh Supreme Court Contenders," New York Times, December 27, 2002, at A1; N. Lewis, "Bypassing Senate for Second Time, Bush Seats Judge," New York Times (Feb. 21st, 2004): at A1, A9.
13. See: N. Lewis, "The 2002 Elections: Judicial Nominees; Stalled Nominations to the Bench Suddenly Get a New Life," New York Times, November 7, 2002, at B5; and "Expecting a Vacancy, Bush Aides Weigh Supreme Court Contenders," New York Times, December 27, 2002, at A1; N. Lewis, "Bypassing Senate for Second Time, Bush Seats Judge," New York Times (Feb. 21st, 2004): at A1, A9.
14. D.M. Halbfinger, "Economic Pulse: The South; As Post Boom Dust Settles, the South Grimly Downsizes," New York Times, December 16, 2002, at A1; J. Broder, "Economic Pulse: The West; California Ups and Downs Ripple in the West, New York Times, January 6, 2003, at A1; D. Leonhardt, "Hiring in Nation Hits Worst Slump in Nearly 20 Years," New York Times, February 6, 2003 at A1; A.B. Krueger, "Big Federal Deficits, Bigger Risks," New York Times, March 6, 2003, at C1.
15. D.M. Halbfinger, "Economic Pulse: The South; As Post Boom Dust Settles, the South Grimly Downsizes," New York Times, December 16, 2002, at A1; J. Broder, "Economic Pulse: The West; California Ups and Downs Ripple in the West, New York Times, January 6, 2003, at A1; D. Leonhardt, "Hiring in Nation Hits Worst Slump in Nearly 20 Years," New York Times, February 6, 2003 at A1; A.B. Krueger, "Big Federal Deficits, Bigger Risks," New York Times, March 6, 2003, at C1.
16. D.M. Halbfinger, "Economic Pulse: The South; As Post Boom Dust Settles, the South Grimly Downsizes," New York Times, December 16, 2002, at A1; J. Broder, "Economic Pulse: The West; California Ups and Downs Ripple in the West, New York Times, January 6, 2003, at A1; D. Leonhardt, "Hiring in Nation Hits Worst Slump in Nearly 20 Years," New York Times, February 6, 2003 at A1; A.B. Krueger, "Big Federal Deficits, Bigger Risks," New York Times, March 6, 2003, at C1.
17. D.M. Halbfinger, "Economic Pulse: The South; As Post Boom Dust Settles, the South Grimly Downsizes," New York Times, December 16, 2002, at A1; J. Broder, "Economic Pulse: The West; California Ups and Downs Ripple in the West, New York Times, January 6, 2003, at A1; D. Leonhardt, "Hiring in Nation Hits Worst Slump in Nearly 20 Years," New York Times, February 6, 2003 at A1; A.B. Krueger, "Big Federal Deficits, Bigger Risks," New York Times, March 6, 2003, at C1.
18. There is ample room for criticism of these two arguments but that is beyond my scope here. Interested readers can see: I.M. Young, "Punishment, Treatment, Empowerment: Three Approaches to Policy for Pregnant Addicts," in her Intersecting Voices: Dilemmas of Gender, Political Philosophy, and Policy (Princeton: Princeton University Press, 1997): 75-94; J. Dinsmore, Pregnant Drug Users: The Debate Over Prosecution (Alexandria, VA: National Center for Prosecution of Child Abuse, American Prosecutors Research Institute, 1992); Center for Reproductive Law and Policy, Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines Women's Health and Children's Interests (2000). Available at 〈www.crlp.org/pub_art_punwom.html〉 (last visited December 10, 2002).
19. There is ample room for criticism of these two arguments but that is beyond my scope here. Interested readers can see: I.M. Young, "Punishment, Treatment, Empowerment: Three Approaches to Policy for Pregnant Addicts," in her Intersecting Voices: Dilemmas of Gender, Political Philosophy, and Policy (Princeton: Princeton University Press, 1997): 75-94; J. Dinsmore, Pregnant Drug Users: The Debate Over Prosecution (Alexandria, VA: National Center for Prosecution of Child Abuse, American Prosecutors Research Institute, 1992); Center for Reproductive Law and Policy, Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines Women's Health and Children's Interests (2000). Available at 〈www.crlp.org/pub_art_punwom.html〉 (last visited December 10, 2002).
20. There is ample room for criticism of these two arguments but that is beyond my scope here. Interested readers can see: I.M. Young, "Punishment, Treatment, Empowerment: Three Approaches to Policy for Pregnant Addicts," in her Intersecting Voices: Dilemmas of Gender, Political Philosophy, and Policy (Princeton: Princeton University Press, 1997): 75-94; J. Dinsmore, Pregnant Drug Users: The Debate Over Prosecution (Alexandria, VA: National Center for Prosecution of Child Abuse, American Prosecutors Research Institute, 1992); Center for Reproductive Law and Policy, Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines Women's Health and Children's Interests (2000). Available at 〈www.crlp.org/pub_art_punwom.html〉 (last visited December 10, 2002).
21. State v. Christenson, No. CR1 (S.D. Circuit Ct. March 12, 1990).
22. B. Herbert, quoting Greg Hembree, in "Stillborn Justice," New York Times, May 24, 2001, at A29.
23. Vince Beiser, quoting Tommy Pope in "Fetal Abuse," MOJO Wire. Available at 〈www.motherjones.com/news_wire/fetal.html〉 (last visited January 16, 2004). Unlike South Carolina, however, some legislatures, including those in California, Oregon, and Pennsylvania have emphasized (instead of criminal prosecution) the relationship between regular prenatal care and healthy newborns in developing integrated services for pregnant women, particularly those deemed to be "at risk" in efforts to promote this same goal. See Paltrow, Supra note 4.
24. Vince Beiser, quoting Tommy Pope in "Fetal Abuse," MOJO Wire. Available at 〈www.motherjones.com/news_wire/fetal.html〉 (last visited January 16, 2004). Unlike South Carolina, however, some legislatures, including those in California, Oregon, and Pennsylvania have emphasized (instead of criminal prosecution) the relationship between regular prenatal care and healthy newborns in developing integrated services for pregnant women, particularly those deemed to be "at risk" in efforts to promote this same goal. See Paltrow, Supra note 4.
25. M. Curriden, quoting Judge O.H. Eaton, Jr., in "Holding Mom Accountable," American Bar Journal 76 (1990): 50-53.
26. See Herbert, supra note 13.
27. S.A. Pressley, quoting Bert Von Hermann in "S.C. Verdict Fuels Debate Over Rights of the Unborn," Washington Post, May 27, 2001, at A3.
28. Contra Costa, CA District Attorney Yancey, quoted in L.E. Gomez, Misconceiving Mothers: Legislators, Prosecutors and the Politics of Prenatal Drug Exposure (Philadelphia: Temple University Press, 1997).
29. D. Love, "Black Perspective: Cocaine Law Targets Pregnant Black Women," L.A. Sentinel, June 10, 1998, at A7.
30. A police officer, quoted in J. Eig, "Crack Addict Mom Polarizes Wrongs vs. Rights Debate," Albuquerque Journal December 19, 1993, at B1, 10.
31. State v. Whitner, 92-GS-39-670, Transcript Record at 2 (SC Ct Gen. Sess. Pickens Cty April 20, 1992).
32. M.C. Nussbaum, "Equity and Mercy," Sex and Social Justice (New York: Oxford University Press, 2000), at 158.
33. See Id., 160.
34. See Id. Aristotle's image is that of the architect who rejects a straight edge to measure a fluted column, for to do so would yield a "woefully inadequate" measurement. Instead he uses a flexible metal strip, the lesbian rule, which "bends to the shape of the stone and is not fixed."
35. See Id, 159.
36. See Id., 162.
37. See Id., 166.
38. See Id., 165.
39. K. Maguire and A. Pastore, Sourcebook of Criminal Justice Statistics (Washington, DC: US Dept of Justice, 1994); B. Becker and P. Hora, "The Legal Community's Response to Drug Use During Pregnancy in the Criminal Sentencing and Dependency Contexts: A Survey of Judges. Prosecuting Attorneys, and Defense Attorneys in Ten California Counties," Southern California Review of Law and Women's Studies 2 (1993): 527-575; P. Hora and B. Becker, "Judicial Considerations When Sentencing Pregnant Substance Abusers," The Judges' Journal 35 (1996): at 3-9, 45-53.
40. K. Maguire and A. Pastore, Sourcebook of Criminal Justice Statistics (Washington, DC: US Dept of Justice, 1994); B. Becker and P. Hora, "The Legal Community's Response to Drug Use During Pregnancy in the Criminal Sentencing and Dependency Contexts: A Survey of Judges. Prosecuting Attorneys, and Defense Attorneys in Ten California Counties," Southern California Review of Law and Women's Studies 2 (1993): 527-575; P. Hora and B. Becker, "Judicial Considerations When Sentencing Pregnant Substance Abusers," The Judges' Journal 35 (1996): at 3-9, 45-53.
41. K. Maguire and A. Pastore, Sourcebook of Criminal Justice Statistics (Washington, DC: US Dept of Justice, 1994); B. Becker and P. Hora, "The Legal Community's Response to Drug Use During Pregnancy in the Criminal Sentencing and Dependency Contexts: A Survey of Judges. Prosecuting Attorneys, and Defense Attorneys in Ten California Counties," Southern California Review of Law and Women's Studies 2 (1993): 527-575; P. Hora and B. Becker, "Judicial Considerations When Sentencing Pregnant Substance Abusers," The Judges' Journal 35 (1996): at 3-9, 45-53.
42. D. Roberts, "Unshackling Black Motherhood," Michigan Law Review 95 (1997): 938-964; G. Kolata, "Bias Seen Against Pregnant Addicts," New York Times, July 20, 1990, at A13.
43. D. Roberts, "Unshackling Black Motherhood," Michigan Law Review 95 (1997): 938-964; G. Kolata, "Bias Seen Against Pregnant Addicts," New York Times, July 20, 1990, at A13.
44. See S. Murphy and M. Rosenbaum, Pregnant Women on Drugs: Combating Stereotypes and Stigma (New York: Routledge, 1999); C.E. Sterk, Fast Lives: Women Who Use Crack. Cocaine (Philadelphia: Temple University Press, 1999). McKnight, to take the most recent case, was a victim of abuse, mentally handicapped and homeless. She reportedly began using drugs after the death of her mother.
45. See S. Murphy and M. Rosenbaum, Pregnant Women on Drugs: Combating Stereotypes and Stigma (New York: Routledge, 1999); C.E. Sterk, Fast Lives: Women Who Use Crack. Cocaine (Philadelphia: Temple University Press, 1999). McKnight, to take the most recent case, was a victim of abuse, mentally handicapped and homeless. She reportedly began using drugs after the death of her mother.
46. See H. Amaro et al. "Violence During Pregnancy and Substance Abuse," American Journal of Public Health 80 (1990): 575-579. For example, evidence suggests that Regina McKnight, the woman recently sentenced in South Carolina had been abused. Also in South Carolina, Malissa Crawley, sentenced to five years, was abused by her boyfriend. Sylvia Jackson, a Georgia woman indicted for possession of cocaine based on the drug test of her newborn, had been hospitalized for abdominal trauma from her boyfriend's beating. State v. Jackson (Georgia Superior Court, August 6, 1991). Diane Pfannenstiel checked into a hospital during her pregnancy to seek treatment for injuries inflicted by her husband (this led to her arrest on child abuse charges for drinking). State v. Pfannenstiel (County Court of Laramie, WY, January 5, 1990).
47. See Murphy and Rosenbaum, Sterk, supra note 31.
48. W. Chavkin, "National Survey of the States: Practices Regarding Drug-Using Pregnant Women," American Journal of Public Health 88 (1998): 117-119; United States Department of Health and Human Services, Administration for Children and Families, Substance Abuse and Mental Health Services Administration, Blending Perspectives and Building Common Ground: A Report to Congress on Substance Abuse and Child Protection (Washington, DC: DHHS, 1999); S. Smith, "Anthrax vs. the Flu as State Governments Slash their Public Health Budgets, Federal Money is Pouring in for Bioterror Preparedness," Boston Globe (July 29, 2003): at C1.
49. W. Chavkin, "National Survey of the States: Practices Regarding Drug-Using Pregnant Women," American Journal of Public Health 88 (1998): 117-119; United States Department of Health and Human Services, Administration for Children and Families, Substance Abuse and Mental Health Services Administration, Blending Perspectives and Building Common Ground: A Report to Congress on Substance Abuse and Child Protection (Washington, DC: DHHS, 1999); S. Smith, "Anthrax vs. the Flu as State Governments Slash their Public Health Budgets, Federal Money is Pouring in for Bioterror Preparedness," Boston Globe (July 29, 2003): at C1.
50. W. Chavkin, "National Survey of the States: Practices Regarding Drug-Using Pregnant Women," American Journal of Public Health 88 (1998): 117-119; United States Department of Health and Human Services, Administration for Children and Families, Substance Abuse and Mental Health Services Administration, Blending Perspectives and Building Common Ground: A Report to Congress on Substance Abuse and Child Protection (Washington, DC: DHHS, 1999); S. Smith, "Anthrax vs. the Flu as State Governments Slash their Public Health Budgets, Federal Money is Pouring in for Bioterror Preparedness," Boston Globe (July 29, 2003): at C1.
51. These motives are often attributed to them. See, for example, M. Burke, "Cocaine Moms Are Not Coddled in Pensacola," Pensacola News Journal, March 14, 1990, at 1A, 12A.
52. Murphy and Rosenbaum, Sterk, supra note 31; National Conference of State Legislatures, State Responses to Maternal Drug and Alcohol Use: An Update (January 2000).
53. Murphy and Rosenbaum, Sterk, supra note 31; National Conference of State Legislatures, State Responses to Maternal Drug and Alcohol Use: An Update (January 2000).
54. See Young, supra note 11; and National Conference of State Legislatures, State Responses. Crystal Ferguson, for example, did not enter drug treatment because she had no one available to care for her children for the 2 week program. See B. Siegel, "In the Name of the Children," Los Angeles Times Magazine (August 7, 1994), at 36.
55. See Young, supra note 11; and National Conference of State Legislatures, State Responses. Crystal Ferguson, for example, did not enter drug treatment because she had no one available to care for her children for the 2 week program. See B. Siegel, "In the Name of the Children," Los Angeles Times Magazine (August 7, 1994), at 36.
56. See Young, supra note 11; and National Conference of State Legislatures, State Responses. Crystal Ferguson, for example, did not enter drug treatment because she had no one available to care for her children for the 2 week program. See B. Siegel, "In the Name of the Children," Los Angeles Times Magazine (August 7, 1994), at 36.
57. C. Condon, "Clinton's Cocaine Babies: Why Won't the Administration Let Us Save Our Children?" Policy Review (1995). 〈www.policyreview. org/spring95/condth.html〉 (last visited January 16, 2004).
58. G. Sealey, "Debating Fetal Rights: Legal Protections for Unborn Children at Issue in Drug Cases, Third Party Violence." 〈www.abcnews.go.com/sections/us/DailyNews/fetal010625.html〉 (last visited January 16, 2004).
59. R. Giuliani, State of the City Address, New York, Jan 11, 1996 quoted in Gomez, supra note 18, at 139.
60. See Murphy and Rosenbaum, Sterk, supra note 31.
61. See Id.
62. See Nussbaum, Supra note 22, at 161.
63. See Id.
64. See Id., 166.
65. M. C. Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston: Beacon Press, 1995), at 5.
66. Nussbaum, supra note 22, at 171
67. See Id., at 172
68. See Id., at 174
69. See Id., at 171.
70. See Id., at 161
71. See Id., at 167
72. I.M. Young, "Asymmetrical Reciprocity: On Moral Respect, Wonder, and Enlarged Thought," Intersecting Voices: Dilemmas of Gender, Political Philosophy, and Policy (Princeton: Princeton University Press, 1997), at 44
73. See Id., at 48.
74. For example, see the 1996 report from The National Center on Addiction and Substance Abuse, Substance Abuse and American Women (New York: The National Center on Addiction and Substance Abuse). See also Hora and Becker, "Judicial Considerations"; P.F. Hora, W.G. Schma, and J.T.A. Rosenthal, "Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Use and Crime in America," Notre Dame Law Review 74 (1999): 439-537.
75. For example, see the 1996 report from The National Center on Addiction and Substance Abuse, Substance Abuse and American Women (New York: The National Center on Addiction and Substance Abuse). See also Hora and Becker, "Judicial Considerations"; P.F. Hora, W.G. Schma, and J.T.A. Rosenthal, "Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Use and Crime in America," Notre Dame Law Review 74 (1999): 439-537.
76. For example, see the 1996 report from The National Center on Addiction and Substance Abuse, Substance Abuse and American Women (New York: The National Center on Addiction and Substance Abuse). See also Hora and Becker, "Judicial Considerations"; P.F. Hora, W.G. Schma, and J.T.A. Rosenthal, "Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Use and Crime in America," Notre Dame Law Review 74 (1999): 439-537.
77. R.W. Stevenson, "Bush Invokes Religion to Cure Society's Ills, "New York Times (January 21, 2003), at A16; L. Goodstein, "Antidrug Program Lauded by Bush Is More Ministry than Treatment Center," New York Times (February 23, 2003), at A18.
78. R.W. Stevenson, "Bush Invokes Religion to Cure Society's Ills, "New York Times (January 21, 2003), at A16; L. Goodstein, "Antidrug Program Lauded by Bush Is More Ministry than Treatment Center," New York Times (February 23, 2003), at A18.
79. See Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990): at 100-101.
80. This discussion occurs in Nussbaum, "The Window: Knowledge of Other Minds and Virginia Woolf's To the Lighthouse," supra note 22, at 365-7.
81. See Id., at 366-7.
82. See Id., at 370.
83. Nussbaum makes an argument about the political imagination elsewhere - that is, that the novel shows the way for political reform through the lives of its characters as well as the importance for "a politics richer in humanity" of keen particular-ized attention in citizens. See her "Perception and Revolution: The Princess Casamassima and the Political Imagination," in M.C. Nussbaum, ed. Love's Knowledge (New York: Oxford, 1990), at 210. The discussion here again seems to advocate for what seems an undue emphasis on vividly imagining another's life by trying to see the world through her eyes. But the argument that links particularized attention to political reform is absent from the account in "Equity and Mercy."
84. See S. Mahan, Crack Cocaine, Crime and Women: Legal, Social and Treatment Issues (Thousand Oaks, CA: Sage, 1996), at 33.
85. For support of this claim see: I. Chasnoff et al., "The Prevalence of Illicit Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," New England Journal of Medicine 322 (1990): 1202-6; C.S. Palmer, "The Risks of State Intervention in Preventing Prenatal Alcohol Abuse and the Viability of an Inclusive Approach: Argument for Limiting Punitive and Coercive Prenatal Alcohol Abuse Legislation in Minnesota," Hastings Women's Law Journal 10 (1999): at 300; D. Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Pantheon Books, 1997).
86. For support of this claim see: I. Chasnoff et al., "The Prevalence of Illicit Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," New England Journal of Medicine 322 (1990): 1202-6; C.S. Palmer, "The Risks of State Intervention in Preventing Prenatal Alcohol Abuse and the Viability of an Inclusive Approach: Argument for Limiting Punitive and Coercive Prenatal Alcohol Abuse Legislation in Minnesota," Hastings Women's Law Journal 10 (1999): at 300; D. Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Pantheon Books, 1997).
87. For support of this claim see: I. Chasnoff et al., "The Prevalence of Illicit Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida," New England Journal of Medicine 322 (1990): 1202-6; C.S. Palmer, "The Risks of State Intervention in Preventing Prenatal Alcohol Abuse and the Viability of an Inclusive Approach: Argument for Limiting Punitive and Coercive Prenatal Alcohol Abuse Legislation in Minnesota," Hastings Women's Law Journal 10 (1999): at 300; D. Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Pantheon Books, 1997).
88. N.D. Campbell, Using Women: Gender; Dnig Policy, and Social Justice (New York: Routledge, 2000), at 15.
89. Herbert, supra note 13.
90. See D. Humphries, "Crack Mothers at 6: Prime-Time News, Crack/Cocaine, and Women," Violence Against Women 4 (January 1998): 45-61. Campbell describes how white women have been portrayed as using drugs to maintain their obligations as wives and mothers, and more recently, workers. Women of color, on the other hand, tend to be depicted as immersed in chaos. See supra note 64.
91. See D. Humphries, "Crack Mothers at 6: Prime-Time News, Crack/Cocaine, and Women," Violence Against Women 4 (January 1998): 45-61. Campbell describes how white women have been portrayed as using drugs to maintain their obligations as wives and mothers, and more recently, workers. Women of color, on the other hand, tend to be depicted as immersed in chaos. See supra note 64.
92. A.L. Tsing, "Monster Stories: Women Charged with Perinatal Endangerment," Uncertain Terms: Negotiating Gender in American Culture, ed. Faye Ginsburg and Anna Lowenhaupt Tsing (Boston: Beacon, 1990): 282-299; J. Johnson, "Horror Stories and the Construction of Child Abuse," in J. Best, ed. Images of Issues: Typifying Contemporary Social Problems (New York: Aldine de Gruyter, 1989).
93. A.L. Tsing, "Monster Stories: Women Charged with Perinatal Endangerment," Uncertain Terms: Negotiating Gender in American Culture, ed. Faye Ginsburg and Anna Lowenhaupt Tsing (Boston: Beacon, 1990): 282-299; J. Johnson, "Horror Stories and the Construction of Child Abuse," in J. Best, ed. Images of Issues: Typifying Contemporary Social Problems (New York: Aldine de Gruyter, 1989).
94. V. Hartouni, "Breached Birth: Reflections on Race, Gender, and Reproductive Discourses in the 1980s," Configurations 1 (1994): 73-88. In addition, see P., Collins, "Mammies, Matriarchs and Other Controlling Images," in P.H. Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (New York: Routledge, 1990): 67-90.
95. V. Hartouni, "Breached Birth: Reflections on Race, Gender, and Reproductive Discourses in the 1980s," Configurations 1 (1994): 73-88. In addition, see P., Collins, "Mammies, Matriarchs and Other Controlling Images," in P.H. Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (New York: Routledge, 1990): 67-90.
96. See Murphy and Rosenbaum, supra note 31, at 140; W. Chavkin and V. Breitbart, "Substance Abuse and Maternity: The United States as a Case Study," Addiction 92 (1997): 1201-1205. Campbell, supra note 64, at 42.
97. See Murphy and Rosenbaum, supra note 31, at 140; W. Chavkin and V. Breitbart, "Substance Abuse and Maternity: The United States as a Case Study," Addiction 92 (1997): 1201-1205. Campbell, supra note 64, at 42.
98. See Murphy and Rosenbaum, supra note 31, at 140; W. Chavkin and V. Breitbart, "Substance Abuse and Maternity: The United States as a Case Study," Addiction 92 (1997): 1201-1205. Campbell, supra note 64, at 42.
99. See the discussion in A. Balsamo, "Public Pregnancies and Cultural Narratives of Surveillance," in A. Balsamo, Technologies of the Gendered Body: Reading Cyborg Women (Durham, NC: Duke University Press, 1996), at 100. Crack was especially reviled by some for fear that it destroyed maternal instincts. Also, see D.E. Roberts, "Unshackling Black Motherhood," Michigan Law Review 95 (February 1997): 938-964; Campbell, supra note 65, at 171.
100. See the discussion in A. Balsamo, "Public Pregnancies and Cultural Narratives of Surveillance," in A. Balsamo, Technologies of the Gendered Body: Reading Cyborg Women (Durham, NC: Duke University Press, 1996), at 100. Crack was especially reviled by some for fear that it destroyed maternal instincts. Also, see D.E. Roberts, "Unshackling Black Motherhood," Michigan Law Review 95 (February 1997): 938-964; Campbell, supra note 65, at 171.
101. See the discussion in A. Balsamo, "Public Pregnancies and Cultural Narratives of Surveillance," in A. Balsamo, Technologies of the Gendered Body: Reading Cyborg Women (Durham, NC: Duke University Press, 1996), at 100. Crack was especially reviled by some for fear that it destroyed maternal instincts. Also, see D.E. Roberts, "Unshackling Black Motherhood," Michigan Law Review 95 (February 1997): 938-964; Campbell, supra note 65, at 171.
102. See Id, at 101.
103. Randall Tagami of Riverside Co., CA, quoted in Gomez, supra note 18, at 73.
104. Here I borrow the term coined by Hilde Lindemann Nelson in Damaged Identities, Narrative Repair (Cornell University Press, 2001).
105. D.E. Roberts, "Unshackling Black Motherhood," Michigan Law Review 95 (February 1997).
106. I.M Young, "Communication and the Other: Beyond Deliberative Democracy," in S. Benhabib, ed. Democracy and Difference: Contesting the Boundaries of the Political (Princeton, NJ: Princeton University Press, 1996): 121-35.
107. B. Dohrn, "Bad Mothers, Good Mothers and the State: Children on the Margins," Roundtable: A Journal of Interdisciplinary Legal Studies 2 (1995): 1-12.
108. F. Butterfield, "States Ease Laws on Time in Prison: Easier Parole for Convicts and Shorter Mandatory Terms," New York Times September 2, 2001, at A1, 20.