The War on Drugs and the War on Abortion: Some Initial Thoughts on the Connections, Intersections and the Effects

Lynn Paltrow*, 28 Southern University Law Review 201 (2001).

References

1. See, e.g., Lynn Paltrow, Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, 62 Alb. L. Rev. 999 (1999); Lynn Paltrow, Our Common Struggle, Harm Reduction Communication (Spring 1999); Lynn Paltrow, Prosecution and Prejudice: Judging Drug Using Pregnant Women, in Mother Troubles (Julia Hanigsberg & Sara Ruddick eds., 1999); Lynn Paltrow & Carol Tracy, When the War on Drugs and War on Abortion Collide: The Prosecution of Pregnant Women, Drug Policy Foundation, 12th Int'l Conference, 1999 Policy Manual.
2. Gina Kolata, Racial Bias Seen on Pregnant Addicts, N.Y. Times, July 20, 1990, at A13; Dorothy Roberts, Killing the Black Body 172-76 (1997); Renee I. Solomon, Future Fear: Prenatal Duties Imposed by Private Parties, 17 Am. J.L. & Med. 411, 418 (1991) (noting that "70% of those arrested for drug-related fetal abuse have been African-American" because "[r]ace and poverty biases make it easy to blame the victim"); Loren Siegel, The Pregnancy Police Fight the War on Drugs, in Crack in America: Demon Drugs and Social Justice 249 (Craig Reinarman & Harry G. Levine eds., 1997) ("During the late 1980s, as the specter of 'crack babies' haunted American political rhetoric, more than two hundred criminal prosecutions were initiated against women in almost twenty states.">; see also Lynn M. Paltrow et al., Criminal Prosecutions Against Pregnant Women, Nat'l Update and Overview (ACLU/Reprod. Freedom Project, New York, N.Y.) (1992) (documenting 167 arrests nationwide as of 1992); .
3. See, e.g., Linda Gordon, Woman's Body, Woman's Right: Birth Control in America (1976); Angela Y. Davis, Women, Race & Class 7 (1981); Carol Joffe, Doctors of Conscience: The Struggle to Provide Abortion Before and After Roe v. Wade viii (1995) ("It is beyond dispute that many abortions took place in the United States while the procedure was illegal; some estimates put the number of abortions in the years leading up to Roe as high as 1.2 million. Many, probably a majority of these cases, were women's attempts at self-abortion. The others were performed by some combination of lay persons, nurses, midwives, and physicians.").
4. See, e.g., David A. J. Richards, Drug Use and the Rights of the Person: A Moral Argument for Decriminalization of Certain Forms of Drug Use, 33 Rutgers L. Rev. 607, 631 (1981) ("Drug use appears to be very ancient, sometimes appearing in forms that mix inextricably several or all of the therapeutic, religious, and recreational elements.").
5. Carole Joffe, The Regulation of Sexuality: Experiences of Family Planning Workers 84 (1986). Although, for a brief time in her career, Margaret Sanger made clear the connection between sexual pleasure and contraception, once stating, "Never be ashamed of passion. If you are strongly sexed, you are richly endowed," the provision of reproductive health services, including abortion and contraception tend to avoid acknowledgment of sexuality for their patients. As one family planning clinic worker explained: "We are never going to achieve credibility with our clients until we acknowledge that 'family planning' has something to do with making love. And people in our field have been unable to do that."
6. See, e.g., Patricia Tjaden & Nancy Thoennes, Prevalence, Incidence, and Consequences of Violence Against Women: Findings from the National Violence Against Women Survey, U.S. Department of Justice, National Institute of Justice, Centers for Disease Control and Prevention (1998) https://www.ncjrs.org/txtfiles/172837.txt (concluding that "physical assault is widespread among American women" and reporting such findings as "1 of 6 US women . . . experienced an attempted or completed rape as a child and/or adult").
7. Women and Drug Abuse, NIDA Capsules (June 1994) (Among drug using women, 70% report having been abused sexually before the age of 16; and more than 80% had at least one parent addicted to alcohol or one or more illicit drugs); Marsha Rosenbaum, Women: Research and Policy, in Williams & Wilkins, Substance Abuse 654-65 (1997) ("Researchers have consistently found high levels of past and present abuse in the lives of women drug users. Many have suggested that there is a relationship, if not absolutely causal, between violence experienced by women and drug use"); Jahn L. Forth-Finegan, Sugar and Spice and Everything Nice: Gender Socialization and Women's Addiction - A Literature Review, in Feminism and Addiction 25 (Claudia Bepko ed., 1991) ("Difficult and physically abusive childhood experiences are reported to be frequent, and the incidence of sexual abuse among alcoholics has been shown to be very high, often as high as 75% of the women in treatment."); Patt Denning & Jeannie Little, Harm Reduction in Mental Health, Harm Reduction Communication (Spring 2001) (One can also predict the likelihood of developing problems with drug use based on traumatic experiences: "up to 80% of people with a history of significant trauma will abuse substances.").
8. See Norman E. Zinberg, M.D., Drug, Set and Setting: The Basis for Controlled Intoxicant Use (1984) (demonstrating that illicit drugs may be used in controlled ways that do not inevitably result in addiction, depending on the context in which they are used); Edith Springer, A.C.S.W., Taking Drug Users Seriously, Harm Reduction Participant's Workbook at 9 (depicting a range of drug use, including experimental, occasional, regular, heavy and chaotic/out of control); see also Typical Drug User Not Poor, Jobless, The Post & Courier, Sept. 9, 1991 (reporting on a Substance Abuse and Mental Health Service's Administration report finding that seven in ten people who used illegal drugs in 1997 had full-time jobs and quoting Barry McCaffrey, White House Drug Policy Director, "the typical drug user is not poor and unemployed").
9. Craig Horowitz, Drugs Are Bad, Drugs Are Bad, Drugs Are Bad, Drugs Are Bad: The Drug War Is Worse, New York Magazine, Feb. 5, 1996, at 22-25 ("When the subject . . . comes up, otherwise open minded people stick to principle even when principle has little empirical support or practical value.").
10. Joffe, supra note 3, at 29 ("A study published by Frederick Taussig in 1936 estimated a half-million illegal abortions were taking place in the United States annually; the Kinsey Report in 1953 suggested that nine out of ten premarital pregnancies among its respondents were aborted, while over 20 percent of the married women in the sample reported having had an abortion while married. [E]stimates of illegal abortion in the 1950's and in the years immediately leading up to Roe range as high as 1.2 million per year"). Horowitz, supra note 9, at 26 ("[D]rug use continues to rise. The National Institute on Drug Abuse, which is staunchly hawkish on the drug war, reports, alarmingly, that marijuana use among eighth-graders more than doubled between 1991 and 1994. Among adults, use of all drugs has consistently gone up, though most of this increase is attributable to the runaway popularity of marijuana."); Ernest Drucker, Ph.D., Drug Prohibition and Public Health, 25 Years of Evidence, 114 Pub. Health Rep. 14 (Jan.-Feb. 1999) ("Drugs are cheaper, more powerful, and more available today than at any time in the past 25 years."); Mike Gray, Drug Crazy: How We Got Into This Mess And How We Can Get Out 188, 189 (2000) (describing widespread access to a range of illicit drugs in every part of the country and for every age group and noting that continued drug use in America cannot be attributed to the lack of resources: "In the attempt to make America drug-free, the taxpayers laid out over $300 billion in the last fifteen years alone. To put that in perspective, we went to the moon for less than a third of that amount.").
11. Joffe, supra note 3, at 29 ("One well-known result of the 'century of criminalization' that resulted from the efforts of the AMA was a flourishing market in illegal abortion"); Horowitz, supra note 10, at 26 ("[I]t is hard to imagine that drugs could be much more available than they are right now. In fact, most of what is generally labeled as the 'drug problem' is actually the illegal-drug-trade problem -the pervasive, devastating collateral damage from a black market that now grosses nearly $60 billion a year.").
12. See, e.g., Gray, supra note 10, at 189 (describing how "it's hard to find an African-American family that has not had a direct, personal, unpleasant experience with law-enforcement - more often than not, something to do with the drug war").
13. See James Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (1978).
14. Joffe, supra note 3, at 28.
15. See Rosalind Pollack Petchesky, Abortion and Woman's Choice 87, 180 (1984) (describing how the American eugenics movement of the early 20th century "resulted in the involuntary sterilization of over 45,000 persons in the United States in the years between 1907 and 1945, half of them mentally ill as opposed to mentally defective, and the great majority of them poor women" and how "[n]early all of the documented or court-adjudicated instances of sterilization abuse during the 1970's involved women who were poor and either black, Mexican-American, Puerto-Rican, or Native-American or women who were incarcerated or mentally incompetent); see also Iris Lopez, Agency and Constraint: Sterilization and Reproductive Freedom Among Puerto Rican Women in New York City, in Situated lives: Gender and Culture in Everyday Lives (Louise Lamphere et al. eds., 1997)
    https://www.hsph.harvard.edu/grhf/WoC/reproductive/lopez.html
    Helen Rodriguez-Trias, M.D., Sterilization Abuse in Biological Woman - The Convenient Myth 147 (Ruth Hubbard, Mary Sue Henifin & Barbara Fried eds., 1982) (describing how U.S. policy, beginning in the 1940's, resulted in the sterilization of over one-third of all Puerto-Rican women, and sterilization abuse particularly in communities of color in the 1970's); Betsy Hartmann, Reproductive Rights and Wrongs: The Global Politics of Population Control & Contraceptive Choice 227-249 (1987).
16. Maia Szalavitz, War on Drugs, War on Women, On The Issues Magazine, Winter 1999, at 43; see also Gray, supra note 10, at 46-47, 76 (At the turn of the century the typical American addict was a middle-aged southern white woman strung out on laudanum (an opium-alcohol mix)).
17. Dan Baum, Smoke and Mirrors: The War on Drugs and The Politics of Failure 8 (1996) ("Richard Nixon and congressional Republicans benefited directly from this blurring of the distinction between marijuana and heroin. Broadly defined, drugs were common to the cultures of both urban blacks and college hippies, and Republicans were eager to link race rioters with campus protesters.").
18. See Drew Humphries, Crack Mothers at 6: Prime Time News, Crack/Cocaine, and Women, Violence Against Women, Feb. 1998, at 45 ("Socially constructed as Black and urban, the media demonized crack mothers as the threatening symbols for everything that was wrong with America"); Angela Y. Davis, Masked Racism: Reflection on the Prison Industrial Complex, ColorLines, Fall 1998 ("images of black welfare mothers reproducing criminal children").
19. Research has found that crack-exposed children are not doomed to suffer permanent mental or physical impairment, and that whatever effects may result from the use of this drug are greatly overshadowed by poverty and its many concomitants - poorer nutrition, inadequate housing, health care and stimulation once the child is born. See Deborah A. Frank, M.D. et al., Growth, Development, and Behavior in Early Childhood Following Prenatal Cocaine Exposure: A Systematic Review, 285 JAMA 1613 (Mar. 28, 2001); Wendy Chavkin, M.D., M.P.H., Cocaine and Pregnancy - Time to Look at the Evidence, 285 JAMA 1626 (Mar. 28, 2001); Hallam Hurt, M.D., et al., Problem-Solving Ability of Inner-City Children With and Without In Utero Cocaine Exposure, 20 Dev. & Beh. Pediatrics 418 (Dec. 1999); see also Linda C. Mayes, M.D., et al., The Problem of Prenatal Cocaine Exposure: A Rush to Judgment, 267 JAMA 406 (1992). As yet other researchers explain:
    

    The "crack baby" on which drug policy is increasingly based does not exist. Crack babies are like Max Headroom and reincarnations of Elvis - a media creation. Cocaine does not produce physical dependence, and babies exposed to it prenatally do not exhibit symptoms of drug withdrawal. Other symptoms of drug dependence - such as "craving" and "compulsion" cannot be detected in babies. In fact, without knowing that cocaine was used by their mothers, clinicians could not distinguish so-called crack-addicted babies from babies born to comparable mothers who had never used cocaine or crack.

    John P. Morgan & Lynn Zimmer, The Social Pharmacology of Smokeable Cocaine Not All It's Cracked Up to Be, in Crack in America: Demon Drugs and Social Justice 131, 152 (Craig Reinarman & Harry G. Levine eds., 1997).

20. See generally Laura E. Gomez, Misconceiving Mothers 26 (1997) (describing the California legislature's response to media portrayals of crack-using mothers including numerous proposals to punish pregnant women); Roberts, supra note 2; Paltrow, supra note 2, at 1002-1003, 1020-1021; Alexandra L. Cox, Reproduction, Apprehension, Production: The Visual Politics of the Crack Baby Scare, Yale University American Studies Senior Essay (2001) (on file with author).
21. See, e.g., Nancy D. Campbell, Using Women: Gender, Drug Policy, and Social Justice 13 (2000) ("If addiction was attributed to women's lack of support for raising children alone, policy might veer toward strengthening women's political autonomy and economic security").
22. Joffe, supra note 3, at 28; see also Ellen Chesler, Woman of Valor: Margaret Sanger and the Birth Control Movement in America 64 (1992) (explaining that the American Medical Association, largely responsible for the laws criminalizing abortion, "launched a virulent and determined campaign against abortion...played upon class, race, and gender tensions developing as a consequence of the steady erosion of fertility among native white American women").
23. Joffee, supra note 3, at 29 (citing Smith-Rosenberg, The Abortion Movement and the AMA 236-37 and noting "there are contemporary antiabortion statements that present the abortion-seeking woman in a similar light); see Connaught Marshner, The New Traditional Woman (Washington, D.C.: Free Congress Research and Educational Foundation 1982)."
24. Rickie Solinger, Beggars and Choosers: How the Politics of Choice Shapes Adoption, Abortion, and Welfare in the United States 47 (2001) (advanced copy on file with author).
25. Campbell, supra note 21, at 69.
26. Id. at 3.
27. Id. at 152.
28. Poe v. Ullman, 367 U.S. 497, 513 (1961) (Douglas, J., dissenting).
29. Chesler, supra note 22, at 68 (quoting in part the Comstock Act of 1873). One interesting point of comparison is the fact that in each case the criminalization of information about contraception and abortion and the criminalization of certain non-alcoholic drugs, were largely the result of efforts of two zealous, politically motivated men in unique and lengthy positions of power: Anthony Comstock, who was responsible for the passage and enforcement of laws punishing the dissemination of information about contraception and abortion, see id. at 66-73, and Harry Anslinger, who after the passage of initial narcotic control laws, oversaw America's campaign against drugs from 1930 to 1961 as head of the Federal Bureau of Narcotics; see Gray, supra note 10, at 65-91.
30. Chesler, supra note 29.
31. Griswold v. Connecticut, 381 U.S. 479 (1965) (successfully challenging Connecticut's 1879 criminal statute making the use and/or prescription of any form of birth control a crime for both woman and doctor); see generally David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994) (discussing the origins of the Griswold litigation and its relationship to Roe v. Wade).
32. See generally Carey v. Population Services Int'l, 431 U.S. 678 (1977) (successfully challenging a New York statute that placed severe restrictions on the sale and advertisement of contraceptives within the state).
33. See generally Rust v. Sullivan, 500 U.S. 173 (1991) (finding no violation of doctor's free speech rights, and no violation of women's due process rights to prohibit Title X programs from developing or disseminating materials advocating abortion as a method of family planning, paying dues to any group that advocates abortion as a method of family planning as a substantial part of its activities, and requiring projects funded by Title X to be organized so that they are physically and financially separate from prohibited abortion activities); but cf. Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001) (striking down restrictions on publicly funded legal services attorneys and distinguishing Rust as a case in which the government uses private speakers to transmit information pertaining to its own program).
34. Conant v. McCaffrey, No. C97-00139, 2000 U.S. Dist. LEXIS 13024, (N.D. Cal. Sept. 7, 2001) (granting summary judgment on free speech grounds, thereby prohibiting federal officials from threatening or punishing physicians for recommending medical marijuana).
35. Cal. Health & Safety Code 11362.5(a) (West 1997) (Under the Act, neither patients nor physicians may be punished or denied any right or privilege for conduct relating to medical use of marijuana.); see also Cal. Health & Safety Code 11362.5(b)(1)(B), 11362.5(d) (Similar measures have passed in Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington State.); see generally Dan Baum, California's Separate Peace, Rolling Stone, Oct. 30, 1997, at 43-52.
36. See, e.g., Jerome Kassirer, M.D., Editorial: Federal Foolishness and Marijuana, New Eng. J. Med., Jan. 30, 1997, at 366 (Thousands of patients with cancer, AIDS, and other diseases report that they have obtained striking relieve from intractable nausea, vomiting and pain by smoking marijuana); Lynn Zimmer & J.P. Morgan, Marijuana Myths, Marijuana Facts: A Review of the Scientific Evidence (1997); Institute of Medicine, Marijuana and Medicine: Assessing the Science Base, (The Institute of Medicine (IOM), a branch of the National Academy of Sciences, stating that smoked marijuana is effective in treating pain, chemotherapy induced nausea and vomiting, and the poor appetite and wasting caused by AIDS or advanced cancer, and declaring that marijuana was not particularly addictive and did not appear to be a "gateway" to the use of harder drugs such as heroin or cocaine).
37. United States v. Oakland Cannabis Buyers' Coop., 121 S. Ct. 1711 (2001); see also Federal Warning on Medical Marijuana Leaves Physicians Feeling Intimidated, The Washington Post, Jan. 1, 1997.
38. Oakland Cannabis Buyers' Coop., 121 S. Ct. at 1714; see also Stuart Taylor, Jr., Medical Marijuana and the Folly of the Drug War, Nat'l J., May 21, 2001.
39. Joffe, supra note 3, at 4 ("The public health benefits of legal abortion have been amply documented. In contrast to the pre-Roe era, in which many thousands of women died or were injured from illegal abortions, legal abortion is among the safest procedures today performed in medicine..."); Lynn M. Paltrow, Amicus Brief: Richard Thornburgh v. America College of Obstetricians and Gynecologists, 9 Women's Rts. Law Rep. 3 (1986).
40. Joffee, supra note 3, at 3 (citing Stanley Henshaw & Jennifer Van Vort, Abortion Services in the United States, 1991 and 1992, in 26 Family Planning Persp. 100-106, 112 (1994); Abortion Factbook 56-57 (New York: Alan Guttmacher Institute, 1992).
41. Joffee, supra note 3, at 3.
42. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 840 (1992) (upholding, among other things a so called "informed consent provision" with a mandatory 24-hour waiting period as well as a parental consent requirement).
43. See, e.g., Feminist Majority Foundation, The Fight to Make Mifeprisonte (RU486) Available to U.S. Women: A Brief Chronology, (detailing U.S. clinical trials of the drug beginning in 1983, its availability in France in October 1988 after the French Minister of Health declared RU486 "the moral property of women," and then more than a decade of activism seeking its approval for use in the United States); see also Benten v. Kessler, No. 92-3161, 1992 U.S. Dist. LEXIS 14747 (1992) (representing an unsuccessful challenge to the U.S. importation ban on RU486).
44. See Michael Massing, The Fix: Under the Nixon Administration, America Had an Effective Drug Policy, We Should Restore It (Nixon was Right) (1998).
45. Peter Vanderkloot, Methadone: Medicine, Harm Reduction or Social Control, Harm Reduction Communication 1,4 (Spring 2001) (As one long time methadone patient-advocate explains: "[t]he reality is . . . the system through which methadone is provided is a uniquely oppressive bureaucracy that greatly reduces the benefits of the medication and generates harm where none existed before"); id. at 6.
46. Holly Catania, About Methadone, The Lindesmith Center/Drug Policy Foundation (2001).
47. Robert G. Newman, M.D., Addiction and Methadone: One American's View, 2 Heroin Addiction & Related Clinical Problems 19, 22 (2000) (emphasis in the original).
48. Joffe, supra note 3, at 46-49 (Despite the Supreme Court's ruling in Roe v. Wade, the majority of U.S. hospitals failed to establish abortion services, private physicians continued to be reluctant to provide such services, and mainstream medical organizations distanced themselves from the issue, failing to encourage greater provision of services through such things as public statements, guidelines, or standards on abortion services.).
49. Joffe, supra note 3, at 48-49 ("The situation after Roe was one in which the medical mainstream's reluctance to become involved in abortion led to an increasing dependence on the freestanding clinic as the major site for both abortion services and training. Though the freestanding clinic in many ways has been a very positive model of abortion services, ...this heavy reliance on clinics has further isolated abortion from dominant medical institutions-a development with negative consequences."); id. at 51.
50. Vanderkloot, supra note 45, at 4. As one methadone patient-advocate explains:
    

    The damage begins with the actual need to travel to the clinic. In many parts of the country, the nearest clinic is hundreds of miles away, but even in cities like New York, it is common for people to have to travel for an hour or more to their clinic-virtually every single day. Limited hours of operation make the situation worse still. Many clinics only allow patients to be medicated in a narrow window of opportunity, usually in the morning.

    Another story reports the case of Linda Clark, who died in a traffic accident during one of the many car trips she had to take to obtain methadone treatment. Ms. Clark had to make a 400-mile drive to Springfield, Massachusetts several times a week because her home state, Vermont, outlawed methadone treatment. See correspondence from Holly Catania to Lynn Paltrow (March 29, 2000) (on file with author). Similarly, women seeking abortion services must also travel long distances-both because of provider shortages and because of restrictions on access like the Minnesota parental consent provision challenged in Hodgson v. Minnesota, 493 U.S. 962 (1989):

    Minnesota is a large state. Many teenagers hitchhiked long distances from home under extreme weather conditions to undergo the judicial bypass procedure and obtain an abortion, coming to Duluth or the Twin Cities from the far corners of the state, northern Michigan, and Canada. Lacking other accommodations, it was not uncommon for them to spend the night in the clinic lobby or in a car in the hospital parking lot.

    Brief for Petitioners at 9, Hodgson v. Minnesota, 493 U.S. 962 (1989). See also Planned Parenthood Dot Com Fact Sheet, Abortion After the First Trimester (visited May 15, 2001) (A 1993 survey of U.S. abortion providers found that among women who have non-hospital abortions, approximately 16 percent travel 50 to 100 miles for services, and an additional eight percent travel more than 100 miles); Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753, 781-82 (Stevens, J., dissenting from majority opinion, holding, in part, that anti-abortion demonstrators incidental effect on women's right to interstate travel did not suffice to show a conspiracy to deprive those women of their protected interstate travel rights and describing extensive interstate travel by women needing abortion services).

51. Compare Planned Parenthood of Minn. v. Citizens for Community Action, 558 F.2d 861 (Minn. Ct. App. 1977) and Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328 (Fla. Dist. Ct. App. 1981) (reversing the trial court's denial of a preliminary injunction where a zoning board denied an application to open an abortion facility based on board members' personal objections to abortion) with Bay Area Addiction Research Treatment, Inc. v. City of Antioch, 179 F.3d 725 (Cal. App. 4th 1991). See also Planned Parenthood of Minn., 558 F.2d 861 (1977) (finding that a six-month moratorium on the construction of abortion clinics in the city which was adopted in response to "clamorous public opposition" to the abortion facility, preventing the establishment of the only abortion clinic in the city of St. Paul unconstitutionally deprives women of abortion services "unique in cost, convenience and patient privacy," and that the zoning ordinance is not a legitimate land use regulation but "a disguised attempt to regulate medical practices," "discriminatory," and "enacted in bad faith").
52. Interest in Abortion Pill Often Wanes as Doctors Learn About the Obstacles, N.Y. Times, Sept. 30, 2000, at A1 ("In some states, the laws governing abortion services speak of "abortions" without saying how they are performed," thus making it possible that state laws that regulate doctors who provide abortions, and that often go into extraordinary detail-concerning things like the size of the hallways in medical offices, the registration of abortion providers and the disposal of the fetal tissue will apply even to private physicians who prescribe RU-486 to their patients.).
53. See Ethan A. Nadelmann, Commonsense Drug Policy, 77 Foreign Aff. 111, 118, (Jan./Feb. 1998) ("Integrating methadone with mainstream medicine makes treatment more accessible, improves its quality, and allocates ancillary services more efficiently. It also helps reduce the stigma of methadone programs and community resistance to them.").
54. Drucker, supra note 10, at 16, 28 (noting that in the United States, "the very use of the term harm reduction is still banned from the federal policy lexicon and denied funding because it is seen as 'condoning drug use'").
55. See Sheigla Murphy & Marsha Rosenbaum, Pregnant Women on Drugs: Combating Stereotype and Stigma 100 (1999); see also The Harm Reduction Coalition, Principles of Harm Reduction ; Andrew Tatarsky, An Integrative Approach to Harm Reduction Psychotherapy: A Case of Problem Drinking Secondary to Depression, in Session: Psychotherapy in Practice 9, 9-24 (1998); Patt Denning, Practical Harm Reduction Psychotherapy: An Alternative Approach to Addiction (2000).
56. Nadelmann, supra note 53, at 114 (Other harm reduction approaches include allowing doctors to prescribe oral methadone for heroin addiction treatment, as well as heroin and other drugs for addicts who would otherwise buy them on the black market; establishing "safe injection rooms" so addicts do not congregate in public places and dangerous "shooting galleries"; employing drug analysis units at the large dance parties called raves to test the quality and potency of MDMA, known as Ecstasy, and other drugs that patrons buy and consume there; decriminalizing (but not legalizing) possession and retail sale of cannabis and, in some cases, possession of small amounts of "hard" drugs; and integrating harm-reduction policies and principles into community policing strategies.").
57. Horowitz, supra note 9, at 24 (describing the Lower East Side Needle Exchange Program in New York City, though the harrowing effects of addiction (and poverty) are on vivid display, so is a rare enlightened attitude toward the afflicted. "This place gives me hope and it makes me feel loved," says Terri, who volunteers at the needle exchange. "This place keeps you from hurting yourself until you're able to make a choice to straighten yourself out.").
58. This activity is currently prohibited by most paraphernalia laws.
59. Most programs in the United States are funded by local government or private donors. See Sheryl Gay Stolberg, Clinton Decides Not to Finance Needle Program, N.Y. Times, April 21, 1998, at A1. While violence has come to be associated with abortion clinics, a recent arson attack on a needle exchange program raises concern about the isolation and vulnerability of people who need services to reduce the morbidity and mortality associated with illegal drug use; see also Henry K. Lee, New Year's Eve Fruitvale Blaze Looks Like Arson, S.F. Chron., Jan. 3, 2001, at A15 (reporting that a New Year's Eve blaze that destroyed the offices of a needle exchange program in Oakland's Fruitvale district appears to be arson, causing an estimated $250,000 in damage).
60. See The Lindesmith Center/Drug Policy Foundation, Research Brief, Syringe Availability (1997).
61. Id; see also AIDS Activists Say Needle Law Adds to Risks in New Jersey, Associated Press, Mar. 11, 2001.
62. Stolberg, supra note 59, at 2 (describing how President Clinton refused to lift an eight year funding ban on needle exchange despite promising to do so once government scientists certified that the programs reduced the spread of AIDS and did not encourage drug use); see also Syringe Availability, supra note 60.
63. Drucker, supra note 10, at 15; Peter Rydell & Susan S. Everingham, Controlling Cocaine: Supply Versus Demand Programs (1994) (A 1994 report by the Rand Corporation, looking specifically at efforts to control cocaine, found that treatment accounts for only a 7 % share of government expenditures with 73 % going to domestic law enforcement, 7% to source-country control and 13% to interdiction).
64. See generally Drug Strategies, Keeping Score, Women and Drugs: Looking at the Federal Drug Control Budget 32 (1998) ("Although significant progress has been made in the past decade in understanding the health and socioeconomic impact of substance abuse among women, treatment is still scarce. Only a small fraction of the estimated nine million women with serious alcohol and other drug problems are able to get treatment, unless they can afford to pay"); see also Dorothy Roberts, The Challenge of Substance Abuse for Family Preservation Policy, 3 J. Health Care L. & Policy 72, 78, 1999 ("Government officials have largely ignored the burgeoning need for comprehensive, long-term treatment for women").
65. See generally Harris v. McRae, 448 U.S. 297 (1980) (upholding the Hyde Amendment, which denies Medicaid coverage for abortion services to low-income women whose health care costs would otherwise be covered by government programs); Maher v. Roe, 432 U.S. 464 (1977) (rejecting an equal protection challenge to a regulation of the Connecticut Welfare Department that limited Medicaid funding for first trimester abortions to those that were medically necessary-thus permitting states as well as the federal government to deny coverage for the cost of abortion services).
66. Lopez, supra note 15, at 7 ("The refusal of the state to provide public funds for abortion services, except in narrowly defined therapeutic cases, while making sterilization readily available, suggests a definite predilection for sterilization over temporary methods of birth control and abortion.").
67. U.S. Policy Can Reduce Cost Barriers to Contraception, Issues in Brief (The Alan Guttmacher Institute) (1999) (Title X funding has not kept pace with program costs or inflation, hindering the program's ability to serve all those seeking care.); see also Ellen Nakashima, Cut in Birth Control Benefit of Federal Workers Sought, Wash. Post, Apr. 12, 2001, at A12 (reporting that President Bush has proposed dropping a requirement that all health insurance programs for federal employees cover a broad range of birth control).
68. Cynthia Dailard, Sex Education: Politicians, Parents, Teachers and Teens, The Guttmacher Report (Feb. 2001) ("Costs for supplies alone can run approximately $360 per year for oral contraceptives, $189 per year for the injectable, $450 for the implant and $240 for an IUD"); see also Sylvia A. Law, Sex Discrimination and Insurance for Contraception, 73 Wash. L. Rev. 363 (1998).
69. Patricia Donovan & Lisa Kaeser, Welfare Reform, Marriage and Sexual Behavior, Issues in Brief (The Alan Guttmacher Institute) (2000); Susan L. Thomas, Race Gender and Welfare Reform, the Antinatalist Response, 28 J. Black Studies 419, 435 (1998) (discussing coercive measures including welfare caps in a historical context); see also C.K. v. New Jersey Dept of Health & Human Services, 92 F.3d 171 (3rd Cir. N.J. 1996) (rejecting constitutional challenges to New Jersey's "family cap" provision finding stated purposes of the program likely to further goals of AFDC).
70. Theresa M. McGovern, Building Broader Women's Health/Reproductive Healthcare Coalitions in the States: A Look at Idaho, Texas, and Florida, An Open Society Institute Initiative (2000) (documenting the terrible public health record for providing for women's health services in three states, and the grassroots efforts to advocate for change in those states).
71. See Am. Med. Ass'n., Current Opinions of the Council on Ethical and Judicial Affairs, E-Principles of Medical Ethics at 10.01..
72. Id. at 10.02.
73. Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 883 (1992).
74. Id. at 907.
75. Center for Reproductive Law and Policy, Targeted Regulation of Abortion Providers (TRAP): Avoiding the TRAP (visited May 23, 2001).
76. Id.
77. A District Court judge considering a challenge to South Carolina's thirty pages of new licensing regulations for doctors who provide more than five abortions a month said:
    

    The regulations "would seem to appear reasonable at first blush, but fail upon closer examination." For instance, while the provision for tuberculin skin testing would appear very reasonable from a public health standpoint, he observed that the "DHEC has not required such testing of all health care personnel - choosing instead to impose the costly testing only upon clinics and physicians that perform abortions on a regular basis." Furthermore, he noted that some of the provisions "border on the absurd," specifically citing the requirements that the entire facility be kept free from unspecified odors and all outside areas be kept free of grass and weeds.

    Greenville Women's Clinic v. Bryant, 66 F. Supp. 2d 691 (D.S.C. 1999), rev'd, 222 F.3d 157 (4th Cir. 2000), cert. denied, 121 S. Ct. 1188 (2001).

78. Nadelmann, supra note 53, at 119 (describing policies and studies in Britain, Switzerland and the Netherlands that permit physicians to provide maintenance heroin and other drugs to help addicted patients lead healthier, more productive and non-criminal involved lives).
79. Gray, supra note 10, at 183-85.
80. See Roe v. Wade, 410 U.S. 113, 141-46 (1973).
81. Joffe, supra note 5, at 6; see also Sylvia A. Law, Silent No More: Physician's Legal and Ethical Obligations to Patients Seeking Abortion, 21 N.Y.U. Rev. L. & Soc. Change 279 (identifying mainstream medicine's failure to provide responsible medical referrals for pregnant women as a primary reason for limited availability of abortion services).
82. Gray, supra note 10, at 60-61.
83. Melinda Voss, Medical Students Battle for Pro-Choice Education (visited May 21, 2001) ; American Medical Women's Association, Reproductive Health Initiative Fact Sheet (visited May 21, 2001) .
84. Dispelling Myths about Addiction: Strategies to Increase Understanding and Strengthen Research (visited May 21, 2001).
85. Craig Reinarman & Harry G. Levine, The Crack Attack: Politics and Media in the Crack Scare, in Crack in America: Demon Drugs and Social Justice 18, 28, 33 (Craig Reinarman & Harry G. Levine eds., 1997); see also Drew Humphries, Crack Mothers: Pregnancy Drugs, and the Media 43-47 (1999) (identifying lack of survey evidence to support claims of a crack epidemic).
86. Id. ("Although there was an increase in crack use, it occurred among a "distinct minority of teenagers and young adults from impoverished urban neighborhoods.").
87. Kristin Luker, Dubious Conceptions: The Politics of Teenage Pregnancy 81 (1997).
88. Id.
89. Id. at 83.
90. Id. at 82 (It is true, however, that the types of behavior that led to pregnancy among those teens who did become unwed mothers "were traditionally much more common among African Americans than among whites, and more common among the poor than among the privileged.").
91. Reinarman & Levine, supra note 85, at 41 (The Right was not alone in adopting and promoting the rhetoric of a cocaine epidemic. Liberals and Democrats also found in crack and drugs a means of recapturing Democratic defectors by appearing more conservative. And they too found drugs to be a convenient scapegoat for the worsening conditions in the inner cities. All this happened at a historical moment when the Right successfully stigmatized the liberal's traditional solutions to the problems of the poor as ineffective and costly. Thus, in addition to the political capital to be gained by waging the war, the new chemical bogeyman afforded politicians across the ideological spectrum both an explanation for pressing public problems and an excuse for not proposing the unpopular taxing, spending, or redistributing needed to do something about them).
92. Luker, supra note 87, at 106.
93. Id.
94. Id. at 108.
95. Id.
96. Reinarman & Levine, supra note 85, at 37 (emphasis in the original); see also Luker, supra note 87, at 86 (teen pregnancy "appeared to explain a number of dismaying social phenomena, such as spreading signs of poverty, persistent racial inequalities, illegitimacy, freer sexual mores, and new family structures").
97. See, e.g., Campbell, supra note 21, at 67 (Drugs mark the discontent within the "civilizing process" to an extraordinary degree in U.S. political culture... Drug policy thus operates as "symbolic policy" to index social disorder. Like other symbolic policies, such as child abuse, drunk driving, or teen pregnancy, drug policy discourse uses claims about the scope of individual "deviance" to justify expanded governmental intervention.").
98. See, e.g., Marsha Rosenbaum, Kids, Drugs, and Drug Education, A Harm Reduction Approach, Policy Statement (The National Council on Crime and Delinquency) (Aug. 1996) (discussing alternative harm reduction models); see also Andrew Weil, M.D. & Winifred Rosen, From Chocolate to Morphine: Everything you need to know about Mind-Altering Drugs 7 (1993) (discussing the need to provide adolescents with reliable information concerning both drugs and sexuality).
99. As Marsha Rosenbaum has observed:
    

    Unfortunately, drug education does not seem to have successfully achieved its goal of abstinence among teenagers. In the years directly following the state tactics and resistance campaigns, studies indicated an increase in drug-use among the targeted population. By the 1990's following the "just say no" campaign of the 1980's, the use of marijuana and psychedelic drugs had increased among teens.

    Rosenbaum, supra note 98.

100. See Marsha Rosenbaum, Safety First: A Reality-Based Approach to Teens, Drugs, And Drug Education 3, 4 (1999).
101. Rosenbaum, supra note 98, at 8; supra note 100, at 2.
102. Rosenbaum, supra note 100, at 8.
103. Youth Violence: A Report of the Surgeon General (Jan. 2001).
104. Kate Zernike, U.S.: Antidrug Program Says it Will Adopt a New Strategy, N.Y. Times, Feb. 15, 2001, at A1.
105. See Donovan, supra note 69; see also Jacqueline E. Darroch et al., Changing Emphases in Sexuality Education in U.S. Public Secondary Schools, 1988-1999, Fam. Plan. Persp. (Sept./Oct. 2000) (finding that public school sexuality education teachers report focus on abstinence-only instruction increased markedly during the 1990's and that instruction in all grades is much less likely to cover birth control, abortion, how to obtain contraceptive and STD services, and sexual orientation than it was in the late 1980's); Dailard, supra note 68 (reviewing recent studies finding a significant disparity between policymaker's emphasis on abstinence only education and the desires of students, parents and teachers who want more comprehensive information about how to avoid unintended pregnancy and STDs and about how to become sexually healthy adults).
106. Donovan, supra note 69, at 1.
107. Jodi Wilgoren, Abstinence Is Focus of U.S. Sex Education, N.Y. Times, Dec. 15, 1999, at A18.
108. Donovan, supra note 69, at 5; see also Jeff Stryker, Abstinence or Else! The Just-Say-No Approach in Sex Ed Lacks One Detail: Evidence that it Works, The Nation, June 16, 1997.
109. Donovan, supra note 69, at 6.
110. See generally Lynn M. Paltrow, David S. Cohen & Corinne A. Carey, Year 2000 Overview: Governmental Responses to Pregnant Women Who Use Alcohol and Other Drugs (2000). This report is available at www.advocatesforpregnantwomen.org. See also discussion infra at 232-237.
111. See Cynthia R. Daniels, At Women's Expense: State Power and the Politics of Fetal Rights 2-3 (1993) (discussing the prosecution of drug-addicted pregnant women); Rachel Roth, Making Women Pay, The Hidden Costs of Fetal Rights 163-83 (2000) (providing an overview and critique of state laws that expand the scope of fetal rights); Jean Reith Schroedel, Is the Fetus a Person? A Comparison of Policies Across the Fifty States (2000); Katha Pollitt, A New Assault on Feminism, The Nation, Mar. 26, 1990, at 415-16.
112. Johnson v. State, 602 So. 2d 1288, 1297 (Fla. 1992) (reversing conviction of a woman who used cocaine during pregnancy for "delivering drugs to a minor," finding that application of the statute to fetuses and pregnant women violated legislative intent).
113. State v. Johnson, No. E89-890-CFA, Verdict, Findings and Opinion (Fla. Cir. Ct. 1989) (emphasis added).
114. See Lynn Paltrow, When Becoming Pregnant is a Crime, IX Criminal Justice Ethics 1 (1990) (discussing how the prosecution of pregnant women is a penalty on procreation); Roberts, supra note 2, at 150-201 (discussing how punitive approaches make reproduction a crime); Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419 (1991).
115. See Linder v. United States, 268 U.S. 5, 18 (1925) ("[Addicted persons] are diseased and proper subjects for [medical] treatment."); cf. Robinson v. California, 370 U.S. 660, 666-67 (1962) (holding unconstitutional a state law making narcotic addiction a crime).
116. See Charles Marwick, Physician Leadership on National Drug Policy Finds Addiction Treatment Works, 279 JAMA 1149 (1998)
117. TA \l "Charles Marwick, Physician Leadership on National Drug Policy Finds Addiction Treatment Works, 279 JAMA 1149 (1998)" \s "Charles Marwick, Physician Leadership on National Drug Policy Finds Addiction Treatment Works, 279 JAMA 1149 (1998)" \c 3 
118. ; American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 176 (4th ed. 1994) ("The essential feature of substance dependence is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues use of the substance despite significant substance related problems. There is a pattern of repeated self-administration that usually results in tolerance, withdrawal, and compulsive drug-taking behavior.").
119. American Medical Ass'n, Proceedings of the House of Delegates: 137th Annual Meeting, Board of Trustees Report NNN: Drug Abuse in the United States: A Policy Report 236, 241 (1988).
120. Solinger, supra note 24, at 21-22; see also Rosalind Pollack Petchesky, Reproductive Freedom: Beyond "A Woman's Right to Choose," Signs 661 (1980); Roberts, supra note 114 (finding that the traditional concept of privacy makes the false presumption that the right to choose is contained entirely within the individual and not circumscribed by the material conditions of the individual's live); Lopez, supra note 15 ("By focusing on individual choice, we overlook the fact that choices are primed by larger institutional structures and ideological messages.").
121. Campbell, supra note 21, at 6.
122. See Cowardice on Clean Needles, N.Y. Times Editorial Desk Topics of the Times, April 22, 1998, at A26; Stolberg, supra note 59; see also Drucker, supra note 10, at 28, n. 44 (citing advertisements by the Partnership for Drug Free America as contributing to "a public systematically frightened about our children's almost inevitable exposure to drugs"); Gray, supra note 10, at 186, 187 (describing how Drug Czar William Bennet announced that "the children of the boomers were facing a far more powerful form of cannabis than the stuff their parents experimented with in the sixties;" claiming without evidence that the amount of THC in the new plants was forty times greater when the best evidence was that it was probably the same or only slightly higher).
123. Letter to the editor, John L. Gray, Altoona Police Chief, The Altoona Herald - Mitchellville Index, Nov. 27, 1997, at 4A.
124. See Bush Administration Requests Increases In Drug Funding For Prevention, Treatment, Interdiction, and Andean Assistance (visited February 28, 2001) . Office of National Drug Control Policy, Press Release,
125. Planned Parenthood President Calls Statement by Rep. Chris Smith Defamatory and "Over the Line" (visited June 5, 2001).
126. Whitner v. California, 492 S.E.2d 777 (S.C. 1997), cert. denied, 523 U.S. 1145 (1998).
127. ADVANCE \r5 Id. at 779-80, 84 (reinterpreting case law precedent in South Carolina as resting "on the concept of the viable fetus as a person vested with legal rights," holding that a viable fetus is a "child" and expressly declining to follow the case law precedent of several other states holding otherwise).
128. Ferguson v. City of Charleston, 121 S. Ct. 1281 (2001); Brief of Respondents, Ferguson v. City of Charleston, No. 99-936, U.S. Supreme Court at 24-29 (arguing that protection of "pregnant patients and their children" provided a special needs exception to the 4th Amendment's requirement) .
129. See, e.g., Charles Molony Condon, Bureaucrats Stopped Crack-Baby Prevention Program, The Greenville News, May 28, 1995, at 3 (portraying policy as child abuse prevention program); see also Frank Heflin, Charleston Plan Saving Unborn Babies From Addiction, The State, June 4, 1990, at A2.
130. Jeff Stryker, Cracking Down, Salon, July 10, 1998;; see also
     https://www.cashforbirthcontrol.org ("Ms. Harris had first lobbied legislators to pass a bill that would make people accountable for their inhumane acts against their own newborns.").
131. Stryker, supra note 128.
132. See https://www.cashforbirthcontrol.org (visited April 10, 2001). Recent changes in their web site, in apparent response to criticism, now grudgingly acknowledge "that there are some that are more fortunate than others, coming away with their lives and health" and now states that ". . . there are some children that have minor problems, or even more rarely have no problems at all." The site, however, continues to provide stories only of children born with severe disabilities and who were born "drug addicted" - a term that in itself has proven inaccurate when applied to children prenatally exposed to cocaine. Research has proven that no addiction or withdrawal syndrome exists for cocaine exposed newborns. Morgan & Zimmerman supra note 19, at 152. Earlier versions of the C.R.A.C.K. website spoke only of children born "permanently disabled" and stating that "the chances of a normal life are dim." Site at 9/22/99 (printed version on file with author). The web site also relies on data that has been repeatedly shown to be inaccurate. For example, their site states that "perhaps as many as 375,000 cocaine exposed babies are born each year in the U.S." This figure refers to a prevalence study done by Dr. Ira Chasnoff, in which, based on the urine samples of recently delivered women at 36 public hospitals in urban areas, he extrapolated that 375,000 American babies annually were prenatally exposed to "some amount of alcohol or illicit drug." Gomez, supra note 20, at 23. In addition to there being significant questions raised about the reliability of the number based only on research at public and urban hospitals, the number never applied exclusively to cocaine. Id; see also Roberts, supra note 2, at 155-156; Humphries, supra note 85, at 49, 50.
133. See https://www.cashforbirthcontrol.org/stats/stats.html (visited March 22, 2001) (Although the program purports to be available to men and women, it has overwhelmingly been applied to women. As of March 22, 2001, 392 people had been paid only four of them men.)
134. See, e.g., Stryker supra note 128, at 3 (describing how Ms. Harris "took her plea to the media" and her numerous successful efforts in appearing on such programs as Oprah and becoming "a darling of talk radio hosts and newspaper pundits across the nation").
135. See, e.g., Fox the Edge with Paula Zahn (Fox News Network television broadcast, July 7, 2000) (Harris: "Drug treatment is not the solution. Most of our women have been in drug treatment 10 or 12 times and relapsed. That's not the solution."); see also Women's Economic Agenda Project, Lots of People Just Don't Get It, (arguing that " C.R.A.C.K. is just the latest in a long line of efforts to marginalize and snuff out the lives of the poor" and that �that C.R.A.C.K. could do lots of good with its money if instead of buying the souls of desperate women for a mere $200, it would instead support the current Just Health Care campaign, which promises universal health care for all people, including treatment on demand"). C.R.A.C.K.'s cynicism and disdain are apparent from one of their flyers: It states: Don�t Let a Pregnancy Ruin Your Drug Habit. Copy of Flyer on file with author. See also Stryker, supra note 128.
136. See https://www.cashforbirthcontrol.com/stats/stats.html (visited April 12, 2001) (stating 392 people were paid to be sterilized or use long acting contraception).
137. See Gray supra note 10, at 187 (stating that drug use cannot be stopped by prohibition).
138. These statutes equate a single drug test result with actual evidence of an inability to parent. A urine sample, however, cannot be considered proof of either drug dependence or addiction, much less an inability to parent. See American Medical Association Policy H-95.985 ("Drug testing does not provide any information about pattern of use of drugs, abuse of or dependence on drugs, or about mental or physical impairments that may result from drug use.").
139. Paltrow, supra note 110 (identifying the eighteen states that address the issue of a pregnant woman's use of drugs in their civil child welfare statutes as: Arizona, California, Florida, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, Oklahoma, Rhode Island, South Carolina, Texas, Utah, Virginia, and Wisconsin). See Ariz. Rev. Stat. Ann. " 13-3620(B) TA \l "Ariz. Rev. Stat. Ann. 13-3620(B)" \s "Ariz. Rev. Stat. Ann. " 13-3620(B)" \c 2 ; Cal. Penal Code 11165.13 TA \l "Cal. Penal Code 11165.13" \s "Cal. Penal Code 11165.13" \c 2 ; Fla. Stat. Ann. 39.01(30)(g) TA \l "Fla. Stat. Ann. 39.01(30)(g)" \s "Fla. Stat. Ann. 39.01(30)(g)" \c 2 ; 325 Ill. Comp. Stat. 5/7.3b TA \l "325 Ill. Comp. Stat. 5/7.3b" \s "325 Ill. Comp. Stat. 5/7.3b" \c 2 ; Ind. Code 31-34-1-10, 11 TA \l "Ind. Code 31-34-1-10, 11" \s "Ind. Code 31-34-1-10, 11" \c 2 ; Iowa Code Ann. 232.68(2)(f), 232.77(2) TA \l "Iowa Code Ann. 232.68(2)(f), 232.77(2)" \s "Iowa Code Ann. 232.68(2)(f), 232.77(2)" \c 2 ; Md. Code Ann., Fam. Law 5-313(d)(1)(iv) TA \l "Md. Code Ann., Fam. Law 5-313(d)(1)(iv)" \s "Md. Code Ann., Fam. Law 5-313(d)(1)(iv)" \c 2 ; Mass. Gen. Laws Ann. ch. 119, 51A TA \l "Mass. Gen. Laws Ann. ch. 119, 51A" \s "Mass. Gen. Laws Ann. ch. 119, 51A" \c 2 ; Mich. Comp. Laws 722.623a TA \l "Mich. Comp. Laws 722.623a" \s "Mich. Comp. Laws 722.623a" \c 2 ; Minn. Stat. Ann. 626.5561-5563 TA \l "Minn. Stat. Ann. 626.5561-5563" \s "Minn. Stat. Ann. 626.5561-5563" \c 2 ; Nev. Rev. Stat. Ann. 432B.330(1)(b) TA \l "Nev. Rev. Stat. Ann. 432B.330(1)(b)" \s "Nev. Rev. Stat. Ann. 432B.330(1)(b)" \c 2 ; Okla. Stat. Ann. tit. 10, 7103(A)(2) TA \l "Okla. Stat. Ann. tit. 10, 7103(A)(2)" \s "Okla. Stat. Ann. tit. 10, 7103(A)(2)" \c 2 ; R.I. Admin. Code 03-040-420.II.D.4.a TA \l "R.I. Admin. Code 03-040-420.II.D.4.a" \s "R.I. Admin. Code 03-040-420.II.D.4.a" \c 2 ; id. 03-141-000.II.F.2.c.1.; S.C. Code Ann. 20-7-736 TA \s "S.C. Code Ann. 20-7-736" ; Tex. Fam. Code Ann. 261.001(1) & (7) TA \l "Tex. Fam. Code Ann. 261.001(1) & (7)" \s "Tex. Fam. Code Ann. 261.001(1) & (7)" \c 2 ; Utah Code Ann. 62A-4-404 TA \l "Utah Code Ann. 62A-4a-404" \s "Utah Code Ann. 62A-4a-404" \c 2 ; Va. Code Ann. 54.1-2403.1, 63.1-248.3(A1) TA \l "Va. Code Ann. 54.1-2403.1, 63.1-248.3(A1)" \s "Va. Code Ann. 54.1-2403.1, 63.1-248.3(A1)" \c 2 ; Wis. Stat. Ann. 146.0255 TA \l "Wis. Stat. Ann. 146.0255" \s "Wis. Stat. Ann. 146.0255" \c 2 .
140. See, e.g., S.C. Code Ann. 20-7-736(G). A newborn child is presumed to be neglected and "cannot be protected from further harm without being removed from the custody of the mother" if there is a positive toxicology test of either the mother or the child at birth that indicates the presence of any amount of a controlled substance.
141. In re Baby Boy Blackshear, 90 Ohio St. 3d 197 (2000) (assuming harm to a newborn from prenatal exposure to cocaine even though no evidence of harm existed in the record and holding that a drug-exposed newborn is "per se an abused child."); In re Guardianship of K.H.O., 736 A.2d 1246 (N.J. 1999) (finding that evidence of a woman's drug use during pregnancy satisfies the endangerment to child's health and development prong of a four part statutory test for termination of parental rights.); contra In the Matter of the Unborn Child of Julie Starks, Amended In the Matter of J.B.C., Julie Starks, Appellant, v. State of Oklahoma, Appellee, No. 94,104 Supreme Court of Oklahoma (2001). (holding that a fetus was not a child for purposes of states' civil child protection laws and does not provide a vehicle for taking temporary emergency custody of a fetus).
142. Susan C. Boyd, Mothers and Illicit Drugs: Transcending the Myths 14-16 (1999) (listing at least fourteen studies demonstrating that women who use illicit drugs can be adequate parents); M. Kearney et al., Mothering on Crack Cocaine: A Grounded Theory Analysis, 38 Soc. Sci. & Med. 351, 355 (1994). A book published by the Foster Care Project of the American Bar Association observes, "many people in our society suffer from drug or alcohol dependence yet remain fit to care for a child. An alcohol or drug dependent parent becomes unfit only if the dependency results in mistreatment of the child, or in a failure to provide the ordinary care required for all children." American Bar Association, Foster Care Project, National Legal Resource Center for Child Advocacy and Protection, Foster Children in the Courts 206 (Mark Hardin ed., 1983) TA \l "American Bar Association, Foster Care Project, National Resource Center for Child Advocacy and Protection, Foster Children in the Courts (M. Hardin ed. 1983)" \s "American Bar Association, Foster Care Project, National Resource Center for Child Advocacy and Protection, Foster Children in the Courts 206 (M. Hardin ed. 1983)" \c 3 . See also Nat'l Council of Juvenile and Family Court Judges, Permanency Planning for Children Project, Protocol for Making Reasonable Efforts to Preserve Families in Drug Related Dependency Cases 17 (1992) (concluding that "Juvenile and family court proceedings are not necessary, and probably not desirable, in most situations involving substance-exposed infants").
143. Studies have found that unnecessarily removing children from their parents' care can inflict grave harm on the children. See, e.g., Bonita Evans, Youth in Foster Care: The Shortcomings of Child Protection Services (1997); Scott J. Preston, Note, "Can You Hear Me?": The United States Court of Appeals for the Third Circuit Addresses the Systemic Deficiencies of the Philadelphia Child Welfare System in Baby Neal v. Casey, 29 Creighton L. Rev. 1653 (1996); see also Dorothy E. Roberts, Access to Justice: Poverty, Race and New Directions in Child Welfare Policy, 1 Wash. U. J.L. & Pol�y 63, 69, 71 (noting that "Children, even neglected children, typically value and want to maintain a relationship with their parents." And that "[u]necessarily taking children from their families is comparably harmful to children as returning them to dangerous homes.").
144. See, e.g., Cathy Singer, The Pretty Good Mother, Long Island Monthly, Jan. 1990, at 46 (reporting that a mother who had smoked marijuana to ease labor pain lost custody of her baby even though the mother had acted responsibly throughout her entire pregnancy); Associated Press, Woman Given Labor Sedative Loses Custody of Children, The Sacramento Bee, Feb. 11, 2000 (describing a California woman who lost custody of her newborn and other children for three months based on a drug test of the newborn that reflected a sedative given to the woman during labor); Cathy Zollo, When Policy Meets Reality, Times Record News (Wichita Falls, Texas), Nov. 11, 1999 (reporting a case in which the state took into emergency custody a newborn and three older siblings based on a single positive marijuana test on the newborn); Melissa Hung, Reefer Madness? Angela Took a Hit. And CPS Took Her Babies Away, Houston Press, Nov. 4, 1999, at 8 (reporting another Texas case in which the child welfare agency removed custody of a newborn and a one-year-old sibling based solely on a positive drug test for marijuana); see also Abigail English, Prenatal Drug Exposure: Grounds for Mandatory Child Abuse Reports? Youth Law News 3-8 (1990) (arguing that laws that rely on positive drug tests are both too narrow and too broad and fail to give children greater protection than individual assessments of parenting ability); Youth Law News 1-40 (July-Oct. 1995) (revising and reprinting the Special Issue from 1990).
145. See Infant Mortality on Rise in '97, Post & Courier (Charleston, S.C.), Feb. 19, 1999, at B1; Kids Count Data Book, The Annie E. Casey Foundation at 160 (2001); (reporting that infant mortality decreased from 11.7 in 1990 to 8.4 in 1986, but increased to 9.6 for 1997 and 1998, the two years following the Whitner decision).
146. Schroedel, supra note 111. In her comprehensive review of fetal rights and anti-abortion policies, Dr. Schroedel concluded:
     

     "no evidence was found that pro-life states have adopted a comprehensive range of polices designed to protect and assist the weakest and most vulnerable in our society. Instead, the opposite appeared to be true. I examined policies toward the group most closely related to fetuses -born children. Pro-choice states were more likely to favor adoption and to provide aid to needy children. Simply, pro-life states make it difficult for women to have abortions, but they do not help these women provide for children once born. Pro-life states also spend less money per pupil on kindergarten through twelfth grade education.

147. See generally Common Sense for Drug Policy Presents the Facts: Adolescents, (compiling data and facts regarding drug use by adolescents and the extent to which the war on drugs has in fact reduced adolescent drug use).
148. See generally Mikki Norris, Chris Conrad & Virginia Resner, Shattered Lives: Portraits from America's Drug War (1998).
149. Gray, supra note 10, at 132.
150. Id. at 183-84. In addition, it is also apparently not uncommon for African American's who seek emergency room care for the sudden and extreme pain that results from sickle cell anemia, to be denied care - including pain medication - based on the presumption that such patients are really addicts "just trying to get drugs." Arthur Allen, Orphans of Managed Care: Sickle Cell Patients are in the Middle of a Dilemma over the Cost of Effective Drugs (Dec. 15, 1999)
     .
151. Norris, supra note 146, at 1, 60-87 (describing people uninvolved in the drug trade who were "accidentally" shot to death or who died during such a raid).
152. Id. at 1-2, 52-59; see Leonard W. Levy, A License to Steal: The Forfeiture of Property (1995); The Drug Policy Foundation, Policy Briefing: Asset Forfeiture (1999); see also the website of Forfeiture Endangers American Rights, a national nonprofit organization dedicated to the reform of federal and state asset forfeiture laws to restore due process and protect property rights in the forfeiture process.
153. See, e.g., Stacy Fitz, Eviction of Seniors Assailed in Court, San Francisco Chronicle, Sept. 20, 2000 (describing a 77 year old disabled man who required around the clock care who was evicted from a public housing project because his care provider was caught two years before with a crack pipe in her possession).
154. See David A. Harris, Driving While Black: Racial Profiling on our Nation's Highways, an American Civil Liberties Union Special Report (June 1999).
155. See, e.g., Lewis L. Maltby, Drug Testing: A Bad Investment (ACLU 1999) .
156. See ACLU Fact Sheet #2: Social Science Research on Adolescent Drug Use and School Involvement.
157. See, e.g., Amy E. Hirsch, "Some Days are Harder than Hard": Welfare Reform and Women with Drug Convictions in Pennsylvania (Dec. 1999) (A report published by the Center for Law and Social Policy); Corinne A. Carey, Crafting a Challenge to the Practice of Drug Testing Welfare Recipients: Federal Welfare Reform and State Responses as the Most Recent Chapter in the War on Drugs, 46 Buffalo L. Rev. 281 (1998); Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000); Marchwinski v. Family Independence Agency, ACLU Fact Sheet 31: Michigan's Drug Testing Law .
158. See Rucker v. Davis, 237 F.3d 1113 (9th Cir. 2001) (limiting scope of statute permitting eviction of drug users in public housing).
159. See https://www.raiseyourvoice.com/heainfo.html#hea1.
160. Allen J. Beck, PhD, U.S. Department of Justice, Bureau of Justice Statistics, Prisoners in 1999 at 1(Washington, D.C.: U.S. Department of Justice, Aug. 2000).
161. Drug War Facts (Douglas A McVay ed., March 2001) (quoting John Irwin, PhD, Vincent Schiraldi & Jason Ziedenberg, America's One Million Nonviolent Prisoners at 4 (Washington, D.C.: Justice Policy Institute, 1999)).
162. Thomas Bonczar, & Lauren Glaze, U.S. Department of Justice, Bureau of Justice Statistics, Probation and Parole in the United States at 1(Washington, D.C.: U.S. Department of Justice, Aug. 1999).
163. See Beck, supra note 158, at 10 (Table 15), 12 (Table 21) ("Prisoners sentenced for drug offenses constitute the largest group of Federal inmates (58%) in 1998, up from 53% in 1990 and in 1998, drug law violators comprised 21% of all adults serving time in State prisons - 236,800 out of 1,141,700 State inmates.); U.S. Department of Justice, Bureau of Justice Statistics, Prisoners in 1996 (Washington, D.C.: U.S. Department of Justice, 1997) (Over 80% of the increase in the federal prison population from 1985 to 1995 was due to drug convictions.).
164. Davis, supra note 18; see also National Association of State Budget Officers (NASBO), 1999 State Expenditure Report at 38, 68 (Washington, D.C.: NASBO, June 2000) (States spent $32.5 billion on Corrections in 1999 alone. To compare, states only spent $22.2 billion on cash assistance to the poor.).
165. Newman, supra note 47, at 20 (2000).
166. Drucker, supra note 10, at 23. ("A common stereotype, fostered by the media, is that some racial or ethnic groups use drugs more than others. This is not borne our by the data.").
167. Horowitz, supra note 9, at 22, 30.
168. See Ira Glasser, American Drug Laws: The New Jim Crow. 63 Albany L. Rev. 703, 724 (2000); Ronald H. Welch & Carlos T. Angulo, Leadership Conference on Civil Rights, Justice on Trial: Racial Disparities in the American Criminal Justice System at 7 (Washington, D.C.: Leadership Conference on Civil Rights, May 2000) ("blacks are just 12 percent of the population and 13 percent of the drug users, and despite the fact that traffic stops and similar enforcement yield equal arrest rates for minorities and whites alike, blacks are 38 percent of those arrested for drug offenses and 59 percent of those convicted of drug offenses. Moreover, more frequent stops, and therefore arrests, of minorities will also result in longer average prison terms for minorities because patterns of disproportionate arrests generate more extensive criminal histories for minorities, which in turn influence sentencing outcomes.").
169. Marc Mauer, C. Potler & R. Wolf,Gender and Justice: Women, Drugs and Sentencing Policy, The Sentence Project at 1, 3 (Nov. 1999). . This increase is not necessarily the result of an increase in women's drug use. As the report notes: "it is unclear to what extent our findings reflect changes in behavior and criminality or changes in official responses to those behaviors. On a national level the rate at which women used drugs actually declined substantially during the period 1986-1995 - a time frame that coincides with the escalation of the war on drugs." Id. at 6. See also Stephanie Bush-Baskette, The War on Drugs and the Incarceration of Mothers, 30 J. Drug Issues 919, 924 (2000) (hypothesizing that two initiatives stand out as possible explanations for the differential impact of the War on Drugs on the incarceration of women and men. The first included the provisions written in the Anti-Drug Abuse Acts for penalties specifically linked to small amounts of drugs and sanctions for conspiracy equivalent to those for the actual commission of the substantive crime. These provisions effectively shifted the focus of drug control efforts from trafficking activities by major dealers and treatment for users to the actions of street-level dealers, particularly those involved in crack cocaine, and to the prosecution of users. The second concerned the return to mandatory minimum sentencing for drug law violations . . . "As a result of these laws, the "actual role the offender plays in the crime can no longer be considered in the determination of the sentence, except for sentence enhancement. Furthermore, family situations, such as being the sole caretaker of minor children, can no longer be considered for sentencing purposes. These changes have resulted in increasing numbers of women being placed in state and federal prisons, which in turn leads to increasing numbers of dependent children being left to the care of relatives, guardians, and the state.")
170. Campbell, supra note 21, at 17 ("Poor women, who are disproportionately women of color in the United States, are unevenly subject to all drug policy modes including surveillance."); see also Norris, supra note 146, at 39-42.
171. Mauer, supra note 167, at 3. The degree to which women are affected varies somewhat by state. "In New York, virtually the entire increase in women's prison population over the ten-year period was driven by drug arrests and prosecutions. Further, virtually all (91%) of the women incarcerated for these offenses were black or Hispanic. The increases in women's drug offenses in California and Minnesota are substantial as well, but not nearly as overwhelming as in New York."
172. Id. at 4.
173. Bush-Baskette, supra note 167, at 924.
174. Mauer, supra note 167, at 2.
175. Id. at 2 (citing Tracy Snell, Women in Prison, Bureau of Justice Statistics 6-7 (1994)).
176. United States of America Rights for All, Amnesty International's Campaign on the United States, AI Index No. AMR 51/01/99, Not Part of My Sentence, Violations of the Human Rights of Women in Custody 23 (Mar. 1999) (The imprisonment of pregnant women and new mothers is a violation of international standards, and the Eighth United Nations Congress has recommended that "[t]he use of imprisonment for certain categories of offenders, such as pregnant women or mothers with infants or small children, should be restricted and a special effort made to avoid the extended use of imprisonment as a sanction for these categories."). Id. (quoting Report of the 8th UN Conference on the Prevention of Crime and Treatment of Offenders, U.N. Doc. A/Conf. 144/28, rev. 1 (91.IV.2), Res. 1(a), 5(b) (1990)); see State v. Gethers, 585 So. 2d 1140, 1143 n.17 (Fla. Dist. Ct. App. 1991) ("Criminal prosecution would needlessly destroy the family by incarcerating the child's mother when alternative measures could both protect the child and stabilize the family." (citation omitted); Bush-Baskette, supra note 167, at 924.
     ADVANCE \r9
177. ADVANCE \r5 See United States of America Rights for All, supra note 174; The Osborne Association, How Can I Help?, Working with Children of Incarcerated Parents 3 (1993) (noting that "[t]he arrest and incarceration of a parent can have a profound effect on a child. It can cause financial dislocation to the family, family dismemberment or dysfunction, and great social and emotional pain"). Moreover, according to experts cited in a recent New York Times article
     "having a parent behind bars is the single largest factor in the making of juvenile delinquents and adult criminals." Fox Butterfield, Prisons Confront New Problem: Children and Parental Incarceration, N.Y. Times, Apr. 7, 1999, at A1.
178. According to the New York Times: "intravenous drug use is responsible for most of the growth in the spread of the AIDS virus, particularly among the poor and minorities. Dr. David Satcher, the Surgeon General, said today that 40 percent of new AIDS infections in the United States are either directly or indirectly attributed to infection with contaminated needles; among women and children, the figure is 75 percent." Stolberg, supra note 59.
179. Dorothy E. Roberts, The Future of Reproductive Choice for Poor Women and Women of Color, 12 Women's Rts. L. Rep. 59, 61-62 (1990); see also, Marsha J. Tyson Darling, The State: Friend or Foe, in Dangerous Intersections (Jael Silliman & Ynestra King eds., 1999); Jessie M. Rodrique, The Black Community and the Birth Control Movement, in Passion and Power: Sexuality in History (Kathy Peiss & Christina Simmons eds., 1989).
180. Dorothy I. Height, National Council of Negro Women; Eleanor Holmes Norton, Georgetown University Law School; Cardiss Collins, Member of Congress; Faye Wattleton, et al., Planned Parenthood Federation of America; Open Letter to African-Americans (1989) (announcing release of a public statement entitled, African American Women Are For Reproductive Freedom, We Remember).
181. Drucker, supra note 10, at 15-28 ("A common stereotype, fostered by the media, is that some racial or ethnic groups use drugs more than others. This is not borne out by the date."); id. at 23; see also Shelly Gehshan, A Step Toward Recovery 1 (Southern Reg. Proj. on Infant Mortality 1993) "It is clear from the women we interviewed that substance abuse among women is not a problem confined to those who are poor, black, or urban, but crosses racial, class, economic and geographic boundaries."
182. Campbell, supra note 21, at 187 ("there is no better illustration of the effects of a racially uneven policy than the wave of criminal prosecutions that engulfed pregnant women of color in the late 1980's and early 1990's").
183. See Ferguson v. City of Charleston, 121 S. Ct. 1281 (2001).
184. See Kathleen Parker, State Goes Too Far With Drug Addicted Moms, Orlando Sentinel, Dec. 4, 1996, at E1 ("The women's claim of racial discrimination has been backed up even by hospital personnel who expressed concern during the policy's execution that poor, black women were being singled out.").
185. Brown Trial Transcript, Ferguson v. City of Charleston, U.S. District Court for the District of South Carolina, Charleston Division, C/A No. 2:93-2624-2, Dec. 10, 1996, at 5, lines 18-21.
186. Plaintiffs' exhibit 119, Ferguson v. City of Charleston, U. S. District Court for the District of South Carolina, Charleston, Division, C/A No. 2:93-2624-2. This aspect of the case deserves serious exploration as part of a long tradition in drug policy of associating drug use with miscegenation and racial mixing. See also Campbell, supra note 21, at 69.
187. See Edgar O. Horger, et al., Cocaine in Pregnancy Confronting the Problem, 86 J. S.C. Med. Assoc. 527 (Oct. 1990) (In 1994, the National Institutes of Health found this experiment to violate the laws concerning research on human subjects.). See Letter from J. Thomas Puglisi, Ph.D., Chief Compliance Oversight Branch, Division of Human Subject Protections, OPRR, OER, OD (Sept. 30, 1994) (on file with author). (The Office of Civil Rights also investigated the hospital for violating Title VI prohibitions on race discrimination; the hospital agreed in a settlement with OCR to stop arresting patients.). Settlement Agreement between Medical Center of the Medical University of South Carolina and Office for Civil Rights, Department of Health and Human Services (Sept. 8, 1994) (on file with author).
188. See Allan M. Brandt, Racism and Research: The Case of the Tuskegee Syphilis Study, in Ethical Issues in Modern Medicine at 547 (John D. Arras & Bonnie Steinbock, eds., 5th ed. 1999). This article addresses the underlying assumptions that fueled this research including the belief that "even the best educated black . . .could not be convinced to seek treatment for syphilis." Id. at 548. It is interesting that the MUSC policy was often justified on the claim that threats of arrest where necessary because the women would not go to treatment voluntarily. See Horger, supra note 185. These claims were made despite the lack of treatment or treatment referrals and in spite of the defendant's admission that at least for the first three months of the policy no treatment was offered. See Opposition to Petition for Certiorari, Ferguson v. City of Charleston at 7, n.4 (defendants admitting that "[d]uring a short period of time when the Policy was first initiated, a positive test was immediately reported and the patient was arrested"); American Public Health Association Amicus Brief, filed on behalf of Appellants in Ferguson v. City of Charleston (October Term, 1999).
189. See Kathleen Parker, From Delivery Room, Next Stop Was Jail, THE OBSERVER (Charlotte, N.C.), Dec. 5, 1996.
190. Letter from Celeste H. Patrick, M.D. Medical Director of the NNICU, Assistant Professor of Pediatrics to Dr. James B. Edwards, President, Medical University of South Carolina (Dec. 11, 1989) (on file with author).
191. Transcript of Record at 3, State v. Collins, No. 93-CP-39-859 (S.C. Ct. Gen. Sess. Pickens County, Dec. 18, 1991).
192. See, e.g., Ferguson v. City of Charleston (testimony of Charles M. Condon, Dec. 17, 1996, at 13, lines 14-15) ("So, we were trying to use a carrot-and-stick approach.") at 23, line 25, at 24, line 2 ("And the idea being that the carrot and stick, there would be a potential penalty over someone's head that could be imposed if they didn't change their behavior.") at 72, lines 15-21 ("And I felt that it would [be] a waste of resources and time trying to get someone to cooperate that didn't want to cooperate, and we could use the arresting process as a carrot and stick, legal intervention to something done to help solve the problem quickly.").
193. The South Carolina Attorney General Charles Condon also defended his state's policy as one that: "allows health-care experts to control the destiny of cooperative women--while law enforcement officials wait in the wings, prepared to act only in worst-case scenarios." Emily Figdor & Lisa Kaeser, Concerns Mount over Punitive Approaches to Substance Abuse Among Pregnant Women, The Alan Guttmacher Report on Public Policy (visited Mar. 6, 1999) .
194. While there is some debate about the origin of the expression - some argue that it originally referred to a carrot on a stick - with a carrot dangled at the end of a stick to get the donkey to move forward, it has also been used to describe a system of reward and punishment with carrot as a reward and a beating with a stick or switch as punishment if the donkey has failed to do its job.
195. Whether intended or not, the analogy was particularly insensitive when applied to a group that was almost exclusively African American women in a state that was still flying the Confederate Flag over its capitol dome. As a statement by African American women in favor of abortion recounted:
     

     This freedom - to choose and to exercise our choices - is what we�ve fought and died for. Brought here in chains, worked like mules, bred like beasts, whipped one day, sold the next - for 244 years we were held in bondage.

     Byllye Avery et al., We Remember: African American Women Are For Reproductive Freedom (1989) (on file with author). See also Darling, supra note 177, at 214, 224 (describing black females as "[l]ong accustomed to being treated as the mules of the world by most whites").

196. DATELINE, NBC, NBC News Transcripts, The Crusader; One Woman�s Crusade to Help Babies Born to Drug Addicted Mothers, Sept. 9, 1998, at 10, National Broadcasting Co. Inc., NBC News Transcripts (1998). See also Stryker, Cracking Down, (quoting Harris saying, "They're having litters. They are literally having litters.").
197. CRACK Uses Unethical Tactics to Stop Women with Substance Abuse Problems from Becoming Pregnant, Pol. Env't, 8 (citing Mothers Paid to Stop Having Children, Marie Claire, Dec. 1998).
198. See https://www.cashforbirthcontrol.com (Director and Founder's Message, March 21, 2001).
199. See Ira Chasnoff et al., The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida, 322 New Eng. J. Med. 1202-06 (1990); Brenda Warner Rotzoll, Black Newborns Likelier to be Drug-Tested: Study, Chicago Sun-Times, Mar. 16, 2001 (reporting on the Chicago Reporter, a monthly publication on race and poverty that surveyed the 53 public and private hospitals in Cook County that deliver babies, finding that hospitals serving primarily black low-income women are far more likely to test their patients than suburban hospitals serving primarily middle class white women, and that black babies in Illinois are more likely than white babies to be taken from their mothers and placed in foster care because of exposure to drugs while in the mother's womb).
200. Roberts, supra note 64, at 84; see also Roberts, supra note 141, at 63 ("If an outsider looked at the American child welfare system, she would likely conclude that this is not a system designed to promote the welfare of America�s children. Rather, it is a system designed to regulate, monitor, and punish poor families, especially poor Black families.").
201. Campbell, supra note 21, at 18.
202. Id. at 139 (explaining that "Proponents of fetal rights use drug policy as a means to an end, a way to justify limiting women's rights while expanding a culturally conservative agenda").
203. Samuel R. Friedman, The Political Economy of Drug-User Scapegoating - and the Philosophy of Resistance, 5 Drugs: Education, Prevention, and Pol'y 15 (1998); see also Gray, supra note 10, at 185 ("The seamless propaganda campaign that has blanketed the drug war for eighty years has always had as its central focus the image of the Drug User as Vampire. As long as these wretched monsters could be completely stigmatized - like the Jews in Nazi Germany -anything was possible.") (citing Richard Lawrence Miller, Drug Warriors and Their Prey (1996)).
204. Friedman, supra note 201.
205. Campbell, supra note 21, at 16.
206. Sheigla Murphy, Paloma Sales & Moira O�Neil, Pregnant Drug Users: Scapegoats of the Reagan/Bush and Clinton Era Economics at 2, forthcoming in International Journal of Social Justice 2002 (on file with author); see also Campbell, supra note 21, at 13.
207. Roberts, supra note 2, at 179.
208. Lynn Paltrow, Pregnant Drugs Users, Fetal Persons, and the Threat to Roe v. Wade, 62 Albany L. Rev. 999, 1035-38 (1999).
209. Robinson v. California, 370 U.S. 660 (1962).
210. For example, focusing on individual women�s drug use for the problem's their children may suffer distracts attention from the fact that "[h]alf of all Black children are born into poverty in the United States." Roberts, supra note 141.
211. Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, in Critical Race Theory 63 (Kimberl� Crenshaw, Neil Gotanda, Gary Pellar & Kendall Thomas eds., 1995).
212. There is a growing body of ethnographic research that provides insight into the lived experiences of drug using-women. See, e.g. Murphy, supra note 55, at 100; Claire E. Sterk, Fast Lives, Women Who Use Crack Cocaine (1999); Boyd, supra note 140. See also Nadelmann, supra note 53, at 111 (noting that American "drug policies are designed, implemented, and enforced with virtually no input from the millions of Americans they affect most: drug users"). Participation in training sponsored by groups such as Be Present Inc., an Atlanta based non-profit organization that works to empower women and girls, also provides a starting place for sharing and listening to the lived experiences of a wide and diverse group of women.
213. See Crenshaw, supra note 209, at 358. "Where systems of race, gender, and class domination converge, as they do in the experiences of battered women of color, intervention strategies based solely on the experience of women who do not share the same class or race backgrounds will be of limited help to women who face different obstacles because of race and class."
214. Interviews with 126 women regarding their experiences with pregnancy, violence and drug use, researcher found:
     

     The needs of the women we interviewed were multilayered as well as overlapping, making available help inaccessible and insufficient. Their problems were treated individually, rather than holistically. Each service area focused on women�s drug use, pregnancy or violence, addressing only one problem at a time. Our participants were not only drug users. They were mothers, daughters, victims, poor, homeless, malnourished and stigmatized in conventional and illicit drug-using worlds. Drugs helped them to cope and to survive. It also caused them serious problems. They were demonized for their means of survival, but not given feasible or reasonable alternatives.

     Sheigla Murphy & Paloma Sales, Let�s Get Real Looking at the Lives of Pregnant Drug Users, Harm Reduction Communication 22, 24 (Spring 2001).

215. Amy Hill, Applying Harm Reduction to Services for Substance Using Women in Violent Relationships, Harm Reduction Coalition 7-9 (Spring 1998) (discussing the reasons why the development of services for battered, substance-abusing women is limited).
216. Murphy & Sales, supra note 212, at 24 ("Being a woman was a strike against them, being a pregnant woman was a second strike and being a drug-using pregnant woman was the third and final blow to their social standing.").
217. See, e.g., Center for Substance Abuse Treatment, Pregnant, Substance-Using Women 6 (1993) (U.S. Dept. of Health & Human Servs. Publication No. (SMA) 93-1998) (discussing the comprehensive services needed to address successfully the treatment of drug using women, noting that it �is imperative that programs include services designed specifically for women, particularly pregnant women"); Stephen Magura et al., Effectiveness of Comprehensive Services for Crack-Dependent Mothers with Newborns and Young Children (1998) (discussing New York City's experience with the Family Rehabilitation Program and citing numerous studies describing how comprehensive, coordinated, holistic treatment is better at engaging pregnant and parenting women); Claire McMurtrie et al., A Unique Drug Treatment Program for Pregnant and Postpartum Substance-Using Women in New York City: Results of a Pilot Project, 1990-1995, 25 Am. J. Drug & Alcohol Abuse 701, 701-02 (1999) (describing a comprehensive model of drug treatment for pregnant and postpartum women that included children and did not view relapse as a failure, concluding that it
     "seem[ed] to improve mother's lives, fetal drug exposure, and birth outcome significantly"); Center for Substance Abuse Treatment, Practical Approaches in the Treatment of Women Who Abuse Alcohol and Other Drugs 124-26 (1994) (U.S. Dept. of Health & Human Servs. Publication No. (SMA) 94-3006) (providing guidance to treatment providers to meet the specific needs of women with substance abuse problems). See also Stephanie Covington, Helping Women Recover: A Program for Treating Substance Abuse: Facilitator's Guide, Covington, Helping Women Recover : A Program for Treating Substance Abuse : Special Edition for Use in the Criminal Justice System (2000);