Breaking the Law by Giving Birth: The War on Drugs, the War on Reproductive Rights, and the War on Women


In the United States, women’s reproductive capabilities have been used both to exalt and to oppress women. Women’s unique role in reproduction has been used to refuse women the power to secure employment, to bar women from practicing in their chosen profession, and to deny women equal employment benefits. Over the last thirty or so years, the ability to bear and birth a child has been used as a reason to civilly confine or criminally prosecute hundreds of women, predominantly women from poor communities and communities of color. Often, the proffered justification for the punitive action against pregnant women is the protection of fetal health or fetal rights, and the need to protect fetuses from harm based on the mother’s drug use. But, as this article will show, prosecuting as child abusers or even murderers the thousands of American women who carry pregnancies to term despite their drug addictions not only fails to further the states’ goal of protecting fetal health, but also violates the constitutional rights of pregnant women.

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