Misguided Retribution: Criminalization of Pregnant Women Who Take Drugs

Abstract

This article addresses the attempts to use criminal punishment to respond to pregnant women who take drugs in the United States. Although many have discussed why this approach is harmful, none have done so by examining the effects of the underlying philosophical justification for punishment appealed to in these cases, that of retribution. I examine explicitly the discourse created by the retributive criminal punishment of pregnant women in a way that has not been done before. I show that this discourse works to promote fetal personhood, individualizes blame for fetal harm, and highlights pregnant women as the primary source of fetal harm. Ultimately, this discourse perpetuates an ideology that forces women to have to bear all of the costs associated with pregnancy and allows the political community, and society as a whole, to ignore any areas of collective responsibility that it may have to promote successful reproduction. Even if criminalization of pregnant drug users fails as a legal remedy, as it mostly has in the USA, or is not even attempted, as is the case in the UK, the discourse about pregnancy perpetuated by retributive punishment of pregnant drug users must be directly challenged as a useful way of understanding the social issue of reproduction. This article is an attempt to lay out that challenge.