A lot of energy is being aimed at the legal arguments put forth in the Supreme Court draft majority opinion overturning Roe v. Wade, which leaked on May 2. In particular, lots of objection to this:
“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much,” wrote Justice Samuel Alito. “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution and the like. None of these rights has any claim to being deeply rooted in history.”
“Fetal personhood,” has the traction it does today because first it came for drug users, and the broader public was okay with that.
What is there to disagree with, exactly? It’s all true. This fixation on calling out the supposed hypocrisies of anti-abortionists—How can they be pro-life and want abortion punishable by death penalty?; If they love “life” so much, why don’t they care about the maternal death rates?—seems mostly sustained by people who aren’t targets for state violence themselves. So much space is taken up challenging right-wingers to reconcile moral contradictions in their ideology, but there aren’t any. Does a law strip bodily autonomy from vulnerable people? Then it’s a good law.
“Fetal personhood,” the Roe loophole that the pro-life brigade has decided to ride into the ground, has the traction it does today because first it came for drug users, and the broader public was okay with that. Look at pregnant drug users, who are prosecuted for abortion and also prosecuted for carrying to term.
During the “meth baby” panic of the 2000s—somewhat less discussed than the “crack baby” panic of the ’80s—judges began unabashedly misapplying a felony charge known as “chemical endangerment. Intended for situations where children were playing near backyard meth labs, it was turned on pregnant people who used drugs, or were suspected of using drugs, or in the vicinity of where drugs had maybe been recently. The law itself does not mention “fetus” or “pregnancy,” but this didn’t matter.
“Fetal assault” and child abuse laws were soon weaponized against drug users who chose to stay pregnant, even though the evidence does not support claims that prenatal exposure to cocaine or meth is particularly harmful. Civil commitment laws became a way to mandate people into drug treatment by claiming the fetus was being taken into protective custody. Drug trafficking laws were twisted to criminalize distribution of illicit substances—via umbilical cord—to a minor.
If you are pregnant and suspected of drug use, all bets are off in terms of due process. It could become a crime to access prenatal care, not access prenatal care, seek care after an assault, have HIV, attempt suicide, give birth at home, voluntarily have a cesarean, resist a forced cesarean, or decline to be voluntarily sterilized. Prisoners can be detained longer if it’ll stop them from getting an abortion, or if they’re deemed likely to get pregnant again.
Though it’s widely assumed that using drugs while pregnant or parenting must constitute child abuse, and must trigger health care and social workers’ mandated reporting obligations, only about half the states have laws to that effect. Only eight states actually require providers to drug test.
Pregnant drug users who access prenatal care, or any kind of health care, are regularly drug tested without their informed consent. Providers then breach patient confidentiality and report them to law enforcement. Nonconsensual drug tests for the purpose of police surveillance are unconstitutional, and yet for lower-income patients it’s routine. Black patients in particular are targeted at every stage of pregnancy criminalization—singled out for drug testing, for arrest, for prosecution, for unattainable bail.
In the event of a miscarriage, providers may simply report that the patient looks like someone who uses drugs. If they ever have used drugs, then they are at fault for the miscarriage. Effectively criminalizing prenatal care increases drug users’ risk of miscarriages and stillbirths, which in turn increases their risk of incarceration. It’s unconstitutional for correctional administrations to deny prisoners access to abortion, but of course they do.
Politicians and Supreme Court justices who vote against abortion access are not interested in hearing how criminalizing something doesn’t make it go away. They are interested in keeping certain people in poverty.
Drug users were already telling you what an “aura of illegality” looks like, and that criminalization of pregnancy has never been confined to abortion.
What is the end game of appeals about how legal abortion lowers the crime rate? It benefits the right for crime to be up. Appeals about how abortion access and overdose prevention save money? They don’t need to save money; they already have it. Appeals about how more people will die? They look at us and see expendable labor, of which there will always be more. There is no amount of peer-reviewed evidence that will ever convince a police state that it has too much power. This fixation on debating them out of it is inane.
Pregnant drug users who have generational wealth and flexible work hours—white women, mostly—do not get conscripted into giving birth because they couldn’t make it to a clinic, nor drug-tested at random. You know who can’t travel long distances or leave the state, and are drug-tested constantly? People on methadone; people who don’t make a living wage; people on Medicaid; people who live in public housing; people who use food stamps; people on parole; people in prison.
Drug users were already telling you what an “aura of illegality” looks like, and that criminalization of pregnancy has never been confined to abortion. So were Black women, who originated the reproductive justice movement. So were sex workers, who accessed self-managed abortion amid the rapidly evolving privacy violations of a surveillance state.
It’s not that legalization doesn’t matter, especially in the context of its propping up other legislation in the crosshairs. It’s that legalizing abortion still never made it accessible to the people whose pregnancies are highly criminalized, and who are prosecuted regardless of the pregnancy’s outcome. Less time and energy pointing out injustices of laws that were designed to be unjust; more direct action outside of laws and institution. More resources to the people who understand criminalization for what it really is. Pay for their abortion access. Pay their legal fees. Pay their bail.
Photograph of methamphetamine raid via United States Attorneys Office, Northern District of Iowa