Beyond Bars: Drug War Ideology in the Civil Child Welfare System

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Among drug policy reform activists, there is a consensus that punitive approaches should not constitute the bulk of our national strategy to reduce the harms associated with addiction and problematic use of drugs.

Whether in recognition of its fiscal irresponsibility, its conflict with public health goals, or its disparate impact on brown, black, and poor communities, we agree that mass incarceration is not an appropriate solution to the problems caused by drugs themselves.

We recognize the incoherence of a zero-tolerance, or “prohibitionist” approach to drug policy, and the futility of repressive tactics premised upon the total elimination of drugs from society.

Unsurprisingly, many of us favor the decriminalization—replacement of criminal penalties with civil sanctions— of some drug offenses that are currently prohibited. On the state level, we have successfully lobbied to relax restrictions on cannabis use in 14 states and make it available for medical use in 21 states and the District of Columbia. We fought to end the sentencing disparities between crack and powder cocaine (and have, at least, succeeded in reducing the disparities), and continue to fight for sentencing reform, especially for nonviolent offenses. This work is crucial and must continue.

At the same time, we must integrate into our strategy an understanding that the criminal law is far from the only source of overreaching prohibitionist approaches. Running parallel to it are family courts and the civil child welfare system, which have become a major mechanism for enforcing prohibitionist policies in ways that are both discriminatory and scientifically unfounded. Actors within this system routinely treat testing positive for illegal drugs as the basis for findings of child neglect and parental unfitness, and collaborate with law enforcement in the criminal prosecution of pregnant women for child endangerment, drug delivery to a minor, and feticide.

Child Protective Services (CPS) wields unbelievable power over families—especially poor families and families of color—and has the authority to remove a child from his parent’s custody, place him in foster care or up for adoption, and potentially terminate the legal rights of the parent. CPS systems of reporting, investigation, and placement disproportionately regulate the behavior of women, especially single mothers and those who are pregnant.

This regulation occurs not only through enforcement of the criminal law, but also through state-administered CPS agencies, vested by authority under civil statute to protect vulnerable children. Mandated reporting laws, which have required certain professionals to report known or suspected child abuse or neglect, have in some states been expanded in recent years to include exposure of a newborn to illegal drugs as grounds for a CPS report. Though health care providers are often motivated to identify patients who use substances by concerns about the clinical impact of maternal drug and alcohol abuse, mandated reporting laws force them to implement surveillance of their patients and breach their trust and privacy by informing the state of their illicit activity when children are involved. This transforms doctors and nurses into state investigators, who feel bound by the law to err on the side of over-reporting instances of parental drug use (especially drug use by pregnant women) even in the absence of any unique, much less discernible, harm to a child.

The trend of expanding child abuse and neglect laws to cover pregnant women’s maternal drug use during the prenatal period illustrates what some have called a “fetal-maternal conflict,” wherein the liberty interests of the pregnant woman are allegedly at odds with the liberty interests of the fetus. This is a false equivalency—first and foremost, the Supreme Court has held firmly that fetuses are not persons under the meaning of the Fourteenth Amendment—and in truth, reflects a desire to enhance the state’s power over pregnant women. Those in favor of so-called “fetal personhood” have promoted using the “rights” of a fetus as a proxy to effectuate state interests. As support for the concept of “personhood” has gained traction nationally, some prosecutors, along with some CPS workers, have invoked the State’s obligation to protect vulnerable children to frame fetus and mother as opposing parties in a balancing of liberty interests. In developing the argument that the State may control and punish a pregnant woman for the alleged benefit of a fetus, a great deal of cases have involved the investigation and/or prosecution of a woman who used illegal drugs at some point during pregnancy.

Indeed, the ugly caricatures that come to mind when the image of a pregnant drug user is invoked are fueled simultaneously by the twin moral panics of drug abuse and child abuse, which converged in the 1980s in the form of the “crack baby” myth. Though the claims of irreversible brain damage which fed the media frenzy are now understood to have been scientifically unfounded, the “crack baby” image retains its power in the American conscience and continues to inform legal and regulatory schemes on the national, state, and local levels. Through chemical endangerment, feticide, and mandated reporting laws—particularly those designed to identify “substance-exposed newborns” (“SENs”)—the prohibition of controlled substances collides with heightened state scrutiny of families living in poverty to create a culture of surveillance and policing of pregnant women and low-income parents. As the reform movement gains traction within the states and nationally, advocates for liberalized drug laws must recognize the role played by child welfare authorities—in conjunction with, as well as independently from, criminal law enforcement—in carrying out the failed policies of the War on Drugs.

This report explores political, legal, and ethical issues at the intersection of the U.S. War on Drugs, the politics of abortion access, and the administration of the modern welfare state. It begins by reviewing the use of criminal prohibition to eliminate societal ills, drawing crucial parallels between the prohibition of controlled substances and the criminalization of abortion. Next, it traces the expansion of state child protective agencies and evidence of their disproportionate intervention in the homes of low income, nonwhite families. SEN policies form the focal point of the discussion as a prominent example of the entanglement of the War on Drugs with regulation of reproduction and child welfare policy. In the final section, I promote the intentional inclusion of reproductive justice in the work of drug policy reform, in recognition of both ethical and practical intersections of these movements.