Backlash: The Undeclared War Against American Women

by Susan Faludi

  To a remarkable degree, the antiabortion movement succeeded by the end of the ’80s in bringing much of the medical and legal establishment around to its vision of the fetus and mother. The fetus would become the primary patient in the prenatal operating room, the full citizen in the lawbooks, and the lead plaintiff in the courtroom. In fact, by the close of the ’80s, a fetus actually had more legal rights in some areas than a live child.

  Doctors drafted the first lines in the fetal declaration of independence. In 1982, a group of obstetricians and geneticists met in California and agreed that they had made sufficient medical advances in the still highly experimental practice of fetal surgery to treat the fetus as an independent “patient.” At the same time, in the equally experimental field of infertility treatment, doctors were also treating the fetus as if it were a baby with a separate existence from the mother. In the waiting rooms of in-vitro fertilization centers, doctors posted “baby pictures” of their embryos—“Our Katy,” read the caption of one of the many murky sonograms plastered on the walls of the Pacific Fertility Center in San Francisco. Some infertility specialists even offered videotapes of “our children”—footage of barely fertilized eggs—and enthused about how “the sonographic voyeur, spying on the unwary fetus, finds him or her a surprisingly active little creature.” In fact, some infertility doctors were beginning to act as if the fetus really were their baby. At the Jones Institute of Reproductive Medicine, Dr. Howard Jones claimed custody of a patient’s embryo; the woman had to sue him in federal court to force him to release it.

  For the infertility specialists, humanizing the embryo just made good business sense—it helped to distract from their abysmal record in making actual babies. As a 1988 congressional study found, in-vitro fertilization centers had a success rate of less than 10 percent, and half the centers had never produced a live birth. Nonetheless, the doctors managed to extract tens of thousands of dollars from their average patient—for medical procedures that in most cases weren’t even insured.

  Fertility doctors weren’t only elevating fertilized eggs to infant status; they were also reducing female patients to “the uterine environment,” or “the incubators,” as these specialists so often put it—and increasingly treating them like guinea pigs. Just as doctors in the late Victorian era turned women’s wombs into “Chinese toy shops” (in the word of one physician of the time)—by jamming them with hot irons, injection needles, or, most popularly, leeches—women who sought help at infertility centers in the ’80s were pumped full of barely tested and risky fertility drugs, injected with unscreened semen, and subjected to unregulated and even life-threatening procedures. At least ten women died from complications stemming from in-vitro fertilization treatment. The DiMiranda Institute, a foundation that monitors infertility services, was fielding complaints from women on a daily basis by the late ’80s: women whose ovaries had swollen to the size of grapefruits from the popular fertility drug Perganol, women who caught venereal disease from the contaminated sperm in artificial insemination labs, women who went in for minor laser treatment and came out with hysterectomies. Gina DiMiranda, the institute’s director, founded the agency after she nearly died herself, when an infertility specialist prescribed an untested steroid regimen. She ended up hospitalized in critical condition with a 105-degree fever, massive infections, and uterine and rectal bleeding.

  Lawmakers and judges were also moving to elect the fetus to citizenship. For the first time in American history, legislators and state courts began to define the fetus as a legally independent “person” rather than an entity whose interests were inseparable from its mother’s. A New Hampshire court even deemed the fetus a “household resident” who could collect on a homeowner’s insurance policy. By the mid-’80s, a majority of states had passed “feticide” laws that extended wrongful death statutes to the fetus. Some states went even further. A Louisiana law defined fertilized eggs as fully formed humans. Courts, too, were pushing the bounds of personhood to prefetal stages. In a 1989 divorce case, a Tennessee circuit judge ruled that a couple’s frozen pre-embryonic clusters of four to eight cells were legally their children and couldn’t be destroyed.

  While these early feticide laws primarily defended the fetus from an intruding third party—a drunken driver or mugger who accosted the mother—the laws and court rulings that arose in the second half of the decade were directed with increasing exclusivity, and wrath, at the mother herself. If the early legislative and judicial decisions separated mother and fetus, then the later ones set mother and fetus against each other.

  By the late ’80s, state legislators around the nation were seeking to apply child abuse laws to the fetus to protect it from an offending mother. On the federal level, California’s U.S. Senator Pete Wilson crusaded for the Child Abuse During Pregnancy Prevention Act. “Surely the most sordid and terrifying story is that of exploding child abuse through the umbilical cord,” he told his fellow lawmakers. Meanwhile in the states, a raft of “fetal neglect” bills flooded the legislatures. The proposals called for the prosecution of women whose behavior during pregnancy was deemed negligent of their fetuses—behavior that included everything from not following doctors’ orders to eating the wrong foods to giving birth at home. Other legislative initiatives sought to criminalize alcohol use by pregnant women and to imprison repeat pregnant offenders for as much as twenty-five years. In many states, it became routine for juvenile courts to claim “custody” of the fetuses of low-income pregnant women whose prenatal practices might constitute harm; then, at birth, the children were declared state wards and whisked away.

  The general public eventually joined the campaign. By 1988, half of the people surveyed in a Gallup poll agreed that pregnant women who drank, smoked, or refused obstetrical surgery should be held legally liable. Stores, restaurants, and even subways posted lecturing signs about proper consumption. Medical and legal scholars proposed mandatory Breathalyzer tests for seemingly tipsy pregnant women, mandatory screenings of the fetus (with criminal penalties for those who resisted), and arrests for those who didn’t follow nutritious diets. In this environment, total strangers felt free to approach pregnant women in public places and accost them for buying a six-pack at the grocery store or ordering a single glass of wine at dinner. In Seattle in 1991, a pregnant woman who ordered a single drink in a bar was hounded and lectured by two waiters—so vigorously that she sued. The local newspaper columnist, however, applauded the waiters’ vigilance. That same year, a Seattle health club ordered a pregnant bus driver with sore muscles out of its hot tub. She needed written permission from her doctor, the club’s officers insisted. (The woman had, in fact, checked beforehand with her doctor, who had approved the regimen.)

  As the fetus’s rights increased, the mother’s just kept diminishing. Poor pregnant women were hauled into court by male prosecutors, physicians, and husbands. Their blood was tested for drug traces without their consent or even notification, their confidentiality rights were routinely violated in the state’s zeal to compile a case against them, and they were forced into obstetrical surgery for the “good” of the fetus, even at the risk of their own lives.

  Here are just a few of the many cases from the decade’s pregnancy police blotter and court docket:

  In Michigan, a juvenile court took custody of a newborn because the mother took a few Valium pills while pregnant, to ease pain caused by an auto accident injury. The mother of three had no history of drug abuse or parental neglect. It took more than a year for her to get her child back.

  In California, a young woman was brought up on fetal neglect charges under a law that, ironically, was meant to force negligent fathers to pay child support. Her offenses included failing to heed a doctor’s advice (a doctor who had failed to follow up on her treatment), not getting to the hospital with due haste, and having sex with her husband. The husband, a batterer whose brutal outbursts had summoned the police to their apartment more than a dozen times in one year alone, was not charged—or even
investigated.

  In Iowa, the state took a woman’s baby away at birth even though no real harm to the infant was evident—because she had, among other alleged offenses, “paid no attention to the nutritional value of the food she ate during her pregnancy,” as an AP story later characterized the Juvenile Court testimony. “[S]he simply picked the foods that tasted good to her.”

  In Wyoming, a woman was charged with felony child abuse for allegedly drinking while pregnant. A battered wife, she had been arrested on this charge after she sought police protection from her abusive husband.

  In Illinois, a woman was summoned to court after her husband accused her of damaging their daughter’s intestine in an auto accident during her pregnancy. She wasn’t even the driver.

  In Michigan, another husband hauled his wife into court to accuse her of taking tetracycline during her pregnancy; the drug, prescribed by her physician, allegedly discolored their son’s teeth, he charged. The state’s appellate court ruled that the husband did indeed have the right to sue for this “prenatal negligence.”

  In Maryland, a woman lost custody of her fetus when she refused to transfer to a hospital in another city, a move she resisted because it would have meant stranding her nineteen-month-old son.

  In South Carolina, an eighteen-year-old pregnant woman was arrested before she had even given birth, on the suspicion that she may have passed cocaine to her fetus. The charge, based on a single urine test, didn’t hold up; she delivered a healthy drug-free baby. Even so, and even though the Department of Social Services found no evidence of abuse or neglect, state prosecutors announced that they intended to pursue the case anyway.

  In Wisconsin, a sixteen-year-old pregnant girl was confined in a secure detention facility because of her alleged tendencies “to be on the run” and “to lack motivation” to seek prenatal care.

  Certainly society has a compelling interest in bringing healthy children into the world, both a moral and practical obligation to help women take care of themselves while they’re pregnant. But the punitive and vindictive treatment mothers were beginning to receive from legislators, police, prosecutors, and judges in the ’80s suggests that more than simple concern for children’s welfare was at work here. Police loaded their suspects into paddy wagons still bleeding from labor; prosecutors barged into maternity wards to conduct their interrogations. Judges threw pregnant women with drug problems into jail for months at a time, even though, as the federal General Accounting Office and other investigative agencies have found, the prenatal care offered pregnant women in American prisons is scandalously deficient or nonexistent (many prisons don’t even have gynecologists)—and has caused numerous incarcerated women to give birth to critically ill and damaged babies. Police were eager to throw the book at erring pregnant women. In the case of Pamela Rae Stewart of San Diego—the battered woman charged with having sex against her doctor’s orders—the officer who headed up the investigation wanted her tried for manslaughter. “In my mind, I didn’t see any difference between born and unborn,” Lieutenant Ray Narramore explains later. “The only question I had was why they didn’t go for a murder charge. I would have been satisfied with murder. That wouldn’t have been off-base. I mean, we have a lady here who was not following doctor’s orders.”

  Lawmakers’ claims that they just wanted to improve conditions for future children rang especially false. At the same time that legislators were assailing low-income mothers for failing to take care of their fetuses, they were making devastating cuts in the very services that poor pregnant women needed to meet the lawmakers’ demands. How was an impoverished woman supposed to deliver a healthy fetus when she was denied prenatal care, nutrition supplements, welfare payments, and housing assistance? In the District of Columbia, Marion Barry declared infant health a top priority of his mayoral campaign—then cut health care funding, forcing prenatal clinics to scale back drastically and eliminate outright their evening hours needed by the many working women. Doctors increasingly berated low-income mothers, but they also increasingly refused to treat them. By the end of the decade, more than one-fourth of all counties nationwide lacked any clinic where poor women could get prenatal care, and a third of doctors wouldn’t treat pregnant women who were Medicaid patients. In New York State, a health department study found that seven of the state’s counties had no comprehensive prenatal care for poor women whatsoever; several of these counties, not so coincidentally, had infant mortality rates that were more than double the national average. In California in 1986, twelve counties didn’t have a single doctor willing to accept the state’s low-income Medi-Cal patients; in fact, the National Health Law Program concluded that the situation in California was so bad that poor pregnant women are “essentially cut off from access to care.”

  • • •

  OF ALL the clubs wielded over the heads of impoverished pregnant women in the decade, the positive drug test was the most popular. As the federal government and press became obsessed with the social problem of crack addiction in the ghettos, the national hysteria quickly homed in on pregnant drug-addicted women. Congress held alarmist hearings. Prosecutors applied tough felony laws to these women—laws that were designed for drug dealers, not drug users—and charged them not only with child abuse but assault with a deadly weapon and manslaughter. Judges proposed “life probation” on forced contraception, routine testing of pregnant drug users, and permanent restraining orders forbidding the women from ever seeing their children. Lawmakers advocated mandatory sterilization. Medical school professors recommended revoking public assistance benefits. Media commentators issued their own solutions. Syndicated columnist Charles Krauthammer suggested rounding up all drug-using pregnant women and confining them in a “secure location”—to halt the onset of a “bio-underclass.” And on the supposedly neutral news pages, reporters joined in with reams of didactic copy on crack-abusing mothers, almost all of it directed at black women. They claimed the women were the prime culprits behind the chaos in the inner cities and the national crisis in newborn deaths. “Crack Babies: The Worst Threat Is Mom Herself,” the Washington Post headline decreed. “Drug addiction among pregnant women,” Newsweek charged in 1989, in a widely voiced press sentiment, “is driving up the U.S. infant mortality rate.”

  In fact, the rate of infant mortality wasn’t rising. Progress in lowering the nation’s disastrously high infant mortality rate—one of the worst in the industrialized world—did slow drastically. But that slowdown predated the crack epidemic of the mid to late ’80s; it was driven largely by severe rollbacks in health insurance and available medical care in the early ’80s. By 1983, the number of uninsured people had jumped more than 20 percent from the late ’70s. By mid-decade, nearly 40 percent of all poor women were uninsured. At the same time, the 1981 federal budget cuts in Medicaid and public assistance for poor female-headed households had stripped more than one million mothers and their children of their medical benefits. Consequently, the proportion of babies born to mothers with no or belated prenatal care rose 20 percent in the first seven years of the ’80s. Black women were hurt most by these trends; by 1985, one out of two black women had inadequate prenatal care.

  It was these developments, far more than crack addiction, that slowed progress in lowering American infant mortality rates and caused low birth-weight rates to begin rising again in the early ’80s—after a decade of improvement. The leading causes of early infant deaths in the ’80s weren’t drug related; they were ailments like influenza, infections, and pneumonia, all easily prevented or treated by basic health care. Again, black mothers bore the heaviest burden; their infant mortality rates began deteriorating in 1984 (before the crack epidemic took hold) and by 1987, the black-white gap in infant mortality was wider than it had been since the government began collecting such information in 1940. (Black women were being unfairly singled out in the courts and in the press in the antiaddict crusade, anyway. An equal percentage of black and white women in the ’80s were using drugs and alcohol, a s
urvey found; black women were just ten times more likely to be turned in to state authorities than their white counterparts.)

  A 1989 University of California research team reviewed records of more than 146,000 births between 1982 and 1986 in California, and found that babies born to parents with no health insurance—a group whose numbers had grown 45 percent in those same years—were 30 percent more likely to die, be seriously ill at birth, and suffer low birth weight; uninsured black women were more than twice as likely as insured black women to have sickly newborns. A similar 1985 Florida report tracing the dire effects of lost prenatal care concluded, “In the end, it is safer for the baby to be born to a drug-abusing, anemic, or diabetic mother who visits the doctor throughout her pregnancy than to be born to a normal woman who does not.”

  Proponents of the crackdown on pregnant drug users argued that women could avoid prosecution simply by seeking treatment for their drug habit. Yet treatment for pregnant addicts was largely unavailable. And clinical programs were essential for these women; sudden or un-monitored withdrawal from addictive drugs like heroin can be deadly to both mother and fetus. While government prosecution of drug-addicted women escalated, low-income pregnant women who did want to overcome their drug addiction would have an increasingly hard time finding help in the ’80s as the waiting list for drug rehabilitation programs stretched into the years and many closed their doors to pregnant women to avoid potential liability for drug-related birth defects. Less than 1 percent of federal antidrug funding was aimed at treatment for women—and even less for pregnant women. A survey of seventy-eight drug-treatment programs in New York City found that the vast majority of them refused treatment to poor pregnant women on drugs; 87 percent denied treatment to pregnant women on Medicaid who were addicted to crack. Across the country, two-thirds of hospitals reported that they had no place to refer drug-addicted pregnant women for treatment.