Abstract
Women increasingly face criminal charges for giving birth to infants who test positive for drugs. Most of the women prosecuted are poor, Black, and addicted to crack cocaine. In this Article, Professor Roberts seeks to add the perspective of poor Black women to the current debate over protecting fetal rights at the expense of women's rights. Based on the presumption that Black women experience several forms of oppression simultaneously, the author argues that the punishment of drug addicts who choose to carry their pregnancies to term violates their constitutional rights to equal protection and privacy regarding their reproductive choices. She begins by placing these prosecutions in the context of the historical devaluation of Black women as mothers. After presenting her view of the prosecutions as punishing drug- addicted women for having babies, the author argues that this punishment violates the equal protection clause because it stems from and perpetuates Black subordination. Finally, Professor Roberts argues that the prosecutions violate women's constitutional rights to autonomy and freedom from invidious government standards for childbearing. In presenting her view that the prosecutions violate women's privacy rights, the author critiques the liberal, "negative" conception of privacy rooted in freedom from government constraints. She concludes by advocating a progressive concept of privacy that places an affirmative obligation on the government to guarantee individual rights and recognizes the connection between the right of privacy and racial equality.
Citation
Roberts, Dorothy E, ‘Punishing drug addicts who have babies: women of color, equality, and the right of privacy.’ (1991) 104 Harvard Law Review, 1419.
Link to article