Commentary Race

Tennessee’s Pregnancy Criminalization Law Will Hit Black Women the Hardest

Imani Gandy

SB 1391 may not target Black women specifically, but history tells us that laws that do not specifically target people of color nevertheless tend to disparately affect people of color.

Read more of our coverage on the Tennessee pregnancy criminalization law here.

In Tennessee, pregnant Black women have much to fear as a bill that would subject them to disproportionately higher rates of incarceration and detention sits on Gov. Bill Haslam’s desk, awaiting his signature.

The bill, SB 1391, would impose criminal penalties on mothers of newborns who have been exposed to addictive illegal or prescription drugs in utero. While the bill appears race-neutral, prosecutors and judges will wield the law against Black women more so than white women, based on a long tradition of deeply embedded racial stereotypes about Black motherhood. Should Gov. Haslam ignore the growing outcry against SB 1391 from pro-choice and anti-choice advocates alike, the law would likely lead to Black women being thrown in jail for up to 15 years for aggravated assault should they choose to carry a pregnancy to term while struggling with an addiction to illegal narcotics.

SB 1391 is an attempt by the Tennessee legislature to reduce the number of children born with neonatal abstinence syndrome, a group of problems that occur in newborns who are exposed to addictive illegal or prescription drugs in utero. Current law in Tennessee prevents pregnant women from being prosecuted for a newborn child’s addiction or birth defect resulting from drug use during pregnancy. Indeed, just last year, Gov. Haslam signed into law the Safe Harbor Act, a law meant to help drug-addicted pregnant women get treatment and prenatal care so they can beat their addictions, give birth to healthy newborns, and retain their parental rights. SB 1391 would change that by criminalizing women who suffer from drug addiction. And given the stereotypes that pervade about Black motherhood, that change will hurt Black women the most.

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Stereotypes about Black women—that they are promiscuous, that they procreate irresponsibly, that they are unfit for motherhood—are perpetuated by a media that routinely presents disparaging images and narratives about Black motherhood while rarely, if ever, presenting positive views. They are rooted in a historical assault on Black women that began during slavery and continues today, and they contribute to what Professor Dorothy E. Roberts calls in her seminal book, Killing the Black Body, “the degradation of Black motherhood.” This degradation leads to social policies that punish Black women for their reproductive choices while simultaneously eschewing any responsibility for societal forces that create the hostile birthing environment that far too many Black women find themselves in.

The media’s obsession with so-called crack babies is a perfect example. In the 1980s, the media was saturated with tales of “crack babies,” babies born to Black women who were defective from birth and, according to widespread media reports, destined to fail as soon as they exited the birth canal. At the time, an explosion of medical research into crack-exposed newborns suggested that these babies would suffer long-term medical, developmental, and behavioral problems, problems that could never be fixed and that stemmed exclusively from the poor choices that pregnant Black women made. Media reports portrayed pregnant Black women as entirely lacking in any maternal instinct—drug-addled women whose concern was primarily for their next fix, and not for their children.

Notably, the concern during the “crack baby” hysteria was not for the mothers who were addicted to drugs and in need of help so that they could beat their addictions, carry their pregnancies to term, and give birth to healthy babies, but rather on the ways in which the so-called crack babies themselves were a drain on society and taxpayer dollars. Rather than eliciting sympathy, the ways in which, for example, children born with Down syndrome or other genetic anomalies do, “crack babies” were viewed with disdain.

It wasn’t until 30 years later that the “crack baby” myth was debunked. It turns out that poverty, more so than drug use, is a key factor in determining how well so-called crack babies succeed later in life, according to a long-term study on the affects of in utero cocaine exposure on children. Of course by the time these sorts of long-term studies were completed, the stereotypes that had proliferated during the 1980s and ’90s were implacable and the incarceration of drug-addicted pregnant women had become the only solution to a problem that society viewed as endemic in the Black community.

In South Carolina, for example, under a state-sanctioned mandatory drug-testing program, prosecutors arrested and charged drug-addicted Black women for child abuse and neglect at a rate that was far higher than that of white women; 41 of the 42 women arrested under South Carolina’s program were Black. In Florida, a study suggested that Black women were ten times more likely than white women to be reported to authorities, even though the rate of substance abuse between the two groups is about the same. And according to a study conducted in 2001, of the 200 pregnant women or mothers who were arrested and charged with crimes related to illegal drug use during pregnancy, 80 percent were Black or Latina. This is so even though a study conducted by the National Institute on Drug Abuse suggests that most women who use illegal drugs while pregnant are white.

Why the disconnect? Chalk it up to pernicious stereotypes about Black motherhood, which take root in the American consciousness and lead to prosecutors and judges tasked with upholding laws like SB 1391 to apply the laws in discriminatory ways.

Certainly SB 1391 does not target Black women specifically, just as none of the laws that were enacted in states across the country in the wake of the “crack baby” media hysteria did. However, history tells us that laws that do not specifically target people of color nevertheless tend to disparately affect people of color.

This sort of disparate impact is to be expected should Gov. Haslam sign SB 1391 into law. In an interview with Lauren Rankin for Cosmopolitan, Farah Diaz-Tello, a staff attorney at the National Advocates for Pregnant Women, makes the point: “I can almost guarantee that this [law] will be used disproportionately against African-American women because, even though we know that fewer African-American women than white women use drugs, they are more likely to be blamed for the outcomes of their pregnancies.”

News Human Rights

What’s Driving Women’s Skyrocketing Incarceration Rates?

Michelle D. Anderson

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

Local court and law enforcement systems in small counties throughout the United States are increasingly using jails to warehouse underserved Black and Latina women.

The Vera Institute of Justice, a national policy and research organization, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge initiative, released a study last week showing that the number of women in jails based in communities with 250,000 residents or fewer in 2014 had grown 31-fold since 1970, when most county jails lacked a single woman resident.

By comparison, the number of women in jails nationwide had jumped 14-fold since 1970. Historically, jails were designed to hold people not yet convicted of a crime or people serving terms of one year or less, but they are increasingly housing poor women who can’t afford bail.

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

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Overlooked: Women and Jails in an Era of Reform,” calls attention to jail incarceration rates for women in small counties, where rates increased from 79 per 100,000 women to 140 per 100,000 women, compared to large counties, where rates dropped from 76 to 71 per 100,000 women.

The near 50-page report further highlights that families of color, who are already disproportionately affected by economic injustice, poor access to health care, and lack of access to affordable housing, were most negatively affected by the epidemic.

An overwhelming percentage of women in jail, the study showed, were more likely to be survivors of violence and trauma, and have alarming rates of mental illness and substance use problems.

“Overlooked” concluded that jails should be used a last resort to manage women deemed dangerous to others or considered a flight risk.

Elizabeth Swavola, a co-author of “Overlooked” and a senior program associate at the Vera Institute, told Rewire that smaller regions tend to lack resources to address underlying societal factors that often lead women into the jail system.

County officials often draft budgets mainly dedicated to running local jails and law enforcement and can’t or don’t allocate funds for behavioral, employment, and educational programs that could strengthen underserved women and their families.

“Smaller counties become dependent on the jail to deal with the issues,” Swavola said, adding that current trends among women deserves far more inquiry than it has received.

Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute, said in “Overlooked” that the study underscored the need for more data that could contribute to “evidence-based analysis and policymaking.”

“Overlooked” relies on several studies and reports, including a previous Vera Institute study on jail misuse, FBI statistics, and Rewire’s investigation on incarcerated women, which examined addiction, parental rights, and reproductive issues.

“Overlooked” authors highlight the “unique” challenges and disadvantages women face in jails.

Women-specific issues include strained access to menstrual hygiene products, abortion care, and contraceptive care, postpartum separation, and shackling, which can harm the pregnant person and fetus by applying “dangerous levels of pressure, and restriction of circulation and fetal movement.”

And while women are more likely to fare better in pre-trail proceedings and receive low bail amounts, the study authors said they are more likely to leave the jail system in worse condition because they are more economically disadvantaged.

The report noted that 60 percent of women housed in jails lacked full-time employment prior to their arrest compared to 40 percent of men. Nearly half of all single Black and Latina women have zero or negative net wealth, “Overlooked” authors said.

This means that costs associated with their arrest and release—such as nonrefundable fees charged by bail bond companies and electronic monitoring fees incurred by women released on pretrial supervision—coupled with cash bail, can devastate women and their families, trapping them in jail or even leading them back to correctional institutions following their release.

For example, the authors noted that 36 percent of women detained in a pretrial unit in Massachusetts in 2012 were there because they could not afford bail amounts of less than $500.

The “Overlooked” report highlighted that women in jails are more likely to be mothers, usually leading single-parent households and ultimately facing serious threats to their parental rights.

“That stress affects the entire family and community,” Swavola said.

Citing a Corrections Today study focused on Cook County, Illinois, the authors said incarcerated women with children in foster care were less likely to be reunited with their children than non-incarcerated women with children in foster care.

The sexual abuse and mental health issues faced by women in jails often contribute to further trauma, the authors noted, because women are subjected to body searches and supervision from male prison employees.

“Their experience hurts their prospects of recovering from that,” Swavola said.

And the way survivors might respond to perceived sexual threats—by fighting or attempting to escape—can lead to punishment, especially when jail leaders cannot detect or properly respond to trauma, Swavola and her peers said.

The authors recommend jurisdictions develop gender-responsive policies and other solutions that can help keep women out of jails.

In New York City, police take people arrested for certain non-felony offenses to a precinct, where they receive a desk appearance ticket, or DAT, along with instructions “to appear in court at a later date rather than remaining in custody.”

Andrea James, founder of Families for Justice As Healing and a leader within the National Council For Incarcerated and Formerly Incarcerated Women and Girls, said in an interview with Rewire that solutions must go beyond allowing women to escape police custody and return home to communities that are often fragmented, unhealthy, and dangerous.

Underserved women, James said, need access to healing, transformative environments. She cited as an example the Brookview House, which helps women overcome addiction, untreated trauma, and homelessness.

James, who has advocated against the criminalization of drug use and prostitution, as well as the injustices faced by those in poverty, said the problem of jail misuse could benefit from the insight of real experts on the issue: women and girls who have been incarcerated.

These women and youth, she said, could help researchers better understand the “experiences that brought them to the bunk.”

Commentary Violence

When It Comes to Threats, Online or on the Campaign Trail, It’s Not Up to Women to ‘Suck It Up’

Lauren Rankin

Threats of violence toward women are commonplace on the internet for the same reason that they are increasingly common at Donald Trump rallies: They are effective at perpetuating violence against women as the norm.

Bizarre and inflammatory rhetoric is nothing new for this election. In fact, the Republican presidential candidate has made an entire campaign out of it. But during a rally last Tuesday, Donald Trump sunk to a new level. He lamented that if Hillary Clinton is elected president in November, there will be no way to stop her from making judicial nominations.

He said, “By the way, and if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know.”

For a candidate marred by offensive comment after offensive comment, this language represents a new low, because, as many immediately explained, Trump appears to be making a veiled threat against Clinton, whether he had intended to or not.

Sen. Elizabeth Warren (D-MA) called it a “death threat” and Dan Rather, former CBS Evening News host, called it a “direct threat of violence against a political rival.” Former President Ronald Reagan’s daughter Patti Davis said it was “horrifying,” and even the author of an NRA-linked blog initially tweeted, “That was a threat of violence. As a real supporter of the #2A it’s appalling to me,” before deleting the tweet as the NRA expressed support for Trump.

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This kind of language is violent in nature on its face, but it is also gendered, following in a long line of misogynistic rhetoric this election season. Chants of “kill the bitch” and “hang the bitch” have become common at Trump rallies. These aren’t solely examples of bitter political sniping; these are overt calls for violence.

When women speak out or assert ourselves, we are challenging long-held cultural norms about women’s place and role in society. Offensively gendered language represents an attempt to maintain the status quo. We’ve seen this violent rhetoric online as well. That isn’t an accident. When individuals throw pejorative terms at those of who refuse to be silenced, they are attempting to render public spaces, online or on the campaign trail, unsafe for us.

There is no shortage of examples demonstrating how individuals who feel threatened by subtle power shifts happening in our society have pushed back against those changes. The interactions happening online, on various social media platforms, offer the most vivid examples of the ways in which people are doing their best to try to make public spaces as uncomfortable as possible for marginalized populations.

Social media offers the opportunity for those whose voices are routinely ignored to hold power in a new way. It is a slow but real shift from old, more traditional structures of privileging certain voices to a more egalitarian megaphone, of sorts.

For marginalized populations, particularly women of color and transgender women, social media can provide an opportunity to be seen and heard in ways that didn’t exist before. But it also means coming up against a wall of opposition, often represented in a mundane but omnipresent flow of hatred, abuse, and violent threats from misogynist trolls.

The internet has proven to be a hostile place for women. According to a report from the United Nations, almost three quarters of women online have been exposed to some form of cyber violence. As someone who has received threats of violence myself, I know what it feels like to have sharing your voice met with rage. There are women who experience this kind of violent rhetoric to an even greater degree than I could ever dream.

The list of women who have been inundated with threats of violence could go on for days. Women like Zerlina Maxwell, who was showered with rape threats after saying that we should teach men not to rape; Lindy West received hundreds upon hundreds of violent and threatening messages after she said that she didn’t think rape jokes were funny; Leslie Jones, star of Ghostbusters and Saturday Night Live, was driven off of Twitter after a coordinated attack of racist, sexist, and violent language against her.

And yet, rarely are such threats taken seriously by the broader community, including by those able to do something about it.

Many people remain woefully unaware of how cruel and outright scary it can be for women online, particularly women with prolific digital profiles. Some simply refuse to see it as a real issue, declaring that “It’s just the internet!” and therefore not indicative of potential physical violence. Law enforcement doesn’t even have a solution, often unwilling to take these threats seriously, as Amanda Hess found out.

This kind of response is reflected in those who are trying to defend Donald Trump after the seemingly indefensible. Despite the overwhelming criticism from many, including some renowned Republicans, we have also seen some Trump supporters try to diminish or outright erase the violent aspect of this clearly threatening rhetoric. Sen. Roy Blunt (R-MO) and former mayor of New York City Rudy Giuliani have both said that they assumed Trump meant get rid of her “by voting.” Speaker of the House Paul Ryan (R-WI) said that it “sounds like just a joke gone bad.”

The violent nature of Donald Trump’s comments seem apparent to almost everyone who heard him. To try to dismiss it as a “joke” or insist that it is those who are offended that are wrong is itself harmful. This is textbook gaslighting, a form of psychological abuse in which a victim’s reality is eroded by telling them that what they experienced isn’t true.

But gaslighting has played a major role in Donald Trump’s campaign, with some of his supporters insisting that it is his critics who are overreacting—that it is a culture of political correctness, rather than his inflammatory and oppressive rhetoric, that is the real problem.

This is exactly what women experience online nearly every day, and we are essentially told to just suck it up, that it’s just the internet, that it’s not real. But tell that to Jessica Valenti, who received a death and rape threat against her 5-year-old daughter. Tell that to Anita Sarkeesian, who had to cancel a speech at Utah State after receiving a death threat against her and the entire school. Tell that to Brianna Wu, a game developer who had to flee her home after death threats. Tell that to Hillary Clinton, who is trying to make history as the first woman president, only to have her life threatened by citizens, campaign advisers, and now through a dog whistle spoken by the Republican presidential candidate himself.

Threats of violence toward women are commonplace on the internet for the same reason that they are increasingly common at Donald Trump’s rallies: They are effective at perpetuating violence against women as the norm.

Language matters. When that language is cruel, aggressive, or outright violent, it doesn’t exist in a vacuum, and it doesn’t come without consequences. There is a reason that it is culturally unacceptable to say certain words like “cunt” and other derogatory terms; they have a history of harm and oppression, and they are often directly tied to acts of violence. When someone tweets a woman “I hope your boyfriend beats you,” it isn’t just a trolling comment; it reflects the fact that in the United States, more women are killed by intimate partners than by any other perpetrator, that three or more women die every day from intimate partner violence. When Donald Trump not only refuses to decry calls of violence and hate speech at his rallies but in fact comes across as threatening his female opponent, it isn’t just an inflammatory gaffe; it reflects the fact that one in three women have experienced physical or sexual violence.

Threats of violence have no place in presidential campaigns, but they also have no place online, either. Until we commit ourselves to rooting out violent language against women and to making public spaces safer and more accommodating for women and all marginalized people, Trump’s comments are just par for the course.

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