Speaker 1: Hi, I'm Ethan Nadelman, and this is Psychoactive, a production
Speaker 1: of I Heart Radio and Protozoa Pictures. Psychoactive is the
Speaker 1: show where we talk about all things drugs. But any
Speaker 1: views expressed here do not represent those of my Heart Media,
Speaker 1: Protozoa Pictures, or their executives and employees. Indeed, heed, as
Speaker 1: an inveterate contrarian, I can tell you they may not
Speaker 1: even represent my own and nothing contained in this show
Speaker 1: should be used as medical advice or encouragement to use
Speaker 1: any type of drugs. Hello, Psychoactive listeners. Today we're gonna
Speaker 1: go into the challenging and fascinating and sometimes heartbreaking subject
Speaker 1: of pregnancy and criminalization and the law. We're gonna focus
Speaker 1: on the US, but since I know about thirty of
Speaker 1: our listeners are from outside the United States, We're gonna
Speaker 1: make our best effort to make this both fascinating intelligible
Speaker 1: to people all around the world to may be interested
Speaker 1: in this issue. My guest um is probably one of
Speaker 1: the people I most admire in the world's drug policy
Speaker 1: reform and really in the world at large. Her name
Speaker 1: is Lynn Paltrow. She is a brilliant attorney. She founded
Speaker 1: about twenty years ago an organization called National Advocates for
Speaker 1: Pregnant Women, and before that had worked at the Center
Speaker 1: for Reproductive Rights and at the A. C. L Uth
Speaker 1: Project on similar sorts of issues. We have known one
Speaker 1: another for probably close to thirty years, and the best
Speaker 1: way to describe her role and her leadership is that
Speaker 1: she is the really singular figure standing at the intersection
Speaker 1: of reproductive rights and drug policy reform. So, Lynn, thank
Speaker 1: you so much for joining me and my listeners on Psychoactive.
Speaker 1: Thank you for having me. It's really a privilege to
Speaker 1: be here and to have had the opportunity to work
Speaker 1: across issues which are in fact incredibly similar. The war
Speaker 1: on drugs and the war on abortion, in my view,
Speaker 1: are essentially the same thing. Well, you know, listen, I
Speaker 1: should also tell our listeners that this is one of
Speaker 1: the cases where Lynn and I probably agree, not on
Speaker 1: but probably about nine of all the issues. So I
Speaker 1: am going to make you know, a fair minded effort.
Speaker 1: I gave our heads up to play devil's advocate here
Speaker 1: because I don't want this just to sound like a
Speaker 1: love fest between allies, and I want to really draw
Speaker 1: these issues out as best and so Lenn, I just
Speaker 1: want to take us back, first of all, back the
Speaker 1: late eighties early nineties when you and I were both
Speaker 1: getting going on this and crack cocaine was rampant in America,
Speaker 1: and one of the major issues in all of this
Speaker 1: was the so called crack baby, the crack baby women
Speaker 1: smoking crack. New York Times major story front page, you know,
Speaker 1: quoting some professor I rich has Not saying that three
Speaker 1: thousand crack exposed babies are being born each year and
Speaker 1: he's going to show up into schools and it's devastating
Speaker 1: their lives. And you know, bring us back to that
Speaker 1: time for how it looked from where you were sitting. Well.
Speaker 1: In fact, in terms of criminal law response to the
Speaker 1: issue of pregnancy and drug use, there were some cases
Speaker 1: before the crack baby scare. There was a California case
Speaker 1: in which a woman who had been pregnant with twins
Speaker 1: was arrested because she had been using opioids. She was
Speaker 1: using heroin. So it wasn't the original, but the crack
Speaker 1: baby myth, the claim that there were a group of
Speaker 1: women and they were portrayed as if they were black
Speaker 1: only black women were using a drug, despite the fact
Speaker 1: that they knew or should have known, that it would
Speaker 1: cause per minent, irreparable damage to their children. And when
Speaker 1: I give talks, I often use slides from that period
Speaker 1: of time from Time magazine and the New York Times,
Speaker 1: and they were quite explicitly racist. Every baby was black,
Speaker 1: Every mother who used the drug was black. And the
Speaker 1: question I always had is, if somebody had said, there's
Speaker 1: a drug white mothers are taking, White pregnant women are taking,
Speaker 1: and it harms their babies, it reduces their i Q.
Speaker 1: But the white women are taking in any way, I
Speaker 1: think the journalists would have said, wait a minute, show
Speaker 1: me the research. Tell me how you know that it
Speaker 1: is causing this harm and why these women would be
Speaker 1: using it. The journalists were extraordinarily willing to repeat information
Speaker 1: that had no foundation in evidence based research, didn't ask
Speaker 1: for the proof, and exaggerated it even further, to the
Speaker 1: extent that years and years later, the New York Times
Speaker 1: did an apology. The editorial board had to do an
Speaker 1: apology for furthering and defining this so called crack baby myth.
Speaker 1: Are there substances that would we love people not to use,
Speaker 1: whether they're pregnant or not. Yes. At the same time,
Speaker 1: are they ones that caused permanent, irreparable harm. Uh, The
Speaker 1: answer is no, and the research never existed to support
Speaker 1: the claims being made. So Lynn, I think for most people,
Speaker 1: I've encountered the notion that a woman who's doing that
Speaker 1: stuff and who's using drugs in that way, UM, it
Speaker 1: almost seems beyond imagination. And I think that's not just
Speaker 1: true thirty years ago, but probably even true today that
Speaker 1: they make that assumption. So I mean, how do you
Speaker 1: deal with that? I think we have to meet everyone
Speaker 1: where they're at, and in a country that did see
Speaker 1: at one point that when women used a little mitter
Speaker 1: DS two medications that caused actually caused serious damage in
Speaker 1: the children exposed prenatally. It's understandable that people have concerns
Speaker 1: about various drugs and other things that pregnant women use
Speaker 1: or are exposed to. But what's really interesting is which
Speaker 1: ones we tend to focus on, UH and the level
Speaker 1: of concern. So, first of all, we had this whole
Speaker 1: period and probably maybe ongoing whereas a result of government neglect,
Speaker 1: excessive amounts of leads. Poisonous lead was in the water
Speaker 1: in Flint, Michigan. Poisonous levels of lead because of government
Speaker 1: neglect failure to respond. That is actually a drug, a
Speaker 1: substance that does cause permanent damage, and yet most of
Speaker 1: our ire is focused on a small number of drugs
Speaker 1: that have been criminalized and a small subset of the
Speaker 1: people who use those drugs while they're pregnant. We also
Speaker 1: have to really understand that there's a distinction, or there
Speaker 1: are differences between people who use drugs. Just like most
Speaker 1: people know somebody who drinks alcohol and they're not an alcoholic.
Speaker 1: Most people, including those who are pregnant, who use drugs,
Speaker 1: are using them. They're not dependent. But for those people
Speaker 1: who have a terrible dependency problem, we often assume that
Speaker 1: pregnant people have like superhuman powers, they should be able
Speaker 1: to overcome their addiction instantly, or there perceived as intentionally
Speaker 1: trying to do harm. The good news is that, fortunately,
Speaker 1: the level of harm that people believe exists by using
Speaker 1: any of the criminalized drugs, whether we're talking marijuana, meth amphetamine, cocaine,
Speaker 1: or herron, have not been borne out by the research.
Speaker 1: The risks that are associated with those substances are similar
Speaker 1: to actually cigarettes and poverty and other things that have
Speaker 1: to do with low birth weight and smaller head Cristis
Speaker 1: circle friends, but fortunately none of the criminalized drugs, for example,
Speaker 1: cause miscarriages are still births. Miscarriages are pregnancy losses early
Speaker 1: in pregnancy. Still births are later in pregnancy. And if,
Speaker 1: in fact, the way I explain it sometimes is if
Speaker 1: any of those drugs were good at causing pregnancy loss,
Speaker 1: we'd be shipping them to the people, the pregnant people
Speaker 1: in the states where abortion in the United States has
Speaker 1: now been outlawed. And in fact, I was just preparing
Speaker 1: for this talk, and uh, I was just preparing for
Speaker 1: the talk that we're having, and I found something posted
Speaker 1: by UCSF University of California, San Francisco, a very valued
Speaker 1: provider of health care and research, in which they used
Speaker 1: they didn't use the term crack baby, but they used
Speaker 1: other terms that have absolutely been rejected it by every
Speaker 1: leading medical person in the field. For example, if you
Speaker 1: use a number of they list a number of drugs,
Speaker 1: criminalized drugs and say your baby might will be born addicted. Well,
Speaker 1: no child is born addicted. That's a social definition, a
Speaker 1: psychological social definition that has to do with drug seeking
Speaker 1: behavior and a whole bunch of other things that do
Speaker 1: not describe newborns. And even when newborns have a treatable
Speaker 1: and transitory withdrawal syndrome which only occurs with opioids, that
Speaker 1: is again transitory and treatable. It is not addiction. And
Speaker 1: yet they're still using the word. In fact, if the
Speaker 1: baby is properly taken care of, just held, held, more swattled,
Speaker 1: more treated better, maybe given some withdraw medication, that baby
Speaker 1: is going to grow up and be every bit as
Speaker 1: healthy as a baby whose mother never used opioids whatsoever. Right, Well, yes,
Speaker 1: and and I'd like to be able to tell you
Speaker 1: a story about the correct baby myth. But let me
Speaker 1: to say, after the crack baby myth became, came the
Speaker 1: meth baby myth, and came they you know, exposed to
Speaker 1: opioids myth, that there is a framework that was established
Speaker 1: primarily on the backs of black mothers, and for people
Speaker 1: interested in really understanding that, I recommend Dorothy Robert's book
Speaker 1: Killing the Black Body, a myth that then has been
Speaker 1: replicated and applied more to more and more people, including
Speaker 1: a lot of poor white women, who are the majority
Speaker 1: of those who in recent years have been arrested based
Speaker 1: on claims of harm or risk of harm by using
Speaker 1: meth amphetamine or opioids during pregnancy. One of the earlier
Speaker 1: cases I worked on was a challenge to the Medical
Speaker 1: University of South Carolina's policy of secretly searching their black
Speaker 1: pregnant patients for evidence of cocaine use, and if they
Speaker 1: were positive, they didn't offer them any kind of treatment.
Speaker 1: They pretended they did, but they actually had no treatment
Speaker 1: in their hospital anywhere in the Charleston area where they were.
Speaker 1: They would turn that confidential information medical information over to
Speaker 1: the police and help coordinate their arrest from their hospital beds,
Speaker 1: taking them out in chains and shackles near the oldest
Speaker 1: slave market in the United States, while some of them
Speaker 1: were still pregnant and others were bleeding, still bleeding from
Speaker 1: just having given birth. We brought a bunch of lawsuits.
Speaker 1: One of them went to the Supreme Court. We actually
Speaker 1: won in having the Supreme Court at the in those days,
Speaker 1: the U. S. Supreme Court in those days, saying that
Speaker 1: this was a violation of their rights to be free
Speaker 1: from illegal searches and seizure since they were being drug
Speaker 1: tested was really a secret criminal search. After we while
Speaker 1: we were doing these cases, we actually did focused groups
Speaker 1: in South Carolina to find out what could we say,
Speaker 1: what could we teach, what could we offer to help
Speaker 1: people move away from the rampant mythology about the harms
Speaker 1: done specifically by the smokable form of cocaine crack and
Speaker 1: people's reluctance to think about science and think about evidence
Speaker 1: based research, and what was one of the fascinating things
Speaker 1: that came out of it. People were willing to support
Speaker 1: a tax increase for some kinds of treatment. I worry
Speaker 1: that it was about in their minds, forced treatment, But nevertheless,
Speaker 1: they were willing to think about treatment versus incarceration. But
Speaker 1: when we asked, is there any messenger you would believe
Speaker 1: who told you that there is no such thing as
Speaker 1: a crack baby? In other words, exposure prenatally to crack
Speaker 1: does not cause any unique harm or syndrome or anything
Speaker 1: else that anybody can identify. Would you believe it if
Speaker 1: it was the governor of South Carolina, if it was
Speaker 1: the surgeon General of the United States of American We
Speaker 1: practically said that if if God came down and told you,
Speaker 1: would you believe it? They all said no, I saw
Speaker 1: one on TV, I held one, or they were told
Speaker 1: they held one and the people who we hired to
Speaker 1: do the focus groups advised us to just not even
Speaker 1: talk about it, not even address it. But the problem
Speaker 1: is when people are being prosecuted for something that's scientifically impossible,
Speaker 1: causing a harm that never occurred, or treating a positive
Speaker 1: drug test as if it's harm, we have to talk
Speaker 1: about it, and we have to hope that eventually enough
Speaker 1: people are willing to listen so that we can focus
Speaker 1: on real harms, poverty, lead in the water. Right, Well, listen,
Speaker 1: you know, I mean I was looking at you. You
Speaker 1: have a whole set of fact sheets on the on
Speaker 1: the website for National Advocates for Pregnant Women, one that
Speaker 1: just went up a few months ago, and Prenatal drug
Speaker 1: and alcohol exposure science refutes media hype and enduring this.
Speaker 1: So let's before we leave this issue behind, just for
Speaker 1: our listeners, just to be clear, My understanding is that
Speaker 1: when it comes to for example, women who while pregnant
Speaker 1: are using cocaine or using it as serious, even people
Speaker 1: are addicted in smoking crack or using smoking meth amphetamine,
Speaker 1: that basically what one finds is that it's not associated
Speaker 1: with miscarriage and stillborn. You can't or you can't see
Speaker 1: any causal relationship there, that there is a greater likelihood
Speaker 1: of the baby being born a few weeks prematurely and
Speaker 1: of being born with a smaller head and maybe some
Speaker 1: other little you know, conditions of irritability or whatever, but
Speaker 1: that as that child grows up, if they're given any
Speaker 1: sort of proper care like any other kid, that essentially
Speaker 1: the distinction between that baby at birth and other babies
Speaker 1: essentially disappears as they grow up. Um, what would you
Speaker 1: say about that? What's known about the current evidence? I
Speaker 1: think that's a fair summary. What concerns me is that
Speaker 1: we tend to focus on the effects of certain drugs
Speaker 1: and not others, certain circumstances and not others, and those
Speaker 1: tend to match the idea of individual responsibility, that the
Speaker 1: health of children in the United States is primarily about
Speaker 1: the individual circumstances of the pregnant person's life and not
Speaker 1: the larger environmental hazards they face, poverty, lack of nutrition,
Speaker 1: lack of access to treatment, including drug treatment if they
Speaker 1: want it. So, yes, there are some risks associated with
Speaker 1: the use of various substances, including criminalized drugs, but people
Speaker 1: often confuse risk with harm, so you if you do
Speaker 1: a study that finds that there is a risk of
Speaker 1: lower birth weight an increased risk of smaller head circumference,
Speaker 1: people then mistake that for your baby will be born prematurely,
Speaker 1: your baby will be born with a smaller head circumference.
Speaker 1: And yes, it is true that lots of things babies
Speaker 1: are born with do not affect their whole lives, as
Speaker 1: you explained. At the same time, it's still is so
Speaker 1: easy for people to confuse a risk of harm which
Speaker 1: means most of the time it doesn't happen, and actually
Speaker 1: increasing harm. And there is this expectation that the people
Speaker 1: who get pregnant are going to be able to readjust
Speaker 1: their lives so that they don't engage in any behavior
Speaker 1: that anybody at any time in history has suggested risks harm.
Speaker 1: But nobody can guarantee a healthy outcome. Nobody can guarantee
Speaker 1: that a birth, a pregnancy will continue to birth. All
Speaker 1: pregnancies having nothing to do with prenatal exposure to anything
Speaker 1: end in miscarriage or still birth. And it's sort of
Speaker 1: tragic that we have a culture uh that focuses on
Speaker 1: individual blame and the women, the people who are pregnant
Speaker 1: them selves believe that there must have been something they
Speaker 1: did wrong or could have done differently that would have
Speaker 1: affected the outcome. And psychologically that's understandable. We don't want
Speaker 1: to feel that we don't have control over our own lives,
Speaker 1: our destiny, our pregnancies. But the fact is there is
Speaker 1: relatively little that the people can do, and nor and
Speaker 1: healthcare providers can do to ensure that there isn't gonna
Speaker 1: be a still birth, miscarriage, or another health problem. So, yes,
Speaker 1: that information is true, but it's also true about a
Speaker 1: whole bunch of things, including poverty, which we probably have
Speaker 1: a lot more control over than uh illicit or criminalized drugs.
Speaker 1: We'll be talking more after we hear this ad. Basically,
Speaker 1: if you're looking at women who are living in a
Speaker 1: situation of poverty, disorderly lies, you know, no access to
Speaker 1: prenatal care, um that basically you won't see any difference
Speaker 1: between the mother's living in that condition who do use, say, cocaine,
Speaker 1: and those who don't. And also that conversely, if you
Speaker 1: want to take say a mother who's growing up in
Speaker 1: all those conditions of poverty and poor diet and lack
Speaker 1: of prenatal care, etcetera, etcetera, and not otherwise using you know,
Speaker 1: illicit drugs or even other psychoactive drugs. And then compare
Speaker 1: that with a woman who in fact is living a
Speaker 1: relatively healthy existence and has access to prenatal care and
Speaker 1: has good diet, but happens to be using cocaine on
Speaker 1: a regular basis that by and large, the mother who's
Speaker 1: otherwise leading a healthy life but using cocaine or heroin
Speaker 1: is gonna have that much better a chance of producing
Speaker 1: a healthier baby than is going to be the woman
Speaker 1: who's living in poverty and using no drugs whatsoever. It
Speaker 1: really is the broader conditions, and that similarly, as the
Speaker 1: kids growing up, it has much less to do with
Speaker 1: their with whether or not their mother used drugs when
Speaker 1: she was pregnant with them, and a lot more to
Speaker 1: do with are they growing up in poverty, are they
Speaker 1: being exposed to violence and ways that reminds them, to
Speaker 1: emotional abuse, to physical abuse, That those things have a
Speaker 1: much bigger impact than any drug use does per se.
Speaker 1: And it's clear to me that the issue of drug
Speaker 1: use and pregnancy is used purposely as a brilliant distraction
Speaker 1: that what does trauma do to a pregnant woman's body.
Speaker 1: What does increase cordials all levels, and those are stress
Speaker 1: hormones that come from unrelenting racism, daily assaults on your
Speaker 1: humanity because of the color of your skin. Those have impacts.
Speaker 1: And if we focus on drugs, on something we claim
Speaker 1: or allege that a pregnant person is doing, we don't
Speaker 1: have to address the pervace of weathering impacts of racism.
Speaker 1: And weathering is a term that refers to the lifelong
Speaker 1: build up a stress before somebody ever becomes pregnant that
Speaker 1: makes it less likely that they will have a healthy
Speaker 1: pregnancy and that they will survive being pregnant, giving her
Speaker 1: The drug war has, in many ways, and particularly here,
Speaker 1: been used to keep us from looking at underlying foundational
Speaker 1: issues that keep people, particularly in the US where there
Speaker 1: is no universal healthcare, there is no government supported childcare,
Speaker 1: from focusing on those things because we reinforced not just
Speaker 1: the specific things like the crack baby myth, but the
Speaker 1: myth that these are things that individuals alone are responsible.
Speaker 1: I also noticed it in your materials. There was one
Speaker 1: really a point that really caught my attention. You pointed
Speaker 1: out at seventy percent of women take a prescription to
Speaker 1: rug during pregnancy and in fact take some drug over
Speaker 1: the counter, prescription whatever in total, but that only about
Speaker 1: a dozen of all drugs that people are taking have
Speaker 1: been approved for use by pregnant women, I think in
Speaker 1: part because of the difficulties of conducting such studies. So
Speaker 1: I mean it is to say that there's you know,
Speaker 1: commonly doctors are prescribing things and when women say, if
Speaker 1: this is this okay to use during my pregnancy, that
Speaker 1: doctor doesn't really have an answer because there's not real
Speaker 1: research out there. Yes, that that's absolutely true, and you know,
Speaker 1: part of it is that it's not just the difficulty
Speaker 1: of doing the research. It's that there has been very simplistic,
Speaker 1: if you will, or also sexist views of uh, people
Speaker 1: who become pregnant, women who become pregnant as not being
Speaker 1: able to make judgments about participating in research. There's been
Speaker 1: a real effort to change the rules for research on
Speaker 1: human subjects so that more pregnant people are included in
Speaker 1: that research so that we have better information, and we've
Speaker 1: seen some real harm we uh it seems, from excluding
Speaker 1: pregnant women from the COVID studies. But the point though
Speaker 1: is we don't know. People do the best that they can,
Speaker 1: and we have to also understand that people make decisions
Speaker 1: based on experience. Women, pregnant women have been using heroin
Speaker 1: opium morphine for hundreds of years. If babies would be
Speaker 1: in the thousands, if babies were born with two heads
Speaker 1: or kidneys on outside of their body, or any of
Speaker 1: the exaggerated terrifying claims made by some people about pregnant
Speaker 1: women and druggist, we would know that research about cocaine
Speaker 1: was actually used more in the seventies by wealthy why people.
Speaker 1: Then crack was used. Smokable cocaine was used in black
Speaker 1: neighborhoods during the eighties and nineties, where the cocaine babies
Speaker 1: from the seventies. We have an attention to potential harms
Speaker 1: for certain groups of people and an unwillingness to just
Speaker 1: sort of take a deep breath and say, hmm, what
Speaker 1: have I seen in my own community? You know? Did
Speaker 1: I have a drink while I was pregnant? One drink?
Speaker 1: Did that make my baby have fetal alcohol syndrome? No?
Speaker 1: And that doesn't mean we replace the experience with good,
Speaker 1: ongoing scientific research, but it is to say to take
Speaker 1: that step back and start from a place of wait
Speaker 1: a minute, not everybody has these effects. My mother smoked
Speaker 1: through her whole pregnancy. The sides of cigarette packages now
Speaker 1: say it can contribute to significantly less healthy babies. Well,
Speaker 1: I'm a nicotine baby. I didn't have those impacts. It's
Speaker 1: an example of yes, there is research that has a
Speaker 1: risk factor associated with smoking cigarettes, but you cannot look
Speaker 1: at somebody smoking a cigarette and say that baby is
Speaker 1: going to be damaged, that baby is going to be smaller,
Speaker 1: and their life is going to be affected. What would
Speaker 1: be the best thing is to find out from the
Speaker 1: pregnant woman herself, what is it you need? What is
Speaker 1: it that would help you have a healthier pregnancy. And
Speaker 1: it may not be stopping whatever she's dependent on, if
Speaker 1: she has a drug dependency on, but it might be
Speaker 1: get me housing so I'm not totally stressed out living
Speaker 1: in a stairwell. Then I came across a line you
Speaker 1: wrote someplace. You said, since most states criminalized drug possession,
Speaker 1: not drug use, it's the pregnancy. It turns drug use
Speaker 1: into a crime, and those pregnancy is an independent element
Speaker 1: of the crime is imagined by unethical rogue prosecutors, even
Speaker 1: before the Dobb's decision that overturned Row. And we've been
Speaker 1: talking about this in one way or another, but just
Speaker 1: elaborate upon that basic point right there. People often assume
Speaker 1: that there is a crime of drug use, and while
Speaker 1: it sort of ends up working out that way, it
Speaker 1: is possession having it in your pocket, not in your body.
Speaker 1: I think there's a few states which criminalized quote unquote
Speaker 1: internal possession. I think South Dakota, UM, maybe a few others,
Speaker 1: and certainly there are some other countries that do that.
Speaker 1: But basically it's got to be in possession right on
Speaker 1: your body, not in your body. And I think when people,
Speaker 1: because they've gotten so much misinformation when they hear about
Speaker 1: pregnant when being arrested in using drugs, they think there's
Speaker 1: a crime, that there's an actual crime of pregnancy and
Speaker 1: drug use or drug use while pregnant, but there isn't.
Speaker 1: All of these arrests that have happened have been based
Speaker 1: on general all drug delivery laws, and they made them
Speaker 1: about drug delivery to a minor through the umbilical cord
Speaker 1: or child criminal child neglect, often with penalties much much
Speaker 1: higher than penalties for simple possession, and it is being pregnant,
Speaker 1: that pregnancy is itself what triggers the crime. And so
Speaker 1: once you understand that, you understand two things. One is
Speaker 1: that we have to understand that there's a delineation among
Speaker 1: groups of people. So in Oklahoma, for example, or actually
Speaker 1: also an in Alabama, U if a couple, heterosexual couple
Speaker 1: are both using marijuana, they're using it to relax, or
Speaker 1: they're using it to deal with anxiety for whatever reason.
Speaker 1: The woman, the minute she becomes pregnant, is carrying a
Speaker 1: fertilized egg, she is guilty of child abuse or chemical
Speaker 1: endangerment of child, or a number of other laws that
Speaker 1: carry potential life sentences. And they are in exactly the
Speaker 1: same situation the boyfriend and the girlfriend. They both all
Speaker 1: they did was smoked some marijuana or eat some gummies.
Speaker 1: But the minute she's carrying a fertilized egg, she's a
Speaker 1: criminal at if she's a criminal number one, and he's
Speaker 1: not at all. And the crimes for which she is
Speaker 1: being prosecuted, for example, in Oklahoma, felony child neglect can
Speaker 1: actually come with something like a forty year sentence. Now
Speaker 1: in reality, though, and I get the principle here, and
Speaker 1: what's so incredibly offensive about that. I mean, if one
Speaker 1: hat it was says how many women today are behind
Speaker 1: bars for basically for use of a drug during their pregnancy.
Speaker 1: I mean, I know you've been trying to build a
Speaker 1: database of ODATH is about prosecutions and arrest and convictions,
Speaker 1: but is there any sense of how many today are
Speaker 1: sitting behind bars in the jail or prison for string pregnancy.
Speaker 1: National Advocates for Pregnant Women is collecting that information. We
Speaker 1: know that there have been seventeen hundred cases since row.
Speaker 1: There were only four hundred and thirteen between nineteen seventy
Speaker 1: three and two thousand and five. All of the other
Speaker 1: ones have been since two thousand and five. Some of
Speaker 1: the cases involved a pregnant woman who fell down a
Speaker 1: flight of stairs, a pregnant women to drank alcohol, pregnant
Speaker 1: women who tend to suicide. Most of them, though, include
Speaker 1: an allegation of drug use, and again sometimes legal medical
Speaker 1: marijuana use or legal marijuana use. Um. But I would
Speaker 1: say even as we when we look at some place
Speaker 1: like Alabama, there are probably hundreds of women in jail
Speaker 1: or prison because they were pregnant and used any amount
Speaker 1: of any criminalized drug. Wow. So I mean, even though,
Speaker 1: on the one hand, off your databases seventeen hundred over
Speaker 1: fifty years, that's only adding up to about three dozen
Speaker 1: a year. But you think in a state like Alabama,
Speaker 1: it actually might be dramatically dramatically higher. In it as
Speaker 1: a result of a Supreme State Supreme Court legal interpretation
Speaker 1: of a law that was called chemical Endangerment of a Child.
Speaker 1: It was explicitly passed to reach people who took children
Speaker 1: to dangerous places such as meth labs. And there's even
Speaker 1: legislative history, which means legislators voting on this talked about it.
Speaker 1: They raised the issue of is this trying to reach
Speaker 1: pregnant women? And the answer is absolutely not. The minute
Speaker 1: the law was passed, however, prosecutors in particular states started
Speaker 1: using it to arrest pregnant women who used any amount
Speaker 1: of a controlled substance. We helped challenge it. It went.
Speaker 1: It was one of the few states where we ultimately lost.
Speaker 1: It goes to the highest court, and it's an opinion
Speaker 1: that actually uh forecasts row being overturned. It says, oh no,
Speaker 1: this is Alabama and Alabama, the unborn from the moment
Speaker 1: of conception are viewed as separate legal persons, so we
Speaker 1: can use the chemical endangerment of a child law to
Speaker 1: panelize lock up a woman who uses any amount of
Speaker 1: controlled substance from the moment she becomes pregnant. And that
Speaker 1: law was not interpreted into something like two thousand and six,
Speaker 1: and since then, Oklahoma, Alabama, and a few other states
Speaker 1: have really made this a very big part of their
Speaker 1: criminal law system. Now you mentioned briefly before, um, you know,
Speaker 1: how do we know these women are using drugs? I mean,
Speaker 1: these are mostly not involving cases of people being seen
Speaker 1: in public using drugs. A lot of this is drug
Speaker 1: testing in a hospital, drug testing when a woman is
Speaker 1: going for prenatal care, and they're good, Let's let us
Speaker 1: be clear. They're good reasons for drug testing, oftentimes to
Speaker 1: see what medications somebody is on, to test for certain
Speaker 1: conditions where it might be diabetes or dehydration or things
Speaker 1: like that. But obviously this drug testing has been used
Speaker 1: in ways that are not appropriate. Oh at salutely, Well,
Speaker 1: let me let me go back and just respond to
Speaker 1: something else and then I'll answer your question. The research
Speaker 1: all along said the best thing you can do for
Speaker 1: the baby is what's called rooming in, keep the baby
Speaker 1: with the mother, give the baby breast milk so that
Speaker 1: there's the same weaning through the breast milk cat can happen,
Speaker 1: and weaning from the prenatal exposure, the skin to skin contact.
Speaker 1: And yet there is so much anger and judgment and
Speaker 1: misinformation that the primary thing that was happening in hospitals
Speaker 1: and still does is instantly removing the newborn if there's
Speaker 1: a positive for opioids, calling in if not, the police,
Speaker 1: more much more often, the punitive, counterproductive so called child
Speaker 1: welfare system and preventing mothers and babies from bonding. And
Speaker 1: that's it's just the most counterproductive thing that can happen.
Speaker 1: And it is very much about uh, rushing to judgment
Speaker 1: and knowing only how to punish. UM. Now I forgot
Speaker 1: what the question was. Well, I know you're My next
Speaker 1: question was gonna be so yes, the question was really
Speaker 1: about the drug testing, because I think you're then jumping
Speaker 1: to what happens with the drug testing, But just talk
Speaker 1: about that process and why hospitals do that and how
Speaker 1: you know they oftentimes break a confidence with women when
Speaker 1: they're doing that drug testing for otherwise appropriate reasons. What's
Speaker 1: interesting is in other countries there isn't this dependence on
Speaker 1: drug testing for information from their patients. But because we
Speaker 1: have a now have a billion dollar drug testing industry.
Speaker 1: I once got a call from a drug testing representative
Speaker 1: on his way to a hospital. I don't know how
Speaker 1: he got my number, but he did, and he said,
Speaker 1: I'm going up to talk to this hospital and I
Speaker 1: want to convince them to use our drug test because
Speaker 1: it will help them treat pregnant women. I was like, no,
Speaker 1: it won't. It will be used to turn those women
Speaker 1: over to police or punitive civil child welfare folks and
Speaker 1: used against them. The thing about drug testing, too, is
Speaker 1: it's done without informed consent. People come into the hospital
Speaker 1: sign these general consents, but it's not informed consent. Nobody
Speaker 1: says if we do a drug test and it's positive,
Speaker 1: here all the ways in which it can be used
Speaker 1: against you, and that information actually really there. If if
Speaker 1: you find out newborn was prenatally exposed, or a woman
Speaker 1: used cocaine while she was pregnant, there's no particular treatment.
Speaker 1: It's not like, oh, we're going to get this information
Speaker 1: and then we can give this baby this drug and
Speaker 1: it's going to cure it. It is only used to
Speaker 1: take control over the pregnant woman and the newborns. Now,
Speaker 1: are there state laws requiring that hospitals report results of
Speaker 1: drug testing it shows illicit drug use. It's complicated. They're
Speaker 1: different laws in many different states. In the United States.
Speaker 1: Some say, if you discover that they've used sir and drugs,
Speaker 1: you must report to certain authorities. A very few states
Speaker 1: do mandate testing in certain circumstances. Nobody requires universal testing.
Speaker 1: And one of the ways I point out that there
Speaker 1: are two things. One is the baby made have been
Speaker 1: harmed and there and there's this illusion that you can
Speaker 1: do something medical about it, which you can't except for
Speaker 1: babies prenatally exposed to opioids, and the women can tell
Speaker 1: you if they use them. You don't have to secretly
Speaker 1: search them for evidence of drug use. And we know
Speaker 1: what to do with those babies if they happen to
Speaker 1: show some signs of neonatal abstinence, syndrome withdrawal. And then
Speaker 1: other people say, well, we need to know because people
Speaker 1: who are using any of the illicit drugs aren't going
Speaker 1: to be good parents. We have to protect these newborns,
Speaker 1: these children from those parents. But if we really believed
Speaker 1: that evidence of drug use made people bad parents, then
Speaker 1: we would require every parent who drops their kid off
Speaker 1: at public or private school to have a DRU test.
Speaker 1: But we don't really believe that we're using this as
Speaker 1: a mechanism of social control. Just like the drug war
Speaker 1: in general, when it's criminalized, not everybody's arrested. Those who
Speaker 1: arrested are targeted, are particularly black and brown people. Uh,
Speaker 1: we use it to control those populations. That's why Nixon
Speaker 1: put these laws into place in the first place. And similarly,
Speaker 1: the idea that we need drug testing to provide good
Speaker 1: health care for pregnant women, newborns, and children really does
Speaker 1: not have uh evidence based research to support it. One
Speaker 1: of the things I often do when I'm giving speeches
Speaker 1: is I bring a urine sample cup and I put
Speaker 1: my own urine in it, and I take it out
Speaker 1: and I hold it up and I say, look at this,
Speaker 1: this is what is being What this can tell you
Speaker 1: if you test my urine is whether or not I've
Speaker 1: used a drug within a certain period of time. It
Speaker 1: can't tell you if I'm addicted or dependent. It cannot
Speaker 1: tell you if I love my children. It cannot tell
Speaker 1: you if I have made them a priority, and I
Speaker 1: make them dinner, and I helped them with their homework,
Speaker 1: and they are the most important people in my life.
Speaker 1: But it is used all over the United States, and
Speaker 1: particularly in the punitive family separation system as a parenting test,
Speaker 1: and that is not what it's for. M You know, Lynn,
Speaker 1: we keep coming back to the issues of race, and
Speaker 1: I mean this is especially true, you know, in the
Speaker 1: late eighties early nineties around crack cocaine, because it was
Speaker 1: so powerfully associated with black people in America. But you know,
Speaker 1: we also know that I I remember even in New
Speaker 1: York City and not right now, but certainly just not
Speaker 1: so long ago. You know, basically, women who are pregnant
Speaker 1: and we're testing positive for marijuana, we're having child health
Speaker 1: services called in on them and being and getting in
Speaker 1: trouble for that sort of stuff. So we're not just
Speaker 1: talking about cocaine. We're also talking about about even drugs
Speaker 1: like marijuana, where the harms associated with marijuana appear to
Speaker 1: be pretty close to infinitesimal in terms of the health
Speaker 1: of the baby. Um. But you know, it's also the case,
Speaker 1: and I think you've also pointed this out that who
Speaker 1: gets tested, right, it tends to be poor woman women
Speaker 1: of color, whereas middle class up middle class people aren't
Speaker 1: gonna be drug tested in the same way. And when
Speaker 1: they are, they're really angry. So uh. There are a
Speaker 1: couple of women who were reported to child welfare based
Speaker 1: on positive opiate tests and New York hospitals and they
Speaker 1: have not used opioids, but they had eaten poppy seeds
Speaker 1: within a certain number of hours before giving birth, and
Speaker 1: poppy seeds can test as positive for opioids, and they've
Speaker 1: been tested for drugs. They don't know it, and suddenly
Speaker 1: they've just given birth and the baby's whipped away, and
Speaker 1: there's a child welfare worker in their room accusing them
Speaker 1: of being drug users. And because many people who work
Speaker 1: in that system are not very well trained, if the
Speaker 1: woman says no, I'm not a drug user, they go denial. See,
Speaker 1: you must be really a drug addict. And they're devastated.
Speaker 1: They've just had a baby should be the most joyful
Speaker 1: part of their life. And a PW and and particularly
Speaker 1: our senior staff attorney M. A. Roth, is working on
Speaker 1: several cases in New York in which women who falsely
Speaker 1: tested positive for opioids have had their babies taken away,
Speaker 1: whether positive or not, the response should not be punitive.
Speaker 1: We need to keep families together. That's the best thing
Speaker 1: we can do for children. There are women in Oklahoma
Speaker 1: who are being arrested for felony child neglect for having
Speaker 1: being licensed medical marijuana users, and women in Arizona who
Speaker 1: have been put on the child abuse Registry, which will
Speaker 1: prevent them from ever getting a job and feels that
Speaker 1: they the only fields that they've been able to work
Speaker 1: in childcare, social work, child welfare because there was a
Speaker 1: positive marijuana test for their legal medical use. And I
Speaker 1: want to explain that these women in particular suffered from
Speaker 1: something called hyper emesis gravidarum, which is a kind of
Speaker 1: mourning sickness that is constant throughout pregnancy. If you want
Speaker 1: to see how horrible hyper emesis gravidarum is, you can
Speaker 1: watch Amy Schumer's special called Expecting Amy, because she experienced it.
Speaker 1: Now in that fabulous documentary of her pregnancy, there's no
Speaker 1: point at which you she talks about marijuana or ever
Speaker 1: uses it. But I will thank her for signing onto
Speaker 1: an amicus brief with forty five other organizations and UH
Speaker 1: experts in the Arizona case in which the mother was
Speaker 1: put on the child abuse Registry for having used some
Speaker 1: medical marijuana to deal with her extreme mourning sickness. You
Speaker 1: know you're reminding that. Recently The New York Times ran
Speaker 1: a story talking about the harms of marijuana use during pregnancy,
Speaker 1: and it seems it almost seems like they felt obliged,
Speaker 1: you know, as part of their trying to be balanced,
Speaker 1: you know, in their presentation, to say, well, there really
Speaker 1: are harms here. But I think the actual evidence on
Speaker 1: marijuana and pregnancy, I mean, what is it. Let me
Speaker 1: just do two things. One first, I just want to
Speaker 1: explain that UM National Advocates for Pregnant Women and Psychoactive
Speaker 1: recognize that there are trans men and non binary people
Speaker 1: who get pregnant, and so we use the terms pregnant
Speaker 1: people as well as pregnant women. Most of the research
Speaker 1: we have available to us has been on pregnant women
Speaker 1: or as far as we know, women who identify as
Speaker 1: cis gender people. So we use all of those terms. Yes,
Speaker 1: in terms of you, no, I agree with that, So
Speaker 1: you know, I'm not trying to if I mostly use women,
Speaker 1: it's not to make any statement. It's just a sense
Speaker 1: of fimiliarity. But I agree with exactly what you said
Speaker 1: there Land. But yeah, so just go back to New
Speaker 1: York Times put that story about are wanted pregnancy? You
Speaker 1: know anything there? I mean, if there was, that doesn't
Speaker 1: justify any stuff we're talking about. But still for people
Speaker 1: are curious, what's the story? Two? Thanks, Let's start with
Speaker 1: the fact again that pregnant people have been using marijuana
Speaker 1: for thousands and thousands of years. If there was a specific,
Speaker 1: unique harm, we would surely have seen it by now.
Speaker 1: I think the study you're mentioning in particular involved the
Speaker 1: claim that they were able to show a connection between
Speaker 1: women who use marijuana with during pregnancy and more anxiety
Speaker 1: in the children that they had, and it it gets
Speaker 1: the person who wrote The authors of that research were
Speaker 1: pretty careful about saying, don't use this for anything punitive.
Speaker 1: But the research was really weak. And we have to
Speaker 1: understand that most funding for research about the impact of
Speaker 1: drugs comes from the National Institute on Drug Abuse. That
Speaker 1: if you don't offer to show some harmful impact, you're
Speaker 1: not going to get funded. Number one and number two,
Speaker 1: as uh Sierra Torres and Carl Hart's research, their systematic
Speaker 1: research looking at the studies on i Q and marijuana.
Speaker 1: They looked at them very carefully, and there will be
Speaker 1: studies that will pull out something that's a cee, there's harm,
Speaker 1: But what they found is to the extent, there were
Speaker 1: studies that purported to show some statistically significant difference between
Speaker 1: children prenatily exposed and those not. They didn't bother to
Speaker 1: tell you that those children were all still within the
Speaker 1: range of normal. So we get these studies the and
Speaker 1: the study that purported to show increased anxiety was based
Speaker 1: on surveys. It was not a diagnosis of anxiety for
Speaker 1: these children. It was a bare association with the possibility
Speaker 1: that maybe it will do this. And if you read
Speaker 1: the study carefully, it seems like most of what it
Speaker 1: is is a plea for more money to do more
Speaker 1: research on this subject. Let's take a break here and
Speaker 1: go to an ad by the time when are in
Speaker 1: their forties, will become pregnant and have at least one birth,
Speaker 1: and thirty three percent will experience a pregnancy. Laws right,
Speaker 1: And I think you said ten to of all pregnancies
Speaker 1: actually do end in miscarriage. And when it comes to
Speaker 1: still births, I think the estimate out there is six
Speaker 1: and every one thousand, and that means that there's roughly
Speaker 1: a million miscarriages per year. It seems to be overwhelmingly
Speaker 1: associated with chromosom o abnormalities and somewhat similar explanations when
Speaker 1: it comes to still births, and it's basically there's no
Speaker 1: evidence to establish a clear causal relationship between any type
Speaker 1: of drug use, legal or illegal, and miscarriage or still birth. Right,
Speaker 1: that's the bottom line. That is the bottom line, and
Speaker 1: just again just step outside of the typical ways of
Speaker 1: thinking about it. If any of those drugs were good
Speaker 1: at causing still birth, women wouldn't need to go into
Speaker 1: a clinic to have an abortion. They wouldn't need to
Speaker 1: be trying to access the drugs that are safe and
Speaker 1: effective for ending a pregnancy mysa postal and methopriston. They
Speaker 1: could just go to their local meth dealer and in
Speaker 1: their pregnancy or the marijuana or the opioid dealing. But
Speaker 1: they don't cause pregnancy losses. But if you have prosecutors
Speaker 1: perpetuating the myth that these drugs cause pregnancy losses by
Speaker 1: virtue of arrests of people who have a coincidental still
Speaker 1: birth with their a asianal or dependent drug use. Then
Speaker 1: women might actually try to use those drugs. And we've
Speaker 1: had a few cases where women try to use those
Speaker 1: drugs well pregnant to kill themselves, and then we're arrested
Speaker 1: for trying to harm the fetus where they were trying
Speaker 1: to end a pregnancy with those drugs. Very few, but
Speaker 1: the misinformation. If prosecutors are going to arrest women on
Speaker 1: the basis of the myth that certain drugs cause still births,
Speaker 1: actually they're encouraging women to use those drugs. And basically
Speaker 1: there's no way that any prosecutor should be able to
Speaker 1: establish probable cause. So it's really all about, you know,
Speaker 1: locking up women until a court throws it out or
Speaker 1: else finding a court that's going to go along with that. Now,
Speaker 1: I guess most of this right has been happening in
Speaker 1: the South in the US, and maybe some parts of
Speaker 1: the middle part of the country, although you did mention
Speaker 1: I think one or two cases that happened in a
Speaker 1: fairly conservative county in California. Yes, they actually happened everywhere.
Speaker 1: I mean, there is more in some states. The worst
Speaker 1: right now is Alabama, where in fact they were locking
Speaker 1: women up who tested positive for drug use, keeping them
Speaker 1: in filthy jail cells, not enabling them to get out
Speaker 1: on bail, saying that they had to go to impatient
Speaker 1: treatment without even having a drug assessment. Uh and National
Speaker 1: Advocates for Pregnant Women work to get them out just
Speaker 1: on violations of of the bond and bail laws in
Speaker 1: the state of Alabama. But people think that if you
Speaker 1: bring in the state and either punish pregnant women for
Speaker 1: using drugs or use the force of the state as
Speaker 1: in Wisconsin, to make them go to some kind of
Speaker 1: drug treatment, everything will be okay. Absolutely not all of
Speaker 1: the research, and it is why every leading medical group
Speaker 1: in the country, from the American Academy of Pediatrics to
Speaker 1: the American Medical Association to the American College of Obstetricians
Speaker 1: and kind of coolleges says, do not use punitive measures
Speaker 1: to spawn to the issue of pregnancy and drug use.
Speaker 1: It does not work. In fact, what it does is
Speaker 1: deter women from coming for help. It deters them from
Speaker 1: speaking honestly, which is why then you arguing that you
Speaker 1: need secret drug testing of these women because they don't
Speaker 1: trust their doctors, and it does not put into place
Speaker 1: any services, whether they're treatment, abstinence only treatment or harm
Speaker 1: reduction services that might actually help them, because there are
Speaker 1: women who are drug dependent during pregnancy who are desperate
Speaker 1: for help. All sorts of studies saying women are particularly
Speaker 1: motivated to get help that doesn't help doesn't exist. Then
Speaker 1: you're making me think too, because I mean, if you're
Speaker 1: pregnant and you want to have the child, or you're
Speaker 1: ambivalent about whether you want to have the child, and
Speaker 1: you're using drugs and you fear you're going to be
Speaker 1: drug tested and punished, it actually increases the likelihood that
Speaker 1: the woman will seek an abortion. Absolutely, And we do
Speaker 1: have at least one case where it's absolutely clear that
Speaker 1: a woman in North Dakota who had been arrested she'd
Speaker 1: been pregnant at huffing paint fumes, which you know, I
Speaker 1: don't know how down and out you have to be
Speaker 1: for that to be the drug you can access. She
Speaker 1: gets locked up on a charge I think of a
Speaker 1: criminal child neglect or child abuse, and somehow manages to
Speaker 1: get out long enough to have an abortion, and low
Speaker 1: and behold, the prosecutor drops the charge because there's no
Speaker 1: longer a threat to the fetus. Absolutely, it will encourage
Speaker 1: some women who would love to have their baby to
Speaker 1: have unwanted coerced abortions. And another issue I wanted to
Speaker 1: ask you about. I saw on your website that you
Speaker 1: put out a report called harming fathers, how the family
Speaker 1: court system forces men to regulate pregnancy. Say more about that. Well,
Speaker 1: these are cases in which, in fact what's happening is
Speaker 1: that fathers are being told that they have to control
Speaker 1: the person who is pregnant, the woman with whom they
Speaker 1: were going to have a baby. That it is an
Speaker 1: example of a reversion to a kind of patriarchy control
Speaker 1: over women that we thought we would never see again.
Speaker 1: And the way it happens is that baby is born positive. Uh,
Speaker 1: and the new father is charged himself with child neglect
Speaker 1: civil child neglect. Why because they say he should have
Speaker 1: forced the woman who he got pregnant to go to
Speaker 1: drug treatment, and his failure to get her to stop
Speaker 1: using drugs or go to treatment makes him ineligible to
Speaker 1: parent his own newborn. And some of these fathers have
Speaker 1: been represented enough to be able to say, what was
Speaker 1: I supposed to do? I don't have custody over the
Speaker 1: person who is pregnant, that I am responsible for half
Speaker 1: of the genetic material. And yet courts, I think in
Speaker 1: sixteen states and many cases in the state of New York,
Speaker 1: have claimed that fathers are ineligible to have custody of
Speaker 1: their own children because they didn't control their pregnant partners,
Speaker 1: the women that they impregnated. The fact that there are
Speaker 1: decisions saying that father should control somebody who was pregnant
Speaker 1: because they were using drugs, it's just going back to
Speaker 1: the earlier version of evidence of drug use during pregnancy
Speaker 1: means you shouldn't be able to parent your child. They're
Speaker 1: just expanding it to include the dads. Now, you know,
Speaker 1: I'm curious, lit, I mean, we you know, we talked
Speaker 1: about the key racial piece of this thing, and you know,
Speaker 1: oftimes people talk about how in recent years, last five
Speaker 1: ten years, that with the opioid crisis and it becoming
Speaker 1: so you know, on the present um in kind of
Speaker 1: white working class and depressed community ease, that there was
Speaker 1: a kind of softening of the whole drug war mentality
Speaker 1: and more support for a health approach, a medical approach,
Speaker 1: to harm reduction approach. But in between all that was
Speaker 1: the myth issue. Right If crack cocaine was the thing
Speaker 1: of the late eighties and into the nineties. Meth Amphetamine
Speaker 1: was the big drugs thing about the early part of
Speaker 1: the two thousands, before the opiate thing really started going,
Speaker 1: and that was overwhelmingly associated with white people. Did you
Speaker 1: see a difference? I mean, was it just that class
Speaker 1: replaced race. Was there a sense that because these were
Speaker 1: now white mothers that there was a little more sympathy
Speaker 1: or toleration, or was it that same mentality that, Yeah,
Speaker 1: race was going to make it that much more vicious,
Speaker 1: but in the end, the kind of drug war craziness
Speaker 1: was just going to carry over to that. Well, one
Speaker 1: of the things that I heard often was, oh, you know,
Speaker 1: it's math that's associated with white people, and then opioids
Speaker 1: is associated with white people and it's much less punitive.
Speaker 1: Everybody's focusing on treatment. That was largely true except for
Speaker 1: pregnant people. And uh, what key are Bridges? Professor Key
Speaker 1: Are Bridges at Berkeley Law School beautiful brilliant Harvard Law
Speaker 1: Review article looked specifically, what does it mean that now
Speaker 1: the majority of women who are being arrested, criminalized for
Speaker 1: being pregnant and using drugs are poor white women? What
Speaker 1: does that say about races? In the United States. And
Speaker 1: what she said is, look, the whole idea that it
Speaker 1: was appropriate to apply the punitive criminal law system, and
Speaker 1: it would be true for the civil child welfare system
Speaker 1: as well, was built on the backs of black mothers.
Speaker 1: And once it was established that this was an appropriate response,
Speaker 1: it's in place, and everybody else gets caught up into it.
Speaker 1: And so it appears that um, while still significant number
Speaker 1: of black, Indigenous and brown women are still captured in
Speaker 1: the criminalization, many many more rural, poor white women are
Speaker 1: being arrested. Wendy Bach has a book coming out about
Speaker 1: what happened in Tennessee. Uh, and we have to remember
Speaker 1: that racism it is as you said, it's also an
Speaker 1: issue of class, but racism plays out and also deciding
Speaker 1: that there are certain white people, so called white trash,
Speaker 1: who shouldn't be procreating, who shouldn't be undermining the supreme
Speaker 1: white race, Those white women shouldn't be having babies, and
Speaker 1: they get caught up into the same punitive, counterproductive systems.
Speaker 1: As support for drug policy reform has grown and expanded
Speaker 1: and even become, you know, creepingly more and more bipartisans,
Speaker 1: have you noticed more openness to basically an ep double
Speaker 1: use mission among progressive organizations. I think the best way
Speaker 1: I can answer that question is to say, there are
Speaker 1: some groups that have become even more supportive and taken leadership,
Speaker 1: And in fact it happens to be your old organization.
Speaker 1: The Drug Policy Alliance, now led by Cassandra Frederic has
Speaker 1: really been very thoughtful UH and intentional about recognizing the
Speaker 1: ways in which drug policy can play out differently for
Speaker 1: pregnant women. So when your organization and the coalition that
Speaker 1: finally got marijuana legalization in New York, when that law
Speaker 1: was passed, it included thoughtfully UH provisions that prohibit criminalization
Speaker 1: and punitive civil child welfare actions based on the use
Speaker 1: of marijuana. When Colorado legalized marijuana, they didn't anticipate that
Speaker 1: they legalize the marijuana and pregnant and you is it
Speaker 1: and they get to arrested and they say, but it's legal,
Speaker 1: but they didn't account for the pregnant people in their state.
Speaker 1: I have to say that I've been disappointed for many
Speaker 1: years that leading groups advocating for the right to abortion
Speaker 1: often feel so vulnerable, so under attack, that they are
Speaker 1: afraid to associate with any other issue will make it
Speaker 1: even harder for them to preserve the very important right
Speaker 1: to be able to access abortion health care. But I
Speaker 1: think the bigger missed opportunity is that when there are
Speaker 1: attacks on personal autonomy, on the right to bodily integrity,
Speaker 1: and they can take many forms of the war on drugs,
Speaker 1: attacks on trans people, we actually are stronger when we
Speaker 1: work together when we call it out not just as
Speaker 1: an attack on abortion rights, not just as uh an
Speaker 1: interference with the right to use drug but as an
Speaker 1: attack on the very fundamental principles of autonomy and bodily
Speaker 1: integrity and liberty, a word that is explicitly in the
Speaker 1: Constitution that should exist for everybody, including the people who
Speaker 1: have the capacity for pregnancy. Yeah, although sometimes there's appears
Speaker 1: to be an allergic reaction to the words liberty and
Speaker 1: freedom among many progressive groups, which I think has been
Speaker 1: a great failing on their part. So the let's just
Speaker 1: turned now to DODS. I mean, I know, you know,
Speaker 1: for you obviously, I mean for all of us, but
Speaker 1: especially for you who have spent decades, you know, fighting
Speaker 1: for reproductive rights, and you know how heartbreaking the DODS
Speaker 1: decision and the overturning of ROW after fifty years you
Speaker 1: know must be. But basically DoD right was about women
Speaker 1: who want to have an abortion and preventing them from
Speaker 1: doing so, whereas the issues you're mostly been working on
Speaker 1: or about women who mostly want to be pregnant. So
Speaker 1: the question is how will Dodds affect the issues around
Speaker 1: the criminalization of pregnancy. Are there are there direct ways
Speaker 1: or is it bc basically in creating a broader atmosphere
Speaker 1: that becomes ever more oppressive in terms of women and
Speaker 1: their pregnancy. I would have to say the answer to
Speaker 1: that question is both. And I just want to clarify
Speaker 1: that although the majority of cases National Advocates for Pregnant
Speaker 1: Women and I have worked on over these many years
Speaker 1: involved pregnancy and an allegation of drug is, I've also
Speaker 1: helped advocate for women were arrested even before Dobbs for
Speaker 1: having an abortion or being perceived as trying to end
Speaker 1: their pregnancies through one means or another. What Dobbs says
Speaker 1: is that laws that are passed under the guise of
Speaker 1: protecting so called on born lives should be judged in
Speaker 1: a very deferential way. So if the claim is we're
Speaker 1: going to arrest pregnant people who do anything that risks
Speaker 1: harm to the unborn life. The instruction essentially from the
Speaker 1: majority in Dobbs is you should defer to the state.
Speaker 1: They don't have to show that it serves any compelling interest.
Speaker 1: They don't have to show that they've done whatever law
Speaker 1: they've done in a narrowly tailored way that will actually
Speaker 1: protect onborn lives. They can just say that's the purpose,
Speaker 1: and basically they've been given the green light. Courts have
Speaker 1: been told to give the green light to going ahead
Speaker 1: and doing it. So it has been absolutely predictable that
Speaker 1: the result of the decision will be much more criminalization,
Speaker 1: if not mass criminalization and incarceration. Now with the four
Speaker 1: million people who get pregnant every year eligible for being
Speaker 1: locked up. Mm hmm. Now, just to make a distinction here,
Speaker 1: there's there's obviously the majority decision by Justice Alito um,
Speaker 1: and then there is a kind of separate opinion by
Speaker 1: Clarence Thomas. And it does seem I mean, you know,
Speaker 1: sometimes I don't want to make this sound too horrible,
Speaker 1: but having watched Handmaid's Tale, you know on TV, you
Speaker 1: know that this nightmarish enslavement essentially of women and the
Speaker 1: use of their bodies, you know, to produce, to produce
Speaker 1: babies for for the elite, essentially. I mean, I'm not
Speaker 1: accusing Clarence Thomas of that, but say something about Clarence
Speaker 1: tom because there's been times in the past when he's
Speaker 1: written a little, you know, opinion agreeing with the majority's
Speaker 1: own separate thing that then ultimately becomes the majority opinion.
Speaker 1: Tell us about Clarence Thomas, is you on this. He's
Speaker 1: now the senior majority of judge on that court, and
Speaker 1: he has an incredible amount of influence. I do want
Speaker 1: to say that, you know, we think about the Handmaid's Tale,
Speaker 1: but if you think about black women who were enslaved,
Speaker 1: that was the epitome of the Handmaid's Tale. They were
Speaker 1: used to reproduce more slaves, and that became even clearer
Speaker 1: when the slave trade itself was stopped. So they were raped,
Speaker 1: they were put into situations where they were forced to
Speaker 1: become pregnant so there would be more slaves. This is
Speaker 1: nothing new in the United States of America. What's interesting
Speaker 1: is that nothing that we're starting to see states talking
Speaker 1: about arresting women for murder, for having abortions, states talking
Speaker 1: about keeping them from leaving the state to have an abortion.
Speaker 1: All of that was completely predictable, particularly from the cases
Speaker 1: involving pregnancy and allegations of drug use. But during the
Speaker 1: oral argument in Dobbs, Justice Thomas actually did not ask
Speaker 1: any questions about outlawing abortion or the consequences of abortion. Rather,
Speaker 1: he actually asked the lawyers challenging the Mississippi law limiting
Speaker 1: abortion questions about the state's power to arrest drug using women. Uh.
Speaker 1: He said that he claimed that in some cases that
Speaker 1: the Supreme Court had addressed women, pregnant women were being
Speaker 1: arrested in South Carolina, and he's only concerned was could
Speaker 1: they be arrested earlier in pregnancy before field viability, assuming
Speaker 1: which was wrong, that it was perfectly legal to have
Speaker 1: them arrested after viability. And so he's made very clear
Speaker 1: his position that the criminal law is an appropriate use
Speaker 1: and appropriate response two issues relating to pregnancy, not limited
Speaker 1: to drug use, and certainly extending to abortion. So, Lynn,
Speaker 1: how are you feeling about the future. I mean, are
Speaker 1: you hopeful that there will be a reaction of political
Speaker 1: reaction in the states? Uh, you know, to what the
Speaker 1: Supreme Court has done. Do you feel that the arguments
Speaker 1: around criminalization of pregnancy outcomes and pregnant drugs used during pregnancy.
Speaker 1: Is is you know that people are becoming more enlightened. Um,
Speaker 1: what's your what's your feeling here? You've been working on
Speaker 1: this for three decades or something, Well, a couple of things.
Speaker 1: My reaction is, of course, I think I've been in
Speaker 1: some kind of deep mourning and grief about Dobbs. At
Speaker 1: the same time, I have gone back and read and
Speaker 1: reread Frederick Douglas's speech in the aftermath of the dread
Speaker 1: Scott decision, and that was the Supreme Court's decision purporting
Speaker 1: to uphold once and for all slavery in the United
Speaker 1: States of America, and Frederick Douglas gave this incredible speech
Speaker 1: about how we do not have to look at that
Speaker 1: decision as the end, that the Supreme Court is not
Speaker 1: the last word on the freedom and humanity of black
Speaker 1: people in the United States. And that is true. It
Speaker 1: is not the last decision, the last word on the
Speaker 1: humanity and status of the people you can get pregnant.
Speaker 1: And I think that's part of the channel lenge post Obs,
Speaker 1: is that much of the response the decision itself and
Speaker 1: the response to it is as if it's only about
Speaker 1: abortion rights. No, it is about the personhood status of
Speaker 1: the people who get pregnant, whose person who has not
Speaker 1: even yet been fully recognized by the Supreme Court. As
Speaker 1: people have more personal experience, I've had the privilege of
Speaker 1: being the lawyer on a lot of cases where horrendous, dehumanizing,
Speaker 1: counterproductive things have been done two pregnant women. I haven't
Speaker 1: had to experience that myself, but I've been close to it. Now,
Speaker 1: so many other people will be too, and that will
Speaker 1: motivate them to take action. We know that before Roe v. Wade,
Speaker 1: it was estimated that from two hundred thousand to a
Speaker 1: million women each year had illegal abortions, and that a
Speaker 1: million a year is about what it is today. A
Speaker 1: quarter of the women who get pregnant approximately each year
Speaker 1: seek to end their pregnant sees. All of them, All
Speaker 1: the women who suffer miscarriages and still births, All of
Speaker 1: the people who find that when they go to give
Speaker 1: birth they can be threatened with force surgery or child
Speaker 1: removal based on something they did or didn't do during pregnancy.
Speaker 1: All of those people are going to have to think
Speaker 1: very differently today about what they have to do to
Speaker 1: ensure their rights and the rights of their children and
Speaker 1: loved ones. And I know that as hard a period
Speaker 1: of time as this is, it is also a time
Speaker 1: in which the fight for equality, equity for the women
Speaker 1: and the people who become pregnant will be re energized
Speaker 1: and resurgent. M hm. Well, Lynn, I there, I so
Speaker 1: much you know value you know, not just our friendship,
Speaker 1: of course, but also your incredible work over all these decades.
Speaker 1: And I very much hope and believe that you're right
Speaker 1: to in your concluding words. So thank you ever so
Speaker 1: much for joining me and my listeners on Psychoactive, and
Speaker 1: thank you for your leadership and support for all these years.
Speaker 1: My pleasure. If you're enjoying Psychoactive, please tell your friends
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Speaker 1: message at one eight three three seven seven nine sixty
Speaker 1: that's eight three three psycho zero, or you can email
Speaker 1: us at Psychoactive at protozoa dot com, or find me
Speaker 1: on Twitter at Ethan natal Man. You can also find
Speaker 1: contact information in our show notes. Psychoactive is a production
Speaker 1: of I Heart Radio and Protozoa Pictures. It's hosted by
Speaker 1: me Ethan Nadelman. It's produced by noha'm osband and Josh Stain.
Speaker 1: The executive producers are Dylan gold Then, Ari Handel, Elizabeth
Speaker 1: Geesus and Darren Aronofsky from Protozolla Pictures, Alex Williams and
Speaker 1: Matt Frederick from My Heart Radio and me Ethan Nadelman.
Speaker 1: Our music is by Ari Blusien and his special thanks
Speaker 1: to a Bio Sef Bianca Grimshaw and Robert Deep. Next week,
Speaker 1: perhaps my most famous guest to date Chelsea Handler, the
Speaker 1: famous comedian, actress, author and talk show host. We'll be
Speaker 1: talking all about her and drugs. So I just kind
Speaker 1: of got my whole family on board with edibles. We
Speaker 1: go to Whistler, Canada each year to ski for Christmas,
Speaker 1: and they started baking us cannabis infused cookies up there
Speaker 1: about ten or eleven years ago, and we just started
Speaker 1: handing them out before we went to dinner, and it
Speaker 1: made our family vacations just not much more fun. We
Speaker 1: all just seemed to get along great, have great times.
Speaker 1: And then We just developed this great affinity for cannabis.
Speaker 1: So yeah, I serve it up every every Christmas. Now
Speaker 1: subscribe to Cycleactive Now see it, don't miss it.