Coverture and the Criminalization of Pregnancy

“…You might think it would be hard to find someone who falls into the “pro-criminalizing pregnant women” camp. Sadly, you’d be wrong. A dangerous bill​ has wormed its way through the Tennessee legislature that would allow prosecutors to bring criminal assault charges against women who use drugs during pregnancy.

In all seriousness, it’s encouraging to see Cosmo publish a thorough take-down of this bill. It’s a sign that deep misgivings about the needless expansion of our criminal justice system are now so widely held that they’ve reached pop culture salience. For decades, this country has ratcheted up the number of crimes on the books and the length of time we lock people up, pushing the number of people under correctional control to about 7 million. Many of these people would be better served outside of the criminal justice system entirely.” (1)

“In the first legislative victory of its kind, the Tennessee Senate and House have now passed a measure that would allow criminal assault charges to be brought against Tennessee women who use drugs during their pregnancy. Now the legislation heads to Tennessee Governor Bill Haslam (R) for either his signature or his veto.

The bill allows women to avoid prosecution if they enroll in a rehab program and complete it, but critics say it could actually keep drug-addicted pregnant women from seeking the treatment they want and need. The law, if passed, would be the first of its kind in the nation.

“Women who are addicted will no longer go to their prenatal health appointments or if they do go, they won’t be honest with their doctors because they’re afraid to end up in jail,” Glass told Cosmopolitan.com. She also noted that the medical community has rejected this bill.

The American College of Obstetricians Gynecologists (ACOG) notes that criminalization has proved to be ineffective and it urges physicians to oppose legislation that punishes women for substance abuse during pregnancy. ACOG also decisively states that drug enforcement policies that deter women from seeking prenatal care are “contrary to the welfare of the mother and the fetus.”

This bill says nothing of fathers’ responsibility for fetal health, as this bill would only allow for punishment of the pregnant woman. The legal blame for NAS falls solely on the pregnant woman.” (2)

April 29: Tennessee governor sings SB 1391 despite widespread calls for a veto and objections from doctors.

It is an obvious fact of life that only women can get pregnant and everything the mother does and the environment she is in affects the fetus. The nine months spent in the womb affect us across our entire lifespans. Some women have problems and addictions that affect their pregnancy and unborn babies and now our government seeks to lay criminal penalties on the mother-and only the mother- for the result of her pregnancy.( And this is not the only case like this I have seen in the past few years such as punishing women for miscarriages if they act “irresponsible.”) Addiction during pregnancy is bad enough by itself but what I want to know is where is the father’s responsibility for fetal health if he wishes rights to the child the same as the mother? I believe we have a real and true problem of male irresponsibility in society today. In the past men were expected to be married to the mother in order to be legally recognized as the father of the child. As well, they were the guardians of their wives. This lessened after coverture was officially ended in the late 19th century but married women had many protections up until the 1970s and many aspects of coverture remained in law even holding the husband responsible for his wife’s actions to a certain extent.

Today there are no such protections. A sex-blind society is the rule today. But the only problem is that it is unrealistic. Men and women are not on equal terms no matter what crazy gender-neutralized laws we as a society can think up of. Now we are going to throw pregnant women in jail for being on drugs and giving birth to babies with NAS (neonatal abstinence syndrome). The responsibility for the outcome of a pregnancy falls entirely onto the woman as she is the only one who can become pregnant. Men may not get a say in abortion but they still get rights to the resulting children when they are born, even if illegitimate they are granted the same legal rights as the mother (a major historical shift of the past 40 years). (I would consider married men getting veto power in abortion if the marriage placed the wife under coverture where the husband was responsible for her as in the past). I can just see this now. Father isn’t in the picture, mother is drug-addicted. She gives birth and gets thrown in jail then daddy comes walking up playing dad of the year and takes full custody of the child while mom takes all the blame. And of course the GOP is right there saying “there’s no war on women.” But there is a war on women that’s been going on since coverture was repealed.

Something is wrong here. A drug-addicted pregnant woman needs help. It should be the father’s responsibility to make sure that she gets the help that she needs and the woman’s responsibility to submit to being taken care of and taking care of her child. Since obviously men cannot get pregnant traditionally in order to be responsible for fetal health the father is held responsible for the well-being of the mother. Take care of the mother and you take care of the child as women and children are inseparable through the entire reproductive process. This also makes sure she can nurse the child as well. But today women must “stand on their own two feet” take all the responsibilities of citizenship and be treated as equal to men in our feminist and egalitarian world. It’s a nice fantasy but one that never quite pans out in reality. Men are not required to take appropriate responsibility for women and children and can leave them completely on their own with no concern for what conditions they are living in or if the mother even has food to eat or medical care.

Another thing is women who have their children taken from them at birth because they were drug addicted. Most are required to get off the drugs and to get a job to prove they are responsible. But how about get treatment, be married and stay home to care for the child? That seems like a much better and more logical solution but nobody cares about mothers actually caring for their children or ensuring their children are legitimate and look at the damage around us as a result. If she doesn’t marry the father he won’t grow up and learn responsibility. She and her child will probably never be stable and secure or ever get out of poverty or unsafe living conditions. Marriage must matter to us as a society and coverture is an important and long-forgotten aspect of it that places women under guardianship.

Another thing that bothers me is pregnant women in jail. If she is not violent and/or dangerous then where is the father to take responsibility for her? Dating back thousands of years and in numerous civilizations marriage erased a woman’s previous debts and obligations and she became the responsibility of her husband (but, of course, she was required to accept guardianship and her husband’s authority and sexual regulation). Women are not men and have special circumstances in life. Men’s duties must be to protect women. Women are becoming more masculine and more violent and aggressive and it showcases the need of men to intervene and be authoritative once again so that women must act appropriate as ladies and accept male guardianship to protect them and their families.

Related: “When Women Act Bad”

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