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104 Harv. L. Rev. 1419 (1990-1991)
Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy

handle is hein.journals/hlr104 and id is 1437 raw text is: VOLUME 104

MAY 1991


Dorothy E. Roberts*
Women increasingly face criminal charges for giving birth to infants who
test positive for drugs. Most of the women prosecuted are poor, Black, and
addicted to crack cocaine. In this Article, Professor Roberts seeks to add
the perspective of poor Black women to the current debate over protecting
fetal rights at the expense of women's rights. Based on the presumption that
Black women experience several forms of oppression simultaneously, the
author argues that the punishment of drug addicts who choose to carry their
pregnancies to term violates their constitutional rights to equal protection
and privacy regarding their reproductive choices. She begins by placing
these prosecutions in the context of the historical devaluation of Black women
as mothers. After presenting her view of the prosecutions as punishing drug-
addicted women for having babies, the author argues that this punishment
violates the equal protection clause because it stems from and perpetuates
Black subordination. Finally, Professor Roberts argues that the prosecutions
violate women's constitutional rights to autonomy and freedom from invid-
ious government standards for childbearing. In presenting her view that the
prosecutions violate women's privacy rights, the author critiques the liberal,
negative conception of privacy rooted in freedom from government con-
straints. She concludes by advocating a progressive concept of privacy that
places an affirmative obligation on the government to guarantee individual
rights and recognizes the connection between the right of privacy and racial
* Associate Professor, Rutgers University School of Law-Newark. B.A. I977, Yale College;
J.D. i98o, Harvard Law School. I would like to thank my colleagues Howard Latin, James
Pope, and Nadine Taub for their careful comments on an earlier draft of this Article. Anita
Allen, Regina Austin, and Dwight Greene also gave me helpful suggestions. I am also grateful
to Anita Brown, Nina Loewenstein, Elizabeth Marshall, Eric Pennington, Claudia Wernick,
and Andrea Williams for their research assistance.


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