Abstract

Phenomena that are identified by communities as social problems are as much created as discovered. This is true for pregnant women who take drugs. This issue rose to prominence in the 1980's in the United States and the effects of our attempt to deal with this newfound 'problem' are with us today. During the same time, retributivism as an acceptable theory of punishment has enjoyed a revival of support and adherents. In this work, I examine the attempt to criminally prosecute pregnant women for taking drugs through the framework of our most popular theories of punishment including retributivism. Through this examination, I show two things. ;First, it is clear that consequential theories of punishment cannot function to justify criminally punishing pregnant women who take drugs. Neither the interests of the pregnant women, nor fetal health, is served by criminal punishment. In fact, criminal punishment in this instance further harms both pregnant women and fetuses by discouraging adequate prenatal care, health care, and drug treatment and actually increasing potential risks of harm to the fetus. Thus, a consequentialist account of punishment cannot justify punishment in this instance. ;Second, retributivism as a theory of punishment raises specific problems when used as a justification for punishment generally as well as in the specific instance of pregnant drug users. Censure based retributive theories justify punishment by focusing on the moral desert of the offender and by assigning blame and censure to those offenders. Yet, our current concepts of legal liability do not determine the moral desert of the offender. Therefore, retributive theories of punishment attempt to justify criminal punishment based on moral desert in a legal system that simply does not determine moral desert. Additionally, censure based theories of punishment create a particular story of criminal action that, when applied to pregnant women who take drugs, perpetuates and reifies a patriarchal ideology of motherhood that is inimical to the possibility of women's equal citizenship. Consequently, criminal punishment of pregnant women when justified by a retributive theory of punishment disallows the possibility of women's equal participation and protection in the rights of citizenship