A Velvet Hammer: The Criminalization of Motherhood and the New Maternalism,
104 Calif. L. Rev. 1299
In 2014, Tennessee became the first state to criminalize the use of narcotics during pregnancy. While women have been prosecuted for the outcomes of their pregnancies and for the use of drugs during their pregnancies in the past decades, Tennessee is the first state to explicitly authorize prosecutors to bring criminal charges against pregnant women who use drugs. This Note suggests that this new maternal crime is reflective of a social and political paradigm called “maternalism,” which reinforces the idea that women are meant to be mothers and to perform motherhood in a particular fashion. This concept has developed from the “old maternalism” of the nineteenth and early twentieth centuries to the “new maternalism” of the late twentieth and twenty-first centuries. The new maternalism is developing in a modern world, finding its voice through both liberal, mother-centric organizations like MomsRising and conservative individuals like Sarah Palin and her “mama grizzlies.” While new maternalism is developing in a modern context, it still upholds motherhood as the prime directive of women. This Note first tracks the history of policing pregnant women, with an eye for the effects this history has had on women of color and poor women in particular. Next, it describes the progression of maternalism and how it has shaped American politics and culture. Finally, it proposes that the new law in Tennessee criminalizing the use of drugs during pregnancy is reflective of new maternalism. Through the criminalization and policing of pregnant women’s behavior, women’s reproductive freedoms become increasingly constricted. By criminalizing the behavior of some pregnant women, this law helps to create a vision of a “bad mother,” whose punishment acts as a foil to the “good mother” that the new maternalism tries to reinforce.