Criminalization, Crisis and Care:  Tennessee’s S.B. 1391 and Attacks on Reproduction

Recently, Flo Jo has been paying attention to Tennessee,  where the State now has the authority to criminalize women for potentially harming their newborn children with drugs.  Last week, the first woman was arrested under this new law. We have been working on a two-part series on the law, an analysis of what it means, and what we think care workers should do in response.  Below is the first article in this series.

Tennessee recently passed a law, S.B. 1391, making it the first state to prosecute women for criminal assault if their fetus or newborn is considered harmed due to illegal drug use during pregnancy.  Criminalization of pregnant women and mothers is one side of the various ways the State attempts to control reproduction and discipline womens’ bodies.  This is an attack against working class women of color not unlike those we have seen in Texas, California, nationally and globally.  All of these measures will impede women’s access to health care and efface women’s reproductive skills and knowledge.  But unlike abortion restrictions and forced sterilization, the Tennessee law is an attempt to divide feminized workers under the guise of “protection” of women and children, a strategy we are likely to see more frequently as the economic crisis deepens.

S.B. 1391 and the Crisis.

Today’s crisis is manifested in the inability of the class to take care of itself, or reproduce itself; it is a crisis of reproduction.  Wages are so low that the class cannot afford to get everything it needs to go to work every day.  Of course, “everything” we need is a relative term based on time and place; workers in America need a smartphone and cable TV after years of changes in living standards.  The class has supplemented this crisis of reproduction with personal debt.  We get credit cards to buy clothes and pay our cell phone bills and we take out student loans we will never pay back to make an extra $3/hr.  This is what life looks like for the working class today.

For the ruling class, there is another type of hustle.  It is a general law of capitalism that profits must always increase.  So capitalists make changes to the workplace, by introducing more and more machines and pushing workers out of the production process, to ensure an increased profit.  However, this catches up to them.  Since workers are the only ones capable of creating value (there is always a worker somewhere in the production process!), the more capitalists push workers out of the production process, the more the profit margin weakens.  Couple this phenomenon with the working class’s increased dependence on debt and loans and we find ourselves in today’s economic crisis.

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On top of this, because so many workers are pushed out of the production process (consider Detroit’s 23% unemployment rate for example), a surplus population of workers makes it possible for capitalism to pit people against each other in competition for jobs.  In this sense, the ruling class has an interest in controlling the actual number of workers there are in the world at a given moment, based on the needs of capital.

Silvia Federici describes this phenomenon in the early days of capitalism, when disease threatened to wipe out the emerging waged working population.  Federici argues that the State implemented a reproductive policy in the interest of capitalism by criminalizing abortion and contraception and all forms of non-reproductive sexuality, punishing such crimes by death.  While the measures the rulers use today are not this extreme, it is clear that there is still an interest in controlling women’s bodies and reproduction in general, in order to manage population levels and discipline women’s knowledge and control over reproduction.

Furthermore, a large surplus population and competition for jobs means that workers are extremely replaceable.  Workplaces have been reorganized so workers are increasingly non-unionized and in precarious working conditions.  Additionally, from a capitalist perspective, the working class is not as motivated as it was in the past.  In the 1950s it might have been ok if you didn’t find a job right after graduating high school or if you did not go to college; there were many jobs to choose from and your meager earnings could take you pretty far.  Today, it is a real problem if you are out of work for an extended amount of time and wages are so low, so many workers are forced to rely on welfare benefits to supplement their income.  However, the crisis and capitalist restructuring has meant intense austerity measures.  Increasingly, there is no safety net for unemployed and low wage workers, and it is becoming harder to find a job with benefits.  It becomes clear why some capitalists have pushed policies that increase criminalization of welfare recipients, most recently around drug testing, and have traded the carrot for the stick in order to ensure a generalized desperation around keeping a steady (but sporadic) wage.

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It is no surprise, then, that the latest round of attacks against poor women of color occurred in Tennessee, a state that refused Medicaid expansion alongside the implementation of the Affordable Care Act.  It is more clear than ever that the rulers are not interested in actual health of babies or the welfare of society.  They simply want the most efficient, interchangeable, disposable workers at the lowest possible cost.  This means cutting the cost of reproduction in the form of the Welfare State and access to medical care.  Concretely, in Tennessee this will look like criminalizing women who give birth in hospitals.  In New York, this will look like hospital closures and mergers.  In Texas, this will look like shutting down women’s health care centers in rural areas.

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Finally, we cannot ignore the gendered and racialized form the crisis is taking.  A crisis of reproduction means health care, education, feeding, cleaning, and other forms of care work that has increasingly become paid work (thanks to the contradictory struggles of the women’s liberation movement), will be pushed back into the home.  And since women still do most of the domestic labor in the home, working class women of color will have to take care of their young, elderly, and sick family members on top of working 2-3 jobs to pay the bills.  It is frightening to think that on top of absorbing the reproduction of other members of the working class, women are being discouraged and physically blocked from obtaining care for themselves.

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Divisions within feminized labor.

In Caliban and the Witch, Silvia Federici describes 16th century Europe, where medical professionalization began.  She argues that in the process of primitive accumulation (the need for the new capitalist system to absorb as many resources, including land and labor power, as possible and force peasants into the wage system), the medical system became “professionalized.”  Concretely, this meant that midwives, who were largely organic female healers in the community, were forcibly replaced by male doctors.  Concomitantly, largely feminized (waged) professions around health care,  including nursing developed.  Federici describes this process:

“With the marginalization of the midwife, the process began by which women lost the control they had exercised over procreation, and were reduced to a passive role in child delivery, while male doctors came to be seen as true ‘givers of life’… With this shift, a new medical practice also prevailed, one that in the case of a medical emergency prioritized the life of the fetus over that of the mother.  This was in contrast to the customary birthing process which women had controlled; and indeed, for it to happen, the community of women that had gathered around the bed of the future mother had to first be expelled from the delivery room, and the midwives had to be placed under the surveillance of the doctor, or had to be recruited to police women.

“In France and Germany, midwives had to become spies for the state, if they wanted to continue their practice” (89).

The world that Federici describes is not too far off from the context we now find ourselves in.  Hospitals are highly feminized workplaces; over 90% of RNs are women and 73% of other medical and health service providers are women.  Further, S.B. 1391 will force a majority female workforce to act as reproductive snitches and spies for the State.  This division will no doubt have a severe racialized component as well, since about 81% of nurses are white and S.B. 1391 is expected to target primarily working class women of color, as has historically been the case for drug offenses in the US.  More than anything, this is another step toward the State’s absolute control over reproduction and female bodies.

The Myth of “Protection.”

The State has spent the last 50 years slowly chipping away at the gains of the women’s liberation movement of the 1960s and 1970s.  While the movement itself, and therefore the demands that accompanied it, was contradictory, some of the women’s accomplishments included (some) access to abortion and contraception, increased financial independence from men and diminished isolation through an increase in the Welfare State and access to higher paying waged labor, and a generalized increase in liberatory expressions of female and queer sexuality.

Over time, many of these gains have been incorporated into capital or reversed in some way.  The most obvious example is the slow, state by state repeal of reproductive rights.  Another strategy is the liberal patriarchy of the State that attempts to “defend” or “protect” women and our children by expanding the prison-industrial complex.  One side of this process is the hyper-incarceration of men of color who are said to be a danger to our communities.  The other side is the increasing arrest, detention and incarceration of women and transgender people (the women’s prison population increased 646% between 1980 and 2010, and trans people are routinely policed for their gender transgressions who are a supposed danger to the families they care for.  (Note that 62% of incarcerated women are mothers.)  Passing S.B. 1391 is another of the rulers’ strategies for increasing state repression of women and queers under the guise of “protection.”  In reality, women and people of color don’t need the State’s protection!  In fact, police and prisons increase the danger within our communities, since police and corrections officers are known to regularly police gender, sexually harass, beat and rape women/queer/trans people.

Furthermore, a provision of S.B. 1391 will allow women to escape prosecution and incarceration by participating in the drug court system.  This is similar to an initiative in Dallas, Texas, that allows sex workers a “treatment-based” ultimatum.  Such methods simply reinforce the patriarchy of the State.  Forcing individuals into treatment does nothing to build their self-confidence and capacity as subjective actors in society (for more on forced treatment see this statement from a comrade and the (de) Voiced videos).  Additionally, drug courts failed to significantly reduce recidivism.  But clearly this is not what the U.S. government is going for.

Finally, and here’s the kicker…41% of all neonatal abstinence syndrome cases (meaning a baby is born with some level of drug dependence and suffers withdrawal) in Tennessee last year involved doctor-prescribed medications.  So  the State of Tennessee is actually criminalizing and incarcerating women for taking drugs that its healthcare system is encouraging them to use.  Clearly, women’s and children’s protection is not what is at stake here.

41% of all neonatal abstinence syndrome cases in Tennessee last year involved doctor-prescribed medications.

Why people use drugs.

Many of the liberal voices objecting to S.B. 1391 argue that the bill does nothing to actually encourage women to seek drug treatment/help, and the State should look for the root causes of drug abuse instead of targeting pregnant women.  While we agree in principle that people should have options to get off drugs if they wish to do so, to us the issue is far more complicated than increasing access to 12-step programs and treatment centers.  For us, the root reason people abuse drugs is the State and capitalism itself (and not the moralistic, individual failure of the individual abusers/addicts).  Many of us are overworked, and feel alone and unhappy most of the time.  We are abused by our bosses and compete and fight with our coworkers.  We have antagonistic relationships with our partners, children and parents.  We are harassed in the streets.  It is no wonder that millions of women seek to numb the misery of capitalism, patriarchy, racism and homo/transphobia through pain medications (causing the CDC to declare a “pain killer endemic among women”).

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This is not a social problem we can overcome through more programs.  “Treatment” itself is a complicated idea.  On the one hand, we agree that there are some advances made by our capitalist society that benefit us, for example, hormone therapy and surgery for transgender individuals or brain and heart surgery.  However, on the other hand, the majority medical technologies that simply increase harm to ourselves, other people, animals, and the environment, all in the name39 of ever-increasing profits.  This is why, Flo Jo believes that through struggle, we need to retain what is useful, but completely reorganize and reinvent how we care for ourselves and others.

Some Possible Solutions.

We do not purport to be experts on this issue.  While many of us work in healthcare, we are still learning what it truly means to care for ourselves and others.  Furthermore, we do not believe that we can simply invent the answers out of thin air.  We need a movement, millions of people coming together for an extended period of time, in order to clarify what it means to be fully healthy human beings.

But absent a movement, we believe there are some things we can do to start building the world we want to see.  The first is socializing knowledge and regaining control of reproduction.  Flo Jo has been studying groups like the Jane Collective as a model for self- and community-led care and democratic use of technical skills.  Specifically, the Jane Collective offered a holistic approach to abortion services and socialized skills for performing and assisting with abortions.  As health care workers, we believe there many things we do daily that could be done by people without professional training.  We also believe that since we were trained to do our work, we can just as easily pass on those skills.  Relating specifically to S.B. 1391, we should socialize the skills to bear and birth children, so we no longer rely on the State or the professionalized medical profession that clearly do not have our interests in mind.

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Alongside socializing skills, we must always engage in work that will build up women’s self-confidence and capacity for subjective action.  This means taking risks in feminized workplaces, struggling for small gains and welfare reforms, and transforming “care work” into useful and enriching social relationships in the process of struggle.  These acts will build up our self-confidence, strengthen our skills, and give us practice for the longer term fights we will wage against capital, patriarchy, racism, homo/transphobia, and the State.

Immediately, healthcare professionals should boycott S.B. 1391, socialize their grievances and start building grassroots, worker- and patient-led groups that will build our confidence and ability to struggle against attacks on women of color and other oppressed layers of the class.

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5 comments

  1. Pingback: July 7-14 Stuff to Read
  2. Pingback: Criminalization, Crisis and Care: Tennessee’s S.B. | Unity and Struggle
  3. Pingback: Repost: Criminalization, Crisis and Care: Tennessee’s SB 1391 and Attacks on Reproduction | werehirwerequeer
  4. Eve Mitchell

    Just wanted to add a bit to this piece and the discussion based on recent developments. In response to Canada’s Supreme Court striking down bans on brothels, the country is expected to pass C-36 which will criminalize sex workers, brothels, Johns and pimps. This is supposed to target mainly Johns and pimps but it looks like sex workers could be criminalized for selling sex in public spaces “where minors could be present” – very vague language that many are worried about. (Notably, this is close to what is already in place in many places in the US.) The bill will also attack small business style sex work: sex shops, call girls and brothels, which will obviously make the profession more dangerous and drive it further underground. I am drawing this conclusion because it attacks advertisements and goes after anyone who makes money off of someone else’s “sexual services” (not defined in the bill language but has been interpreted in the courts as sex and even lap dances but not pornography or stripping) – carrying a sentence of up to 10 years.

    Furthermore, one thing that makes sex work safer and builds sex worker control is co-op style women and queer-run brothels and partnering up on the streets. Co-op brothels became popular in tandem with the sexual revolution; as people in general struggled to become more freely sexual beings, especially women, some of the lowest rung reproductive workers, sex workers, were also struggling for control over their working conditions. This sort of thing would be criminalized under this new law. As the Huffington Post notes:

    The law could also deter women from working together for safety, because advertising their business means they could be accused of posting on someone else’s behalf. It could mean workers can’t run a co-op style brothel or even work in pairs.

    But despite the language of the bill, it gives cops more freedom to selectively enforce anti-sex worker laws, police sexuality, and discipline women’s and queers’ bodies. In this sense, it reminds me of the ICE ACCESS Programs, or stand your ground laws, that allow cops to choose to enforce or not based on what their personal or local politics and conditions are. This is truly an example of state patriarchy, immiseration, discipline and criminalization, under the guise of “protection.”

  5. Pingback: The Melon Strolling on Two Tendrils: (New) Pains of Pregnancy

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