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Khiara M. Bridges



Excerpted from: Khiara M. Bridges, Race, Pregnancy, and the Opioid Epidemic: White Privilege and the Criminalization of Opioid Use During Pregnancy, 133 Harvard Law Review 770 (January 2020) (474 Footnotes ) (Full Document)

KhiaraBridges02Life expectancy in the United States has been declining. In 2017, the average lifespan was 78.6 years, a decline from 2016's average of 78.7 years--which itself represented a decline from 2014's average of 78.9 years. Many things make this decrease in life expectancy interesting. First, prior to the initial drop in 2015, the United States had not experienced a drop in overall life expectancy in twenty-two years. Further, the last time the average lifespan dropped three years in a row was between 1915 and 1918, when the nation had to contend with both World War I and a deadly influenza pandemic. Thus, the decrease in life expectancy between 2014 and 2017 is the first time in a century that there has been a three-year reduction in average lifespans. Second, most industrialized nations have experienced increases in life expectancy over the years; moreover, the life expectancies in those nations are projected to continue on their upward trajectories. The United States's three-year losses reveal that in a significant respect, the nation is failing to keep up with the countries that it considers its peers.

Third, the decline in life expectancy is notable because of its causes. Researchers have explained that increases in deaths from suicide and drug overdoses--opioid overdoses, specifically--account for the recent reductions in average lifespans. Crucially, deaths from these causes have disproportionately impacted white people. Indeed, white people-- especially those with less than a high school education have borne the brunt of deaths by suicide and drug overdoses so disproportionately that racial disparities in life expectancy have narrowed. While white people can still expect to live longer than black people, there has been a diminution of the difference in lengths of white and black lives.

What do these facts suggest about the significance of race in the United States today? Do they at all trouble the claim that there exists a racial hierarchy in the country--one in which white people exist at the top and nonwhite people occupy the lower ranks? If white people are dying from suicide and drug overdoses--deaths that Professors Anne Case and Angus Deaton call “deaths of despair” rates that outstrip their nonwhite counterparts, is it accurate for progressive race scholars to continue to claim that white people comprise a privileged racial group? Indeed, are nonwhite people still the unprivileged complements to white people?

Recent decreases in white life expectancy may suggest that we ought to reconsider the concept of white privilege. The concept is offered to explain a wide range of phenomena--from the depiction of white mass shooters in the media to the successes of white celebrities like Taylor Swift, Justin Timberlake, or Eminem. Now, identifying these phenomena as examples of white privilege has a problematic implication: the insinuation is that if things had turned out differently--if, for example, Dylann Roof had been described as a terrorist after he murdered the nine black churchgoers in South Carolina, or if the music careers of Taylor Swift, Justin Timberlake, or Eminem had never taken off--then white privilege would not have been operating. Essentially, classifying phenomena in which white people have had good outcomes as examples of white privilege suggests that white privilege has no role in those instances where white people have had bad outcomes. According to this logic, when we learn that white people are dying at terrifyingly high rates from suicide and drug overdoses, then we are left to conclude that, as white people are enduring decidedly bad outcomes, white privilege is not working.

The problem is that this rendering of white privilege essentially presupposes that white privilege guarantees white people good results. So, when bad things happen to white people--when the jobs and the industries on which they once relied disappear, when their preferred university denies them admission, when they lose a promotion to a nonwhite candidate, when they die from suicide and drug overdoses at unprecedented rates--we are left to believe that white people experiencing these negative consequences did not have white privilege or that their white privilege did not work for them. That is, we are left to conclude that white privilege is meaningless when white disadvantage is present. Further, given the undeniable fact of widespread white disadvantage, we are left vulnerable to the claim that for many, if not most, white people, white privilege is inconsequential, insignificant, or altogether nonexistent.

In reality, the fact of white privilege is much more complicated than this facile, mechanical formulation suggests. The analysis contained in this Article suggests that we ought to understand that white privilege can lead to disadvantageous results just as capably as it can lead to advantageous ones. That is, white privilege is a double-edged sword. Theorizing both edges of white privilege provides a more nuanced rendering of the concept. This complexly rendered formulation may help us understand how white privilege can coexist with white disadvantage. Indeed, it might help us understand how white privilegeactively produces white disadvantage.

The Article uses the recent arrests and prosecutions of women for using opioids during their pregnancies as an opportunity to engage with and theorize the idea of white privilege. Historically speaking, black women have borne the brunt of punitive state responses to substance use during pregnancy. It was during the crack cocaine scare of the 1980s and 1990s that states first turned to the criminal legal system to address the phenomenon of substance use during pregnancy. Because that drug scare disproportionately impacted (poor) black people, (poor) black women overwhelmingly were the targets of prosecutors' efforts to jail those who used drugs while pregnant. Black women became the face of the criminalization of substance use during pregnancy. However, the demographics of the more recent arrests and prosecutions of women who use substances while pregnant are in keeping with the demographics of the opioid epidemic: as white people predominate among those struggling with opioid use, misuse, and dependence, white women predominate among those who have faced criminal charges for opioid use during pregnancy shift that many scholars and observers have yet to acknowledge. Analyzing the criminalization of opioid use during pregnancy--an occasion in which white people have experienced profoundly adverse outcomes-- provides an opportunity to add some much-needed complexity to the concept of white privilege. Moreover, because pregnancy involves and implicates the bodies of women, investigating the criminalization of opioid use during pregnancy allows us to interrogate how whiteness and white privilege intersect with sex and gender.

Some might be tempted to argue that the white women who have been arrested and prosecuted for opioid use during pregnancy do not have white privilege or, alternately, that any white privilege that they have is meaningless and irrelevant. How can we say with a straight face that they are racially privileged when their race has not been able to protect them from excessive, abusive state power? This Article answers: it is because they are racially privileged that they have been subjected to excessive, abusive state power. This is to say that white privilege is present and operating even when white people experience bad outcomes. In many cases, those poor outcomes are direct consequences of white privilege.

In addition to demonstrating how white privilege may produce white disadvantage, this Article problematizes the concept of white privilege in three other ways. First, by taking seriously the proposition that race is a social construction, this Article offers that white privilege may not have protected the numerous white women who have been prosecuted for using opioids during their pregnancies because these women possess a compromised, marginalized, “not-quite” whiteness--a corrupted whiteness that has yielded to them a reduced racial privilege. Because the marginalized white women subject to arrest and prosecution for using opioids during pregnancy exist at the limits of whiteness, the racial privilege that they would otherwise have had has been limited-- making it unable to protect its holders from penal state power.

Second, the Article proposes that because race and racial meanings are constantly contested, we might productively understand racially salient events, like the criminalization of opioid use during pregnancy, as contests over the benefits that white privilege will yield. What will whiteness guarantee? The prosecutions of opioid-using pregnant white women reveal that, in the face of the world's most muscular criminal legal system, whiteness is not potent enough to guarantee its bearers the benefit of immunity from this system.

Third, the Article puts forward the claim that white privilege is attenuated by the reality of white disadvantage. As applied to the criminalization of opioid use during pregnancy, the racial privilege of pregnant white women struggling with substance use disorders has been attenuated by the nation's choice to treat pregnant black women struggling with substance use disorders during the crack cocaine scare harshly, callously, and punitively--that is, inhumanely. In other words, we have a racist precedent, crafted just a couple of decades ago, for dealing with substance use during pregnancy. This racist precedent has presently led the nation to be punitive toward a population--white women--that, due to its racial privilege, might otherwise have escaped our nation's punitive inclinations.

The analysis proceeds in four Parts. Before proceeding to Part I, the Introduction summarizes the various ways that theorists have defined white privilege--definitions that either imply that white privilege is incompatible with white disadvantage or suggest that white privilege is a psychological phenomenon, having few, if any, material impacts on the world.

Part I explains the origins of the opioid epidemic as well as the government's response to it, emphasizing that the current drug crisis has hit white people and white communities quite hard and, further, that pregnant women have not been immune from it.

Part II explores how the State has responded to substance use during pregnancy. At times, the State has responded with its civil systems, choosing to involve the child welfare system and child protective services; at other times, it has responded with its criminal systems, choosing to arrest and prosecute women for using substances while pregnant.

Part III then analyzes the demographics of these arrests and prosecutions. It explains that prosecuting women for substance use during pregnancy began in earnest in the 1980s and 1990s, when the crack cocaine scare gripped the nation. During this time, those who were prosecuted were largely black women. However, the opioid epidemic (and the methamphetamine scare before it) has hit white communities particularly hard--touching these communities in a way that the crack cocaine scare of the 1980s and 1990s did not. Consequently, there has been a shift in the demographics of arrests and prosecutions for substance use during pregnancy, with white women coming to predominate among those who are currently subjected to penal state power.

Part IV theorizes the significance of these shifted demographics-- investigating what they might mean for the concept of white privilege. A short Conclusion follows.

Two brief notes before beginning: First, although cisgender women are not the only people who can become pregnant, this Article uses the term “women” to refer to those who can experience pregnancy. This is solely because the data collected around opioid use, and substance use generally, during pregnancy employ the category of “women.”

The second note relates to describing women as having been arrested and prosecuted “for using opioids during their pregnancies” or “for using substances while pregnant.” Although this Article uses these and similar phrases, they are misleading. To explain: most states and the federal government have criminalized drug possession--not drug use. Because drug use has not been criminalized, it is generally not a crime to test positive for a controlled substance. Thus, when pregnant women are arrested and face criminal charges after a positive drug screen, it is because pregnancy has transformed otherwise legal behavior into a crime. Accordingly, it is more accurate to say that women are being arrested and prosecuted for being pregnant and using opioids, or for being pregnant and using controlled substances. This phrasing more clearly reveals that if women were not pregnant, their behavior would not be criminalized. This phrasing makes obvious that pregnancy is an element of the crimes that they face. Nevertheless, for the sake of simplicity, this Article describes governments as arresting and prosecuting women “for using opioids/substances while pregnant.”

[. . .]

The discussion above should demonstrate that while white privilege certainly harms the nonwhite people who cannot lay claim to it, it also harms scores of white people who are supposed to benefit from it. That is, white privilege is a disloyal friend to white people. This is especially true with respect to those who exist at the intersections of other categories of disadvantage-- like those who are poor, transgender, not straight, or disabled. It is disloyal when it opens the doors for white people to a wide range of opportunities--including those with exceedingly deadly consequences, like unmediated access to opioid prescriptions. It is disloyal when it strips a group of its membership in the white race when that group fails to live up to hegemonic ideals of whiteness. It is disloyal when it creates expectations in white people that white privilege and the things that it guarantees are static--as if contexts do not change, or as if nonwhite people will not demand changes to the racial status quo.

The overarching lesson, though, is that when white privilege betrays, we err when we conclude that it never existed in the first place. It certainly exists. And it is not unusual for white people to be found in the carnage that it inevitably leaves in its wake.

Professor of Law, University of California, Berkeley, School of Law.

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