Criminalizing Drugs—Including Misoprostol and Mifepristone—Is a Bad Idea

Even before Louisiana’s decision to label abortion pills as dangerous controlled substances, the parallels and connections between the war on drugs and the war on abortion have been clear.

Demonstrators at the New York State Capitol push back against Governor Kathy Hochul’s proposed plans to increase criminalization to address the overdose crisis. (Erik McGregor / LightRocket via Getty Images)

Louisiana recently added misoprostol and mifepristone (“M&M”) to the state’s list of criminalized controlled substances. M&M are medications that, among other things, can safely and effectively end a pregnancy. As a result of this law, possession of these medications without a prescription can result in fines of up to $5,000 or “imprisonment of no more than five years with or without hard labor.”

Much of the outcry against this state action has focused on the fact that M&M are neither dangerous nor addictive and thus should not be categorized or criminalized as a controlled substance. While it is true that M&M, two exceptionally well-studied and approved medications, are extremely safe and lack any potential for addiction, this critique reinforces dangerous myths about the war on drugs already deeply intertwined with the war on abortion.   

While drug war propaganda has convinced many people that medical reasons exist for criminalizing some drugs and not others, the real reasons for targeting certain drugs have far more to do with prejudice and power than their inherent dangerousness or even the likelihood of developing dependency problems. If those were the core reasons for controlling drugs through arrests, prosecutions, incarceration and family separation, then surely cigarettes and alcohol would be on the list. In fact, the reasons that drugs most people think of as “illegal” were criminalized are no more legitimate than those underlying Louisiana’s decision to criminalize M&M.

The reasons that drugs most people think of as ‘illegal’ were criminalized are no more legitimate than those underlying Louisiana’s decision to criminalize misoprostol and mifepristone.

The drugs typically criminalized today were selected because they reinforced certain racist views and gave state authorities the power to selectively penalize and control the people in those communities. 

  • Opium became criminalized as a mechanism for policing Chinese people who had immigrated to the United States and were no longer needed to do the back-breaking work of building our railroads.
  • Cocaine was criminalized as part of ongoing efforts to stigmatize, terrorize and subjugate Black men in the early 1900’s. This 1919 all caps headline in The New York Times encapsulates the thinking: “NEGRO COCAINE ‘FIENDS’ ARE A NEW SOUTHERN MENACE.”

More recently, criminal penalties for possessing marijuana and heroin increased during the Nixon administration (1969-1974) also as a way of controlling particular groups. As John Ehrlichman, a top Nixon aide would later admit, the war on drugs was designed to target Black people and “hippies”:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

President Richard Nixon, First Lady Pat Nixon, Vice President Spiro Agnew and Second Lady Judy Agnew at Nixon’s inauguration on Jan. 20, 1969. (Pictorial Parade / Getty Images)

This trend continued in the 1980s, when extreme penalties for possessing cocaine, and hugely disproportionate sentences for its smokable form called “crack,” were widely supported. Again, racist myths, especially those regarding Black mothers and so-called “crack-babies” were instrumental to support for these laws. While some leaders and organizations including The New York Times, have since apologized for perpetuating these fictions, they remain deeply rooted in the U.S. psyche.    

The real reasons for targeting certain drugs have far more to do with prejudice and power than their inherent dangerousness or even the likelihood of developing dependency problems.

Like U.S. laws criminalizing certain drugs, the first wave of criminal laws penalizing abortion were also based on prejudice and power. The campaign to criminalize abortion was a response to what is popularly referred to as the first-wave feminist movement, that, while not focused on abortion, did demand women’s equal rights to dignity including the right to voluntary motherhood and to say no to what we would today call marital rape. 

As Reva Seigel summarized in Abortion as a Sex Equality Right, “Doctors urged legislators to criminalize abortion in order to preserve traditional gender roles in matters of sexuality and motherhood, education and work, and affairs of suffrage and state.”

Abortion criminalization would also address xenophobic and racist fears about the declining birth rates of white Protestants that were being outnumbered by births by Catholics, immigrants and recently emancipated African Americans. 

In other words, efforts to address M&M, like the regulation of other drugs through criminal rather than public health laws, must be recognized and rejected. These efforts are only part of a larger campaign to protect white male supremacy and distract attention from systemic racism and sexism, the effects of unregulated hyper-capitalism, the devastating lack of universal healthcare in the U.S., and our ever-growing maternal mortality rate that disproportionately impacts Black women.

Today, even before Louisiana’s actions, the parallels and connections between the war on drugs and the war on abortion have been clear. While Roe v. Wade was still the law of the land, claims of fetal personhood could not be the basis for banning abortion. States including South Carolina and Alabama used prosecutions based on pregnancy and drug use as a mechanism for legitimating the idea that fertilized eggs, embryos and fetuses are separate persons and that being pregnant can transform drug use into a crime with penalties far greater than for drug possession. In South Carolina, being pregnant and testing positive for a controlled substance was held to be a form of “child” abuse despite the fact that the state could not demonstrate any harm to a child born or unborn. 

In Alabama, the chemical endangerment of a child law designed to penalize adults who take children to dangerous environments such as meth labs was used as the basis for arresting women who at any stage of pregnancy used any amount of any controlled substance—even those prescribed to them by a doctor. Alabama used the drugs, anti-abortion and fetal rights combination to declare the personhood of the unborn from the moment of conception and the people who get pregnant as dangerous environments. That declaration has provided grounds for arresting hundreds of new mothers, pregnant women and, in at least one case, someone just suspected of being pregnant. It has also been used to support the state’s total ban on abortion and a decision effectively outlawing IVF in that state.

The war on drugs that Louisiana is weaponizing for the reproductive health context, has resulted in mass incarceration and separation of children from their families through the punitive child welfare (family policing) system. These consequences, consistent with the real purpose of the drug laws, disproportionately locks up Black, Brown and Indigenous people. 

This is a moment for those working for abortion rights and those working on drug policy reform to recognize our common cause in the fight for reproductive justice and collectively challenge the gross misuse of the criminal law system to surveille and lock up people because of what they put into their bodies—whether it is marijuana, misoprostol, mifepristone or any other substance.

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Lynn M. Paltrow is a lawyer and the founder of Pregnancy Justice, formerly National Advocates for Pregnant Women.