Historically women have been subject to discriminatory and unequal treatment under the law. For example, in Colonial America the law was used to control women who threatened the status quo or didn't conform to the conventional standards. Some women were labeled as witches (Pollock 1995) and burned at the stake when they presented a threat to organized religion. Even "good" women suffered in their treatment by the law. In the early nineteenth century, women had very few legal rights, and in many cases not even a legal right to custody of their children (Hoff 1991). More contemporarily we see examples of discriminatory treatment in the harsh sentencing of battered women who kill their abusers (Gillespie 1989). It is particularly interesting to examine the experience of women who are mothers. The call for the death penalty in the Susan Smith homicide case, in contrast to the O.J. Simpson homicide case, indicates women who not only depart from their socially acceptable role of woman but also of mother come under comparatively harsh treatment under the law. Similar examples can be seen in other areas of criminal law, civil law, and family law.

This research examines how women's identity as mother influences their treatment under the law. It will be argued that women's treatment is much harsher, and more discriminatory because of their status as mother. We argue that societal expectations of mothers, based on middle class ideals, govern the law's treatment of these women rather than the behaviors themselves. Further we demonstrate that women are treated punitively under several aspects of the law.

This research utilizes feminist state theory (MacKinnon 1989) and feminist jurisprudence (Wishik 1985) to explain this punitive treatment. Feminist state theory has been used previously to examine social welfare policy (Abramovitz 1988, Gordon 1994), working mothers, (Eisenstein 1983) and the criminal justice system (Haney 1996). Here we examine how patriarchal law and legal systems create problems for mothers. Not only does the law not represent the best interests of the child, it in fact represents the interests of men. In addition, the law makes assumptions about the experiences of women from a male perspective. As Haney writes, "The state is primarily a structural entity guided in some way by male interests" (Haney 1996: 759). Ultimately, this research examines how mother's treatment under the law reflects and privileges male interests.

Feminists initially looked to the law as a solution to women's discriminatory and unequal treatment in a patriarchal legal system . While with the passage of Title VII of the Civil Rights Act, "the law became a mechanism for change as it was implemented by the concerted action of women's movement activists, by feminist lawyers, and by the acceptance of legal methods as effective tools for women's entry into the male-dominated establishment" (Epstein 1983, p.5), progress in the application of the law in support of mothers has been mixed. Under family law, women lose custody of their children due to their occupations, sexual orientation, homelessness, and drug use. Under criminal law, women are prosecuted and incarcerated for drug use, and for not following doctor's orders. Under administrative law, women who test positive for drug use can lose custody of their children to social services. Even women who are battered by their husbands risk losing their children under the guise of "failure to protect." Next follows a detailed examination of each of these areas.
 

Family Law

Mothers are discriminated against under family law. Certain behaviors of the mother are assumed by judges to be detrimental to the children or inappropriate for mothers. In some custody cases, mothers lose custody to fathers, grandmothers, or foster care in the "best interest of the child (BIC)," In many cases the law identifies the better parent to be the one whose family structure reflects the traditional patriarchal family model.
 

The "ideal" mother remains a middle/upper class, stay-at-home mother who devotes herself to her children's interests (and probably those of their father's), who puts her own interests second, or third, and who therefore performs her role within the context of the patriarchal heterosexual nuclear family (Boyd 1996, 319).

As "bad" mothers, among them lesbians, professionals, and students, women lose custody of their children, regardless of the nature, quality, or success of their parenting. Sexual orientation of the mother has also been judged to be dangerous to "the best interests of the child."

Sharon Bottoms lost custody of her child solely because of her sexual orientation (Frug 1995). First the judge argued that the "mother's conduct is 'illegal', and constitutes a felony under the Commonwealth's [Virginia] laws and that her 'conduct is immoral'" (Frug 1995 p. 47). Second, the grandmother who was seeking custody argued that the "infant is currently living in an environment which is harmful to his mental and physical well being" (Frug 1995 P. 44). Thus Sharon Bottoms lost custody of her daughter not because of any documented neglect or abuse but because of her family lifestyle. Her mother was judged to be a better parent.

More recently in Florida Mary Lord, a lesbian, lost custody of her 11 year old daughter to the child's father. This was in spite of the fact that the father, John Ward, was a convicted felon who had served 8 years in prison for murdering his first wife and despite court testimony that a teen age girl had accused him of molesting her (Marquez 2/2/96). The judge ruled that "This child should be given the opportunity and the option to live in a nonlesbian world" (Orlando Sentinel 2/1/96). The Judge noted that "John Ward would be a better parent because he now has a nice wife" (Marquez 2/2/96). There were no allegations of abuse or neglect by the mother. However when she sought an increase in child support payments from the father, he counter sued for custody.

Women who are battered are also seen as deviant mothers. Their decision to leave a marriage is indicative of "unstable behavior" and makes them "less fit" for custody (D.C. Report 1992). Czapanskiy in her review of state gender bias in the courts reports found that "the fact that the mother had suffered abuse was the core of the judge's decision to award custody to the battering father" (Czapanskiy 1993, p. 257).

Even fathers who are abusive to the children are seen as more deserving of custody than the mothers who leave the husband/father. In Maryland, a judge denied a mother custody of her two daughters because the father's sexual abuse of the girls was less significant than the mother's decision to report his abuse. Her reporting "showed [that] her hatred for the father took precedence over the children's need to hold a high image of their father (Maryland Report 1989, 30). Thus the mother is punished for leaving the husband and for reporting his abusive behavior of the daughters . This in turn is viewed as somehow hurting their image of the father, a greater harm than the father's abuse.

In California, Governor Pete Wilson is proposing legislation that would codify the married two parent model as the best for the child. This legislation would require a social worker to tell the judge that if the adoptive parents are not married the adoption would not be in the best interest of the child. The governor believes that " the best interest for a child is to have a mother and father in the household" New York Times 9/30/96 p. A 15.)

These cases raise the question of what the actual legal practice of granting women custody of children has been, and how the practice is changing as men begin to sue for and win custody of their children. Until around the 1980's most state courts ruled that it was in the best interest of the child to give presumptive custody of their mothers (McGlen and O'Connor 1995). More recently there is evidence that the BIC standard is met by those who are able to provide a higher economic status for their children. Ironically women's generally disadvantaged economic situation is compounded by divorce. Typically, the fathers are in a better financial position to argue for custody. McGlen and O'Connor cite a recent Georgia study (Commission on Gender Bias 1991) that found that 90 percent of fathers who sought custody actually won.

Mothers' job demands are also used to deny or alter custody. Los Angeles Assistant District Attorney Marcia Clark, while devoting time to the prosecution of the Nichole Brown murder case, had her custody rights challenged on the grounds that she was not spending enough time with her children. She like Mary lord, sought increased child support only to have her custody challenged by the children's father. U.S. Senator Oren Hatch's legal counsel lost custody of her children because of the time commitments of her job. A British Columbia legislator, Judy Tyabji, lost custody of 3 kids under 6 because of her career demands (Mitchell 1994). The rationale for the decision was that Tyabji had a "more 'aggressive' career oriented lifestyle than the father... who worked in a grocery store" (Boyd 1996, p. 316). As Boyd points out , "Tyabji's public life was viewed as impeding her ability to function adequately in the 'private' sphere" (Boyd 1996, 316). Reflecting real life, a recent episode of Chicago Hope depicted a surgeon losing custody of her child because of the long hours her job required.

Even women who try to improve the quality of life for their children may find that their choices work against them. Women who seek higher education to improve their occupational outlook, and put their children in daycare may be seen as neglectful mothers. For example, Jennifer Ireland, a 20 year old student at the University of Michigan temporarily lost custody of her child for enrolling the child in daycare while Ireland attended classes. Custody was awarded to her ex-boyfriend's mother, a full time homemaker (Michigan Associated Press 11/9/95). Like Lord and Clarke, Ireland had sought financial support from the baby's father who had nominal involvement with the child up to that point. He counter sued for custody. While Ireland challenged the decision and eventually regained legal custody, this is consistent with the cases cited above. No matter what the relationship of the mother is with the child, the amount of time spent with the child is treated as a reliable indicator of the BIC. This privileges the nuclear family model (Stacey 1990) in which the mother stays home with the children. This fails to acknowledge the rise of the postmodern family (Stacey 1990), in which two incomes are required to support a family. Therefore mothers, especially single mothers must go to work out of economic necessity. Thus women are in a double bind. Without working they risk losing their children to the father who can provide a family of higher economic status. If they chose to work they risk losing their children because of the demands or content of their work.

In all of these cases the behavior of the mother is seen as deviant and therefore not in the child's best interests and results in custody loss. Even activities that ultimately help the child-working, getting a better education in pursuit of economic stability-led to a custody challenge. These activities are seen as threatening the family unit and therefore punish the mother to preserve an archaic ideal of the nuclear family.

In these cases mothers' personal choices about sexuality, work, and education, are punished by challenging and or terminating their custody rights to their children. In these cases, children are taken from their mothers, not because there is evidence that the mothers and their children have bad relations, or because the children are neglected or suffer harm, but because the mothers fail to conform to the traditional family model-they are not "homemakers" and they are not married to the fathers of their children. These decisions punish women for not fulfilling their "biological" and social destiny as mothers linked to society through marriage contracts with their husbands.
 

Criminal Law

Mothers are also treated differentially under criminal law. A variety of statutes are utilized to criminally prosecute mothers for behavior that would be legal if they were not pregnant or mothers. Many of these statutes are used in a manner inconsistent with their original intent. For example, mothers have been prosecuted for attempted homicide and child abuse for their use of legal and illegal drugs while pregnant. Young women are being actively prosecuted for fornication when they apply for state assistance. While most of these cases are thrown out on appeal, they indicate the extent to which social control mechanisms are used to punish women who do not conform to traditional conceptions of the "good mother".

Women are prosecuted for illegal drug use during pregnancy (Murphy & Vogt 1995). When convicted, they receive harsher sentences than men or non pregnant women (Roberts 1991; Hoffman 1990), and are at risk for loss of child custody. Protective incarceration can be ordered by the courts for pregnant women who may have used legal or illegal drugs (Roberts 1991).

These prosecutions are predicated on the presumed harm to the fetus. Recent analyses of the problem of crack babies find that both the incidence rates and the harms were overstated (Mayes 1992). Preliminary research suggests that problems suffered by coke babies are similar to those of babies born to women who do not receive adequate nutrition and prenatal care (Koren et al. 1989). Women have not however been prosecuted for cigarette smoking during pregnancy, even though smoking is the single most important factor in low birth weight. Only recently has the government attempted to address the refusal of the tobacco industry to produce a safer cigarette. Furthermore, the FDA is now considering nicotine to be a drug subject to regulation by the department. The power of the tobacco industry to elude government intervention has surpassed any national concerns relevant to the improvement of birth outcomes through the reduction of the incidence of low birthweight.

Women have also been prosecuted for "not following doctor's orders". Pamela Rae Stewart spent seven days in jail following her baby's death in California. She was charged with a violation of a California criminal statue that required parents to provide necessary food, shelter, and medical attention for their children. It was alleged that the death was due to her failure to get to the hospital on time and follow doctor's orders. Those orders included staying off her feet (Kolbert, Paltrow & Goetz 1990).

Some prosecutors have used criminal law to punish women after giving birth. Despite the lack of demonstrable harm in many cases of fetal exposure to cocaine, prosecutors may use endangerment statutes. For example, in Wichita Kansas, prosecutors charged Latrena Grayson with child endangerment for breast feeding her child after a positive prenatal test for cocaine. Based on this prior test her doctor had ordered her to refrain from breast feeding. Thus she was "endangering" her child by failing to follow doctor's orders (Finger 1991).

More recently in Wisconsin, Deborah Zimmerman was charged with attempted murder for giving birth to a baby with a blood alcohol level of .199. This marked the first case where a murder statute was used even though the fetus survived, and it is unclear whether there will be developmental damage. There is no state statute prohibiting drinking while pregnant (Terry 1996).

In Idaho, Amanda Smissek was recently convicted of violating a 75 year old criminal statute against fornication. The county prosecutor is prosecuting unwed teenage women who apply for welfare benefits. Their status as mother is proof that they violated the law. Six other young people in the same county have also been charged under the law. No unmarried teens who do not become pregnant or seek abortions have been prosecuted (Hardy, 1996).

In addition to being punished for their behavior, women are also punished for acts of omission. For example a mother was recently indicted for contributing to the death of her children for not stopping them from riding in a car with their father who had a chronic drinking problem (New York Times 1994). The father was taking the children for a court ordered visitation.

Battered women are also prosecuted under similar criminal statutes for failure to protect their children. Their status as battered by their significant others is seen as placing their children at risk for victimization. In Texas, prosecutors refer families to social services when the children witness violence (Russell 1996).

In all of the cases cited above women are punished under criminal law for behavior that is seen as violating traditional conceptions of appropriate standards of motherhood: being single, using drugs, failing to follow doctors orders. It is important to note three things. First in many of these cases there is no evidence of harm to the children. Thus it is the action that is being punished not the outcome. Second, in most of these cases the law is being used in a manner inconsistent with its intent. In all 22 cases where women challenged the validity of the prosecutions for drug use while pregnant, every court has ruled that the prosecutions are illegal, unconsititutional or both (Paltrow 1992; Murphy & Vogt 1996) . Last, in all these cases the women who are prosecuted are those who belong to oppressed groups. Prosecutions of drug using women have largely been against poor and minority women. The fornication statute is explicitly used against those applying for public assistance. Battered women's failure to protect themselves from abusive husbands is used as justification for child neglect. Again what we see is that the "bad" mother is one who does not fit, or is unable to fit middle class norms.
 
 
 

Civil Neglect Proceedings

The law is also used against women by social service agencies. Hundreds of women have lost custody of their children at birth because their newborns tested positive for drugs (Paltrow 1990). Neglect proceedings are initiated on the basis of a positive toxicology test taken at birth. This test is not necessarily indicative of drug abuse and may indicate one time or occasional use. This loss of custody again punishes the mother for her behaviors not established to be indicative of the nature and quality of her parenting.

In some cities in New York State to qualify for Medicaid-funded prenatal care, a woman must agree to random drug testing throughout the pregnancy (Cleeton 1994). Should she test positive, she is referred for treatment and counseling. However, treatment is limited to outpatient care unless the woman can find care for her children while she enters inpatient care. Should she choose inpatient care and have no child care, she must agree to place them in foster care. Once her children enter the system the burden of proof for reestablishing fitness shifts to the mother. She must demonstrate both that she is drug free as well as that she is a responsible and capable parent. This process can take several years. In this case, the mother is being punished for seeking treatment.

For women who are in need of drug rehabilitation there are few options. For women whose children are in foster care, there is no guarantee that if she enters a treatment program, her children will be returned to her custody from foster care upon completion of the program. While there are few treatment programs that will admit women who are pregnant and none that will allow them to enter with their children, interest among health and social service professionals in screening poor, pregnant Black women with Medicaid for drugs continues to grow.

Generally, women on public assistance are labeled as at risk for drug abuse and child neglect, and their babies are disproportionately likely to be singled out for drug testing at birth. Drug use however cuts across socio-economic lines (Chasnoff 1990). Even so, women who are young, single, and black are most likely to be tested, as are their babies. Racial and economic bias influence both the selection of which women to report to the authorities, as well as the determination of appropriate punishment. A women who tests positive for drugs during pregnancy is labeled as abusive and neglectful and therefore the hospital can test her baby for the presence of drugs. Thus for these women it is their poverty status that is labeling them as a "bad" mother and justifies the legal intervention by authorities.

The actual practice of intervention is to threaten to remove babies from families where the mother is suspected of using illegal drugs. Racial identity alone marks a woman for suspected drug use. If a woman who is using drugs during pregnancy wishes to enter a rehabilitation program, she must find a place for her children to stay while she is in treatment. If she has no friends or family who can care for the children, she must relinquish them to foster care. If she does not seek treatment and she gives birth prematurely to a low-birth-weight baby, the hospital may decide to test her baby for drugs. Should the test be positive, the baby may be removed from the mother's custody and be placed in foster care. Once a baby is placed in foster care, the mother's prospects for regaining custody of her baby are poor.

Women receiving Medicaid are suspected of using drugs. As a result, many of them are tested for drugs throughout their pregnancies and at the delivery (Cleeton 1994). The concern for pregnant women and drug usage focuses on the children. At birth, the hospital may test a baby for drugs without the consent of the mother. The hospital may assume the role of patient advocate representing the interests of the baby. Where there is suspicion of drug usage, as in the premature delivery of a low birth weight baby to a Black woman, the hospital may drug screen the baby. Babies who test positive for drugs at birth may be taken from their mothers and placed in foster care. This is the policy, even though there are no drug rehabilitation programs which allow a woman to retain custody of her children, should she have no place to leave them during treatment.

Women are scrutinized for their responsibility for the unhealthy babies-their homes, relationships, eating habits, child care patterns-scrutinized for irregularities, failure, patterns of abuse, ignorance, and irresponsibility. They have no money with which to protect their families from the investigative professionals in social services. The role of drugs in the evaluation of the outcome of the pregnancies of women on Medicaid has provoked the consideration of mandatory drug screening of all women on Medicaid.

Women who seek assistance with the impact of drug use risk being placed under surveillance to determine whether children should be removed from home and placed in foster care (Cleeton 1994). Women who have lost a child to foster care until they are rehabilitated, may risk losing other children to foster care, should they enter a treatment program. If they do not enter care, they may never regain custody of the child already in foster care. Because they have no visible means of support, women living in poverty are forced to turn to the government to seek assistance with basic needs. To enter the health and social service systems, they must establish need and eligibility. The information they must provide about their lives subjects them to close scrutiny for failure to care for their children. By definition, because they have no resources, they cannot care for their children.

Homeless women are also at risk of losing child custody due to neglect. These women are placed in a double bind. They have responsibility for their children's care and also for securing housing. Kozol (1988) found in his study of homeless working and middle class families in New York City that the temporary housing offered by the public housing authority placed their children at risk for exposure to lead paint. While the mothers were held responsible, it was the social services safety net itself that placed the children at risk. The same social service system that found mothers to be neglectful of their children's well being because of the poor conditions of their housing then took their children away. Ironically, upon loss of the children the mother loses her AFDC and any hope she has of regaining her working class status and bringing her family back together, (Kozol 1988: Funiciello 1993).
 

Reproductive Decisions

The best interest principle is used to control women's reproductive decisions. The right to make decisions regarding whether to give birth, where to give birth, and how to give birth is wrested from women by the state where the wellbeing of the fetus/child is argued to be placed at risk by the actions of the mother. Evidence of state limitation on women's reproductive decisions is found in cases of denial of abortion, forced sterilization, arrest of traditional midwives, hospital override of women's wishes at childbirth, and forced cesarean section.

Women are forced to give birth. In 1995, "Mary Smith" a Nebraska High School student was taken into police custody and put in a foster home to prevent her from having an abortion for which she had obtained her parents consent. Ironically, the justification used by a doctor, who had never seen Mary, was that the abortion would be "harmful...even fatal...to the mother" (Reproductive Rights Network Newsletter 1996 p. 2). The physician assumes the role of authority, even though his depiction of abortion as a life-threatening procedure is unfounded and he has not actually seen the patient. Based on one physician's recommendation, and against the will of the young woman and that of her family, the young woman is incarcerated and forced to give birth . While in this case it would appear that the decision to force the pregnancy was made on behalf of the wellbeing of the woman, it could be argued that as a minor, she herself is a child, and as such, has been denied her own freedom of choice because of her minority status.

Women are forced to stop giving birth. Forced sterilization among poor women and women of color was exposed in the 1970s. Poor black women were tricked into consenting to sterilization . Today, ongoing failure to offer complete information essential to informed consent to sterilization persists as some poor women choose the procedure, believing it to be reversible. Classism and racism influence physician management of the reproductive medical care of poor women and women of color, conveying their judgments that their clients are deviant in their excessive childbearing, coercing the women into "electing" sterilization (Nsiah-Jefferson 1996).

Women are forced to give birth in the hospital. Women electing to give birth at home in the age of medicalized childbirth find their choices severely threatened by the state. In New York State, licensure for attending birth is available for obstetrical nurses only. No such vehicle exists for traditional midwives. Even so, home births continue to be attended by traditional midwives, most of whom are trained in other states where midwives are recognized and licensed. As a result, the New York State Department of Education, the professional licensing branch of the state government, has undertaken a campaign to identify, arrest, and prosecute traditional midwives. On Roberta Scott-Devers, a traditional midwife practicing for ten years with no complaints lodged by clients against her, was found guilty of practicing midwifery without a license . On November 4, 1996, she was sentenced to three years probation and a $950 fine (Wright 1996). She is one of six traditional midwives under investigation by the state.

The medicalization of health care is so pervasive and powerful, that when women insist on participating in the decisions made about their pregnancies and deliveries, they are rejected not only by the traditional institutions of the government, the law, and medicine, but also by self-identified feminist groups. NOW, the ACLU, the Religious Coalition for Religious Choice, all turn down invitations to support the home birth movement. It could be argued that like the traditional institutions of the society, these groups attribute improvements in quality of life and life span to the medical application of scientific knowledge, a base of information understood by physicians, and physicians only. For a woman to identify herself as a decision-maker in the management of her pregnancy and delivery is to challenge the role of the physician and ultimately to place in jeopardy not only her physical safety, but that of her unborn child. In the best interest of the child, she must be forced to submit her body and that of her baby to control of the physician. Should she resist, the physician may seek the authorization of the state to force her to cooperate.

In Rockville, Maryland, twenty-seven year-old Tawanda Walters entered Shady Grove Adventist in premature labor. The hospital recommended transferring her to a Baltimore hospital. Walters objected because she, an African-American, owns no car, is unmarried, has little money to spend on travel and was concerned about child care arrangements for her nineteen month-old son. The hospital sought a court order allowing transport in spite of Walters' objections. Judge Messitte granted the hospital's oral petition without consulting Walters or providing her an attorney. While he acknowledged Walter as "an adult capable of decision-making," he defended his decision to protect the interests of the unborn fetus. Janet Gallagher writes "a 1986 survey of doctors revealed that 81 percent of the pregnant women subjected to court-ordered interventions were Black Asian or Hispanic; 44 percent were unmarried; one percent were private patients" (Gallagher 1989 p. 203).

Finally, women are forced to undergo cesarean section. Cesarean section is invariably justified by physicians and appreciated by childbearing women and their families as a necessary intervention undertaken on behalf of alleged safety of the mother and/or the child. However, in cases where the need for a cesarean section is questioned, even by the attending physician, the state may intervene. A pregnant woman, A.C., diagnosed with cancer was forced to undergo a Cesarean section in order to save the fetus ( in re A.C. 1990). The hospital sought the right to intervene on behalf of the fetus. The court agreed, allowing the hospital to precede. This was against the woman's wishes and her physician's advice. Both mother and child subsequently died.

In each of these cases, a woman's right to make decisions about pregnancy and delivery is successfully challenged by professionals and institutions claiming to represent the best interest of the child. In these cases, institutions representing state interests override the values and beliefs of the women, arguing that the state better represents the interests of the child. The state assumes the role of protecting the child, a role culturally understood to be best fulfilled by the child's mother. In instances where the woman chooses not to give birth, as with the pregnant teenager, and the woman dying of cancer, the state intervenes, acting out of the assumption that it is always better to be born than never to have lived at all. In instances where women giving birth seek to participate in the decisions made relevant to pregnancy, their efforts are thwarted by doctors in league with lawyers eager to reign in uppity women who challenge the authority of obstetricians and hospital administrators.
 

Discussion

This preliminary examination of the failure of the law to offer equal protection to women facing reproductive decisions, when they are pregnant or the mother of one or more children, is based on a review of cases receiving national attention, as well as cases identified in previous research conducted by the authors. We found that women are particularly vulnerable to discriminatory and punitive applications of the law when they are identified as becoming or being mothers. By continuing to reference the modern nuclear family and a mother's traditional role in it as a standard against which these women's behaviors are judged, the "law isolates each women's maternal duties from other facets of her life.....motherhood subsumes a woman's identity as an individuated self" (Roberts 1993, p. 113-14).

This conception of motherhood is enforced by the law as part of state structured gender relations. As social feminists have argued, the state privileges and supports the nuclear family (Zaretsky 1982). By punishing women who step out of their role, or challenge the state's perception of what the best interest of the child is, the law is in essence reinforcing the appropriateness of the nuclear family, a family form that benefits men and a capitalist economy. In addition as MacKinnon (1989) argues, the state viewpoint is essentially male, yet is perceived as objective and non gendered. This perception hides the assumptions the law makes about the experiences of women from a male perception. What we have done in this paper is used the model of feminist state theory to expose the way law makes assumptions about mothers.

In the current socio-political context, the bourgeois construction of motherhood, that assumes a woman's only significant social role is as a wife/mother does not fit the way many mothers must live their lives. As Wishik argues, there is "mismatch..between women's life experiences and the law's assumptions or imposed structure" Wishik 1985: 69). The middle class ideal conception of the family is endangered, and in fact no longer represents the family today (Stacey 1990). The use of the law to punish mothers may be part of a backlash by those whose power relies in part on the survival of the middle class family ideal and those who long for its return.

The prevailing capitalist family ideology (Stacey 1990) locates women in the role of childbearer, child-nurturer, homemaker and wife. So powerful is the ideology of motherhood, that rational responses to irrational circumstances come to be regarded as deviant and punishable by the law-desiring to parent your child, even when you are a lesbian; working long hours to support your children; entering college to acquire a career in order to support your daughter; coping with stress with illegal drugs; or seeking to house your children with government assistance.

The shift from a manufacturing to a service economy and the move, out of necessity, of women into the labor force has not been acknowledged by the society nor the institutions which adjudicate its values. More specifically, the impact of women's entry into the wage-labor force on the institution of motherhood (Rich 1986), has never been taken into account and remains unexamined, as evidenced by the analysis of these cases in the application of the law.

Bad mothers are those who do not fit the middle class ideal of motherhood. These women are marginalized by society. The treatment of these mothers highlights the intersection of race, gender, and class. They are disproportionately poor and the condition of their poverty is translated into their ability to be a good mother. African American mothers are likely to be seen as "bad" mothers, attracting the attention of the criminal justice and child protective services (Roberts 1993). Women's use of social services is even seen as contributing to the problems poor mothers face. A solution is to take their children and place them at the control of the state.

Perhaps those hiding behind children are politicians, government officials, and health and social service professionals who claim to be committed to the well-being of all U.S. children, while doing little to support the mothers of the children who do not have what is needed to meet their daily needs. Where are positive proposals for policy that would improve the options of these families?

Single mothers find themselves at risk, for they are likely to be poor, and to escape poverty, may be seeking education or employment opportunities to improve their lives and those of their children. Acts seeking autonomy subvert the dominant paradigm of dependency on a male. Yet this very strategy puts them at risk to lose their children. Their very independence threatens the modern family, forcing us to acknowledge its failure as a standard for accounting for the needs of society's members. Gay mothers' sexual orientation is seen as central to their role of parenting and as justification for loss of custody. Not only are these mothers not depending on males, but they are seeking to create families with other women, and thus further threatening the traditional family ideal. Homeless mothers and illegal drug-using mothers also fail to achieve the traditional middle class ideal of motherhood. Roberts (1993) observes that children are society's tool to control mother's behavior. When mothers act outside the norms of middle class motherhood they are subject to punishment.

Furthermore, the sensationalist aspects of the acts of these mothers divert attention from the real problems mothers face, such as poor and inadequate child care, health care, housing, pay, etc. Blaming the individual rather than the social structure relieves society of responsibility. Under the guise of doing "something" about the problems, we lose focus on the factors that threaten families. The real threat to the modern family comes from economic instability including declining wages, job insecurity, the perpetual gender-based wage gap, the growth of the temporary worker industry, and a lack of affordable, available child care. A pro-child policy would recognize and value mothers, leading to the guarantee of adequate paid family leave, guaranteed living wages, health care, and child care.

Regulating and punishing mothers via the law situates responsibility with the individual, in this case the mother, relieving the social structure from blame. Thus lesbian mothers are the problem rather than homophobic judges. Women who seek education and put their children in day care are the problem rather than an economy that doesn't provide livable wages and an education system not structured for adult learners. This individual level of blame is founded in the ideology of responsibility and reward. We see this in the current debate over welfare reform and the content of the "Contract with America". Poverty is a result of a lack of individual initiative rather than that of a de-industrialized economy. Teen age parenthood is a result of bad choices and a lack of character (Herrnstein & Murray 1994) rather than an absence of other prospects for self esteem such as education, career and marriage.

Politically, legal judgments of mothers as being unfit reflect contradictions relevant to the ever-changing responsibilities burdening women in contrast with the surviving modern model of the nuclear family. We are the only Western democracy without a national family policy. Children have always suffered and will continue to suffer from the neglect of the government to provide the services and protection they really need (Meckle 1990; Gordon 1994). However, we punish mothers on the grounds that we are doing so in the interest of protecting their children. Mothers who not only give birth and raise but also support their children are subject to losing custody of their children- the defacto policy is the modern family ideology. The law is used to reinforce women's dependence on men (Guillaumin 1995).

This ideology leaves all mothers at risk. While most of the women who come under the regulation of the law are poor and nonwhite and "deviant", all mothers are vulnerable. Because this model that privileges men has not been unseated, or even questioned outside of feminist scholarship (Fineman 1995), it is the only standard for judging the adequacy of a mother's response to the needs of her children. This focus on the most vulnerable women serves as a powerful deterrent to other mothers-they too could lose their children, or find themselves in jail. All mothers are held to this standard, some mothers are just better able to emulate it.

This examination of how women's role as mother influences their treatment under the law has underscored the use of the law as a social control mechanism. The state uses law to structure gender relations and benefit men. Patriarchal societal expectations of mothers govern the law's treatment of these women rather than the specific behaviors. The law not only punishes women who deviate from traditional ideals of motherhood, but also reinforces the traditional ideal of the family. While none of these behaviors endangered the children, the mothers are punished by the state in the "best interests of the child".
 

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