Shifting our focus from retribution to social justice: an alternative vision for the treatment of pregnant women who harm their fetuses.

• Author: Cherry, April L.
• Position: I. Introduction through III. The Rhetoric of Fetal Personhood and the Use of Fetal Protection Measures Against Pregnant Women A. Fetal Personhood Rhetoric and Critique, p. 6-30 - Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy

1. INTRODUCTION II. THREE ACCOUNTS OF SELF-HARMING BEHAVIOR AMONG PREGNANT WOMEN A. Depression and Attempted Suicide: The Story of Bei Bei Shuai B. A Story about Drug and Alcohol Use: The Story of Rennie Gibbs C. Self-Induced Abortion: The Story of Kawana Ashley III. THE RHETORIC OF FETAL PERSONHOOD AND THE USE OF FETAL PROTECTION MEASURES AGAINST PREGNANT WOMEN A. Fetal Personhood Rhetoric and Critique B. Translating Fetal Personhood Values into the Law: Feticide/FetalHomicide Laws 1. The Common Law: Born Alive Rule 2. The Federal Law: The Unborn Victims of Violence Act 3. State Feticide Statutes -Where the Action Is IV. THE IDEOLOGY OF MOTHERHOOD, MATERNAL DEVIANCE DISCOURSES AND THE CRIMINALIZATION OF THE BAD MOTHER A. Motherhood as the Normal, Natural, and Desired Status of Women B. "Intensive Mothering": Good Mothering is Altruistic and All-Consuming C. Deviancy Discourses: Maternal Deviance and the Pregnant Woman V. A PARADIGMATIC SHIFT? SHIFTING OUR FOCUS FROM SOCIAL CONTROL AND RETRIBUTION TO SOCIAL JUSTICE A. A Promising Shift of Focus: Using Public Health Law Principles to Address Maternal and Fetal Harm B. Harm Reduction and Prevention C. Social Justice 1. Access to Resources 2. Dignity and Social Justice VI. CONCLUSION I. INTRODUCTION

   I long have been interested in the legal and social treatment of pregnant women whose behavior is thought to damage fetal health, and I have thought about the issue from a variety of vantage points. In previous articles I have written about the free exercise of religion of pregnant women who refuse medical treatment; (1) the right to be free from physical restraint during pregnancy, including freedom from unwarranted detention, confinement and incarceration; (2) and reproductive rights, namely rights to privacy, bodily integrity, and freedom from unduly burdensome government regulation. (3) In this essay my focus is a bit different. Here, I argue that we can and should approach the issue of pregnant women whose behavior may harm their fetuses, not from the vantage point of fetal harm, but rather from the vantage point of pregnant women's social location. That location often includes poverty, violence, need, and despair. Placing blame and exacting retribution on an individual woman, absent an understanding of the social context, makes the provision of justice in these cases difficult if not impossible. Moreover, attempts to enhance fetal health by assigning criminal liability in such cases are destined to fail in light of the significant contribution that negative social and economic conditions have on fetal health, and over which pregnant women have little or no control. (4)

   Instead of viewing maternal behaviors that are harmful or fatal to fetuses as criminal, we should view them as a function of the myriad social and economic deprivations suffered by some women. (5) I believe that if we explore the problem from this viewpoint, focusing not solely on the fetus or fetal harm, but rather on the life and health of the pregnant woman, we might be willing to bring an end to punitive measures and construct more intelligent, effective, and socially just policies that will more positively affect both maternal and fetal health.

   To this end, this essay is divided into four sections. In section I, I detail three archetypal scenarios of the criminal prosecution of pregnant women for behaviors resulting in harm to, or the death of, their fetuses: (1) cases concerning depression and attempted suicide, illustrated by the prosecution of Bei Bei Shuai; (6) (2) cases involving drug and alcohol use and abuse, illustrated by the prosecution of Rennie Gibbs; (7) and (3) prosecutions relating to self-induced abortion, illustrated by the prosecution of Kawana Ashley. (8) These cases demonstrate typical legal responses to fetal harm caused by pregnant women. They also demonstrate the social and economic context in which that harm occurs.

   In sections II and III, I explore two contemporary rhetorical devices, arguments regarding fetal personhood and maternal deviance. Both of these discourses have significantly influenced society's expectations of how a pregnant woman ought to behave and the appropriate social and legal responses to any "misbehavior." With regard to the rhetoric of fetal personhood, I discuss the values articulated by its proponents through consideration of the underlying philosophical and religious arguments. I also consider how these values have been codified into law via state and federal feticide statutes. I then discuss the rhetoric of maternal deviance and address the ways in which the social construction of women as mothers, the good mother/bad mother dichotomy, and the use of "choice," influence that rhetoric. In these sections I also demonstrate how fetal personhood and maternal deviance rhetoric marginalizes pregnant women by encouraging the view of pregnant women as fetal containers, rather than as self-governing beings. The invisibility of pregnant women as self-governing persons sanctions the treatment, as criminal, of behaviors that are primarily self-harming, and in the end work to criminalize "bad" mothering. (9) Both the fetal rights rhetoric and the rhetoric of maternal deviance effectively work to control women's behavior by objectifying women and viewing their primary purpose as ensuring the health of the child. Such a conception of women operates to the detriment of women's dignity. And as such, it operates to the detriment of social justice.

   Finally in section IV, I propose that both the law and society shift focus: Rather than continuing to criminalize women's behavior when they fall short of society's expectation that they privilege the life and health of their fetuses above all else, this essay suggests that society's interests in healthier women, babies, and communities would be better served through a more serious consideration of social context. Society should focus on the lives of pregnant women, not to chastise, destroy, or incarcerate them; but instead to see pregnant women in a more holistic way, and to understand the social and economic conditions that may lead to adverse behaviors. (10) This shift in focus will show that most adverse prenatal behaviors are not exclusively or primarily directed at the fetus.

   Focusing on the social context also illuminates the fact that destructive behavior is injurious to the pregnant women herself, in addition to her fetus. By articulating the issue as one of self-harm, we may be able to develop policies that more effectively ensure that pregnant women are able to lead healthier lives, and as a result, deliver healthier...