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: III. The Rhetoric of Fetal Personhood and the Use of Fetal Protection Measures Against Pregnant Women B. Translating Fetal Personhood Values into the Law: Feticide/Fetal Homicide Laws through VI. Conclusion, with footnotes, p. 30-61 - Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy

2. Translating Fetal Personhood Values into the Law: Feticide/Fetal Homicide Laws

   Despite the absence of legal personhood status in the fetus, both civil and criminal penalties have been exacted against women who have used drugs or alcohol during their pregnancies. Where the civil penalties have been imposed, they have been severe. (131) Sanctions have included civil commitment and incarceration during pregnancy for the benefit of fetal health, and civil orders requiring submission to a physician's orders. (132) In the family law context, the punishment of women for their behavior while pregnant is frequently manifested by removal of the child (directly after its birth) from its mother. (133) In this context, the fetus is constructed either as a child who has been abused and neglected, or the prenatal maternal behavior is used as proof of the likelihood of child abuse or neglect if the newborn is permitted to remain with its mother. (134) Women of color are more vulnerable to this sort of state action than white women. (135) In fact, a 1990 study found that while white and black women have similar rates of illicit drug use during pregnancy, black women were ten times more likely to be reported to county child protection authorities. (136)

   As the cases of Shuai, Gibbs, and Ashley demonstrate, pregnant women accused of endangering the life or health of their fetuses also have been punished via the criminal law. (137) Although presently only one jurisdiction, the state of Tennessee, has enacted a statute that directly and explicitly criminalizes illicit drug use during pregnancy, (138) many other states have used the criminal law as a way to criminalize drug and alcohol use by pregnant women. (139) For example, pregnant women who use illicit substances during pregnancy have been prosecuted for delivery of drugs to a minor, corruption of a minor, criminal child abuse, assault with a deadly weapon, and as the case against Ms. Gibbs demonstrates, women have also been prosecuted for manslaughter and murder. (140) Like in the civil law context, criminal law prosecutions have depended upon the construction of the fetus as a legal person, thus a proper target of the state's protection. (141) And like in the civil law context, race plays a part in these prosecutions as women of color are more likely to be held criminally liable for any alleged harm to their fetuses. (142) As a result, fetal protection and the moral values of fetal personhood have not only become integral parts of the law, but they also contribute to the disproportionate characterization of women of color as bad mothers. Feticide statutes exacerbate this disproportionate treatment by the creation of a new crime of fetal homicide and the recognition of the fetus qua fetus as a proper entity for the protection of the criminal law.

   In the remainder of this section, I outline the varied ways that the criminal law has viewed the killing of a fetus, including the prosecution of pregnant and postpartum women for self-harming activities that result in fetal death. Examination of the common law, the federal law, and state statutes also demonstrate the development of a criminal law paradigm that punishes women without any corresponding benefit to fetuses and infants. (143)

   1. The Common Law: Born Alive Rule

      The crime of feticide, or fetal homicide, was unknown at common law. (144) Because the fetus was not deemed to be a legal person, it could not be murdered. (145) This does not mean that the common law did not punish the destruction of any and all fetuses. (146) The destruction of a "quick" fetus (147) was sometimes deemed a misdemeanor. (148) The injury of a fetus in utero was only actionable as murder if the fetus was born alive but then died of injuries sustained in utero. (149) This policy is expressed by the "born alive" rule.

      The "born alive" rule provided criminal penalties for infant death resulting from harm in utero where the infant was (1) ultimately born alive, (2) had injuries inflicted upon it by another person, and (3) died as a result of the injuries inflicted. (150) The difficulty of the rule lay in knowing whether or not the fetus was actually alive when the accused was alleged to have caused the fetal death. (151) The common law born alive approach is a "single entity approach," an approach that treats the fetus and the pregnant woman as a single entity, and thus holds that a person cannot be charged with the murder of an entity that is not legally alive. (152)

      The common law view prevailed in the United States and was accepted by every court that considered the issue of whether or not the killing of a fetus should be deemed murder; that is until 1984 when the Supreme Court of Massachusetts, in the case Commonwealth v. Cass, held that modern medical knowledge undermined the primary rationale in support of the born alive rule. (153) The court noted: "Medical science now may provide competent proof as to whether the fetus was alive at the time of a defendant's conduct and whether his conduct was the cause of death." (154) Thus the court held that third-party violence against a pregnant woman that destroyed her viable fetus was punishable as a homicide. (155)

      Since the Massachusetts Supreme Court ruling in Cass, there has been a tremendous decline in courts acceptance and use of the born alive rule. (156) As of February 2013, at least 38 states have fetal homicide laws, (157) and in twenty-three of these jurisdictions the fetal homicide laws apply to embryos and fetuses in the earliest stages of pregnancy. (158) Some states define homicide as the killing of an embryo or fetus in "any state of gestation," including "conception," "fertilization," and "post-fertilization." (159) Other state legislatures have created a new crime of fetal homicide. (160)

   2. The Federal Law: The Unborn Victims of Violence Act

      In 2004, Congress passed the Unborn Victims of Violence Act. (161) This statute was the first federal statute imposing a separate criminal penalty for causing the death or injury of a fetus at any stage of development. (162) It provides that one who injures or kills a fetus during the commission of certain enumerated federal crimes is guilty of an offense that is separate from the crime committed against the pregnant woman. (163) Moreover, the federal statute explicitly provides that the killing or injuring of a fetus (both viable and nonviable) is subject to the same punishment as would be the case if that injury or death had occurred to the fetus's mother. (164) As legal scholar Deborah Tuerkheimer notes, the statute:

      does not create any new crimes or enhanced sentences with respect to pregnant victims of violence, nor does it recognize that the harm of violence may be distinct when experienced by a woman during pregnancy. Rather, the (Unborn Victims of Violence Act) supplements existing law only insofar as it makes fetuses a new class of crime victims. (165) Curiously, in portions of the statute, the pregnant woman is largely absent from view. For instance, at one point in the statue the pregnant woman upon whom the violence is initiated is referred to as "the unborn child's mother." (166) The woman is "disappeared" by, or made invisible by, the language of the statute. (167) This erasure is irrational, because it could hardly be said that violence that affects the fetus does not affect or harm the pregnant woman.

      Despite the erasure of the pregnant woman in portions of the statute, the pregnant woman's behavior is exempted from sanction under the federal statute, which states "[n]othing in [this statute] shall be construed to permit the prosecution ... of any woman with respect to her unborn child." (168) In this way the federal statute can be understood as protecting the pregnant woman's interest in her fetus, and providing added protection to pregnant women from the harms of third parties. (169) Even so, the federal statute has caused concern among those who advocate on behalf of women because it is premised on the idea of fetal rights and similar statutes at the state level have been used to prosecute pregnant women for prenatal harms. (170) These women's rights advocates are thus concerned that the federal statute will be used to punish pregnant women "for behaviors and conditions that are not criminally sanctioned for other members of society." (171)

      Due to some of these concerns, in 2003, Senator Diane Feinstein and Representative Zoe Lofgren introduced the Motherhood Protection Act. (172) Their proposed statute would have enhanced the penalties for certain violent crimes against pregnant women when those crimes resulted in "an interruption in the normal course of their pregnancies." (173) Instead of focusing on the fetus, this proposed statute focused on the harm to pregnant women and pregnant women's interest in their fetuses that are the result of third-party violence. (174) The Motherhood Protection Act was not enacted, but the Unborn Victims of Violence Act became law. Implicit in these Congressional actions is that Congress prefers to focus on fetal life as an independent interest rather than focus on the lives of pregnant women and interests of pregnant women in the lives of their fetuses.

   3. State Feticide Statutes--Where the Action Is

      As noted earlier, the addition of the fetus as a potential victim in traditional homicide statutes, as well as the creation of new fetal homicide statutes represent a fairly new political and legislative strategy. Nevertheless, as of February of 2013, at least 38 states have fetal homicide laws. (175) Like the federal statute, these state statutes primarily target fetal harm, by constructing and delineating the fetus as the victim, (176) and many explicitly exempt pregnant women from prosecution. (177) Twenty-three of these jurisdictions, however, apply their fetal homicide laws to embryos and fetuses in the earliest stages of pregnancy. (178)

      Although these statutes' coverage of both...