Academic journal article The Hastings Center Report

The Relevance of Illegality

Academic journal article The Hastings Center Report

The Relevance of Illegality

Article excerpt

Once we acknowledge that women have moral obligations to the children they will bear, there is a temptation to think that these obligations should be made legal. If the coercive power of the state is justifiable involked to protect children from neglectful or abusive parents, why can't it be used against a woman whose behavior injures her child before it is born? Does not society have the right--or indeed the obligation--to intervene, coercively if necessary, to protect the not-yet-born child?

I believe this is a temptation that should be resisted. The reason is not that, prior to birth, fetuses lack legal standing. Coercive intervention is aimed at protecting, not the fetus per se, but the future child. If a woman decides not to abort, but to carry to term and bear a child, there will exist a child who may be harmed by what the woman does during her pregnancy. Society has a legitimate interest in the welfare of its children, both those existing today and those that will exist in the future. Future children have prima facie claims to be protected from injury inflicted prenatally.

However, there is no way to protect the future child except through the body of the pregnant woman, or by controlling her behavior during pregnancy. This distinguishes fetal protection from ordinary child welfare cases. Coercing the mother to protect the not-yet-born child poses serious threats to women's privacy and bodily autonomy. I will also argue that in most case it is unlikely to do much to protect the health and lives of children.

The first woman to be subjected to criminal prosecution for "fetal abuse" was Pamela Rae Stewart, a Californian who was charged with failing to provide her fetus with necessary medical care. She gave birth to a severely brain-damaged baby, who died a few months later. She had been diagnosed as having a complete placenta previa, and was instructed to take a prescribed medication to delay labor, to stay off her feet, to refrain from sexual intercourse, and to get to the hospital immediately should she begin bleeding heavily. The District Attorney alleged that the baby's death was due to her failure to follow these instructions and her use of amphetamines on the day of delivery.

Ms. Stewart offered a different version of the facts. She said that she didn't know about the placenta previa, that she only knew she had a breech presentation that would necessitate a cesarean section. She said she tried to keep off her feet, but that it was difficult with two little girls, aged three and five, to care for. She admitted using marijuana the day the baby was born, but not amphetamines, and suggested that the positive toxicology screen had been produced by the antihistamine she was taking for a cold.

These factual discrepancies were never resolved because the charges against Ms. Stewart were dropped on legal grounds. The prosecutor had wanted to charge her with child abuse, but could not because California courts had earlier ruled that fetuses were not covered by child-abuse statutes. So the district attorney, in what the defense characterized as a "fishing expedition," found a child-support statute that had been amended specifically to include the unborn--an emendation that was intended to allow pregnant women to collect for their prenatal care from the men who had impregnated them. Later the statute was amended again, on grounds of gender equality, to apply to both parents.

In dismissing the charges, the judge ruled that the statute was never meant to apply to the behavior of pregnant women, but was intended to compel parents to pay child support. It would violate due process, he said, to use a law made and always interpreted for one purpose for a completely different purpose. He recommended that the state legislature pass a more appropriate bill "protecting the life of the unborn child under certain narrowly defined conditions." Such a bill was introduced in the California legislature shortly thereafter, but it died in committee. …

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