Not a crime.
At the NAPW conference, Jessica and I had a discussion about how completely awesome the whole thing was, but how overwhelming it was to try to get out all the interesting things we learned over the course of the weekend into blog posts. And so Jessica has the bright idea of having some of the panelists at NAPW write blog posts on their presentations.
Before I link it, though, a quick introduction. While looking over the roster of panels to sit in, I pointed to one called “How Might You Be Prosecuted”, which looked to be an interesting panel on how legislators and prosecuters are seeking ways to chip away at pregnant women’s rights by inventing special crimes that only pregnant women can commit. I expressed to Jessica that I knew the panel would be interesting, but I feared it would be depressing, because there was no doubt the lion’s share of the information would be on the prosecutions of women who use while pregnant and are tried after giving birth to stillborns or babies who die shortly after birth. I fully believe that the War on Drugs continues despite a great deal of public sentiment against it because it gives legislators an opportunity to chip away at basic civil rights, and therefore I totally buy the argument that prosecutions of pregnant women for using is an extension of this, and an attempt to use extreme cases to chip away at a pregnant woman’s right to full citizenship. That said, it’s hard to muster sympathy for women who give birth to babies with drugs in their system.
Or it was before the panel. Jessica convinced me that the very marginality of the people involved in these cases meant that it was something we probably both needed to be more educated about, so we went. It ended up being the best panel I saw at the NAPW Summit, and I choked back tears a number of times. Particularly moving was Tayshea Aiwohi’s testimony about being arrested months after her baby boy died shortly after he was born—she had used meth during her pregnancy, but had cleaned up shortly thereafter. There’s no proof that her meth use was the cause of her son’s death, thought it’s likely that it was a factor. Tayshea explained her story of being in and out of rehab clinics before finally cleaning up and starting up a series of houses for mothers with drug problems and their children. She was well down the road in her career as a counselor in a rehab clinic when she was arrested for distributing drugs to her son….through the umbilical cord. To make a long story short, the entire fiasco was an exercise in drug war insanity—prosecuting a sober woman who was trying to help others for a crime that isn’t really a crime. Luckily, Tayshea plead guilty to lesser charges and managed to avoid jail.
The whole panel was great, but I was also deeply impressed by the presentations of the lawyers, who give legal assistance to women fighting off these made-up crimes, not just the non-crime of giving birth to a baby that tests positive for drugs but also non-crimes like refusing a C-section. And Feministing’s first NAPW presenter guest post is by one of those lawyers named Jill Morrison, who is Senior Counsel at the National Women’s Law Center. I highly recommend reading her post. Jill’s presentation was very illuminating for me because I’m an intellectualized sort and appreciate having the argument laid out for me in analytical terms so I can see why it’s so wrong to arrest women for giving birth to dead or crippled babies, no matter how sure you are that the woman did something wrong to cause the problem.
In sum, it’s a really bad idea to criminalize pregnancies based on outcomes. No pregnant woman is absolutely perfect and all can probably have something dug up on them that they did during pregnancy—or before it—that could be used to blame her if she has a stillbirth or gives birth to a disabled child. But Jill explains it better, so go read her post.
140 Responses to “Criminalizing pregnancy outcomes”
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One quick correction - Tayshea did not plead. She was convicted and the Hawai’i supreme court overturned her conviction. It’s an important distinction because the court’s decision recognized that when the state legislature crafted its child abuse and manslaughter laws, it did not intend for them to apply to a fetus. This has been the outcome in every single state where these prosecutions have been challenged, except for South Carolina (a state that really seems to have it out for women). Anyway, there are hundreds if not thousands of women like Tayshea sitting in prisons across the country because they either pleaded guilty to a crime that does not exist or were convicted of the same.
my bad - she did plea, but her plea was conditional on her right of appeal (which she did and then the state Supreme Court overturned it, etc. as above). Sorry about that!
A very good point. I know this sounds amazing, but I happen to know someone who had no idea she was pregnant before she went into labor–believe it or not, it can happen. Of course she took no precautions at all during her pregnancy as she didn’t even know she was pregnant. Her baby is healthy, which is great. Imagine the implications laws like this could have for someone like her.
Without knowing anything else about Tayshea Aiwohi and her case, I do know this much: Some individuals in the prosecutor’s office decided to go after her. Not the system, not a machine, but actual people with faces and everything, decided to masturbate their own egos by bullying her. And obviously, some particular individuals make the same decision about every woman who finds herself at the receiving end of this sort of crap.
Anyway, I’ve just come from reading your Girls Gone Wild post, and it occurs to me that, as with that Joe Francis putz, these guys do it because there’s never been any downside to them–win or lose, it’s just a day at the office.
I don’t have a solution to this, because, although I think the best way to deal with bullies is to make sure they know there’ll be serious retaliation, I’m not sure how to make a credible threat to a state (or whatever) prosecutor that won’t get you get you hit with civil or criminal charges. Out their own/wives’/daughters/moms’ abortions? Dime them to the IRS? There must be something.
If all these cases are overturned on appeal, you might be able to sue the state for Malicious Prosecution or Misuse of Judicial Process. Worth a shot anyway!
Thanks for raising this. What our obligations are to children who haven’t been born yet is an interesting topic if taken a bit more braodly, because there are consequences downstream from all kinds of personal, state and corporate decisions that affect pregnancy outcomes and children’s development.
When you take it to the logical end, it’s tranparent that we can’t isolate maternal drug use as the one and only punishable form of fetal abuse. So why is a woman who is alcoholic expected to behave like a normal drinker or non-drinker in pregnancy, when the rest of us aren’t refraining from our addiction to oil so she can get a deep breath four times per minute during gestation?
[…] Amanda at Pandagon also posts on the issue here. […]
So, when it comes to reproduction, women should always have all the power. Women should never bear any responsibility.
In sum, it’s a really bad idea to criminalize pregnancies based on outcomes. No pregnant woman is absolutely perfect and all can probably have something dug up on them that they did during pregnancy—or before it—that could be used to blame her if she has a stillbirth or gives birth to a disabled child. But Jill explains it better, so go read her post.
Point, but I’m getting real antsy about this. The behaviour of pregnant women does affect development, and you can’t ignore all claims to responsible behaviour under the umbrella of reproductive rights. But, as you say, the blunt instrument of the law may not suit.
In an ideal world, everyone (female AND male) would get reversible sterilisation at puberty, and be expected to pass some sort of a course before having it reversed and trying for children.
I figure the answer to my question is obvious, but did any of the panelists mention whether the poverty level of the women prosecuted was analagous to the poverty level in most other “war on drugs” prosecutions?
Because sometimes I think these guys should just set an income level and if you’re below it, it’s an automatic guilty verdict. /snark
While I agree with the idea that prosecuting women for things they do while pregnant on the grounds that it endangers the foetus is dangerous in that it removes human rights from women and treats them as less human than the developing child, I disagree with the implication that someone who has rehabilitated themself post-action should now be exempt from facing the legal repercussions of their actions. The end result of the prosecution might be a suspended sentence or community service if the judge/jury is convinced that effective restitution has been made, but life changes don’t suddenly make past crimes go away (speaking of crime in general, not this specific case.).
I’m pretty sure most of the commmenters here would scream to high heaven if charges against an abusive husband/boyfriend were dropped because he had seen the light and become the founder and leader of a men’s anger management group.
(Yes, if I had an RPG alignment in life it would probably be lawful. I firmly believe in fixing bad/dumb laws *cough*drug war*cough*, but while we’ve got ‘em, they are the laws, and saying you should just ignore the ones you don’t like is a bad precedent.)
Molly—You can always vote against them in the next election. Or even, if you have the time, do some work for their opponent.
I dated a prosecutor for a little while and met some of her colleagues. While for the most part they were very likeable, hard-working people, they didn’t exactly brim with compassion for those who ended up on the wrong side of the law. I remember being a little put off by how they sneered at “sex workers”—even the name aroused scorn. I guess going up against criminals in court, day after day, is bound to leave you a little calloused.
Robert, I don’t think the claim is that women should have only power and no responsibility when it comes to reproduction. Women, realistically, bear most of the responsibility related to reproduction (hormonal birth control and, oh yeah, child rearing). Would that it were not so and that men were always partners in raising children - even unplanned for children. But it’s not. The point here is that women are being asked to bear an unconstitutionally great responsibility. Being addicted is not a crime in this country (so sez SCOTUS). And that’s all that these women are being punished for — addictions. Legally, it’s no different than a man being addicted. But only women - and only pregnant women - are prosecuted. Given that the CDC wants all women to thin and act as if they are “pre pregnant,” how long is it until your friend/girlfriend/sister/daughter is prosecuted for potentially damaging her potential fetuses by smoking a cigarette. It sounds outlandish…but it’s the same thinking that your comment implicitly defends.
If women actually had all the power when it came to reproduction, then we’d have something to talk about.
Discussions of this sort always make me want to go out and get a tubal ligation NOW, just to avoid this sort of problem. Since I am, in some ways, the person that everyone is trying to get to reproduce more often (educated, stable relationship, pass for white with ridiculous ease) and am debating the pros and cons of a second child, perhaps one could effectively make the argument (to the fundies and other republicans–I’m just going to assume that saner types wouldn’t respond to this argument) that such laws are counterproductive because they scare the women, especially the “right” women away from wanting to take the risk of reproduction. It’s a sleazy way of avoiding such laws, but at this point I’m willing to go with sleazy tactics as long as they are also effective.
The behaviour of pregnant women does affect development,
So does the behavior of men. There is some evidence that if men use drugs or alcohol fetuses resulting from their sperm are more likely to be damaged or stillborn. Should we consider all men “pre-conceiving” and scold them for having a drink or smoking? How about if they abandon their partners during pregnancy–that certainly affects the pregnancy outcome. Should it be illegal to divorce your wife if she’s pregnant?
So, when it comes to reproduction, women should always have all the power. Women should never bear any responsibility.
So, what you’re saying is, women are so amoral and heartless and unfeeling that the only way to get a woman to try to do what’s best for a pregnancy she chooses to continue is to prosecute her if she fails?
Right. Because nothing encourages a woman who is addicted to drugs and discovers she’s pregnant to seek help like the knowledge that the very act of asking for that help could land her in jail. snort.
In an ideal world, everyone (female AND male) would get reversible sterilisation at puberty, and be expected to pass some sort of a course before having it reversed and trying for children.
I understand this kind of argument, I truly do, but it always seems to me like trading the devil we know for the devil we don’t. I mean, okay, so everyone gets reversible sterilisation at puberty. And then when an adult decides they’d like to start a family, who gets to decide if they’re allowed or not? Who puts together the criteria that says one person is allowed to have their sterilisation reversed and another does not? Probably the same straight, white, male bureaucratic jerkwads who today are deciding that it’s okay to prosecute a woman for being addicted to drugs while pregnant, even if they can’t prove that her drug addiction really /did/ cause harm to her fetus.
And to return to your original point - the problem is, often there is no “proof” that a woman’s drug addiction did cause harm to her fetus. Is it likely? Yes, I agree it is. And we should provide at-risk pregnant women with pre-natal care and non-judgmental drug rehabilitation programs to help them take the best care of their bodies, including the pregnancies they choose to carry to term, as they can. But if “likely” is not enough to convict someone of robbing my house, why is it enough to convict a woman of a crime that some prosecutor essentially made up?
“I fully believe that the War on Drugs continues despite a great deal of public sentiment against it because it gives legislators an opportunity to chip away at basic civil rights”
This kind of thinking does impinge on civil rights (and is often/usually bad/wrong), but it often/usually isn’t driven by the goal of reducing civil rights. In my mind that makes it far more pernicious and dangerous.
It’s so much easier to creep up on tyranny, one bite at a time, each step seeming to be in the best interests of somebody (fetus, parent, sperm donor) or the state, everyone thinking they have only the best intentions in mind.
One day we wake up and we’re living in Gilead…
Robert — we have the power BECAUSE we have the responsibility. And we need to continue to have that power, for the best care of the fetus, soon to be infant.
If women actually had all the power when it came to reproduction, then we’d have something to talk about.
Or at least plead about come bed-time.
So does the behavior of men. There is some evidence that if men use drugs or alcohol fetuses resulting from their sperm are more likely to be damaged or stillborn. Should we consider all men “pre-conceiving� and scold them for having a drink or smoking? How about if they abandon their partners during pregnancy–that certainly affects the pregnancy outcome. Should it be illegal to divorce your wife if she’s pregnant?
Mayhap. You can’t legislate to provide the perfect world when there are really existing people and their rights involved, which was Amanda’s point regarding women.
But, hell, that there is a slippery slope between the trivial and the outright disgusting doesn’t mean that the outright disgusting doesn’t exist. Just that legislating a line is difficult, even given that attempting to legislate in the first place is dubious.
If I was going to start with legislation, I’d make genetic counselling mandatory.
How about if they abandon their partners during pregnancy–that certainly affects the pregnancy outcome.
??? Stress?
If I was going to start with legislation, I’d make genetic counselling mandatory.
Drat - PLUS complete and practical nutritional and medical support for pregnant women. I have a horrible suspicion that skimping in this area, apart from being inhumane, has serious and overwhelming hidden costs for society.
If women actually had all the power when it came to reproduction, then we’d have something to talk about.
Oh, Robert’s just trying a clever riff on the old line about how women have half the money and all of the pussy.
rights from women and treats them as less human than the developing child, I disagree with the implication that someone who has rehabilitated themself post-action should now be exempt from facing the legal repercussions of their actions
Heck, it’s good enough for faux-lifers. You can abort all the babies you want as long as, after the last abortion, you are very very sorry and repent of your evil ways, and use your own behavior as an excuse why other women should be denied abortions.
My recall may be weak, but I seem to remember a case in Massachusetts that was dropped because the addict mother had attempted to enter rehab when she discovered she was pregnant and was rejected because she was pregnant. In fact, there were no drug treatment beds for pregnant women anywhere in a three state area!
That said, the latest sacrificial evil fucked woman in these parts took an abortafacient that was prescribed for a family member with stomach ulcers. They are still trying to decide exactly how advanced the pregnancy was in hopes of charging her with murder instead of just illegal abortion. Never mind that if the child was not viable outside her uterus, it wasn’t viable, these assholes are simply salivating at the prospect of attacking a young woman who likely received abstinence only education about birth control options, lacked access to care, and likely lacked access or money for legal abortion services earlier in her pregnancy.
http://www.boston.com/news/local/articles/2007/01/28/bad_choices_all_around/
In an ideal world, everyone (female AND male) would get reversible sterilisation at puberty, and be expected to pass some sort of a course before having it reversed and trying for children.
And who would decide this? You? One of those eugenic geneticists that seems to be attached to every prenatal screening suite?
We have no idea when life begins or even how to define that beginning. We know just about as much about most of the factors of which you speak here, maybe a little more here and a little less there. Factor in a pathologic inability of certain caregivers to read a goddamn chart and notice a notation that “dates are in doubt’ and go right for the date of last menstrual period (and ignore that it was over two years ago at that …) and then horrendously misinterpret a blood test as a result and you have a serious recipe for judgemental disaster.
Let’s say that I’m not in the least convinced of any possibility for any acceptable level of certainty of pronouncement, interpretation, or even understanding coming from the sort of crowd who would be doing the “qualifying exams” in this matter. Especially when they would likely be the same people who were recommending a high-powered diagnostic ultrasound based on the father having a heart malformation that is not known to be or ever been thought to be genetic or family-linked in any way. If you can’t sort the difference between congenital and genetic, what else do you not understand?
Right. Because nothing encourages a woman who is addicted to drugs and discovers she’s pregnant to seek help like the knowledge that the very act of asking for that help could land her in jail. snort.
Not to mention that most drug-treatment programs won’t even accept pregnant women as patients for fear of being sued. The few that do have VERY long waiting lists.
So don’t give the woman the opportunity to be treated for her addiction, even if she wants to, and then throw her in jail because OMG she’s a witch! … I mean, a pregnant drug addict!
Another huge concern is that this can end up really targeting women who are just unlucky enough to have something bad happen to their fetus as well as those who struggle with alcohol and drug abuse. For instance, my son had a fatal birth defect known as a limb wall body complex, which is seen in higher rates in women who use cocaine during pregnancy. I am one of the biggest nerds on the planet and probably wouldn’t recognize cocaine if someone threw it at me, but given the right doctor and the right prosecutor, it could definately cause problems. In my research, I’ve found that gastroschisis (where the intestines are actually outside of the abdominal wall) is linked to use of tylenol and sudafed in the first trimester- both of which are recommended by doctors and listed as safe on almost every list I’ve ever seen. This can snowball and snowball until missing a prenatal vitamin is a crime. It’s a very slippery slope to go down, even if you do think pregnant women should be punished if their actions cause harm to their fetus (which I do not).
“Should we consider all men “pre-conceivingâ€? and scold them for having a drink or smoking?”
Course not, we should prosecute women for not checking to to make sure their partners (or rapists) weren’t doing anything that could potentially harm a theoretical embryo.
Robert:
Dude. Seriously. You’re a complete sociopath.
Seek help now.
Robert — we have the power BECAUSE we have the responsibility.
OK. Then step up to the responsibility, and when one of your sisters fries her baby with smack, treat her the same way you’d treat a man who fries a baby with smack.
Legal medications. Necessary for the life/health of the mother, but with a potential for hazard to the fetus (which is probably just about any medicine, because we do NOT test medicines on pregnant women and issues like low birth weight would take a very long time to be linked to the medicines…)
Once recreational drug use is further criminalized for the sake of the fetus, what keeps them from prosecuting women for using their inhalers, insulin, or whatever? I can’t see anything stopping them; there are already people who will deny pregnancy can endanger a woman. Apparently sperm magic heals all illnesses.
What part of ‘not a baby’ do you fail to understand? Or do you want the law to require abortions for women who drink X amount?
HF - what part of “becomes one” is puzzling you?
Women have, under law, the right to kill a fetus and prevent it from becoming a baby. Is feminism now claiming a supplementary right to maim a fetus, bear the resulting badly damaged child, and walk away from any consequence?
If you are building a car in your garage, and while doing so you deliberately cut control wires, weaken structural parts, etc., and your car later kills someone or does damage because of its mechanical failures, you’re liable for your negligent acts. Humans are equally susceptible to negligence, particularly when they are helpless.
This isn’t about men or women or power or gender; it’s about human beings, and our fundamental responsibilities as adults. Bad acts with knowable consequences are, and should be, punishable. Feminism has put a wall around the uterus and said “everything in here belongs to women, and we have total power over it.” Fine. The concomitant of power is responsibility and obligation.
Women are, or should be, obliged to take responsibility for the decisions they make, the same as men are, or should be. When the consequences of those decisions are in many cases literally crippling to other human beings, then excuses about addiction and mistakes don’t wash. If I’m addicted to alcohol, my addiction doesn’t excuse me for the manslaughters I commit driving on the road. Neither does it excuse the harm a woman inflicts on her child. “But it wasn’t a child when I fucked it up” also doesn’t wash. I wasn’t driving when I was getting drunk, either. You weren’t cutting the wires in a finished automobile, either. Consequences move forward in time.
We have the power of time-binding, and we hold adults responsible for the foreseeable consequences of their acts. Even if the consequences happen inside the Holy Uterus.
How do you propose to determine whether a “damaged” baby has been damaged by the mother’s actions during gestation versus the father’s actions prior to conception? Sperm quality is affected by drug use too.
All that said, there is probably a strong case to be made that criminal prosecution per se is not an appropriate remedy in some or even many cases. I wouldn’t argue against that, or against fixing the insanities contained within our national and state drug policies. But the way to help those people being treated badly by the legal system isn’t to create immunities for a broad class of people - it’s to craft better remedies within the system.
And who would decide this? You? One of those eugenic geneticists that seems to be attached to every prenatal screening suite?
This is an ideal world. Presumably, it would be judged by angelic and disinterested saints who will magically appear once the policy is implemented.
Cf Plato’s The Republic and Marxism…
I couldn’t agree with you more that the war on drugs is a terrible idea. It’s an utter failure. I don’t trust government with any power which is why it should be very limited.
That being said, you are just dead wrong on this issue. If a woman endangers the life of her baby (yes, I think it’s a baby before it’s born) and it dies (pre or post birth) as a result of her actions such as excessive drinking, drug use, etc. she should be prosecuted for manslaughter.
This does nothing to diminish a woman’s right to anything. If you choose to have a baby, you are obligated to protect that baby to the best of your ability. Look at the way everyone ranted and raved when Steve Irwin held his baby while feeding a crocodile. Hey, it’s his baby but he can do what he wants right? Similarly Michael Jackson was castigated for holding his child over the balcony of a hotel. Lots of people are prosecuted all the time for child endangerment. Killing your child even if it was through actions done before it actually passed through the birth canal should be punishable by law just as if you killed it through neglect after it was born.
You can’t give your kids drugs after they are born (drug war or no) and you shouldn’t be able to give them drugs before the are born.
If you took drugs prior to getting pregnant that is another story as long as you didn’t take them after you were pregnant. I’d even go so far as saying there should be no punishment if the baby died as a result of taking drugs before you knew you were pregnant.
The woman in question should be held accountable for killing her baby.
My favorite part of anti-choicer’s rhetoric is when they insist that the fetus is fully human, then compare it to an inanimate object, like a car.
Maybe they think Cars was a documentary?
Anyhow, this is something I did an small research paper about in college a few year’s ago. If I do say so myself, I found the results to be interesting enough that I was tempted to look for grant money to expand my findings and try it in other regions and with more daring people than I. The idea was to closely examine the Good Mommy/Bad Mommy dichotomy to see just how severe a reaction to potentially harmful-to-the-fetus behavior was*. Naturally, when I waddled around in a fake-pregnancy vest trying to bum smokes off of people, I got a pretty bad reaction, but I always got the smokes. (The best part about this was that I get to tell people that the only time I ever smoked was when I was pregnant). People had no problems hauling off and telling me what a horrible person I was as they were lighting my cigarette. Since these people had smokes on them, they were obviously aware of tobacco’s addictive power — and yet they had subscribed to this popular myth in the country that having progesterone in your system magically rids you of all of your individual wants and needs and passions, and that you spend 24 hours a day in single-minded fixation on what is best for the fetus.
I’ve known two women who were unable to give up smoking during their pregnancies. Despite what people like Robert say about them, they weren’t lazy, or irresponsible, or uncaring toward their fetuses. They were massively addicted to a cigarettes and couldn’t quit despite their desire to. Addiction impacts a lot of people differently, and when you’re pregnant doctors won’t prescribe medications to you to help you kick the habit, so you have to do it 100% on your own. It upsets me that women are constantly being portrayed as the bad guys for having the audacity to have their humanity in addition to their womb.
—
* Interestingly, harmful-to-the-fetus can also encompass having a “partner” who looks a little younger than you.
Difster, what are the penalties that you propose in this situation? A woman gives birth to a stillbirth and in your utopia, she’s immediately arrested for questioning and dragged to jail with her stitches still bleeding. After hours of rigid questioning, they determine that she *might* have skipped some prenatal vitamins one day. Well, she obviously didn’t do enough by you to ensure good outcomes.
What jail sentence do you give her?
Let’s make this clear. Everyone arguing for throwing women in jail for giving birth to babies that die or disabled babies is arguing that it should be a crime to give birth contigent on the outcome.
This means every time Robert knocks up his wife, he wants her not only to risk life and limb to have another heir, but he wants the threat of jail hanging over her head if the baby is born disabled.
All the stuff about drugs is window dressing in order to make criminalizing pregnancy outcomes palatable.
And in Wingnut Utopia, once pregnancy is a crime, there is no incentive for women to undertake. Luckily, they’ve managed to fix that problem too, by making childbirth mandatory.
Ergo, being female is criminal.
That’s the end result and what they want. Something to consider when you’re swayed to throw women in jail for giving birth to dead or disabled babies because our society considers those women—usually poor, usually black—expendable.
If you think that there’s no slippery slope, it’s important to remember that the groundwork laid by criminalizing giving birth if there’s suspicion the mother used drugs was the first step. The second step is arresting pregnant women and forcing them to give birth the way the state decides.
Molly, if you met Tayshea, it becomes quite clear why there’s some dipshits out there who would like to go after her. She’s a non-white working class woman who decided to make something of herself. That is, she got uppity.
Phoenician, I never argued it was right to use and give birth to a dead baby. I think it’s wrong. I think that women who are addicts need to be able to do everything in their power to avoid doing that—including abortion, if need be.
But what people forget when we’re talking about women is that the price of freedom is we have to distinguish between immoral and illegal. It’s immoral to join the KKK. But dammit, it should be legal.
I disagree with the implication that someone who has rehabilitated themself post-action should now be exempt from facing the legal repercussions of their actions.
Thank god I didn’t say that, then. My point was that they went after a sober woman in no small part because she was threatening the class hierarchy.
??? Stress?
Stress, loss of health insurance, loss of income, sudden need to find a new place to live, inability to continue taking time off because of lack of ancillary support, extra fatigue, no one there to do anything about it when the pregnant person suddenly goes into seizures from the preclampsia she didn’t know she had because her ex was the one who had health insurance. That sort of thing.
After hours of rigid questioning, they determine that she *might* have skipped some prenatal vitamins one day. Well, she obviously didn’t do enough by you to ensure good outcomes.
Um…I Don’t think he said that. It’s sad that the only way you can argue for something is to twist what someone who’s opinion differed slightly from yours said.
“That being said, you are just dead wrong on this issue. If a woman endangers the life of her baby (yes, I think it’s a baby before it’s born) and it dies (pre or post birth) as a result of her actions such as excessive drinking, drug use, etc. she should be prosecuted for manslaughter.”
So wha do you think the etc means? It’s nearly impossible to determine in many cases why a baby is stillborn or has a defect. It can be a vitamin deficiency, which could be prevented by prenatal vitamins. Assuming one had prenatal care to monitor the pregnant woman and see what she needed, of course.
Tylenol, aspirin, over the counter medications, prescriptions can all cause problems if taken in the first trimester. Most women won’t know they are pregnant until they are 4-6 weeks along. Damn abusive bitches taking their medications and hurting their babies. If their baby has problems, charge them for it, no?
I found the results to be interesting enough that I was tempted to look for grant money to expand my findings and try it in other regions and with more daring people than I.
Do it, do it, do it! I’d love to see this study.
If a woman endangers the life of her baby (yes, I think it’s a baby before it’s born) and it dies (pre or post birth) as a result of her actions such as excessive drinking, drug use, etc. she should be prosecuted for manslaughter.
How do you prove that the death was the result of drug or alcohol use? Babies die sometimes. It’s sad, but true: a person is more likely to die in their first year of life than any time after that until they’re (I think–haven’t looked up the numbers in a while) 60. And more to the point, how is a woman who is pregnant supposed to break her addiction when she is forbidden from entering drug treatment programs because she is pregnant? (Leaving aside, for the moment, the question of just how effective such programs are.)
As someone whose been sucessfully pregnant twice and had “good outcomes” I want to second what others are saying here–there is no perfect vessel for perfect babies out there, just women with health issues, too many cars, hard work, men with health issues, hard jobs, chemical pollutants etc… The law itself, and the anti choicers who avail themselves of science when it suits them are suffering from a form of “CSI” syndrome if they think or argue that a straight line from maternal behavior to fetal health can be drawn, or if they think or argue that it is the mother’s actions alone, and not that of her partner (s) and society that determine the health of the fetus and the eventual child.
The age of the father has something to do with the health of the fetus–should men be forbidden to become fathers or sperm donors after a certain age? The age of the woman has something to do with the health of the fetus–should women who get pregnant and give birth as teenagers be given some kind of inducement to do so while older established women are forced to have their tubes tied? Genetic diseases are being discovered every day, sometimes the markers or the ethnic heritage for those diseases is known and sometimes it isn’t. Should a couple who don’t know they are carriers for a rare disease be charged with wilful endangerment of the fetus if they failed to get tested prior to initiating pregnancy? What if they get pregnant accidentally and their religion forbids abortion, are they to be charged with reckless endangerment then if they choose to go forward with a damaged fetus?
Society, and especially this society with its lack of pre-natal care, its inability to provide accurate and timely health and sex education for kids, and its inefficient insurance system does none of the things it could do to ensure that all pregnancies are wanted, that all pregnant women are cared for properly, that all fetuses are brought sucessfully and healthily to term. As usual, a stick approach is preferred which punishes only one member of the entire pregnancy community–just the proximate one, the mother. But the same logic applies to pregnant women as to obstetricians. just as the demand for the perfect outcome in an imperfect world has driven up malpractice insurance and driven obstetricians out of practice so demands to criminalize women and destroy families when a sub-optimal pregnancy or birth takes place will, eventually, drive women who have control over their pregnancies out of having children. Leaving only those women who don’t control their own fertility or who don’t understand the risks to have children.
aimai
Mnemosyne wrote:
Not to mention that most drug-treatment programs won’t even accept pregnant women as patients for fear of being sued. The few that do have VERY long waiting lists.
Exactly right. There are ridiculously few treatment beds for pregnant and parenting women, and the few that do exist often do not accept Medicaid as payment. Leaving many many women SOL.
Women’s eNews actually published an article about exactly this today.
This reminds me of a teacher I had in high school who had two late-term miscarriages while trying desperately for her first child - I’m not sure about the details, but I remember her going on maternity leave, and then coming back earlier then expected, looking like a shell of her former self.
Silly me - while my teenaged self was thinking of how heartbreaking that must have been for her, little did I realize that I should have been turning her over to the police for interrogation! After all, 100% of all fertilized eggs turn into beautiful, healthy white babies unless the mom did something wrong, right? Even if she isn’t a crackhead, maybe she had one drink! Maybe she smoked one cigarette! Maybe she took some Tylenol, or walked down the Tylenol aisle in the pharmacy! Maybe she drank the wrong kind of milk! Maybe she was in the same room as a feminist! Maybe she IS a feminist! Maybe she didn’t pray enough! Maybe she was stupid enough to be born poor and non-white! She was definitely stupid enough to be born with a uterus - lock her up!
Um…I Don’t think he said that. It’s sad that the only way you can argue for something is to twist what someone who’s opinion differed slightly from yours said.
He said “etc.”. He wants to make it legal to put women in jail for giving birth to dead babies. You can’t prove that the drugs did it, so the actual law that is broken is? You’d have to make a law stating outright that woman who produces a dead baby should be assumed guilty of doing something and thrown in jail. That “etc.” absolutely includes not taking prenatal vitamins. Or nothing at all. The “crime” is not having the desired baby. There’s no proof of anything else.
If I remember correctly from the last time I looked it up, cigarette smoking during pregnancy is more dangerous to the eventual baby than opiate use during pregnancy. Unless one’s prepared to prosecute all the women who smoke during pregnancy, one should refrain from starting down this road.
Is it wrong to use illegal drugs during pregnancy? Yes, for the father and the mother. If a woman uses with her partner and then he beats her up, should she be prosecuted for being around him?
The only thing a woman who uses illegal drugs during pregnancy should be prosecuted for is … USING ILLEGAL DRUGS. Given what little we know (but do know) and the effect of drugs on the male contributor, to do otherwise is adding penalty for being female (and vulnerable to rape and restricted from contraceptive and abortion access …)
A different, but just as slippery, slope that this mindset leads to is restricting women from certain professions. I happen to be a chemist who also happens to possess a uterus. Once it comes time to breed, if something were to go wrong, I know I’d feel guilty that something from my profession contributed to the problem. I see warnings all the time on various items tthat basically say that pregnant women and women of childbearing age who might become pregnant shouldn’t be anywhere near them.
So, if I were to become pregnant and not know it for the usual amount of time, and accidentally exposed myself to something at work (I’m the queen of Peronal Protective Equipment, but don’t wear a respirator while working with solvents when it’s just my lungs and brain that are at risk, but I would totally overdo the PPE if I had to work with nasties while knocked up), should I be prosecuted for the fetal damage? Would we have to criminalize certain occupations for fertile females?
As far as smoking goes… I had a friend who smoked while pregnant. It bothered me, but I never said anything, because I figured, she was an adult, she knew there was a risk, she didn’t need her best friend criticizing her for being addicted. I’ve never been pregnant, but know that nothing gives people “permission” to be all up in someone else’s business like seeing a pregnant woman, and didn’t want to heap on my own. Figured the loss of my support (not that I was actively supporting her habit, of course) would be worse for her/her babies’ health - didn’t think I could “talk her out of smoking,” there’s no rationality involved, so there would’ve been nothing to be gained by hassling her.
Let’s make this clear. Everyone arguing for throwing women in jail for giving birth to babies that die or disabled babies is arguing that it should be a crime to give birth contigent on the outcome.
Right, Amanda. Similarly, everyone arguing for laws against manslaughter is arguing that it should be a crime to take a drive on the highway, contingent on the outcome. Everyone arguing for Sarbanes-Oxley was arguing that it should be a crime to do business, contingent on the outcome.
Nobody that I have ever heard of - and nobody that you have ever heard of, either - argues for putting women in jail simply because their babies die or are disabled. There are people who argue that it might be appropriate to put women in jail if their known actions lead to the death or disability of a child. This is clear-cut distinction, and you know it is a clear-cut distinction.
It’s nearly impossible to determine in many cases why a baby is stillborn or has a defect. It can be a vitamin deficiency, which could be prevented by prenatal vitamins.
This is true, and one reason to avoid absolute pronouncements. Someone else asked about paternal responsibility as well. That’s even trickier to prove, but probably do-able in at least some cases. Both of which are why there isn’t a presumption of guilt when a baby is stillborn or has a defect; there’s a possibility of guilt when a mother (or father) has known actions. Skipping a round of prenatal vitamins isn’t a crime, but doing fifteen tequila shots or going on a coke bender may well be.
I’ve known two women who were unable to give up smoking during their pregnancies. Despite what people like Robert say about them, they weren’t lazy, or irresponsible, or uncaring toward their fetuses.
I don’t know about laziness or uncaringness - and haven’t said anything at all along those lines, which makes your characterization wrong and dishonest. As for “irresponsible”, it appears from context that you don’t know what that word means. Not quitting smoking while pregnant is pretty much the definition by example of “irresponsible”. “But I’m addicted” is an excuse, and it may well be true - I was a smoker, and I know it’s hard to quit - but it isn’t an excuse that removes irresponsibility. Sometimes it’s hard or very hard to be responsible - life is hard. You either behave responsibly or you don’t.
My mum smoke (heavily) and drank while she was pregnant with me and my father smoked even more heavily. They were both older (41 and 50). And I do have health issues (probably) related to that. Do I wish they had made different or better choices? Yes. Will I make the same choices? No. Do I think they should have been prosecuted? Hell no. They made the best choices they could given the situation, their knowledge, and who they were. That’s all parents or potential parents can do and I’m not sure in a place where people are increasingly vocal about the rights of feti to be born how this can be navigated. If mum’s a heroin addict then should she always abort? (since much of the damage is done before the pregnacy is known) It’s not like one can go back in time and make her not a heroin addict before she gets pregnant.
Sorry, but I happen to very strongly believe that the idea that anyone could be prosecuted for something that they do to their body is wrong, wrong, wrong. Nothing else matters if we don’t have ownership of our own bodies. I know it’s dumb to start doing heroin, but I also know it’s dumb to chop off my arm. To me, having autonomy over my uterus is equally important as having autonomy over my veins, arms, lungs, whatever. It’s all part of MY BODY and no one has the right to tell me what I can or can’t do with it, or any part thereof.
My opinion, but one I feel strongly about.
Right, Amanda. Similarly, everyone arguing for laws against manslaughter is arguing that it should be a crime to take a drive on the highway, contingent on the outcome.
Whoops, bending the argument. Everyone who causes someone else’s death with their car should be held liable.
What you’re arguing for is not actually taking actions that cause death, though. You can’t prove that the drugs or the C-section or the smoking caused the death. So the only real crime is giving birth to a baby not up to Robert’s standards.
Everyone who causes someone else’s death with their car should be held liable.
Everyone who causes someone else’s death or disability with their drug use should be held liable.
I didn’t know I was pregnant til I was nearly three months gone (was very young, asymptomatic and experienced a phenomena known as “implantation bleeding” which looks remarkably like a period to someone who’s never heard of its existence). My “first” missed period was actually my “second” missed period, and I had always had very long cycles with around 40 days between periods. So, I spent that three months partying like a beast, drinking, smoking, doing backbreakingly hard labor, pulling 24-hour work shifts, under unusually high psychological strain, etc. etc.
Anybody remember that Washington Post article about pressuring all women of reproductive age to behave at all times like they’re about to get pregnant at any moment? It’s either that or jail time, apparently, the ideal choices in some people’s eyes. How moral. Really.
Note: If anybody’s interested, the aforementioned hideously abused fetus is now 14 years old, 6′2″, track star and honors English and Government student. He doesn’t like math very much, though, which I his engineer mother consider a definite sign of brain damage. Off with my head!!!!!!!!!
And everyone who causes someone else’s death by not taking prenatal vitamins should be held liable.
And for you people who oppose contraception, everyone who produces a less than perfect baby because she didn’t have the recommended two years space between babies should go to jail.
Oooh. Ya know. I did severely abuse myself before I knew I was pregnant, for the first third of my tender fetus’s existence. If that Ideal World existed, where I could be jailed for any defects my newborn exhibited that could have been linked to my alcohol and cigarette consumption or any of the other myriad ways I was abusing my mind and body during pregnancy–if that had been The Law, my thinking would quite logically have tread the following path:
Didn’t know I was pregnant. Drank, smoked, etc. Now I’m three months pregnant. I want to keep the baby, give birth to baby, raise baby, love baby. But if anything’s wrong with the baby, I’ll go to jail. No baby. Felony criminal record. Probably get the crap kicked out of me on a daily basis. Probably wouldn’t even get baby back when I get out of jail if I even survive jail. Only way out–get an abortion.
No 14-year-old track star and honors student. No engineer mom, very most likely. What a fine outcome.
If you didn’t know you were pregnant (and not knowing for three months is certainly plausible), then you haven’t committed any known wrong action.
Nobody is arguing for holding women to an impossible standard. The standard being argued is one of reasonable prudence and care in the performance of one’s responsibilities as an adult person. As with other aspects of the criminal law, circumstances and the knowledge possessed by the people in question are material to the question of whether crimes have been committed.
Exactly. I will maybe be willing to begin to believe that these bastards are genuinely pro-life when they start prosecuting the corporations that are poisoning our air and water, which - unlike drug use (I’ll get to that in a minute) - has been scientifically proven to contribute to birth defects and miscarriages. Think that’s gonna happen anytime soon? Me neither.
Are you seriously saying that the state should have the power to determine who is permitted to have children? In many of the reddest red-state counties in this country, question 1 on the reversal-approval test would be, “Have you accepted Jesus Christ as your personal savior?” Question 2 would be, “Are you black or Hispanic?” And question 3 would be, “Is anyone in your immediate family a homosexual?”
Taking the word of a university research doctor here (i.e., I don’t have a link and have not read the studies myself, so grain of salt and all that), but she said that in studies it seems that the apparent negative impact of drug use on pregnancy has a great deal more to do with the tendency of most drug users to lack access to health care and nutrition, as drug use in wealthy women does not generate nearly the same level of complications as it does in poor women. I don’t remember if that also applied to alcohol, or just drugs.
Wow. Robert is claiming ignorance exculpates one from criminal liability. Are pigs flying somewhere?
Women know they are supposed to space pregnancies and flagrantly ignore that advice, often refusing contraception and abortion even though they know the risks. Why won’t they take responsibility?!
Ignorance can exculpate from liability, D; not sure what your point is supposed to be. Ignorance of the law doesn’t generally get you off, but reasonable ignorance of the consequence of something quite often can. (I was cleaning my gun and it went off, accidentally killing the person who was hiding in the bushes outside my house; I’m probably not going to jail. I was cleaning my gun and it went off, accidentally killing the person who I had asked to hold the barrel while I cleaned it; I’m probably going to do time.)
This prosecution of pregnancy outcomes is just another step in giving a fetus rights over those of the mother.
He is, D.
I’m just curious to hear what burden of proof Robert would impose on women who had stillbirths or disabled babies and then claimed they didn’t know they were pregnant.
How could they possibly prove that they didn’t know they were pregnant to a group of people like Robert (salivating at the sidelines while they waited to put her in jail)?
Nobody is arguing for holding women to an impossible standard. The standard being argued is one of reasonable prudence and care in the performance of one’s responsibilities as an adult person. As with other aspects of the criminal law, circumstances and the knowledge possessed by the people in question are material to the question of whether crimes have been committed.
Ah, but let’s examine the practical meaning of the criminal law you’re suggesting is constitutional:
How many women who have babies drank some during pregnancy? (Just to choose one drug that, while legal in the hands of an adult over 21, can be abused in quantities that definitely are shown to cause harm to a developing fetus.)
How many of those women had the detailed knowledge of fetal development to realize what was unsafe alcohol exposure for the fetus, yet chose to drink 15 shots of Cuervo while stripping and dancing on the bar? (I’ve particularly enjoyed your examples of that bad addict behavior that just happen to fall outside the purview of what good girls do.)
And until you can produce an example of a mother who knew enough to realize that her drinking was likely to cripple her baby, yet abused alcohol anyway, being imprisoned for assault despite the lack of a bad outcome, I’m going to continue to believe that you’re ignoring the real legal issue here: If an unborn baby is a person who can be assaulted by the woman who carries it by something in her bloodstream, there is no limit to the prohibitions against all women’s freedom that can be mandated.
I seem to recall - and please correct me if I’m wrong - that in the handful of cases where severely disabled people have attempted to sue their mothers for not aborting them, the courts have ruled against them. That would suggest, to me, that current case law does not find anything resembling a right to be born healthy.
I promise I’m going to work next, but I’m curious about something else.
Did the NAPW conference include some data from women who used reproductive technologies and chose not to reduce for whatever reasons?
Because it strikes me that the mix in the waiting room for pediatric speech/OT/PT is pretty heavily seeded with the mothers of multiples. They’re sitting there waiting to find out whether the most affected of the four babies they chose to bear at once will ever learn to read, alongside the adoptive and bio moms of the kids who don’t meet outcome standards for reasons of maternal-fetal toxin transmission.
If none of the multiples’ moms are being incarcerated, I’m pretty sure this is a bad law.
I’m just curious to hear what burden of proof Robert would impose on women who had stillbirths or disabled babies and then claimed they didn’t know they were pregnant.
None whatsoever. The burden of proof does not fall upon a defendant, but upon the state. The state has to prove that the stillbirth or disability was the result of a knowingly wrong act on the part of the parent. The parent doesn’t have to prove anything.
I do believe that this was Amanda’s whole point, PhoenixRising. Whenever you criminalize pregnancy based on outcome (whether the outcome is stillbirth, disability, mental retardation, or any sort of “special needs”), then you have no choice but to slide down the slippery slope to criminalizing femaleness (or, possession of a uterus, if you really want to split hairs).
If we, as a society, decide to slide down that slippery slope, then (disproportionately white, middle-class, educated) women will wise up to the fact that even the risk of getting pregnant is totally not worth spending any time in jail for an undesirable outcome, and will start getting tubal ligations, hysterectomies, and just refuse to have any sort of procreative sexual intercourse en masse, Lysistrata-style. While this wouldn’t be such a terrible tragedy in and of itself, given that hetero couples are increasingly plowing the back field anyway, it still represents a serious infringement on civil rights when all the potential human beings’ rights outweigh the collective rights of humans who are already here.
Unless, of course, you support these laws, which requires at its core a fundamental believe that a woman is not as human as a fetus is. That’s pretty much what it comes down to when you distill it to its essence, anyway.
Mighty Ponygirl:
That is interesting. What underlies it do you think? Anything fun for a woman= “bad for the fetus”? Or any assertion whasoever that “i am an individual person, not an identikit patriarchybot”=”bad for the fetus”?
what was the purported logic? Younger men are worse providers, is my guess. But people actually came up to you and said that you were irresponsible for having a baby with a younger guy? Wow. If only the genes for that kind of behaviour could be detected by prenatal screening.
If an unborn baby is a person who can be assaulted by the woman who carries it by something in her bloodstream, there is no limit to the prohibitions against all women’s freedom that can be mandated.
This is cognitively incoherent. The limits are obvious: anything the woman does that doesn’t hurt another person is fine.
Nobody is in this context arguing that the unborn baby is a person. The argument is that a born child is a person - and if a woman’s previous actions knowingly hurt that person, she should bear some responsibility for those actions.
It is extremely telling that the vast majority of the responses to my point here consist of arguing against absurd distortions of what I’ve said, or polemics against positions which no sane person has ever taken, or attributions of disgusting motivations sans evidence.
I would think that if my argument is really so weak and wrong, that there would be more engagement against its weakness and wrongness - instead of arguments against fantasies.
Is taking adult responsibility along with power really so terrifying?
Thank you for staying away from work long enough to add that, PhoenixRising. Women who use reproductive technology to get pregnant, but then refuse too use it to improve - hell, not strong enough - to not knowingly, intentionally ruin the health of the person(s) who are the result of said pregnancy bother me to no end. Shut up about “god” giving you these “miracle babies,” by your own logic, god said no babies for you. And aren’t the health risks of being part of a major-multiple (not up on the terminology for multiples that get into the human litters zone) more strongly correlational than any of these other behaviors? Like, there are plenty of people who were born to mothers who drank, smoke, did drugs, didn’t plan their pregnancies, whatever, who end up fine, or only with relatively minor impairments, but isn’t there pretty much ALWAYS something majorly wrong with at least one litter-mate, if not lots of lesser things wrong with all of them? In other words, isn’t it possible to have a healthy baby when one does some less-than-healthy things while pregnant, but impossible to have only healthy babies when getting beyond the twin/triplet level of multiples into the -tuplet range?
Oh, and the mothers-of-multiples is the only aspect I haven’t yet seen addressed on any of the Law & Orders, FWIW. Might have been and I just haven’t seen it, but they’ve even done the “wrongful life” thing.
if youve never been addicted to drugs (robert, im looking at you) then who are you to lambaste pregnant women for not giving up said drugs while pregnant? you keep mentioning “responsibility” like a woman whose been addicted to heroin for 5 years can just say “oh well, im pregnant, time to give up the drugs!” not to mention what many commenters have already said about pregnant women being denied entrance to rehabs. i dont understand why anyone makes the decision to be a drug addict in the first place and i never will understand, probably. but ive lived with one for the majority of my life and anyone who talks about responsibility like its easy to give up drugs is completely delusional. i dont think ANY drug addict should be thrown in prison much less pregnant ones. its obviously helps no one. its just a shame people feel like they can pass judgements on people when they have NO CLUE what those people go through.
funny enough, my mom was told not to give up heroin cold turkey while pregnant with me because the strain on her system would most likely cause a miscarriage. and i turned out fine (granted she wasnt completely strung out while pregnant with me)
kali — this is why the grant was so tempting. because I got the dirtiest looks. I intentionally made myself look older (not like, granny-old, but close to thirty), and I was hanging out and holding hands with a male friend who looked about 20 (he let his beard grow in a little so he didn’t look like he was 16, but damn he had a babyface!). When I was alone, I didn’t get those looks. Perhaps there was some other behavior/indicator that I was missing, but it really did seem like people were judging based on my company.
The research paper had a couple of intersections: it was for a sociology/gender studies course and I was bringing in some freudian/psych stuff from another class. Given that pregnant women are viewed as “public property” — they get their bellies fondled by total strangers, people have to chime in with advice, etc. I assumed this would be offset by “perks” like getting doors held open for you and seats offered to you on crowded public transit (not so!). I also wanted to judge reactions by people when I was actively engaging in behaviors that people would interpret as harmful to the fetus. Unfortunately, I wasn’t going to risk a possible arrest by trying to purchase drugs, and I had only a couple of months to my 21st birthday so I couldn’t legally buy a drink, but the smoking part of the study went really well. Similarly, the study couldn’t encompass enough time for me to do more than a couple of meals, so I couldn’t see what sort of reactions ordering a nice freshwater fish meal at a restaurant would garner (or hitting a McNasty’s for lunch). Sometimes, I fantasize about sending out an army of faux pregnant women with a list of daily activities to engage in with various accessories. It would be glorious.
[…] Scott Lemieux, among many many other bloggers, has written reams about the inconsistent way in which pro-lifers equate fetuses with babies. Another example jumped out at me from this pandagon thread about the trend towards equating “fetal abuse,” the mistreatment of your pregnant body, with child abuse, the mistreatment of a child. […]
Robert says:
None whatsoever. The burden of proof does not fall upon a defendant, but upon the state. The state has to prove that the stillbirth or disability was the result of a knowingly wrong act on the part of the parent. The parent doesn’t have to prove anything.
Right. Because, let’s face it, the first trimester goes by and you didn’t know it, then you realize that, oh no, you drank or whatever before you became aware of your pregnancy, so what you have to look forward to is criminal prosecution if the baby doesn’t turn out ok. But, prosecution is ok, because the burden is on the state, so putting a new mother on the stand to defend herself is no hardship, right? And she’ll be coherent because she’s getting all sorts of sleep in those early months of new parenthood if she kept the baby. Besides, she’ll get free representation if she can’t afford to defend herself, so what’s the big deal. And, if she’s non-white, poor, we know she’ll get a fair shake from judge and jury, right?
Or alternatively, as happened to a good friend of mine, you do everything right and are told after amnio that your fetus has a severe disability. If she has the kid anyway, under Robert’s regime, she’s at risk of prosecution (hell, she’s probably at risk of prosecution just from bad amnio results). So while juggling doctors, special care, etc. for her new baby, she can take a few moments out to defend herself in a court of law.
Robert: you clearly have no concept of how the criminal justice system works if you think that the burden of proof protects the mom of a disabled/stillborn child under your approach. Not to mention the fear factor the concept of such possible prosecution might create in pregnant women everywhere (because we don’t have enough to worry about).
I will readily concede that if the criminal justice system is staffed entirely by insane evil morons, that all the consequences being bandied about could well come true.
Of course, that concession applies equally to pretty much every law out there. If people enforce the law in an insane, evil, and stupid fashion, then you will get insane, evil and stupid results, regardless of what the black-letter text of your laws state.
Taking a step back into our world, where we have a criminal justice system staffed mostly by decent people who do their best under trying circumstances, the concerns seem less focused.
There is a substantial and increasing scientific literature regarding birth defects and other adverse birth outcomes associated with exposure to traffic. The associations are strongest when actual driving or riding in a car in traffic is separately accounted for.
So, should pregnant women only be permitted to stay in safe, well ventilated homes more than 100m from a roadway and not drive or be driven while pregnant or face prosecution? Should everyone who owns or uses a car within 100m of a pregnant woman or gives a pregnant woman a ride in traffic be prosecuted when a child is born with a heart defect? By the logic of unborn uberalles, the answer is yes.
It is a shame that in reality there are so many insane then, by your criteria. Or perhaps you missed the reason Amanda even made this post?
Because giving the leaders all the power and just trusting it to use it correctly is a wise, rational course of action. In Bizarro World.
Is taking adult responsibility along with power really so terrifying?
Can the resentment over not having that power and attempting to control it by remote be any more obvious?
Not quitting smoking while pregnant is pretty much the definition by example of “irresponsible�. “But I’m addicted� is an excuse, and it may well be true - I was a smoker, and I know it’s hard to quit - but it isn’t an excuse that removes irresponsibility. Sometimes it’s hard or very hard to be responsible - life is hard. You either behave responsibly or you don’t.
But studies show that people–and here I’m making an assumption that pregnant women are still considered “people”–are greatly affected by second-hand smoke, also. Therefore, a pregnant woman who does not smoke can still be exposing the fetus to damage if she regularly associates with people who do smoke. So any partner, roommate, close relative or friend of a pregnant woman must quit smoking during the pregnancy or be held criminally liable, right?
And waitresses in restaurants or bars that allow smoking must quit their jobs the minute they discover they are pregnant or be arrested for endangering the fetus, right?
After all, it makes no difference to the fetus who was holding the cigarette–or if it does, it’s only because having someone else smoke is even worse than having the woman smoke.
And then there’s the issue of emerging research: a Danish study recently showed that up to three cups of coffee a day has no statistically significant effect on fetal development. So now can we let all those women we (hypothetically) locked up for endangering the fetus by drinking too much caffeine (another commonly available, legal drug)? And do we have to apologize or just tell them tough luck–they should have known better than to be irresponsible, heartless bitches while they pregnant?
Robert, I can only assume that you support 100% access to safe and legal abortion for all women. I’m getting this from “Nobody is in this context arguing that the unborn baby is a person.” If you’re saying that you would argue that a fetus is a person in another context, then why not admit it now? Come right out and argue that a fetus is a person with more rights than its “mother,” (a pregnant woman - oops, I mean an enslaved fetus-shell.) Then we can talk.
If, as I suspect, that is not the case, here’s why your argument is weak and wrong:
1. Manslaughter laws apply to all actions that cause death, not just known actions. That’s why there are involuntary manslaughter laws. So blithely casting aside the concerns about prosecuting women for unknown actions as irrelvant is absurd.
2. Saying “anything the woman does that doesn’t hurt another person is fine.” counteracts your statement that a fetus isn’t a person. Smoking alone while pregnant doesn’t hurt another person, it hurts a part of the woman’s body that might or might not impact (or be) a future person. Much like smoking while not pregnant or skipping the folic acid tablet. Back to your cells and I.V. fluids, pre-pregnant women of America! I’m looking at you, young Republicans.
3. You ask: “Is feminism now claiming a supplementary right to maim a fetus, bear the resulting badly damaged child, and walk away from any consequence?”
I answer: Yes, until reproductive education, contraception, and abortion are universally legal, available, and free. And as long as some anti-choicers feel there are so few needy babies that they have to create new ones from discarded embryos, I don’t think we need to look very far to find homes for those poor “damaged children,” as you say.
4. Coming back to this “known actions” hogwash again (hogwash! Hey Dick Cheney!): Skipping a round of prenatal vitamins is, actually, a “known action” that could be harmful to the fetus. So is scooping the catbox. But those things aren’t as easily related to the class of the pregnant woman, so I’m sure you’re against prosecuting for them.
Can the resentment over not having that power and attempting to control it by remote be any more obvious?
Or the inability to distinguish between things that parents do that are irresponsible and things that are criminal? A woman who chooses to give birth to and raise a child that was damaged by in utero exposure has already assumed liability for said damage, hasn’t she? Isn’t that how we handle things that fall in between irresponsible and criminal, by making the perpetrator financially responsible?
If only chemical companies and power plant operators were held to the same standards of evidence of harm and the same reqirements of precaution as the lowly pregnant woman.
If twelve women in a single city suck down an average of a fifth of Jack a day and have mutated babies = no pregnant woman should ever touch any alcohol, just think what we could do with the findings that pollution kills?
If only chemical companies and power plant operators were held to the same standards of evidence of harm and the same reqirements of precaution as the lowly pregnant woman.
Tell you what, I’ll be happy to set the standards for pregnant womens’ responsibilities at exactly the level set in statute for chemical companies and power plant operators.
Robert: “OK. Then step up to the responsibility, and when one of your sisters fries her baby with smack, treat her the same way you’d treat a man who fries a baby with smack.”
No problem, but we’ll be wanting proof, whereas you seem to be satisfied with speculation. Check it out: research indicates that the “crack baby” phenomenon is related more to poor parenting than to drug use.
Ponygirl: “Interestingly, harmful-to-the-fetus can also encompass having a “partnerâ€? who looks a little younger than you.”
This interests me, can I have a citation? I’m married to a man 23 years younger than myself, and when our little guy was little we got a lot of prejudicial treatment (eg thrown out of babysitting co-op because “no one would want *you* taking care of their kids.”)
Actually, Robert - I’d be happy to allow prosecution of pregnant women under the law as you specify here. Because (look at me, I’m talking loudly and slowly) You Cannot Determine the Cause of a Baby’s Death That Distinctly. Even if the mother was slamming down tequila - you do not know if the baby’s death or damage was caused directly by that, or by something else that she had no control over. All you have is odds (statistics), and that is never going to exceed reasonable doubt. All you would be able to prosecute would be the mother jumping in front of a bus and getting her belly run over (in which case, prosecution would probably be moot.)
Which would make such a law pointless. Unless people simply wanted to do it to harrass women who are already traumatized - oh, wait. Duh.
Tell you what, I’ll be happy to set the standards for pregnant womens’ responsibilities at exactly the level set in statute for chemical companies and power plant operators.
Sure, massive subsidies and complete absolution of any responsibility for their corporate decisions. Sounds good to me.
Apparently, in Robert’s world, it would be safest/best to take all women in protective custody at menarche and keep them there until menopause (plus a few years, just to be safe). That way the government can keep tight control on
their breeding stockfertility and protectthe sacred issuethe innocent lives of future Americans.To do anything less would be irresponsible, right?…
well shit. let’s just depend on the decency and good will of the criminal justice system. (/snark)
Back when the “traditional values crowd” started gaining political traction, it was pretty obvious that the traction they got was because people who supported them thought they were supporting a return to “1950s TV show” values. I thought maybe many of that crowd also felt the same way. However, thinking through the logical consequences of what these groups were saying (”fetuses = persons”, “no gay marriage”) and knowing something about history (i.e. what “traditional marriage” was really about), I much feared the slippery slope.
But I thought it was a slippery slope. Now, it seems the traditional values crowd (if they hadn’t always and were just being stealth about it) has embraced the logical and historical conclusions of their reactionary views. And boy is it frightening. And people probably still say “oh, all the pro-life crowd wants to do is ban certain particularly abhorent [read: icky] abortions: you’re just being ridiculous with your ’slippery slope’ arguments”: but gevalt! these reactionary nuts aren’t our strawmen, they are actual people!
Mighty Ponygirl: … I waddled around in a fake-pregnancy vest trying to bum smokes off of people….
If your idea has not already been used as a prank on Girls Behaving Badly, it will be.
Older — sorry, no citation other than my crappy undergraduate research paper.
jackd — it would be the first useful application of my college degree. :p
Robert quote:
“and if a woman’s previous actions knowingly hurt that person, she should bear some responsibility for those actions.”
She does, she has to raise it, isn’t that hardship enough.
This is cognitively incoherent. The limits are obvious: anything the woman does that doesn’t hurt another person is fine.
So if a woman who has been advised of all the risks to her higher-order multiples chooses to bear 5 children, resulting in one being born with a brain injury that is a direct consequence of limited uterine resources, should she do jail time?
After all, in order to get in that situation she was fully informed by her doctor about the likely outcomes, unlike a 17 year old alcoholic who binge drinks every weekend. So she wasn’t ignorant about the effects on her child(ren) after birth. The rest of us are going to have to bear the consequences of her personal choices, and her child will suffer more than anyone.
Is she a criminal too? She hurt another person, deliberately and with foreknowledge, because she wanted what she wanted when she wanted it. Immature and irresponsible? Or criminal too?
PhoenixRising: Excellent point! Thank you for that example.
Also, I think we should be able to prosecute any man who impregnates a woman who drinks or uses drugs (or empties the catbox, etc, etc, etc) for willful endangerment.
PhoenixRising: Excellent point! Thank you for that example.
Also, I think we should be able to prosecute any man who impregnates a woman who drinks or uses drugs (or empties the catbox, etc, etc, etc) for willful endangerment. Cause it’s he who injects the baby magic into the woman-shell, after all.
I’m wondering how proponents of this criminalization business would feel about seeing elective abortion rates skyrocket when giving birth to a prenatally damaged child puts the mother of any such child at risk of a felony conviction and jail time.
Robert says: The limits are obvious: anything the woman does that doesn’t hurt another person is fine.
So, to spell it out since you obtusely refused to understand me, you would agree that your logic here requires total forgiveness of this crime if the woman had an abortion? And that involving the government in the way you apparently want would punish women for deciding to have a child, in exactly the way you think God condemns?
I consider it wrong for Tayshea to use meth during her pregnancy. Presumably she does as well, since she kicked the drug and now does penance at a rehab clinic. So attacking her means one of the following: either you think the end justifies the means when it comes to scaring other people straight, or more likely, you have a list of sins that you won’t forgive unless the sinner does the penance you demand, God be damned. I hope that list includes torture.
(Or you’re being a dick for its own sake and Amanda should have banned you a long time ago.)
OK this debate is hugely annoying me. How is a pregnant woman doing the fetus any harm no matter what she does? It would die without her! She’s giving it life! If she’s giving it life with a 5% increased risk of cancer, or even a 100% risk of crack addiction, she’s stilling giving it life. How does that come out as a net negative, such that she has harmed the fetus? Pregnancy is almost the ultimate act of altruism: if it isn’t quite laying down your life for another person, it certainly involves sacrificing a portion of your health. How can that be a crime that someone can be prosecuted for?
Anyone? (Except Robert.)
*mutters to herself some more about how this whole bloody discussion only makes sense in a context where it is assumed women’s default state is to be a passive, mindless incubator and for a woman to do ANYTHING whatsoever is a disruption of the default and a crime against (her passive) nature*
*thinks about the fetishization of that poor Schiavo woman*
*looks around for someone to kill*
After all, in order to get in that situation she was fully informed by her doctor about the likely outcomes
Like, Bobbi McCaughey and her seven infants, at least two of whom are pretty seriously limited as a result? Wasn’t she told that doing clomid without and ultrasound to verify the number of eggs would be bad? Wasn’t she warned she could lose all of them or have some pretty damaged kids if she didn’t do a selective reduction? Sounds like a prime case to me.
It does not take evil morons to inflict a great deal of damage on someone. There are good prosecutors who do their best and there are bad prosecutors. Probably not much different than other professions.
One of the points I’m making is that the chilling effect of the threat of potential criminal liability is huge. In addition, one does not have to be found guilty or even to be indicted to have one’s life significantly and negatively impacted by a criminal investigation or prosecution.
Out of my circle of friends who happen to be mothers I know several who had children born with disabilities: autism spectrum disorders; spinal column malformation/paraplegia; stroke in utero resulting in weakness on one side. Each of these mothers of disabled children were women actively trying to get pregnant, meaning that they were taking pre-natal vitamins (some before they were even pregnant), avoiding alcohol, etc. None of them were smokers or drug abusers. Shit happens.
Some births result in disabled children. Some births result in stillborns. We do not always know why. Adding the fear of prosecution to these difficult circumstances helps nobody. Robert - you may say if they didn’t drink, do drugs, they have nothing to fear, but if it becomes a prosecutable offense to have done such things while pregnant, the first indicator will be a birth of a stillborn or disabled baby (or perhaps a bad amnio). Thus any such outcome will necessarily trigger an investigation that is debilitating, humiliating, and unfair to the woman and her baby.
Amanda makes the claim that criminalizing pregnancy based on outcome is a really bad idea. I’m not sure what she means by this. If she’s saying that the only evidence the state has to present at trial is the outcome of the pregnancy, then, yes, I agree that would be wrong. But in the case of a bad outcome, if the state also shows that willful behavior on the part of the mother led, with high probability, to that outcome, I’m not sure I agree.
I am not a lawer, so I don’t know how it applies in criminal law, but in civil law there is a strong tradition of penalizing behavior that was the likely cause of a bad outcome. This is the entire premise of suing cigarette companies for people who die of cancer.
Now this is a feminist site dedicated to the feminist cause of fighting for women’s rights in the real world. And that is still a very tough fight where the actual conditions that exist generally make these types of laws unfair. So I can certainly appreciate the sentiment that in the real world a good feminist should be opposing laws and charges like this being brought, pretty much across the board. And I think this a point that Robert may not appreciate.
But without having that appreciation this comments argument makes the feminist position look unreasonable, because it is ignoring the legitimate points that Robert does bring up. Let’s put it this way: in the ideal feminist world, is there really no behavior a knowingly pregnant woman could engage in that would not call for some legal remedy?
There is generally always a slope to moral responsibility, but that slope is not always slippery. There is a place to exclude behavior that results from lack of awareness of the circumstances (not being aware of a pregnancy), that imposes undue burdens on a person (like being unable to drive and function like a normal adult), that requires an excessive degree of caution for low risk activities (like not taking vitamin pills or having a social drink), that flows from a pre-existing condition with no available treatment (like having a drug addiction w/ no available rehab centers). There are surely many other possibilities. These are things that you work out while determining law.
So to say that a woman could, in some circumstances, be liable for dangerous conduct while pregnant does not mean that she is liable for any conduct that carries any tiny amount of risk. There are obvious reasons why those two cases are different, and they are the reasons that prevent a slippery slope from obtaining. Where you end up drawing the line, in particular, may be debateable, but their is still a large category of activities where there is no real debate on the issue.
One final note: I don’t believe the criticisms voiced here only apply to strawmen. There are some very anti-feminist people out there. But there are going to be a lot of people who while not self-identifying feminists, are receptive to various parts of the feminist viewpoint. I don’t think it helps much to confuse the two.
Phoenician, I never argued it was right to use and give birth to a dead baby. I think it’s wrong. I think that women who are addicts need to be able to do everything in their power to avoid doing that—including abortion, if need be.
I’m not so concerned about dead babies - I’m more concerned about the live but crippled ones.
But pressing people into abortions isn’t a good idea, either. Not only does it violate the same reproductive rights as denying abortions, it’s worse in that it forces them into a medical procedure they wouldn’t choose.
The constitution protects your right to bodily integrity, even if the result is that another person is harmed or even killed. You don’t have to donate a kidney to someone who would die without it. Even if that person is your 11 year old child, you still have a right to your own body. Yet, the government has siezed women and forced them to submit to cesarean sections based on a mere medical opinion that a vaginal birth would harm the baby. http://advocatesforpregnantwomen.org/issues/court_ordered_interventions/
Robert says: The limits are obvious: anything the woman does that doesn’t hurt another person is fine.
But these limits are not obvious at all, and women are being imprisoned and confined based on medical opinions that at best only amount to a preponderance of the evidence (51/49), when those accused of crimes are deemed not guilty unless the state can prove their guilt beyond a reasonable doubt.
Children are still being born in Vietnam with severe birth defects and women still give birth to still borns as a result of Agent Orange that the U.S. government approved for use by the military during the Vietnam war. If a woman who is an addict and becomes pregnant (likely not out of a conscious choice to become pregnant) is responsible for the outcome of the pregnancy, then our government officials are certainly responsible for the outcome of these pregnancies in Vietnam. Unless you want to argue that they women are responsible because they “choose” to live in an area where Agent Orange was used.
And the depleted Uraniam that the military used in Iraq during the first war and in Afganistan, which can also cause birth defects and cancers in children. Who is responsible for these outcomes? Iraqi women because their dictator caused us to start a war?
And all of the pollution and carcinogens that we that we all breath, eat and drink everyday which certainly affect the health of a fetus. Who is responsible for all of that? Pregnant women because they should remove all of the carcinogens from their environment while they are pregnant?
Sorry, but I happen to very strongly believe that the idea that anyone could be prosecuted for something that they do to their body is wrong, wrong, wrong.
The problem here is that we’re not just talking about the mother’s (or father’s) body. Unlike an abortion, where only the potential for a real person is terminated, the likely outcome of a pregnancy will be a person - who will be affected by the actions taken by their parents.
A good analogy might be care of the environment. Is it immoral to pollute the environment if the consequences of such action won’t affect your generation? Even if you own the land in question?
Nobody is arguing for holding women to an impossible standard. The standard being argued is one of reasonable prudence and care in the performance of one’s responsibilities as an adult person
Actually, Robert, Amanda’s point - and it’s a good one - is that in drawing lines on the slippery slope there will always be a tendancy to punish women. One person’s impossible standard is another person’s reasonable prudence, and the wowsers already hate women who engage in sex and other pleasure seeking.
By the way, all this stuff about possibly escaping prosecution by having an abortion? A prosecutor who would prosecute a woman for anything else that had a harmful outcome to the pregnancy would be sure to prosecute for abortion. It seems obvious to me this would be a sneaky way around Roe vs Wade. Let’s not assume the opposition wants to be fair and nice.
Phoenician:
The problem here is that we’re not just talking about the mother’s (or father’s) body. Unlike an abortion, where only the potential for a real person is terminated, the likely outcome of a pregnancy will be a person - who will be affected by the actions taken by their parents.
A good analogy might be care of the environment. Is it immoral to pollute the environment if the consequences of such action won’t affect your generation? Even if you own the land in question?
Actually, I agree with you, I was just responding to Ms. Kate’s statement that “The only thing a woman who uses illegal drugs during pregnancy should be prosecuted for is … USING ILLEGAL DRUGS.” Not trying to say that it’s not immoral, or anything other than address its criminality. Intentionally inflicting damage on someone else is not morally nuetral. But, since the number of women who intentionally become addicts after learning they’re pregnant, and the number of men who intentionally mess up their sperm quality while trying to get their partner pregnant, has to be extremely limited, this is just another example of trying to use people’s fears about The Children to control the Adults. The history of the War on Drugs is so chock full of desire to protect white women, it’s hard not to see it as anything but the same fear of others’ autonomy.
Don’t give me autonomy over one specific body part, and not all the others. And, to repeat what I keep trying to say more succinctly, just because something’s stupid or morally wrong doesn’t make it something that should be criminally wrong.
Samantha, I’m saying if we take the pro-criminalization argument at face value, it logically requires an exemption for women who have an abortion. Mpowell, your question has no meaning unless you address this anti-birth aspect of “legal remedy”. Because clearly a pro-choice position rules out any law that effectively requires an abortion.
You’ve also got people like my mother, who had German measles when she was young and for some odd reason found it very difficult to carry kids to term. (This is a known effect and she was warned about it when she first got pregnant.)
Two stillbirths, one miscarriage, and one premie (me) with only a 50% chance of survival. 25% (maybe 12.5% if we throw in my chances of survival.) Not very good.
So are we going to prosecute all female sufferers of German measles for stillbirths they have?
So are we going to prosecute all female sufferers of German measles for stillbirths they have?
Well, if German measles were even slightly similar to crack, cocaine, heroin, and so on, you might have a point.
So are we going to prosecute all female sufferers of German measles for stillbirths they have? - tzs
If you consider fetuses to be persons, then wouldn’t having a fetus in your womb under such a condition be depraved indifference?
This is yet another reason why it is very dangerous for the law to consider fetuses as persons. And yet, if such a consideration doesn’t exist, how is abortion illegal under our system of laws?
N.B.: It is possible to justify abortions under certain circumstances (e.g. life of the mother) even if a fetus is considered a person. OTOH, it is possible to restrict abortions even if fetuses are not considered people, but such restrictions would violate the letter and spirit of our secular and liberty-based legal system. Moreover “compromise” positions on abortion, rarely ask for the kinds of laws regulating abortion that would make a lick of sense if a fetus is not considered a person, even as they ask for laws, because the abortions involved are especially “icky” in the minds of the likes of Saletan, that would criminalize abortions which are justifiable even if you believe fetuses are people! This is why I am very leary of moral legislation in general: the “compromise” positions are guaranteed to legislate a “morality” that would only be considered as anything but immoral by the likes of Leon “I find it icky so it must be a sin” Kass.
Amanda’s point about outcomes is that a woman drinking or doing drugs “abusing” her child who goes on to give birth to a healthy baby will be left alone. A woman who gives birth to an unhealthy child for any number of possible reasons will be subject to investigation.
It is harassment.
The solution to the problem is drug treatment and education not jail time.
As far as responsibility and power goes women bare most of the responsibility for child care. If there are consequences children and their mothers will bare them.
If she’s saying that the only evidence the state has to present at trial is the outcome of the pregnancy, then, yes, I agree that would be wrong. But in the case of a bad outcome, if the state also shows that willful behavior on the part of the mother led, with high probability, to that outcome, I’m not sure I agree.
The point is that the only way to enforce a law like this is to first look for the bad outcome and then go fishing for the willful behavior. And that the willful behaviors in question are going to tend toward the bad slutty stuff –winning the tequila shot contest, using meth– that only sometimes cause the bad outcome.
Sadly, a lot of the beliefs that folks hold about the linear nature of fetal injury are wrong. It would be nice if the state could look at a dead or severely disabled newborn and say, Well, that proves that the mother was drinking too much/shooting crank. That’s not the case; many fetal injuries have unknown etiology–translated from the doctor, how should we know why?
The data are clear that excessive alcohol use at certain points in pregnancy can harm a developing fetus. However, when those points start and stop, and what ‘excessive’ means for a particular woman, are highly variable. So this mythical ‘knowingly harmed her baby’ woman is a biologist specializing in human development who went on a series of benders to measure the effect on her unborn child. Yet that’s not who has been imprisoned, demographically speaking. IBTP.
The good legislators of South Dakota have chosen to ignore the wishes of their constituents as expressed in the 56% to 44% rejection of South Dakota’s proposed ban on abortions by drafting another, slightly less draconian, bill they hope will pass the voters’ sniff test. If the state of South Dakota has such deep regard for the sanctity of human life one would think they would co-sponsor a bill to end the Iraq War that has taken the lives of over 3,078 American troops and over 500,000 Iraqi citizens. There’s a suggestion of abnormal psychological development in a state that attracts ragtag followers of groups like the Christian Identity movement, Posse Comitatus, and neo-Nazi survivalists.
German measles, having a mother or grandmother who took DES, a tendency to diabetes, being married to a guy who has some specific genetic makeup — all of these and more would put a woman on notice that she might lose a pregnancy in the last trimester or give birth to a severely impaired and/or longterm nonviable infant. So let’s watch the prosecutors come after all the couples who know they carry genes with a 25% chance of cystic fibrosis or Tay-Sachs or blah blah blah. Oh, wait, those are white people (who, by the way, are typically reported for drug abuse during pregnancy at 1/5 the rate of nonwhites, even if the underlying rates of use are the same).
And this isn’t even getting into the women who are diagnosed with something that requires restricted activity and/or diet during pregnancy, or that supposedly requires a C-section, for which a doctor/hospital can get a court order so that the woman can be shackled to a gurney and brought to the OR under guard. (A surprising number of women who have evaded such court orders have given birth to perfectly healthy babies, which should give judges pause before ordering them, except, as people have pointed out, there’s no downside to judicial abuse of poor women.)
Judicial activism: Isn’t that something the right wing has accused the left wing of promoting? But who is more activist on the subject of Reproductive Rights and Privacy. Judicial activisim, it seems, is a hypocritical cover for a fundamentalist religious agenda. Usually it is the right wing who wants to legislate public morality at the expense of personal privacy. This issue is driven by ideology; not fairness, not justice, not reason, nor science. As so many commentators have pointed out here, prosecutions of pregnant women for hypothetical harm to fetuses cannot possibly meet standards of proof as defined by law. I see these issues within context of the so-called “Culture Wars.” There are political and religious groups intent on imposing their dogma upon society by persuasion or, if deemed necessary, by force. Oppression? Absolutely! It is the only possible explanation for the kinds of prosecutorial abuse that we are witnessing today.
Judicial activism: Isn’t that something the right wing has accused the left wing of promoting? But who is more activist on the subject of Reproductive Rights and Privacy. Judicial activisim, it seems, is a hypocritical cover for a fundamentalist religious agenda. Usually it is the right wing who wants to legislate public morality at the expense of personal privacy. This issue is driven by ideology; not fairness, not justice, not reason, nor science. As so many commentators have pointed out here, prosecutions of pregnant women for hypothetical harm to fetuses cannot possibly meet standards of proof as defined by law. I see these issues within context of the so-called “Culture Wars.” There are political and religious groups intent on imposing their dogma upon society by persuasion or, if deemed necessary, by force. Oppression? Absolutely! It is the only possible explanation for the kinds of prosecutorial abuse we are witnessing today.
Let us just think for a moment of the implications of a system that would effectively reward engaging in risky behavior to excess, producing a dead fetus, over engaging in such behavior in greater moderation, producing a live, damaged child.
Drinking alcohol at a level just under lethality for the fetus, resulting in sick baby: prosecutable behavior. Drinking enough more alcohol to wipe out zygote/embryo/fetus at pre-viability stage: hunky-dory. Cannot everybody see just how fucking insane that is? That is a perverse incentive, right there.
In response to a couple of comments: I agree that, practically speaking, you may not find it possible to criminalize any inappropriate conduct on the part of pregnant women. But the reason is not a fundamental legal immunity on the part of pregnant women, but practical concerns based on incentive problems and enforcement unfairness among other things. I think the slippery slope problem only applies in a legal environment predisposed to be hostile to women, however.
Robert:
But since a fetus is, by definition, neither born nor a person nor a child, this argument is complete nonsense.
Once again, Robert, you are guilty of the “making shit up as you go along” fallacy.
There are a few things still floating in my head about this, so sorry if this seems disjointed…
First: Robert says that women should be held liable for any harm they inflict on another person (in this case a fetus). If a mother can be prosecuted for what she did during pregnancy because the fetus is a person, then strictly speaking, she could be prosecuted for abortion also because that is the ultimate assault on the fetus/person. Thus, Robert’s argument is a backdoor attempt to overturn Roe vs. Wade (incidentally, this is why I do not support being able to charge someone with double murder for killing a pregnant woman). If a fetus is a legal nonperson, than anything a woman does until the fetus is born, no matter how abhorrent, can’t be considered criminal, in which case these types of laws are nothing more than attempts to harass and control women through fear. Additionally, this renders Robert’s argument that a pregnant woman taking crack= a man giving crack to a baby a logical impossibility as nonperson does not equal person no matter how you manipulate the terms.
Second: having recently been pregnant, I cannot tell you how many things women are told to avoid in order to have a healthy fetus. Essentially, women are supposed to live in bubbles, eating an extremely limited diet, doing little activity, and avoiding stress at all costs. It is an impossible task to have a pregnancy in which one does not make some willful decision that could harm the embryo or fetus. You ever know women who stopped taking prenatal vitamins because they made her sick, continued to eat deli meat despite the risk of listeria, or decided to self-induce labor with things like cohosh or castor oil? Every pregnant woman could be prosecuted under laws like this. I notice that the only people who are arguing that there really is no slippery slope happen to be men…
Someone mentioned upthread that their mother was advised not to completely quit heroin during pregnancy due to a high risk of miscarriage. This applies also to smoking- pregnant women are advised that if they cannot quit to at least reduce. We need to help (overwhelmingly poor and non-caucasian) pregnant addicts overcome their addiction, not heap punitive measures on them.
“The problem here is that we’re not just talking about the mother’s (or father’s) body. Unlike an abortion, where only the potential for a real person is terminated, the likely outcome of a pregnancy will be a person - who will be affected by the actions taken by their parents.”
Throwing a heroin addicted baby’s mother in jail is going to accomplish what, exactly? It’s not going to make the baby any less addicted. The damage has already been done. And if you can prosecute this woman, why can’t you prosecute a genetic carrier of any number of diseases, or someone who knows she has little chance of having a baby who’ll survive for more than a week or two, but keeps trying?
Second: having recently been pregnant, I cannot tell you how many things women are told to avoid in order to have a healthy fetus.
Or, how wrong OBs can be by following the “general” case rather than looking at the specific case before them.
I’m convinced that my son was born early because my body had become a hostile environment for him, BECAUSE I was following the advice of my OB. At 27 weeks, I was identified as having gestational diabetes and put on a restricted diet to guard against having a “too big” baby. I had an ultrasound that week which guestimated le babe to be at the 50th percentile growth-wise at that point.
On the GD diet, I was actually having a hard time keeping my blood sugars high enough (rather than low enough) and all anyone would tell me was not to alter it, because it was dangerous and le babe might get too big. At my follow-up ultrasounds, le babe plummeted down the growth curve–from 50%, to 25%, to 10%. He was born at 37 weeks at the 5th percentile growth-wise (5lbs, 13oz), luckily with fully mature lungs. And then embarked on a nursing campaign that had him skyrocketing back up the growth curve–by his estimated due date, he was 7.5lbs; at 2 months, he’d more than doubled his birth weight, and at 4 months, was coming up on tripling his birth weight.
Essentially, women are supposed to live in bubbles, eating an extremely limited diet, doing little activity, and avoiding stress at all costs.
[Wistfully] I wonder if I can persuade my employer that I’m pregnant, if only for a month or two…
Throwing a heroin addicted baby’s mother in jail is going to accomplish what, exactly? It’s not going to make the baby any less addicted.
Using that logic, no crime should be punished since the damage has already been done. Is that what you want?
Why is it such a problem to hold someone responsible for damage inflicted on another person? You don’t happen to believe a fetus is a person but I do and so do a majority of people in this country. It’s pointless to argue that at the moment but since an unaborted fetus is likely to become a person, harm to that person should be punishable.
What we need to define is a standard of harm. Obviously, anything you do before knowing you are pregnant should not be prosecutable. The standard of proof for anything else should be pretty high. The prosecution would have to prove willful disregard for the life of the child. This would include drug and alcohol abuse. I’m sure there could be a few other categories I could come up with but I’ll let you use your imagination. We’re not talking about prosecuting women for not taking vitamins or even smoking or not following the advice of their OBGYN. I’m talking about prosecuting women for the willful and malicious harm. And yes, that should include abortion but let’s not even touch that right now. If a baby dies after it’s born and it can be PROVED that the mother was a drug or alcohol abuser after she found out she was pregnant and the prosecution can demonstrate this led directly to the death of the baby then she should be prosecuted.
I really hope that my co-presenters from the conference will also submit blogs, but I can tell you that they were not acting willfully or maliciously. They continued using drugs despite their pregnancies, not because of their pregnancies.
If they could have stopped they would have, but they were as incapable of ending their drug use as someone who is diabetic is of processing glucose. Clearly, you do not believe that being an addict is an illness, but the Supreme Court has held to the contrary. Check out Robinson v. California, 370 U.S. 660 (1962), http://www.law.cornell.edu/supct/html/historics/USSC_CR_0370_0660_ZS.html
If a baby dies after it’s born and it can be PROVED that the mother was a drug or alcohol abuser after she found out she was pregnant and the prosecution can demonstrate this led directly to the death of the baby then she should be prosecuted.
And how exactly do you prove that?
Not only is “proving” the mother was a drug or alcohol abuser during her pregnancy quite difficult, unless she is tested for substance abuse at some point, but it is impossible, from a medical point of view, to demonstrate BEYOND REASONABLE DOUBT that whatever abuse she indulged in resulted DIRECTLY in the baby’s death.
I won’t even get into the whole idea of “willful and malicious harm”, because it buys into the tired old idea that women who abuse substances while pregnant, just like those who abort, are just crazy bitches who love destroying cute babeeeez as a hobby. But then again, it seems to be exactly your opinion anyway.
If they could have stopped they would have, but they were as incapable of ending their drug use as someone who is diabetic is of processing glucose.
Alcoholism is also an addiction. Is someone who drives while drunk also excused?
Come to think of it, we criminalize driving while drunk regardless of outcome. But, then again, getting knocked up isn’t the same as getting into a car.
That comment at the end says it all, Phoenician - pregnancy isn’t always something one does knowingly and wilfully. Nor does getting pregnant put other people at risk.
Paell, I think yours is the most compelling argument here.
[…] 6. Brownfemipower has been blogging about her experience at the National Advocates for Pregnant Women Conference. She does a good job talking about how we need to refocus away from abortion and on to the reproductive rights/women’s and children’s rights. Amanda is also hosting presenters from the conference on her site. […]
Julie, there’s a host of information about gastroschisis, including its diagnosis, treatment, and statistics here: http://www.chop.edu/consumer/jsp/division/generic.jsp?id=81166
That it could possible relate to the use of OTC drugs is alarming.
Amanda — a great blog and frightening article about the potential of criminalizing pregnancies base on their outcome.
Thanks!