Across the United States, and especially in communities that are highly policed and in places hostile to abortion, pregnant people are dying, suffering, being separated from their children and families, and going to jail and prison in purported service of the state interest in fetal life recognized in Roe v. Wade and expanded in Planned Parenthood of Pennsylvania v. Casey. This Article focuses on two common practices that cause these harms: criminalizing pregnant people and denying them medical decision-making authority. While these practices are not new, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is accelerating them. With abortion returned to the states without a U.S. constitutional floor, the state interest in fetal life can go largely unchecked with respect to all pregnant people, not just those who need abortions. In this Article, we look back at several cases from the 1990s and early 2000s involving denials of medical decision-making authority and criminalization of pregnant people for substance use during pregnancy. We also discuss contemporary instances of these phenomenon, focusing on Alabama’s Child Chemical Endangerment Act and 1997 Wisconsin Act 292, both of which are currently and fervently used to punish pregnant people for actual or suspected substance use and which fail entirely to advance fetal or parental well-being. Based on our survey of these past and present cases, we reflect on several legal arguments and strategies to demand and restore full personhood for pregnant people. We link pregnancy criminalization to legally cognizable animus, observing that hallmark features of such animus abound when substance use during pregnancy is criminalized. We link environmental injustice to pregnancy criminalization, observing that it is irrational to punish and jail people for “polluting” the micro-environment of the womb in service of an interest in fetal life when all people—particularly the most policed—are perniciously, macro-environmentally exposed to toxins that impact reproduction and pregnancy. We reiterate that informed consent to medical treatment is the bedrock guarantee of healthcare and bodily autonomy—and pregnancy demands rather than diminishes this guarantee—and that drug tests without consent that lead to law enforcement consequences violate both this and the Fourth Amendment. We also very briefly emphasize that mandatory reporting of suspected child abuse or neglect based on a positive drug test fails to protect anyone and that mandatory reporters can challenge this obligation where it frustrates core professional duties. Together, all of these threads intersect to show that criminalizing pregnancy and denying pregnant people medical decision-making authority is about the social control and exclusion that punishment accomplishes. The impulse to control and exclude surely varies intersectionally, corresponding to the expectations and stereotypes about parenting applicable to the punished person or community. But in the end, in every case, no fetal life, no parental life, no family life, and no constitutional right or medical objective is protected or furthered when pregnancy is criminalized and pregnant people are denied medical decision-making authority.
Sarah E. Burns & Sarah S. Wheeler,
A Review and Look Ahead at Criminalizing Pregnancy in the Name of State Interest in Fetal Life,
SMU L. Rev.