Journal of Law and Health Volume 28 Issue 1 Article 5 2015 Shifting our Focus from Retribution to Social Justice: An Alternative Vision for the Treatment of Pregnant Women Who Harm Their Fetuses April L. Cherry Cleveland-Marshall College of Law, Cleveland State University, [email protected] Follow this and additional works at: https://engagedscholarship.csuohio.edu/jlh Part of the Bioethics and Medical Ethics Commons, Criminal Law Commons, Health Law and Policy Commons, Law and Gender Commons, and the Medical Jurisprudence Commons How does access to this work benefit ou?y Let us know! Recommended Citation April L. Cherry, Shifting our Focus from Retribution to Social Justice: An Alternative Vision for the Treatment of Pregnant Women Who Harm Their Fetuses, 28 J.L. & Health 6 (2015) available at https://engagedscholarship.csuohio.edu/jlh/vol28/iss1/5 This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Journal of Law and Health by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. SHIFTING OUR FOCUS FROM RETRIBUTION TO SOCIAL JUSTICE: AN ALTERNATIVE VISION FOR THE TREATMENT OF PREGNANT WOMEN WHO HARM THEIR FETUSES * APRIL L. CHERRY I. INTRODUCTION ............................................................................... 7 II. THREE ACCOUNTS OF SELF-HARMING BEHAVIOR AMONG PREGNANT WOMEN ..................................................................... 10 A. Depression and Attempted Suicide: The Story of Bei Bei Shuai ............................................................. 11 B. A Story about Drug and Alcohol Use: The Story of Rennie Gibbs ............................................................. 14 C. Self-Induced Abortion: The Story of Kawana Ashley ............................................................................. 21 III. THE RHETORIC OF FETAL PERSONHOOD AND THE USE OF FETAL PROTECTION MEASURES AGAINST PREGNANT WOMEN ....................................................................................... 26 A. Fetal Personhood Rhetoric and Critique ...................... 27 B. Translating Fetal Personhood Values into the Law: Feticide/Fetal Homicide Laws ............................ 30 1. The Common Law: Born Alive Rule ..................... 33 2. The Federal Law: The Unborn Victims of Violence Act ............................................................. 35 3. State Feticide Statutes –Where the Action Is ........... 37 IV. THE IDEOLOGY OF MOTHERHOOD, MATERNAL DEVIANCE DISCOURSES AND THE CRIMINALIZATION OF THE BAD MOTHER ..................................................................................... 39 A. Motherhood as the Normal, Natural, and Desired Status of Women ............................................... 41 B. “Intensive Mothering”: Good Mothering is Altruistic and All-Consuming ........................................ 42 * Professor of Law, Cleveland-Marshall College of Law, Cleveland State University. A.B., Vassar College; J.D., Yale Law School. Thanks to colleagues Patricia J. Falk, Marnie S. Rodriquez, and the participants of the Journal of Law & Health Symposium, Issues of Reproductive Rights, for their many helpful comments and observations. Thanks also to Anne Seese and Bethany Strickradt for their invaluable research. Research for this article was completed, in part, with a grant from the Cleveland-Marshall Fund, Cleveland-Marshall College of Law. 6 2015] FROM RETRIBUTION TO SOCIAL JUSTICE 7 C. Deviancy Discourses: Maternal Deviance and the Pregnant Woman ....................................................... 44 V. A PARADIGMATIC SHIFT? SHIFTING OUR FOCUS FROM SOCIAL CONTROL AND RETRIBUTION TO SOCIAL JUSTICE ........... 47 A. A Promising Shift of Focus: Using Public Health Law Principles to Address Maternal and Fetal Harm ............................................................. 48 B. Harm Reduction and Prevention ................................... 51 C. Social Justice ................................................................. 55 1. Access to Resources ............................................... 56 2. Dignity and Social Justice ........................................ 58 VI. CONCLUSION ............................................................................... 60 I. INTRODUCTION I long have been interested in the legal and social treatment of pregnant women whose behavior is thought to damage fetal health, and I have thought about the issue from a variety of vantage points. In previous articles I have written about the free exercise of religion of pregnant women who refuse medical treatment;1 the right to be free from physical restraint during pregnancy, including freedom from unwarranted detention, confinement and incarceration;2 and reproductive rights, namely rights to privacy, bodily integrity, and freedom from unduly burdensome government regulation.3 In this essay my focus is a bit different. Here, I argue that we can and should approach the issue of pregnant women whose behavior may harm their fetuses, not from the vantage point of fetal harm, but rather from the vantage point of pregnant women’s social location. That location often includes poverty, violence, need, and despair. Placing blame and exacting retribution on an individual woman, absent an understanding of the social context, makes the provision of justice in these cases difficult if not impossible. Moreover, attempts to enhance fetal health by assigning criminal liability in such cases are destined to fail in light of the significant contribution that negative social and economic conditions have on fetal health, and over which pregnant women have little or no control.4 1 April L. Cherry, The Free Exercise Rights of Pregnant Women Who Refuse Medical Treatment, 69 TENN. L. REV. 563 (2002). 2 April L. Cherry, The Detention, Confinement, and Incarceration of Pregnant Women for the Benefit of Fetal Health, 16 COLUM. J. GENDER & L. 147 (2007) [hereinafter Cherry, The Detention, Confinement, and Incarceration]. 3 April L. Cherry, Roe’s Legacy: The Non-Consensual Medical Treatment of Pregnant Women and Implications for Female Citizenship, 6 U. PA. J. CONST. L. 723 (2004) [hereinafter Cherry, Roe’s Legacy]. 4 See, e.g., Jean Ruth Schroedel & Pamela Fiber, Punitive Versus Public Health Oriented Responses to Drug Use by Pregnant Women, 1 YALE J. HEALTH POL’Y L. & ETHICS 217, 218 (2001); Seema Mohapatra, Unshackling Addiction: A Public Health Approach to Drug Use During Pregnancy, 26 WISC. J. L. GENDER & SOC’Y 241 (2011); Linda C. Fentiman, Rethinking Addiction: Drugs Deterrence, and the Neuroscience Revolution, 12 U. PA. J.L. & SOC. CHANGE 233 (2011); Jeanne Flavin & Lynn M. Paltrow, Punishing Pregnant Drug-using 8 JOURNAL OF LAW AND HEALTH [Vol. 28:6 Instead of viewing maternal behaviors that are harmful or fatal to fetuses as criminal, we should view them as a function of the myriad social and economic deprivations suffered by some women.5 I believe that if we explore the problem from this viewpoint, focusing not solely on the fetus or fetal harm, but rather on the life and health of the pregnant woman, we might be willing to bring an end to punitive measures and construct more intelligent, effective, and socially just policies that will more positively affect both maternal and fetal health. To this end, this essay is divided into four sections. In section I, I detail three archetypal scenarios of the criminal prosecution of pregnant women for behaviors resulting in harm to, or the death of, their fetuses: (1) cases concerning depression and attempted suicide, illustrated by the prosecution of Bei Bei Shuai;6 (2) cases involving drug and alcohol use and abuse, illustrated by the prosecution of Rennie Gibbs;7 and (3) prosecutions relating to self-induced abortion, illustrated by the prosecution of Kawana Ashley.8 These cases demonstrate typical legal responses to fetal harm caused by pregnant women. They also demonstrate the social and economic context in which that harm occurs. In sections II and III, I explore two contemporary rhetorical devices, arguments regarding fetal personhood and maternal deviance. Both of these discourses have significantly influenced society’s expectations of how a pregnant woman ought to behave and the appropriate social and legal responses to any “misbehavior.” With regard to the rhetoric of fetal personhood, I discuss the values articulated by its proponents through consideration of the underlying philosophical and religious arguments. I also consider how these values have been codified into law via state and federal feticide statutes. I then discuss the rhetoric of maternal deviance and address the ways in which the social construction of women as mothers, the good mother/bad mother dichotomy, and the use of “choice,” influence that rhetoric. In these sections I also demonstrate how fetal personhood and maternal deviance rhetoric marginalizes pregnant women by encouraging the view of pregnant women as fetal containers, rather than as self-governing beings. The invisibility of pregnant women as self-governing persons sanctions the treatment, as criminal, of behaviors that are Women: Defying Law, Medicine, and Common Sense, 29 J. ADDICTIVE DISEASES 231 (2010); Julie B. Ehrlich, Breaking the Law by Giving Birth, 32 N.Y.U. REV. L. & SOC. CHANGE 381 (2008); Barry M. Lester, Lynne Andreozzi & Lindsey Appiah, Substance Use During Pregnancy: Time for Policy to Catchup with Research, 1 HARM REDUCTION J. 5 (2004). 5