Shifting our Focus from Retribution to Social Justice: An Alternative Vision for the Treatment of Pregnant Women Who Harm Their Fetuses

The ways in which society responds to pregnant women whose behavior purportedly harms their fetuses can be explored from a variety of legal vantage points. This article argues that the criminal law model currently used is ineffective. The assignment of criminal liability to pregnant women is often rooted in fetal personhood and maternal deviance discourse. Criminal law solutions fail because they fail to take into account the fact that maternal behavior is often the result of a myriad of the social and economic conditions over which pregnant women have little or no control. The criminal law model, therefore, simply punishes women without any corresponding benefit to fetal health. And in effect, work to treat pregnant women in an instrumental way, as people whose primary purpose and responsibility is the health of others. This article argues that use of the public health model is superior in three ways. First, as a pragmatic matter, public health’s emphasis on harm prevention focuses attention on and proposes solutions to the problem of how to better ensure the health of women of child bearing age—especially those women who face social and economic barriers to good health. Second, public health’s pragmatic emphasis on harm reduction focuses attention on and proposes solutions to the problem of poor fetal and neonatal health. Finally, by its emphasis on social justice, the public health model encourages policy makers to focus on the dignity of women, including the absence of coercion and the availability of a sufficient number of meaningful options