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In this excerpt from "Blaming Mothers: American Law and the Risks to Children's Health," law scholar Linda C. Fentiman traces the legal history of so-called fetal rights—and its effect on a woman's right to choose.
Today, many American women find themselves the subject of intense surveillance during pregnancy. Even as pregnant women happily anticipate the birth of a healthy child, families, friends, health care providers, and government officials often scrutinize their actions for behavior that could potentially risk the health of the developing fetus. Increasingly, widely held beliefs about how the "good" pregnant woman should behave have resulted in legal interventions. Physicians, nurses, and other health care providers have often "referred" their patients to law enforcement, resulting in legal interventions that include court-ordered medical treatment, involuntary civil commitment, tort liability, and even criminal prosecution.
To understand this shift we have to appreciate the dynamic connections among medical, media, political, and social attitudes toward pregnancy and the perceived obligation of pregnant women to promote fetal life at all costs. Over the past four decades, coinciding roughly with the legalization of abortion accomplished by Roe v. Wade, lawmakers, criminal prosecutors, and private litigators have increasingly endeavored to hold pregnant women legally responsible for threatening or causing harm to the fetuses contained within their bodies.
The ostensibly neutral principles of American law have been deployed to treat pregnant women as virtual guarantors of fetal and child health. This has eroded the well-established legal principles of informed consent to medical treatment, which is increasingly ignored in the context of pregnancy. In the name of reducing perceived risks to the fetus, courts have ordered pregnant women to submit to unwanted medical treatment, including blood transfusions and caesarean sections, bed rest and hospitalization, psychiatric care, and insulin therapy. An alarming number of pregnant women have been criminally prosecuted for allegedly risking or causing harm to the fetus, based on conduct such as choosing not to deliver by caesarean section, having accidents, or attempting suicide.
Recently enacted statutes explicitly aimed at protecting fetal life have resulted in women's basic rights being held in abeyance throughout pregnancy. Frequently, these laws have the thinly disguised goal of making abortions harder to obtain, both legally and practically. These new statutes avoid difficult legal questions about when a fetus is, or should be treated as, the legal equivalent of a child. Instead, these laws target pregnant women directly and explicitly, authorizing either criminal prosecutions or civil interventions based solely on the women's pregnant status. The former include a broad array of fetal endangerment and fetal homicide laws that criminalize the conduct of pregnant women as well as the actions of third parties. The latter include laws that override a pregnant woman's advance medical directive, effectively requiring her to receive medical treatment over her objection in order that her life may be prolonged long enough to deliver a viable fetus. Additional laws target pregnant women who use legal and illegal drugs, authorizing both criminal prosecution and involuntary civil commitment.
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How did we get to this point? Three phenomena stand out. First, over the past half- century the fetus has become much more visible, both literally and figuratively. In 1965, Swedish photographer Lennart Nilsson published A Child Is Born, a book that displayed spellbinding images of a fetus as a human being completely separate from its mother. While the book also addressed pregnancy's impact on the woman and her family, these two narratives—the changes in the body and life of the pregnant woman and the development of the fetus— were often divorced from one another. This disconnect was apparent in the April 30, 1965 issue of Life magazine, whose cover displayed one of Nilsson's colorized photographs of a fetus isolated within its mother's womb. This photograph lacked any indication that the womb was bounded by the pregnant woman's body. In effect, the woman was erased from the public portrayal of the fetus, as was her essential role in its nurture and development.
Today, the notion of a fetus as a being separate from its mother, enshrined in both the legal and popular mindset, has been used as a weapon by abortion foes.
Recently visual imagery of the fetus as a separate human being has become ubiquitous, presented not only in dramatic photographs of fetal surgery, showing a tiny hand reaching outside the mother's body, but also in images of routine fetal ultrasounds, mounted on family refrigerators and passed around to friends at baby showers. Commercial ultrasound studios offer "3D" and "4D" imagery to expectant parents, who can post the images on Facebook or enter their fetuses into online beauty pageants. These ultrasonic images have contributed to the social construction of fetal personhood, as the fetus now becomes "real" months before its birth. The political implications of this have not been lost on anti-abortion activists. As the New York Times reported months before the 2016 presidential election, many Republican candidates emphasized the impact of seeing ultrasounds of their children and grandchildren, which brought home to them that these fetuses were children. The ongoing debate about whether pregnant women should be required to view sonograms of their fetuses and listen to their heartbeats before they can obtain an abortion is merely the latest round in the legal and political struggle over whether women should have any right to an abortion at all.
Watch: The Abortion Pill
The heightened visibility of the fetus as a separate human entity has occurred in tandem with the second factor—the increased emphasis in medical research and media discourse on the factors that affect fetal and child health. From the Middle Ages until the mid–20th century physicians and midwives treated the fetus as part of the pregnant woman's body, a sort of appendage that was inseparable from it until the moment of birth. English common law followed medical understandings of fetal development. Pregnancy was essentially viewed as a black box, into which were poured the magic ingredients of sperm and egg. Nothing was known about the outcome until the fetus "quickened," and even then the exact result was not revealed until the baby's birth nine months later. Under the common law "born-alive rule," one could not be subject to criminal or civil liability based on actions that affected a fetus, unless it was born alive. Birth thus established a sharp "bright line" that precluded legal liability for harm that occurred prior to a child's birth. The fetus was seen as a "'passenger' in a woman's body, [literally] propelled into existence through the birth 'passage.'"
American legal doctrine tracked this understanding. For example, the 1894 case of Dietrich v. Inhabitants of Northampton concerned a pregnant woman who had slipped on a public sidewalk and delivered prematurely; her four- or five-month-old fetus survived for only a short time. When the woman sued the town of Northampton, Massachusetts, seeking damages for her loss, Oliver Wendell Holmes, Jr., sitting on Massachusetts' highest court, rejected the idea that the woman had grounds for a lawsuit. Justice Holmes observed that no American court had recognized a cause of action for prenatal harm, because "the unborn child was a part of the mother at the time of the injury"; thus only physical harm suffered by the mother herself was legally compensable. This was the prevailing view in the United States until 1946, when, in a medical malpractice case, Bonbrest v. Kotz, a Washington DC court ruled that a child born alive could sue third parties for injuries allegedly suffered when it was a viable fetus. Courts around the country rapidly accepted this view.
Developments in medical technology encouraged physicians to follow suit, and today's obstetricians see themselves as taking care of two patients: the mother and the child-to-be-born. This view began to emerge in the late 1950s. At that time, researchers were trying to identify fetuses at risk for oxygen deprivation, with accompanying brain damage; they developed electronic fetal monitoring in a quest to identify appropriate occasions for intervening during labor. Unfortunately, electronic fetal monitoring (EFM) has proved to be quite imprecise in identifying fetuses actually likely to be deprived of oxygen; EFM has an extremely high false-positive rate—50 percent. It has, however, led to an enormous increase in the incidence of caesarean sections. The concern that a baby is too large to be delivered vaginally has similarly contributed to the rise in C- sections, even though most of the predictions of big babies turn out to be erroneous. The rate of C-sections rose from less than 3 percent in the 1930s to just fewer than 5 percent in the mid-1960s and has climbed steadily since. Today almost one-third of American babies are delivered via C- section. Worldwide rates are lower, but still much higher than in previous decades.
Where does this confluence of politics, shifting legal thought, and new medical technology leave us? Today, the notion of a fetus as a being separate from its mother, enshrined in both the legal and popular mindset, has been used as a weapon by abortion foes intent on denying women sovereignty over their bodies. It has also encouraged actors in law and medicine to view women as the sole factor in their children's health. One thing it has decidedly not led to is healthier children. If we are truly concerned about America's children we must begin to demand the social, economic, and political conditions that will actually improve their well-being. This can be done without sacrificing the rights of their mothers.
Blaming Mothers: American Law and the Risks to Children's Health is out now on NYU Press.
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