The Prosecution of Pregnant Women: Protectionsim, Personhood, and The Good Birth
To date, 38 U.S. states have granted legal status to the unborn, providing criminal penalties in the event that a third party harms a pregnant woman. While these laws were introduced with the stated purpose of providing additional legal protections for women, they have been used to justify the prosecution of pregnant women for pregnancy-specific crimes. Though it is currently only legal to do so in three states, the criminalization of pregnancy is widespread.
While pregnancy outcomes are determined by a wide variety of factors, the individuals involved in reporting, arresting, and prosecuting pregnant women have focused on the potential harm caused by the use of politically salient and racially charged drugs. The prosecution of pregnant women not only imperils the rights of all women as citizens, but also disproportionately burdens marginalized populations. The rhetoric justifying the targeted policing of specific populations employs both protectionist and punitive solutions to curbing what is perceived of, but in fact, is not, a problem of epidemic proportions. Additionally, the patterns in arrest demographics and narratives ring strikingly similar to earlier eugenic models of policing reproduction.
I will give a legal overview the legal standards used to justify the prosecution of pregnant women. I will then provide an in-depth analysis of pregnancy-related arrests in the three states where such arrests are actually legal-- South Carolina, Alabama, and Tennessee-- and the rhetoric used by individuals involved in making arrests, both pre and post criminalization. I argue that the prosecution of pregnant women is not only an ineffective means of improving birth outcomes, but that this punitive approach is misguided in its focus on certain populations and harms. I assert that the disparity between perception and reality is driven by a legacy of eugenic thought.
