Prosecuting the Womb
George Washington Law Review, Vol. 76, No. 101, 2008
REPRINTED IN WOMEN & THE LAW CASEBOOK, West Publishing, 2009
91 Pages Posted: 2 Sep 2010
Date Written: August 31, 2010
Policing wombs brings private, intimate spaces into the public theatre, creating spectacles of poor, pregnant women and their children; and this public humiliation functions to visually inscribe these women’s place in the social hierarchy. This article contemplates how we might reconsider these negative externalities relative to the public policy interests that fetal drug laws support. The author argues that the reproductive policing efforts of the past twenty years are consistent with a communitarian approach to reproduction. Goodwin sheds light on the inconsistencies of this approach to behavior policing, which tends to disfavor the less sophisticated, less powerful members of society – namely drug-addicted, poor women of color – and yet ignores the risks posed to fetuses by wealthier would-be parents who use sophisticated, expensive reproductive technologies in their attempts to reproduce.
The author makes several claims. First, policing reproduction by way of fetal drug laws will likely have a chilling effect on drug dependent women seeking prenatal care. Opportunities for intervention and treatment will likely be significantly diminished as a consequence of tethering prenatal services to fetal inspections. Second, fetal drug laws are an arbitrary means of regulating risks to fetuses because they are under inclusive as they target poor women and ignore the risky high income-bracket pregnancies where prescribed medications are abused as well as pregnancies that rely on assisted reproductive technologies. Fetal drug laws also ignore the behavior of boyfriends and husbands that are detrimental to a developing fetus. Third, these laws establish and perpetuate disturbing medico-legal trends by normalizing and possibly incentivizing breaches in fiduciary obligations. Fourth, fetal drug laws pose economic and efficiency problems related to incarcerating parents.
Keywords: law, society, economics, medicine, health care, gender, feminism, women's rights
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