Floating Lungs: Forensic Science in Self-Induced Abortion Prosecutions
39 Pages Posted: 11 Nov 2019 Last revised: 28 May 2020
Date Written: October 30, 2019
Pregnancy that ends in still birth later in pregnancy – particularly where a person gives birth outside of a hospital – raises the specter of criminal behavior. To successfully prosecute a person for the death of a child, however, requires that a child was born alive. Prosecutors mobilize forensic science as an objective way to determine life. This paper focuses on one such forensic method: the hydrostatic lung test (HLT) also known as the floating lung test (FLT). In essence, the forensic scientist takes pieces of the lung and places them in water. If the lungs float, scientists find that baby as having been born alive. If the lungs sink, the infant is thought to have died in utero exculpating the accused.
Drawing on extensive historical research and review of cases from the mid-1800s until the present, this paper engages with a larger literature on forensic science and criminal law to interrogate the relationship between scientific expertise, evidence, and lawmaking in the context of self-induced abortion late in pregnancy. The paper makes two arguments. First, I argue that adjudication is integral to validation of forensic science and the legitimation of the HLT. In other words, courts play a key role in sustaining the belief that the HLT is a true test of whether a child was born alive. Second, I offer two frames to understand why it is that courts and juries are invested in an objective test to enable the prosecution of women. First, I argue that as the carceral state has taken hold, prioritizing personal responsibility and emphasizing prosecution and punishment, science was conscripted into the project of individual responsibility. Blame and finality are central goals of the criminal justice system and this is true in the context of pregnancy and childbirth related prosecutions. Second, I argue that courts rely on the HLT as a means to respond to a moral panic about pregnancy and abortion. This moral panic reflects past and ongoing raced and gendered social anxieties around pregnancy and abortion. It fits within a long history of cases in which medical and forensic evidence and expertise mobilized, shaped, and legitimated by courts for the sake of successful prosecutions of pregnant women, mothers and caretakers in the context of the “crack baby epidemic” and shaken baby syndrome. In our contemporary moment, the HLT provides a way to legitimately prosecute women whose pregnancies are still births, miscarriages, or who self-abort.
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