Legal Epistemologies

Howard Schweber

“A pregnant woman walks into a bar.” That is not the beginning of a tasteless joke, it was the beginning of a criminal prosecution. The (very visibly, eight-month) pregnant woman in question is known to the State of Wisconsin as Deborah J.Z. This was one of several cases that made headlines in the late 1990s. A survey of cases between 1973 and 2007 finds 418 instances of prosecutions brought against pregnant women based on claims of conduct that posed a risk of harm to the fetus. The conduct in these cases ranged from illegal drug use (eighty-four percent of cases) to refusal of medical treatment or refusal of delivery by caesarian section. The defendants, unsurprisingly, have disproportionately been women of color and/or lower socioeconomic status.

These moves involve an intersection of a number of elements: abortion politics, the increasing popularity of the idea of “fetal rights,” and the general surrender of privacy to government authority imposed as a condition of interactions—voluntary or not—with state agencies. Yet while these political factors may explain the increase in the enactment of statutes and the conduct of prosecutors, they leave out an important conceptual element that makes it possible to readily translate political attitudes into legal arguments. The discussion of fetal rights is a good example. Katha Pollitt sums up the critique of such arguments nicely. “Pro-choice activists rightly argue that antiabortion and fetal-rights advocates grant fetuses more rights than women. A point less often made is that they grant fetuses more rights than two-year-olds—the right, for example, to a safe, healthy place to live.” The idea of fetal rights is one that has never been recognized under either the United States or state constitutions, although that has not stopped state legislatures from employing the idea, and someday courts may decide to adopt that vocabulary as well. But as Pollitt’s comment points out, even if courts were to accept the idea that fetuses have rights, those rights would have to be balanced against the undoubted rights of persons to bodily liberty. The outcomes in particular cases may be inconsistent with liberal norms, but the language of traditional, negative, liberal “rights” provides a perfectly adequate basis for criticizing those outcomes even if something called “fetal rights” were to be added to the discursive mix. To put the matter another way, the criminal prosecution or preventive detention of a pregnant woman seen drinking in public would have been unthinkable fifty years ago. What changed?