ABSTRACT

Pregnant and birthing people are inappropriately criminalized. Such criminalization is for behavior during their pregnancy that would not otherwise be criminalized, including when there was no harm to the later born baby, and for birth outcomes like miscarriages and still births. Law supports criminalization in part because of the historic legal significance given to fetal “viability” as a demarcation between full personhood rights for pregnant people and the encroachment of fetal “personhood” on those rights. Focusing on Maryland’s new constitutional amendment for reproductive freedom, this essay examines how the new amendment offers promise in restoring the full personhood rights for pregnant people. Such restoration could diminish the criminalization of pregnant people by minimizing any conflicting state interest in the fetus or claim to fetal “personhood,” increasing state support for pregnant people’s reproductive freedom, and ensuring the equal treatment of pregnant and non-pregnant people in terms of criminalized behavior.