We are two-legged wombs, that’s all; sacred vessels, ambulatory chalices.

The Handmaid’s Tale, from which this quote is taken, describes a horrific future in which the decline of birthrates leads to the enslavement of women for use solely as propagators of the human species. Although the women are culturally glorified as “Handmaids,” they effectively have been reduced to incubators, valued only for their wombs and subject to the punitive control of a patriarchal state.

Subordination of a mother’s rights to the interest of the state in her fetus is a threat neither remote nor fictional. The case of People v. Stewart’ demonstrates that a pregnant woman may be criminally prosecuted for conduct which may have endangered her fetus. In Stewart, the state attempted to prosecute a woman who allegedly took illegal drugs and failed to obtain adequate medical attention for her fetus a Stewart was one of the first occasions in the United States in which a pregnant woman had been criminally charged for conduct that harmed her fetus prior to birth. More recently, a Washington, D.C., judge jailed a pregnant woman convicted of second degree theft, Brenda Vaughn, who had traces of cocaine in her blood.’ In justifying this action, the judge stated: “I’m going to keep her locked up until the baby is born because she’s tested positive for cocaine when she came before me…. She’s apparently an addictive personality and I’ll be darned if I’m going to have a baby born that way. ”

Medical and legal attempts to control or limit women’s behavior during pregnancy are becoming more frequent. The combination of increased concern over the effects of drug use during pregnancy and the emerging legal concept of “fetal rights” have created a social climate that is leading to the suppression of women’s civil rights and personal autonomy in the name of fetal well-being. The most extreme example of this trend is the increasing introduction of punitive legislation that seeks to punish women criminally for a variety of acts or omissions, including the failure to receive timely prenatal care, not complying with doctor’s orders, and using drugs during pregnancy.

This Note will analyze the health policies and legal issues necessarily involved in any attempt to criminalize women’s acts or omissions during pregnancy. It will demonstrate that any such laws would be inherently unfair since many women, particularly members of low-income and minority groups, lack meaningful access to adequate prenatal care or drug treatment. Furthermore, such laws would be ineffective: women would be deterred from seeking medical care for fear of being reported to the police, and the prenatal care of pregnant women imprisoned for violating these laws would actually be worsened, not bettered. Finally, the laws would be unconstitutional because they would violate prohibitions on vagueness, infringe upon the mother’s rights to liberty and privacy, and deny equal protection.

Part I provides a background on the development of methods of intervention during pregnancy. Part II will provide a profile of the population at which proposed criminal sanctions are directed – those women whose inadequate prenatal care or substance abuse during pregnancy creates a risk of harm to their fetus. Part III will analyze two types of criminal statutes that legislators are likely to consider and will assess the effectiveness of these statutes from a health policy perspective. Part III concludes that, given the serious inequalities in our health care system, a statute would have to be very narrowly drawn to comport with principles of fairness and justice. A narrow statute, however, would fail to address public concern over the consequences of inadequate prenatal care and substance abuse. Part IV discusses additional constitutional concerns, including due process concerns of vagueness, deprivation of liberty, and equal protection which even the most carefully drawn statute would implicate. The Note concludes that, while theoretically possible, the problems inherent in criminalizing maternal conduct during pregnancy would unavoidably result in laws that are unfair to women who are members of low-income and minority groups, that are ineffective to improve prenatal care or deter drug use, and that are unconstitutional violations of due process, liberty, and equal protection guarantees. Finally, this Note suggests that legislatures should concentrate on improving maternal-child health care by increasing access to prenatal care and substance abuse treatment for all women, regardless of their ability to pay, rather than focusing on criminalization as a tool for encouraging healthy pregnancies.