Ecological Harms and the Public Dimensions of Pregnancy

Howard Schweberschweber@polisci.wisc.edu

DRAFT prepared for presentation at the American Political Development Workshop, Univ.

Wisconsin-Madison Dept. of Poli. Sci., February 9, 2001. Please do not cite without permission.Comments welcome if kindly intended.

In the late nineteenth century, American courts wrestled with basic questions about the nature

of the nation’s legal order. Two strands emerged as central to the meaning of American law, one in the

sphere of public law and one in the reconstruction of the system of private law that had been initially

inherited from the nation’s colonial heritage. In public law, the fundamental questions were

constitutional. What were the legitimate spheres of authority for government regulation -- with the

concomitant question of the distribution of authority between state and federal governments -- and what

areas were reserved to the control of the individual? In private law, the conditions of a new kind of

political economy and a new set of patterns in social relations produced the general system of tort law

based on the general principle of negligence. Strikingly, the answers that were reached to both of these

basic, organizing questions can be thought of in terms of the extension the idea of the consequences.

The constitutional, public law questions involved a reconsideration of ancient common law

principles that since at least the fifteenth century had subordinated the individual’s control over his

property to the claims of the public good, and limited the freedom to use private property by the

principle that no one had the freedom to use his own property in a way that would injure that of

another. These ancient principles were subject to new scrutiny under a constitutional system that

declared that individuals had rights to be free of state as well as federal government authority. Appeals

to ancient common law principles were, perhaps, good arguments, but in themselves they could not

answer the fundamental question: where does the traditional authority of government to regulate the

lives of the inhabitants of a town, city, or state, give way to the civil liberties guaranteed by the

Fourteenth Amendment?

The answer was the formulation in law of a specific conception of the divide between public

and private, and the definition of “public” as the sphere of activity subject to governmental control. The

much-abused idea of economic substantive due process turns out, from this perspective, to be a matter

of fixing the line between conduct whose extended consequences render it public and conduct lacking

such consequences. So in Munn v. Illinois, the Supreme Court ruled that the operation of grain

elevators was a “public” activity and therefore was subject to regulation by the state of Illinois, and in

fact the same principle can be seen at work in the ruling in Slaugherhouse that held that the State of

Louisiana had the authority to establish a monopoly in a trade A particularly instructive pair of cases

are Lochner and Muller. When these two cases are read together, they stand for the proposition that

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New York could not regulate the working hours and conditions of male bakers, but that Oregon could

regulate the same aspects of the working lives of women in laundries. What was the difference? The

degree to which the question involved the public welfare. And it was not long before the Court came to

recognize, in West Coast v. Parrish Hotel and Nebbia, that the public welfare was directly at stake in

a wide variety of economic activities, and consequently to conclude that those activities were not

“private” conduct protected against regulation by the Fourteenth Amendment.

Thus the two concepts that crucially defined the new legal order -- privacy and foreseeability --

both, in their genesis, carried a concept of extended consequences. It is therefore not at all coincidental

that the next period of great redefinition in the American legal system involved a reconsideration of just

that idea. The idea that redefined the meaning of “consequences” in the public mind, and eventually in

legal doctrine, was the idea of ecology. The idea of ecological model of harms spread far beyond

consideration of the natural environment, becoming the basis for theories that defective products had

spread through “the stream of commerce,” the regulation of second-hand smoke – including the

conclusion that exposure to such smoke constitutes cruel and unusual punishment in violation of

“evolving standards of decency”1 -- courtroom verdicts that conclude that gun manufacturers’

marketing practices result in increased crime rates, arguments that certain forms of speech are toxic

pollutants of the political environment, and in the general proliferation of mass tort claims.

Concomittantly, the expansion in the conception of causation was accompanied by an expansion in the

range of foreseeability, vastly expanding the responsibility of manufacturers to foresee the (mis)conduct

of their customers, and in later cases extending to a theory of “market share” liability that defined a

company’s responsibility for a problem in terms of its presence in the market in which the problematic

product was distributed, regardless of whether the particular company’s product had been involved in

the case at all.2 Oliver Wendell Holmes had seen the problem with relying on causation and

foreseeability as the touchstones of liability in the modern era. "To one who understands the science of

probabilities," he famously remarked, "everything is foreseeable."3

The cases involving the harms of second-hand smoke are among the most interesting as

exemplars of particular way of thinking about harm, causation, and public duties. Significantly,

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regardless of the outcomes, courts considering these claims have treated the harmful effects of second-

hand smoke to be a matter of public consciousness rather than a matter requiring expert demonstration.

These harmful effects "seem clear to a large proportion if the population," observed the Seventh Circuit.

"Standards of decency are indeed 'involving' on the issue of smoking. . . more and more people feel that

nonsmokers have a right to avoid second-hand smoke."4 A District Court in New York has declared

that the failure of prison officials to enforce existing bans on smoking, "in light of numerous

commentaries and government reports concerning ETS" (environmentally transmitted smoke), "cannot

be said to be reasonable."5 In two cases in which courts concluded that employees have a right to a

smoke-free workplace, no evidence was taken on the issue of risk at all; instead, the harmfulness of

second-hand smoke was treated as a matter for "judicial notice," a rule permitting courts to give

cognizance to commonly known facts that are neither in dispute in the case nor matters for contention in

the public mind.6

In recent years, strikingly, the expanded public conception of foreseeable risks has extended

into the relations between mother and fetus. The emergent legal vocabulary of "fetal rights" is based on

the recognition that conduct by pregnant women may be "negligent" in a variety of ways, including

eating unhealthy foods, consuming alcohol or drugs, or smoking.7 Even the means of giving birth is a

matter of social duty; in several cases women have been forcibly compelled to undergo Caesarian

section deliveries on the grounds that attempting a vaginal birth would pose too great a risk of harm to

the child.8 The duty to avoid foreseeable risks, then, is spreading into once-private spheres of life in a

way that does not recognize the fine relational distinctions that were so crucial in the nineteenth century.9

The role of technology in these cases is two-fold. First, advances in technology have made us

able to recognize attenuated connections between conduct and consequences. Advances in testing

procedures enable us to foresee fetal defects and fetal harms at increasingly early stages of

development, a developmental process likely to reach an apotheosis upon completion of the Human

Genome Project. Furthermore, technology has enabled us to perceive the world, particularly the

microscopic world, with an intimacy and familiarity utterly alien to earlier generations.10 It is in this

sense, rather than in terms of probabilistic uncertainties, that Holmes' prediction that "everything is

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foreseeable" is coming true in the context of pregnancy. The capacity to employ technology in a

sophisticated way to foresee future harms is thus translated into a social duty, a breach of which gives

rise to liability.11

In these cases, one question that arises is whether the expansive adoption of ecological models

of causation pose a threat to liberal notions of privacy. That is, if the formulation of “public” activities is

“those which have extended consequences for the larger society,” then doesn’t the ever-expanding

conception of ecological harms threaten to swallow the attempt to define a space that can be justified as

“private”? And if the formulation of the general theory of negligence is the duty to avoid inflicting

foreseeable harms, then doesn’t the adoption of an ecological model of harms ultimately imply infinitely

expansive duties of care? And, finally, doesn’t such an expansive duty of care imply an equally

expansive range of justifications for state interventions in supervising and regulating what would

otherwise be thought of as private conduct? This conundrum appears in a variety of ways in modern

American law, but nowhere more powerfully than in the attempts by states to regulate the conduct of

pregnant women. In the pages that follow, I will argue that these cases demonstrate the ultimate

incoherence of arguments based solely on a claim of a defined sphere of privacy in the face of the

acceptance of explanatory models – both in the law and elsewhere – that depend on ecological

conceptions of causation and harm. Instead, I will propose that what is required is a return to the

opposite project: the definition, in legal and political terms, of what defines the “public” half of the

public/private divide.

Whitney, State ex rel. Angela M.W., Grodin v. Grodin, Bonte v. Bonte

Consider the case of "Angela M.W.," as she is known to the Wisconsin courts.12 Angela's13

obstetrician discovered evidence of drug use while she was pregnant. That statement alone requires

some consideration. Constructions of both responsible social practice and the technological

enhancement to the disciplinary gaze are invoked. Prenatal visits to a medical professional are to be

encouraged – even required – because of the recognition that interventions may be required to ensure

that the future citizen is not harmed by imperfections in the fetal environments. Simultaneous with the

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desirability of such discoveries are the conditions of their possibility, in the form of technologies that

permit doctors to observe and evaluate a range of environmental circumstances. Even more striking,

the technology permits the trained physician to make those observations visible to the nonspecialist.

With ultrasound, the inside of a pregnant woman’s womb can be photographed, the photographs

printed and scanned and uploaded and downloaded onto computers around the world. This has

marvelous possibilities for medical diagnosis, for sharing joyous occasions with loved ones, for a variety

of other social and medical applications. But it achieves these marvels by diminishing the veil of secrecy

that made the inside of the body the most “private” of all private spaces.14 In Angela’s case, it was not

ultrasound but a blood test that revealed the pollution of the fetal environment. Thereafter, after she

missed two scheduled appointments, he notified the Waukesha County Department of Health and

Human Services, who immediately sought a court order authorizing them to take the viable fetus–and

Angela along with it– into custody under a local child protection statute. The court ruled that the seizure

was justified by the imminent risk of harm to the child created by the expectant mother’s use of cocaine.

The Wisconsin Court of Appeals based its conclusion on two arguments familiar from Whitner,

and added a third: “the fact that in Wisconsin a wrongful death action could be brought against

someone who caused the death of a viable fetus; public policy considerations; and "the admonition. . .

that the common law should be flexible enough to adopt itself to current medical and scientific truths."15

The Wisconsin Court of Appeals leaned hard on this last point in its discussion of Roe:

By recognizing that a state may intervene in an abortion decision after viability, Roenecessarily recognizes the right of the state to protect the potential life of the fetus overthe wishes of the mother to terminate the pregnancy. Why then cannot the state alsoprotect the viable fetus from maternal conduct which functionally presents the samerisk and portends the same result -- the death of the viable fetus?16

The idea of a parental duty to avoid foreseeable risks, finally, was the determining factor. "No parent is

perfect. All parents, at one time or another, have probably acted in a careless or negligent fashion as to

their children. . . the [child protective] statute is reserved for extreme situations in which the child faces

serious or substantial risk."17

In other words, the governing principle remains that there is a duty to avoid foreseeable harms.

What has changed is our ability to foresee. It must be emphasized that the crucial point was not that

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Angela’s drug use was illegal – that would be a matter for a criminal trial – but that her conduct,

whatever its legality or illegality, constituted an “extreme situation” of a future child’s exposure to

foreseeable harms. When the case came to the Wisconsin Supreme Court, the decision was

overturned on the narrow ground that the child protection statute was not intended to include a fetus.

That same point of statutory construction was the basis for decision in State of Wisconsin v. Deborah

J.Z. One week before her due date, Deborah was drinking in a local tavern when she believed she

was going to have her baby. Deborah's mother came and took her to St. Luke's Hospital for medical

treatment. At the hospital, Deborah was uncooperative, belligerent at times and very intoxicated. Her

blood alcohol concentration exceeded 0.30%. Deborah allegedly told a nurse that "if you don't keep

me here, I'm just going to go home and keep drinking and drink myself to death and I'm going to kill

this thing because I don't want it anyways" The Wisconsin Supreme Court, hearing an appeal from

Deborah’s conviction for child endangerment, again ruled that the statutes in question could not be held

to cover conduct affecting a fetus. “[O]ur analysis of this case is not about the propriety or morality of

Deborah's conduct while pregnant. Nor is it about her constitutional right to reproductive choice

guaranteed in Roe. On the contrary, this appeal is one of statutory construction.”18

Following the ruling in Angela M.W., the Wisconsin state legislature enacted a series of new

statutes.

48.133 Jurisdiction over unborn children in need of protection or services and the expectantmothers of those unborn children. The court has exclusive original jurisdiction over an unbornchild alleged to be in need of protection or services which can be ordered by the court whoseexpectant mother habitually lacks self-control in the use of alcohol beverages, controlledsubstances or controlled substance analogs, exhibited to a severe degree, to the extent thatthere is a substantial risk that the physical health of the unborn child....The court also hasexclusive original jurisdiction over the expectant mother of an unborn child described in thissection.

48.205 (d) (1) An adult expectant mother of an unborn child may be held under s. 48.207 (1m)if the intake worker determines that there is probable cause to believe that...if the adultexpectant mother is not held, there is a substantial risk that the physical health of the unbornchild, and of the child when born, will be seriously affected or endangered by the adultexpectant mother's habitual lack of self-control in the use of alcohol beverages...

Nothing in these new statutes points to any particular point in the pregnancy at which the state’s

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authority will come into play. A dissenting opinion in the Court of Appeals decision in Angela M.W.

had raised an important point. "The AMA believes that the detention of pregnant women will be of

limited value 'since a considerable amount of damage could be done to the fetus before a woman even

realized she was pregnant."19 It is a matter of public recognition that with the aid of modern technology

risks to potential children can be identified far in advance of fetal viability; increasingly, there is public

discussion of the possibility that such risks may be foreseen prior to conception or even maternal

maturity, as in the case of claims alleging "wrongful birth" on the grounds of undesirable genetic

combinations between the parents. This is the most explicit articulation of the lurking principle that it is

grounds for liability that a pregnant woman has failed to be familiar with and avail herself of available

technologies in order to foresee harms and thus avoid them.20 The construction of social virtue involved

operates, as Holmes said that it must, to exclude a defense for pregnant women who are unfamiliar with

the conditions in which technological sophistication interacts with social conduct.

The conclusion reached by the Wisconsin Court of Appeals was unusual for its context,

involving as it did the incarceration of the pregnant woman involved in the case, but the basic premise

that a woman is bound by duties of care toward her fetus had been previously stated in a number of

cases. In two tort cases, for example, courts in New Hampshire and Michigan had ruled that except

for the operation of the parental immunity doctrine a living child could sue its mother for negligence

(thus, among other things, putting her liability insurer on the hook for the costs of treatment).21 In the

Michigan case, Grodin, a child was permitted to sue his mother because of her failure to discover that

she was pregnant, and her failure to inform her doctor that she was taking tetracycline thereafter. The

result was that the child was born with brown teeth.

The court ruled, first, that the doctrine of parental immunity did not apply, as it was limited to instances

in which the acts alleged were “essentially parental,” as in the exercise of parental authority or

“reasonable” decisions concerning clothes, food, or education. Other, less essentially parental acts,

could be the basis for a suit by a child against his parents.

A woman's decision to continue taking drugs during pregnancy is an exercise of her discretion.The focal question is whether the decision reached by a woman in a particular case was a"reasonable exercise of parental discretion....The reasonableness of the risk of harm whether

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analyzed in terms of duty, proximate cause or a specific standard of care turns on how the utilityof the defendant's conduct is viewed in relation to the magnitude of the risk thereby created....Inany case where there might be a reasonable difference of opinion regarding how that balanceshould be resolved, the question is for the jury.22

The Michigan Supreme Court, in other words, concluded that future mothers have a duty to foresee

and avoid perfectly legal actions that might diminish the dental health of their future children.

The New Hampshire case was Bonte v. Bonte. Sharon Bonte, while seven months pregnant,

crossed a street without looking both ways. The next day her baby was delivered by Caesarian

section, with catastrophic brain damage and cerebral palsy. The suit was brought by the father, and it

was not at all secondary to the nature of the action that the legal defense was presented by the couple’s

liability carrier. Quoting from an earlier decision, the New Hampshire Supreme Court declared an end

to the doctrine of parental immunity, saying in part “the existence of insurance decreases the likelihood

that the minor's cause of action will disrupt family harmony or deplete the family exchequer, all

arguments in favor of parental immunity.” Since there was no parental immunity, said the court, there

should not logically be any immunity for prospective mothers, either. “If a child has a cause of action

against his or her mother for negligence that occurred after birth and that caused injury to the child, it is

neither logical, nor in accord with our precedent, to disallow that child's claim against the mother for

negligent conduct that caused injury to the child months, days, or mere hours before the child's birth.”

As for the argument that the imposition of such duties would interfere with the privacy rights of pregnant

women, the court made precisely the point that is emphasized in this article, that the duties of pregnant

women are expanded as the general duties – to foresee an ecological relationship between conduct and

the possibility of harms – are similarly expanded. “We disagree that our decision today deprives a

mother of her right to control her life during pregnancy; rather, she is required to act with the

appropriate duty of care, as we have consistently held other persons are required to act, with respect to

the fetus. The mother will be held to the same standard of care as that required of her once the child is

born.”23 What is striking about this formulation, of course, is the total lack of any logical limiting

principle.

The issue of criminal liability under child welfare statutes for pregnant women found to be using

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drugs was visited in 1997 in South Carolina, in Whitner v. South Carolina.24 Cornelia Whitner pled

guilty to criminal child neglect for causing her infant to be born with cocaine in his system because she

had ingested crack cocaine during her third trimester of pregnancy. Whitner was sentenced to eight

years in prison for having violated the child abuse and endangerment statute. Whitner did not appeal

her conviction, but she did file a post-conviction petition for relief basedon the argument that the original

court had lacked jurisdiction over the case on the grounds that the court was empowered to hear cases

of “child endangerment.” The South Carolina Supreme Court held that the word "child" as used in the

child abuse and endangerment statute included viable fetuses.25 In three prior cases, Ohio, Kentucky,

and Washington had all declined to find the possibility of such a prosecution.26 All three courts,

however, had reached the conclusion that their respective state legislatures had not intended – or at a

minimum had not clearly indicated an intent – to include a fetus under “child” in their child abuse or

endangerment statutes. Michigan and Florida courts had further declined to allow prosecution of

women under drug distribution statutes, again based on their interpretation of the legislative intent

behind the relevant statutes.27 As a result, none of those earlier cases had involved serious

consideration of the problematic issues that were raised in Whitner.

The South Carolina Court’s decision rested on three central arguments. First, that South

Carolina had already recognized that "viable fetuses are persons" in the context of wrongful death

statutes and in criminal statutes, so that, for example, a person convicted of striking a pregnant woman

and causing a miscarriage was subject to prosecution for feticide (as opposed to injury to the woman).

"[I]t would be absurd,” said the court, “to recognize the viable fetus as a person for purposes of

homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse."

Second, the court focused on the policies of South Carolina with regard to children’s welfare generally

as a guide to statutory interpretation. The South Carolina Code contained a statement that "[i]t shall be

the policy of this State to concentrate on the prevention of children's problems as the most important

strategy which can be planned and implemented on behalf of children and their families." This focus on

prevention, according to the court’s reasoning, justified the inclusion of viable fetuses within the scope

of the statute.28 Finally, in response to Whitner’s argument that the trial court’s interpretation of the

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statute in fringed upon her constitutionally protected right to privacy, the court concluded that the use of

crack cocaine was not an element of “privacy.” "We do not see how the fact of pregnancy elevates the

use of crack cocaine to the lofty status of a fundamental right."29

The equation of the right to privacy with a specific activity smacks of the ruling in Bowers v.

Hardwick, in which Justice White had declared that there “is no fundamental right to sodomy.” On the

one hand, this is a cramped and intellectually unsupportable conception of privacy, converting the

negative proscription on government power contained inBrandeis’ famous formulation of “the right most

prized by civilized men...to be let alone” with an implicit affirmative list of permitted activities against

which each claim of privacy must be checked. AT the same time, however, the South Carolina court

was obviously correct in its conclusion that conduct that can legitimately be criminalized is not shielded

from state interference by virtue of the fact that it occurs in private. The important privacy cases –

Stanley v. Georgia (pornography), Bowers (sodomy), Griswold v. Connecticut (contraception) –

focused on the fact that the laws in question specifically targeted uniquely private conduct, and tested

those targeted statutes against the adequacy of their proferred justifications. The law against possession

and use of crack cocaine, however, hardly fits that model. The public interest in criminalizing drug use

is not subject to serious question as a constitutional matter (the policy questions, of course, are another

matter entirely); criminalizing activity thought to be dangerous and unhealthful is squarely within the

traditional police powers of state governments. And yet the extension of state authority into the control

of the conduct of pregnant women is disquieting, even where that conduct is already criminal in its own

right, by virtue of the kinds of resources and the sources of authority that are mobilized in order to

effectuate that supervision. It is that consideration that makes these prosecutions tests of the boundary

between public and private spaces within the body of a pregnant woman.

Stallman, Chennault, Ashley

Not all states’ courts, or legislatures, have been eager to pursue the idea of foreseeable harms

to its conclusion. As noted earlier, South Carolina and Wisconsin’s Court of Appeals were unusual in

their eagerness to find that criminal child protection statutes extended to the regulation of conduct by

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pregnant women, and there are states that have been reluctant to follow the lead of Michigan and New

Hampshire in the civil context. Illinois, Texas, and Florida – not traditionally thought of as extremely

liberal in matters of criminal law – present the leading cases in opposition to those mentioned so far.

In 1992 the Illinois Supreme Court refused to accept the argument that civil liability for

negligence could be found on the basis of the claim that a pregnant woman had failed. The court had

earlier recognized “a right to be born free from prenatal injuries foreseeably caused by a breach of duty

to the child's mother" based on conduct that occurred years prior to conception.30 The hospital in that

case was held liable for performing a transfusion with the wrong type of blood eight years before the

child was conceived. The suit was brought in the name of the child, based on birth defects that could

be traced to the extended effects of the earlier transfution, and recovery was allowed on the theory that

it was “reasonably foreseeable” that the woman might become pregnant in the future. In 1992, in

Stallman v. Youngquist, the question was whether the same theory could be used to find a mother

liable to her child born with defects caused by a car accident that was allegedly the fault of the

expectant mother. If the issue was foreseeability, as it had been in the earlier case, then the outcome

was presumably clear, but the Illinois court was not going down that road. The test of foreseeability

simply proved too much. “It is foreseeable that any act or omission by a pregnant woman could impact

on fetal development.” The very idea of a “right to be born free from prenatal injuries” was anathema

when that right was asserted against the mother “would make a pregnant woman the guarantor of the

mind and body of her child at birth....Any action which negatively impacted on fetal development

would be a breach of the pregnant woman's duty to her developing fetus. Mother and child would be

legal adversaries from the moment of conception until birth.”31

There was yet another problem with the idea of a negligence action by a child against its mother

based on conduct during pregnancy. “If a legally cognizable duty on the part of mothers were

recognized, then a judicially defined standard of conduct would have to be met. It must be asked, By

what judicially defined standard would a mother have her every act or omission while pregnant

subjected to State scrutiny? By what objective standard could a jury be guided?” The law’s need for

objective standard, finally, was what rendered the conduct of pregnant women a subject outside the

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realm of court adjudication.

The circumstances in which each individual woman brings forth life are as varied as thecircumstances of each woman's life. Whether a standard of care to which a woman would beheld while pregnant should vary according to whether a pregnancy was planned or unplanned,to whether a woman knew she was pregnant soon after conception or only knew after severalmonths, to whether she had the financial resources with which to access the best possiblemedical care available or was unable to get any prenatal care are all questions which deservemuch thought and reflection.32

The concerns in Stallman point directly to the point at which the expansion of traditional concepts of

foreseeability become problematic for the definition of a public/private divide. A suit for negligence,

after all, is not a prosecution by the state, it is presented as a private quarrel. But a lawsuit is a quarrel

in which the parties have called upon the resources of the state to define and protect their interests by

defining the duties which inhere in the relationships between the parties. The Illinois court’s hesitations

were not based on their concerns about reaching one conclusion or another, they were grounded in

deep concerns about the implications of entertaining the question at all. To the Illinois Supreme Court,

the relationship between a fetus and a pregnant woman, to borrow a phrase from Mari Matsuda, was

one of “the places where the law does not go.”

In 1999 a Texas court had similar concerns in the case of Chenault v. Huie. In 1993, Molly

Ann Huie gave birth to a baby girl who was found to have both cocaine and alcohol in her blood. The

girl subsequently displayed a variety of developmental problems, and was diagnosed with cerebral

palsy attributed to her mother’s prenatal use of drugs. Melissa Chenault, the child’s guardian and

Huie’s sister, sued Huie and her husband for negligence, seeking damages to cover costs of treatment

as well as a variety of other compensatory and punitive damages. Texas law had long recognized a

cause of action to recover damages against a third party for harms caused to a fetus resulting in injury to

a living child, and Chenault argued that the same theory should apply to a pregnant woman. The Texas

court refused to accept this argument. “The unique symbiotic relationship between a mother and her

unborn child... cannot be ignored. In no other relationship is one so completely dependent upon another

for life itself. Although the law wisely no longer treats a fetus as only a part of the mother, the law would

ignore the equally important physical realities of pregnancy if it treated the fetus as an individual entirely

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separate from his mother.”33

Referring back to the case involving the Illinois hosptial, the court in Chenault reasoned that

extending the duty of care to mothers would require the imposition of legal standards on the life choices

of women not only during pregnancy, but the life choices of women from puberty through menopause

(and beyond, given the progress of medical technology!) “[T]hird-party liability to a fetus has been

found based on conduct occurring many years before the child was conceived....If we apply the same

legal duty to the fetus's mother as has been applied to third parties...it is possible that a woman could be

held liable for conduct affecting her own body that impacts her reproductive capabilities many years

before her child is conceived. Arguably every woman would be obligated to maintain her body in the

best possible reproductive condition so long as it was reasonably foreseeable she might bear a child at

some point in the future.” And the problem would not be solved by limiting the prospective mother’s

duties to the moment of conception. “In many cases, a woman may be unaware that she is pregnant for

weeks or even months after conception. It is during this time that the developing fetus is most

susceptible to injury.... Furthermore, a woman's initial awareness of her pregnant condition may depend

upon whether the pregnancy was intentional or unintentional. We perceive no justifiable reason for

treating women who intended to become pregnant differently from those who did not. (emphasis

added).”34 The last, emphasized phrase, is remarkable. The law recognizes different standards of care

for intentional and nonintentional conduct in every conceivable context.

The court also complained of the difficulty of defining a uniform standard of care, given the

variations that exist in “religious beliefs, social and economic status, age, maturity, and educational level”

and even “financial means.” The suggestion that a “reasonable pregnant woman” standard might be

invoked, the court said, was not helpful. “For example, would a woman cast in the role of a

"reasonable pregnant woman" be forced endure pain and suffering or even forego critical medical

treatment because of potentially adverse effects the treatment may have on her fetus?”35

The Chenault court’s rhetorical question glosses over an important fact: that there is, in fact, a

long line of cases from numerous jurisdictions dealing precisely with the question of whether a woman

can be compelled to undergo medical procedures for the sake of her viable fetus. Often these cases

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involve religoius objections to medical care, which imposes an additional layer of protection against

state interference. But the situations – a pregnant woman refusing medical care and a pregnant woman

engaging in conduct harmful to her fetus – are not analytically separate, a fact that the Illinois Supreme

Court recognized in Baby Doe v. Mother Doe in 1994. The case involved a Jehovah’s Witness who

refused a caesarian delivery for religious reasons despite her stipulation that “the chances of the unborn

child surviving natural childbirth (the process of labor) are close to zero.” The Illinois Court of Appeals

ruled that “Mother Doe” could not be compelled to undergo the operation because of the precedent

that had been set in Stallman. “Applied in the context of compelled medical treatment of pregnant

women, the rationale of Stallman directs that a woman's right to refuse invasive medical treatment,

derived from her rights to privacy, bodily integrity, and religious liberty, is not diminished during

pregnancy....A woman is under no duty to guarantee the mental and physical health of her child at birth,

and thus cannot be compelled to do or not do anything merely for the benefit of her unborn Child.” But

even here the Illinois court hedged, concluding that the situation might have been different had the case

involved a blood transfusion rather than a caesarian delivery, on the grounds that such a procedure

would be less intrusive.36 This concession, of course, utterly undermines the proposition that a woman

“is under no duty” toward her fetus, and yet that remains the state of the law in Illinois.

Similarly, in the end, despite its far-reaching discussion of the issues, the Texas court in

Chenault restricting itself to the same move that the Wisconsin Supreme Court had made, finding only

that “current law in Texas relating to negligent and grossly negligent conduct does not impose or

encompass a general legal duty owed by a mother to her fetus” (emphasis added). This was also the

basis for the Florida Supreme Court’s conclusion that a woman could not be charged with delivery of a

controlled substance to a newborn baby through its umbilical cord, and that another woman could not

be charged with attempted murder or manslaughter for firing a bullet into her belly with the state

intention of destroying the fetus that she carried.37 But these decisions beg the serious questions,

leaving open the possibility--if not the certainty--that the legislatures in question will follow Wisconsin’s

lead and simply alter their statutes. How should those statutes be judged?

The critical point of disagreement between the two lines of cases is precisely the question that

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was posed by the Illinois court in Baby Doe: does a pregnant woman have a duty to avoid harm to her

fetus? One difficulty is that the Baby Doe court’s statement of the issue proposed that such a duty

would be owed toward the fetus itself, so that the absence of such a duty resolved the question. But

this is, in fact, circular reasoning. The abortion cases, after all, involved balancing a woman’s right to

privacy against a state’s interest in the health of the future child, precisely the interest that the Illinois

court refused to consider in its analysis. If the issue is that a woman’s conduct can only be regulated by

the duty she owes to her fetus, then by the reasoning of the Illinois court in Baby Doe, a state should not

be able to regulate the abortion decision under any circumstances. But this, of course, proves too

much. The relentless focus on defining the scope and limitations of privacy has created a vocabulary

that is ultimately incoherent. What is missing is precisely the consideration of the state interests that

has traditionally driven the definition of the public sphere of legitimate government action since Munn in

1877. This was precisely the analysis that was undertaken in Roe, in which the question was the state

to impose a duty on a pregnant woman to safeguard her fetus. As the Illinois court correctly observed

in Stallman, that question cannot be evaded in civil cases any more than it can in criminal prosecutions.

The state’s authority is present anywhere the law is permitted to go.

Conversely, cases like the court of appeals decision in Angela M.W., and statutes like the one

enacted by Wisconsin, seem to contradict the proposition that a woman ever has a right to choose an

abortion against the wishes of the state in which she resides. By equating an unborn fetus with a

person, and attaching to that person the full range of public interests that underlie the guarantees of

individual rights, Wisconsin seems intent on pursuing a path in which there are no analytically coherent

limits to the range of what is “public,” an interpretation that turns the privacy guarantees of the due

process clause into formalistic nullities. What is missing is that neither in the days of Lochner nor in the

more modern era of Griswold and Roe was it ever the case that the law operated from the assumption

that anything which is not made private is therefore public. The relentless focus on the vocabulary of

privacy rights has obscured the historical fact that in American jurisprudence, the burden of proof at the

outset was on the official attempting to exercise legal authority to show that the subject matter was

properly considered public.

16

Illinois and Wisconsin, neighboring states, appear as the two extremes along a continuum of

possible approaches. The Wisconsin statutes seem to open the door to precisely the kind of total state

surveillance and control that the Illinois Supreme Court warned against in Stallman, on the grounds that

an ecological model of extended causation connects conduct at any stage of a pregnancy with the

welfare of the eventual viable fetus, and ultimately the child. A woman, by Wisconsin’s logic, has no

right to harm a fetus that she has the right to abort; by the logic of Illinois, the same woman cannot be

restricted from harming the fetus even though she may be prohibited from obtaining an abortion.

Further conundra; a woman in Illinois cannot be restricted from smoking while she is pregnant, but

another woman standing nearby may be subject to liability because of exposure to second-hand smoke.

Thus neither approach seems fully satisfactory, because neither seems able to describe a principled

basis for defining the duties that a pregnant woman may be said to owe to the public and the rights that

limit the assertion of those duties.

Competing Conceptions of the Public/Private Divide

Commentators writing in law reviews, who have looked at the cases described above, have

tended to reach the same conclusion as was reached by the Texas Supreme Court, that imposing

liability – criminal or civil – on pregnant women based on the welfare of their fetus is to open the door

to the near-total regulation of women’s lives. “By embarking on such blatant judicial activism, the court

ignored the constitutional issues inherent in such a debate, deviated from standard rules of statutory

construction, and invoked the frightening possibility of endless prosecution of pregnant women for any

act deemed to endanger the life, health, or comfort of the viable fetus.”38 Lynn Paltrow, writing in the

Albany Law Review, concludes that Whitner prosecutions embody an entire agenda of subordination

that covers the entirety of race, class, and gender questions.

The cases reveal that judges are not simply concerned with women having drug-exposedbabies, but with certain women having any children at all. This is especially true when thepresumed population of pregnant drug users are women of color....When examined through thelens of race, fetal rights claims and the prosecution of pregnant women neatly accomplish thedual goals of the far right agenda. Together they discourage and punish motherhood by "unfit"mothers - poor black women and drug users - but establish precedent for making abortion for

17

"fit" white women illegal or unavailable. The Whitner decision makes clear that those committedto reproductive justice must be willing to defend the rights of all women including women whouse drugs.39

Others, following the lead of the Illinois court in Stallman, insist that pregnancy is an area in which the

law should simply fear to tread.

[M]aternal duty should be defined in a unique manner by, and not for, each individual woman.If a state forces a woman to conform to a legislatively or judicially prescribed concept ofmaternal duty, it enacts an intolerant legal regime, one that fails to recognize personal, culturaland gender distinctions....How a pregnant woman chooses to conduct her life during pregnancyis a private matter to the extent that the state cannot intervene, at least in the first two trimesters,unless a complete breakdown of objective and subjective maternal duty occurs. Any otherlegislative liberty would elevate fetal rights above those of a woman.40

Of course, this author begs the question when she includes the caveat “unless a complete breakdown of

... maternal duty occurs,” since it goes nearly without saying that those who support state intervention to

prevent alcohol and drug abuse by pregnant women would argue that precisely such a complete

breakdown of maternal duty is at issue.

The emphasis on a unique and subjectively defined experience, however, challenges the

capacity of law’s language to craft any kind of rule.

What is missing from this language is the voice of the pregnant woman. Just as pregnant womenhave been sent to the margins of the images of in utero fetuses, they are also at the margins ofthe discourse of pregnancy. How women experience pregnancy, both physically andemotionally, should be the guide in constructing a legal discourse relating to the relationshipbetween the woman and her fetus. n207 At the risk of stating the obvious (yet it seems to havebeen overlooked in the development of this language and doctrine), it is the woman who ispregnant, not the doctor, not the judge. The fetal-maternal relationship can be the propersubject of law only if we place the experiences of the pregnant woman at the center of thedebate.... In order to take back pregnancy on women's own terms, to reclaim this aspect of thelaw that imprints itself on women's bodies, a language of pregnancy derived from women'sexperiences must take the place of the voices of law-makers and physicians. Women'sautonomy demands no less.41

There is undeniable appeal in this evocation of the innate indiviuality of subjective experience, and the

value of human autonomy. But it is worth remembering that when Mari Matsuda referred to “the places

the law does not go,” she was pointing to the evident fact that where there is no law there is often little

autonomy and less freedom.

18

To those who resist the idea of an infinitely expansive mandate for public inquiry and legal

intervention, there appear to be two alternatives. We can return to Holmes' suggestion, and abandon

the coupling of legal and technological progress; that is, we can eschew our commitment to shape our

laws and policies around the empirically demonstrable consequences of social life in a technologically

advancing society. One important consequence of this move would be that the language of justification

for legal doctrines would have to move away from the aesthetic of standardization, rationalization, and

efficiency that it has inherited from the late nineteenth-century experience of industrialization. This is, in

effect, a retreat from the vocabulary of modernism. The competition between those who would replace

that modernist aesthetic with the ideal of a morally authoritative state and those who would invoke,

instead, the infinite malleability of social experience to support an absolutely contingent fact-based

specificity in legal decision making is, in essence, the conflict between pre-and post-modern sensibilities

for authority over the discourse of legitimation.42

The danger is that in the abandonment of modern conceptions we may substitute an

epistemological vacuum that will easily lend itself to manipulation. Put another way, if it is not possible

to articulate legal principles that define when the state may regulate the conduct of pregnant women,

there will equally be no principled way to argue that a given attempt at intervention has exceeded the

bounds of such a definition. If each pregnancy is entirely unique, then it would follow that the state is

empowered to intervene when, in a given case, the subjective judgment of some authorized authority –

a judge? a social worker? a psychiatrist? – finds that in that unique case there are unique grounds that

justify action. The evocation of boundless privacy, in and of itself, guarantees neither the protections of

the law nor protections from the law. The appeal to subjective uniqueness, in fact, is an appeal to a

legal principle; implicitly, these authors argue that the law recognizes a principle that authority may only

be applied on the basis of objective criteria, and only in situations where potential defendants are

similarly situated.

The problem, in this context, is identifying the bases for those commitments in the first place.

Why is it the case that an experience which is subjectively unique should therefore be considered

outside the realm of public scrutiny and regulation? What is missing is a description of the basis for

19

treating a matter as public as well as a basis for treating a matter as private, and an application of that

description to the issues at hand. If such a description can be found, then it points toward the possibility

of establishing a shared set of legitimating assumptions for legal principles even where there is

disagreement over the desirability of specific outcomes. A principle of this type also answers the

concerns of those authors who see any regulation of the conduct of pregnant women as the beginning of

a slippery slope toward complete domination. Slippery slopes occur when there is no principled and

persuasive basis for distinguishing one point along an incline from the next, so that there is no justifiable

stopping point. Describing a situation as a slipper slope is a two-edged sword, however; such a claim

may be a persuasive argument against taking the first step down the path, but once that first step is

taken it may become an equally persuasive argument against refraining from the next step, and the next.

Once again, I propose that a consideration of both halves of the public/private divide is the most

promising, as well as the most traditional, way to approach the problem of defining a principle that will

make these slopes less treacherous.

There are three generally accepted ways of thinking about the division between “public” and

“private” that are significantly represented in the law. First, there is the spatial model exemplified by the

old chestnut, “an Englishman’s home is his castle.” This idea is reflected powerfully in American

jurisprudence concerning Fourth Amendment restrictions on search and seizure the prerogatives of

property owners, and the principle that a state may not criminalize conduct in the privacy of one’s home

that would be subject to regulation in public (nudity, for example). Obviously, this is not a model that is

helpful in considering the issues that are raised above. It would be laughable to suggest that a pregnant

woman’s conduct is “public,” and hence subject to regulation, if and only if that conduct occurs on

publicly owned land. Nor is it helpful to analogize the woman’s body to the Englishman’s castle. While

the absoluteness of the resultant formulation might please those who hold certain philosophical

positions, it would be utterly incongruous with a vast range of American law, ranging from Roe v. Wade

to the very fact that drug use may be criminalized in the first place. Furthermore, if there is an argument

to be made to the effect that whatever affects my own body is by necessity “private,” that principle must

apply least powerfully in the case of a pregnant woman, whose body has a uniquely direct relationship

20

to the future welfare of a future other person.

A second version of the public/private divide has to do with the idea of secrecy. Information is

“private” if it is not known outside a limited range of relationships. My thoughts are “private,” so long

as they are not expressed, because they are uniquely accessible to me. Conversely, an idea that is

widely shared is not only not private, it may become part of the public domain and thus escape all

claims of the right of control or ownership by any particular party. Issues of confidentiality regarding

medical records fall into this category, which raises serious issues of public policy in cases such as

Angela M.W. Is it productive to think of the welfare of a fetus “private” in this sense of being a matter

uniquely accessible to the knowledge of the woman who carries it? Such a formulation certainly

captures something of the subjective experience of the pregnant woman. Turned into a principle with

legal consequences, the proposition would go something like the following: “the conduct of a pregnant

woman is private, and hence beyond the reach of governmental authorities or private legal remedies, so

long as something is not made known publicly.” But what is that “something”? The fact of pregnancy?

That seems both to promote negative conduct (avoiding medical examinations, etc.) and counter-

intuitive. The fact of illegal conduct? It can hardly be a defense to a crime to say that one has not yet

been caught. The fact of otherwise lawful conduct that may be unhealthful for the fetus?

That comes closer to being useful, if far from complete. The fact that there is no public

knowledge of legal but unwholesome conduct (leaving aside disputes about the definition of

“unwholesome,” since such questions fall squarely within the traditional powers of legislatures) does

make a difference, if one of the things that we care about is preventing the creation of a justification for

the widespread surveillance of pregnant women. Moreover, the uniquely dual identity of a pregnant

woman points to another sense in which a change in knowledge may be taken to alter the public/private

relation: something fundamental about that balance may be changed at the moment when a woman

becomes aware of the fact of her pregnancy. “We perceive no justifiable reason,” said the court in

Chenault, “for treating women who intended to become pregnant differently from those who did not,”

but the same claim is much less clear when it is applied to differentiating between women who do or do

not know that they are pregnant. This is more than a simplistic repetition of the evident fact that

21

knowledge is an element of all crimes and most torts. In the case of a woman’s pregnancy, uniquely, it

can be argued that with the knowledge of her condition the woman becomes subject to public duties in

a way that she was not before.

Ontologically, it is as if the body has knowledge that the mind may sometimes be slow to

realize. It is not entirely an unprecedented notion, but analogies are difficult to come by. A person is

liable for their conduct if they knew or should have known that they were impaired by alcohol, whereas

they will not be liable for the same conduct if they had no way of knowing of their impairment (say,

having ingested a drug slipped into a punchbowl). Thus what is being bifurcated is not the unit of

woman-and-fetus, but the mind and body. Once possesses the body’s knowledge, that information is

no longer “private” but rather has become the basis for recognizing public obligations. But why?

Granting that the known or secret quality of information relates to some conception of the public/private

divide, how does that translate into a principle for determining the scope of privacy in the case of a

pregnant woman? To answer that question, we need to bring in the third version of the public/private

divide. The public half of this version of the theory is that expressed in Munn v. Illinois: activities are

public when they are “clothed with a public purpose.” And the private half is contained in the

memorable constitutional pronouncement of Fats Waller: “Ain’t nobody’s business if I do.” This is the

consequentialist conception of the public/private divide, that says that a matter is public when the

resources and future welfare of the larger community are at stake, and that a matter is private when the

community fails to demonstrate such a legitimate interest in the outcome.

By itself, as the court in Stallman observed, the fact of potential consequences for the

community proves far too much to be useful. “[C]ausation alone cannot result in the recognition of duty

because "in a very real sense the consequences of an act go forward to eternity, and back to the

beginning of the world. Any attempt to impose responsibility on such a basis would result in infinite

liability for all wrongful acts, which would 'set society on edge and fill the courts with endless

litigation.'"43 But known consequences is a different story. And the quality of knowledge at stake here

is dual: when a woman knows herself to be pregnant, then there is a public quality to conduct which is

known to be harmful to the fetus. This is, in fact, entirely consistent with the jurisprudence governing

22

the duties of parents, who are required to refrain from conduct known to be harmful to their children.

From this perspective, the onus is not on the pregnant woman to become familiar with the risks of

pregnancy; if the state wants the authority to intervene in a given case, it has to show that it has created

an environment in which the woman can reasonably be said to have known or been expected to know

of the risks involved. Public education thus becomes the first element in the justification for the exercise

of state authority.

This is likely to appear as a shameless appeal to long-discredited notions of “republican

motherhood” (in Linda Kerber’s evocative phrase). Indeed, in Muller v. Oregon it was, in part,

precisely the assertion that healthy mothers were important for “the future of the [American] race” that

justified states in protecting female workers in ways that male workers could not, constitutionally, be

protected. And it is absolutely correct that this formulation implies that the knowledge of pregnancy

results in a diminution of the autonomy of the individual. But the absolutist contrary position cannot be

sustained in a way that is consistent with our jurisprudence of abortion rights. And if the outcome of

this argument is to be all-or-nothing, then those who value the autonomy of women would do well to

consider the likelihood that the authority of the state will become all before it will become nothing. We

are looking, to reiterate the project, for plausible principles of differentiation between cases that keep us

from that slippery downward (or upward) slide.

And this formulation, finally, brings us back to the model of ecological causation, and the hard-

edged wisdom of Oliver Wendell Holmes. “When women live in society,” he might have written, but

for the pronoun, “a certain average of conduct, a sacrifice of individual peculiarities goind beyond a

certain point, is necessary to the general welfare....If, now, the ordinary liabilities in tort arise from

failure to comply with fixed and uniform standards of external conduct, which every man is presumed

and required to know.”44 And with the advent of an ecological model of causation, the range of that

knowledge grows. If a legislature may control a pregnant woman’s ingestion of alcohol, why not

tobacco? Or for that matter her exposure to second-hand tobacco smoke? The issue is not fanciful.

In 1994, a New Jersey Superior Court judge found exposure to second-hand smoke to be

determinative of the “best interests of the child” in awarding custody.45 Research has demonstrated that

23

secondary as well as primary smoke exposure to a pregnant woman poses health risks to her fetus. If

the state may impose a duty on women to avoid actions that are harmful to their fetuses, then exposure

to second-hand smoke is a logical candidate for regulation. Second-hand smoke, moreover, is far from

the only environmental pollutant known to have ill effects on the development of a fetus. It may be

surmised that in years to come scientific researchers will discover more and increasingly subtle

interactions that pose foreseeable risks of harm to the fetus carried by a pregnant woman.

That formulation does, indeed, make the standard for what is public and what private a moving

target, one that changes with the state of social knowledge. But just as the Whitner Court was wrong

to equate a right to privacy with a right to smoke crack cocaine – and, in an earlier day, White was

wrong to think that the right to privacy was defined as the right to commit sodomy – so, too, advocates

of autonomy are wrong to define that goal in terms of specific activities. The danger to the autonomy of

pregnant women is not the formulation of explicable principles justifying state intervention, it is the

absence of explicable principles explaining why a given case does not meet those standards. Lynn

Paltrow is certainly right that to “defend the rights of all women including women who use drugs,” but

equally certainly those rights are not coextensional. The autonomy of women assuredly includes the

freedom to decide to terminate a pregnancy, but it does not follow that in the absence of the exercise of

that freedom all other forms of conduct are “lesser included” freedoms. The connection between

knowledge and public duty is the connection that makes decisional autonomy genuine; the freedom to

choose is the freedom to choose consequences, and as Justice Blackmun pointed out thirty years ago,

past a certain point the nature of those consequences partially shifts the locus of that autonomy across

the public-private divide. The result, no doubt unwelcome, is that the “right to choose” increasingly

comes to look like an obligation to choose. That is, a pregnant woman may have the right to elect an

abortion, but unless and until she does so her conduct will be subject to regulation and/or tort liability,

even in the earliest stages of pregnancy.

The focus on decisional rather than bodily autonomy both justifies and requires the focus on

knowing conduct. Without that requirement -- noticably absent from the current Wisconsin statutes, for

example -- a pregnant woman who has engaged in reckless conduct would be a profound incentive to

24

have an abortion to avoid liability. It seems unlikely that this was the outcome envisioned by Wisconsin

legislators. Moreover, the incentive is doubled for women who might not have knows that they were

pregnant during the first weeks of gestation, a period of particular vulnerability to environmentally

induced harms. On the other hand, as good ecologists we recognize that the particular vulnerability to

suffering consequences is exactly the element that makes private secrets into public concerns. The

adoption of an ecological model of foresseability and causation can make the law wise and farsighted,

or foolish and unnecessarily restricted. But the adoption of that ecological model becomes dangerous

only when it is applied across a universe of social conduct in which there is no definition of what is

“private” because there is no definition of what is “public.”

25

1. Helling v. McKinney, 509 U.S. 25 (1993).

2. See, e.g., Smith v. Eli Lilly & Co. 137 Ill.2d 222 (1990).

3. Holmes, The Path of the Law.

4. Oliver v. Reed, 77 F.3d 156 (7th Cir. 1996), relief denied.

5. Warren v. Keane, 937 F.Supp. 301 (SDNY 1996). The same standard has been adopted bythe United States Supreme Court for federal prisons, in Helling v. McKinney, 509 U.S. 25 (1993), andin West Virginia in State ex rel. White v. PArsons, 1996 W.Va. Lexis 211 (1996).

6. "[B]y failing to exercise its control and assume its responsibility to eliminate the hazardouscondition caused by tobacco smoke, defendant has breached and is breaching its duty to provide areasonably safe workplace." Smith v. Western Electric co., 643 S.W.2d 10 (Missouri App. 1982); thesame conclusion was reached in Shimp v. New Jersey Bell Tel. Co., 145 NJ Super. 516 (1976).

7. For a discussion of the idea of harms suffered from negligent conduct while in utero as the basisfor fetal rights, see Janet Gallagher, "Prenatal Invasions and Interventions: What's Wrong With FetalRights," 10 Harvard Women's Law Journal, p. 9 (1987).

8. See, e.g., Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86 (Georgia 1981).

9. More than 40 states have abrogated the rule that made parents immune from suits by theirchildren. Robert H. Blank, Mother and Fetus: Changing Notions of Maternal Responsibility(Westport, Connecticut: Greenwood Press, 1992) pp. 81-82.

10. Blank, for example, argues that technologies of fetal visualization have played a central role inthe reconception of the fetus as a miniature human being. Blank, The Politics of Pregnancy, chapter 1. Blank's sharp distinction between modern attitudes and those that prevailed earlier is questionable, buthis observation that ultrasound imaging changes the social experience of pregnancy is clearly correct.

11. For a discussion of this point in the context of medical tests, see Ruth Hubbard, The Politics ofWomen's Biology (New Brunswick: Rutgers University Press, 1990).

12. State of Wisconsin ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532 (1995). There weremore than fifty fetal endangerment cases brought before American courts as of 1990. Dorothy E.Roberts, "The Future of Reproductive Choice for Poor Women and Women of Color," 12 Womens'Rights L. Rep. 59, 64 n. 40 (1990).

Notes

26

13. The use of surnames is concededly infantalizing, but the alternative formulation ("Ms. M.W.") isclumsy. The court's decision to use "Angela" is an interesting one in light of the quasi-parental role thatthe state was adopting in the case.

14. See, generally, Catharine Morris, 8 UCLA Women's L.J. 47 TECHNOLOGY AND THELEGAL DISCOURSE OF FETAL AUTONOMY

15. Angela M.W., 197 Wis. 2d at 488.

16. Angela M.W., 197 Wis. 2d at 489 n. 11. The Wisconsin Court also relied on a 1994 casefinding a man guilty of "feticide" for causing the death of an "unborn quick child." State v. Black, 188Wis. 2d 639 (1994).

17. Angela M.W., 197 Wis. 2d at 496.

18. Wisconsin v. Deborah J.Z. 228 Wis. 2d 468, 474-75 (Wisc. App., 1999).

19. Angela M.W., 197 Wis. 2d at 503 n. 8.

20. See Curlander v. Bio-Science Laboratories, 165 Cal. Rptr. 477 (1980), holding that a Tay-Sachs infant could sue a laboratory for negligently permitting him to be born. The court noted that if, ina different case, parents had made a conscious decision to proceed with a pregnancy despiteknowledge that an ill infant would be born "we see no sound public policy which should protect thoseparents from being answerable for the pain, suffering, and misery which they have wrought upon theiroffspring." One 1987 study produced a number of provocative statistics in this regard: in 81% of court-ordered obstetrical interventions the woman was African-American, Asian-American or Latina; in 25%the woman did not speak English as her primary language; and in 100% of cases the request eithercame from a public teaching hospital or involved a woman receiving public assistance. VeronicaKolder, Janet Gallagher and Michael Parsons, "Court-Ordered Interventions," 316 New EnglandJournal of Medicine 1192 (1987).

21. Grodin v. Grodin, 102 Mich. App. 396 (Mich. Ct. App. 1980); Bonte v. Bonte, 136 N.H.286 (N.H. 1992).

22. Grodin, 102 Mich. App. At 401.

23. Bonte, 136 N.H. at 289-90.

24. Whitner v. South Carolina, 492 S.E.2d 777 (S.C. 1997), cert. denied, 118 S. Ct. 1857(1998).

25. For a detailed description of this case, see Alma Tolliver, “Child Abuse Statute Expanded toProtect the Viable Fetus: The Abusive Effects of South Carolina's Interpretation of the Word "Child",”

27

24 S. Ill. Law Journal 383 (2000).

26. Ohio v. Gray, 584 N.E.2d 710 (Ohio 1992).. Kentucky v. Welsh, 864 S.W.2d 280 (Ky.1993). Washington v. Dunn, 916 P.2d 952, 955 (Wash. 1996). All

27. Michigan v. Hardy, 469 N.W.2d 50 (Mich. 1991). Johnson v. Florida, 602 So. 2d 1288(Fla. 1992).

28. Whitner, 492 S.E.2d at 780-81.

29. Whitner, 492 S.E.2d at 785-86.

30. Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 357 (1977).

31. Stallman v. Youngquist, 125 Ill. 2d 267, 276 (1992).

32. Stallman, 125 Ill. 2d at 278-79.

33. Chenault v. Huie, 989 S.W.2d 474, 475-76 (Tex. App, 1999).

34. Chenault, 989 S.W.2d at 477.

35. Chenault, 989 S.W.2d at 478.

36. Baby Doe v. Mother Doe in 1994260 Ill. App. 3d 392, 401-02 (1994).

37. Johnson v. State, 602 So. 2d 1288 (Fla. 1992) (court held it is against legislative history,public policy, and common sense to convict a mother of "delivery" of a controlled substance to herbaby through the umbilical cord seconds after birth; State of Florida v. Ashley 701 So. 2d 338(1997) (common law immunity of pregnant women not abrogated by statute absent clear statement oflegislative intent).

38. Alma Tolliver, “Child Abuse Statute Expanded to Protect the Viable Fetus: The AbusiveEffects of South Carolina's Interpretation of the Word "Child",” 24 S. Ill. Law Journal 383, 404 (2000)

39. Lynn M. Paltrow, “Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade,” 62Albany L. Rev. 999, 1052-53 (1999).

40. Carolyn S. Palmer, “Alcohol Abuse and the Viability of an Inclusive Approach: Arguments forLimiting Punitive and Coercive Prenatal Alcohol Abuse Legislation in Minnesota 10 Hastings Women'sL.J. 287 (1999).

41. Caroline Morris, “Technology and the Legal Discourse of Fetal Autonomy,” 8 UCLAWomen’s L. J. 47, 96 (1997).

28

42. Interestingly, the post-modern alternative in this context looks a great deal like a return to theprinciples of "trespass on the case," which defined the availability of legal remedy by the subjectiveexperience of outrage on the part of the complainant, a privileging of the victim's experience thatresonates powerfully with the perspectives of critical race and gender approaches to legal studies.

43. Stallman, 125 Ill. 2d at 277.

44. Holmes, ”The Common Law,” in Richard A. Posner, ed., The Essential Holmes (University ofChicago Press, 1992), 257, 259.

45. Unger v. Unger, 644 A.2d 691 (N.J. Sup. Ct., 1994).