Michele Bratcher Goodwin, "Reproductive Carrots and Sticks"
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B: Dubious Distributional Effects

Across the social spectrum, FDLs have perverse distributional effects. For this reason, scholars highlight equal protection problems to defeat the enactment of such laws, but with varying success. Generally, anti-FDL scholars and activist argue that such laws map unevenly onto women, ignoring the conduct of husbands and boyfriends. Such arguments are persuasive. But there are other distributional impacts worth noting.

Imagine a pregnant woman's every sip of a caffeinated beverage, like iced tea; gulp of carbonated soda; her bite into a chocolate chip cookie or chocolate cake; or even a taste of a lemon-lime soda[53] being a crime against the state. Any reasonable lawmaker should want to flesh this out further. Is that type of conduct the type of behavior the laws are designed to deter or punish? Picture law students, women in the military, women doctors, partners at law firms, commodity traders, and those working in high-stress professions being treated as criminals—if they miscarried—because the death of a fetus is treated as proof of either intent to harm or evidence of negligent endangerment to the fetus.

Here, then, for purposes of distributional equity, all pregnant women who expose fetuses to harmful substances would be or should be (according to a strict reading of what some legislators propose) subject to prosecution. If the twin purposes of FDLs are to reduce preventable risks to fetuses or even to lessen the incidence of low birthweight in babies, then states will exceed the boundaries of their Constitutional authority because the class will be overly broad and prosecution excessive. If justly applied, the effect of fetal harm laws would be to discriminate against between 85% and 90% of women (the percentage of women who are fertile). The only women exempt from prosecution for potentially harming a fetus would be infertile women, who comprise only 15% of the population. They are exempt only because they cannot have babies. The strict liability enforcement mechanism—at least as applied to IC—is unyielding, giving no room to consider personal or even medical externalities.

Medically and socially, the stress of maintaining a pregnancy that avoids miscarriage or low birthweight delivery might be virtually impossible or too costly. In fact, such stress could lead to medical complications. We should seriously scrutinize efforts that would cast our moral and legal commitments to equal opportunity back to an era where race and poverty determined whether the state considered a woman worthy to give birth.[54] In the case of Carrie Buck, the United States Supreme Court, led by Justice Oliver Wendell Holmes, found her unfit to reproduce and held that a Virginia law[55] that permitted the compulsory sterilization of poor, illiterate people to be sufficiently sturdy to pass Constitutional muster.[56] The Court concluded that "three generations of imbeciles are enough," thereby granting Virginia the legal authority to order the sterilization of Carrie[57] and thousands of women thereafter. In Carrie's case, that she was the victim of a rape perpetrated by her employer's nephew was irrelevant; she was poor and her mother was alleged to have been an alcoholic.[58] Sadly, the U.S. eugenics policy became the strategy adopted by the Third Reich in Nazi Germany.[59]

On inspection, how wide is the gap that distinguishes state punishment of poor, drug-dependent women of color for becoming pregnant, from eugenic era policies that institutionalized women like Carrie Buck and released them only after their sterilizations? Both policies emerge from a legislative interest in an idea of the "perfected fetus" and "perfected child." And both policies find the answers to perfecting society (through creating perfect babies and disincentivizing the poor from reproducing) in the physical and emotional punishment of women.

My argument here is not that women are victims of their environments; rather, it is an acknowledgement that neither men nor women maintain absolute control over their environments. (Of course, historically women have maintained less control than men.) Here, then, a woman could be prosecuted for a miscarriage or stillbirth, but the effect (stillbirth) could be linked to any number of causes, including second-hand smoke,[60] domestic violence,[61] living in or near a toxic environment,[62] or the causes can be compounded.[63] Explained differently, the criminal penalties associated with pregnancy would be enough to incentivize avoiding pregnancy altogether. Indeed, it is very difficult to quarantine one's environment or the circumstances in which harms arise during a typical pregnancy. If the risk of pregnancy means incarceration, then one likely effect would be to discourage pregnancy and promote abortions, both of which are unintended and unanticipated consequences.

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