In this Article the author will examine not only the substantive legal differences between the United States, Canada, and France, but will also explore how these legal rules fit within a broader social, political, and religious setting. This Article will pursue four lines of inquiry. First, it will briefly chronicle the history of criminal prosecution of pregnant women in America and show how these prosecutions have become markedly more aggressive over the last twenty years. Second, it will situate these prosecutions in the full context of American law and culture, demonstrating how the fetus has received increasing legal recognition in a wide variety of circumstances. The author will argue here that "fetal protection" prosecutions are part of a broader attack on women's rights, including the right to reproductive freedom as well as the right to control their economic and private lives generally. The Article will examine how American laws focus on the fetus as the sole "person" at risk, rather than on the maternal-fetal dyad, skews the legal and political arguments that take place. It will contrast the emphasis on the fetus with the failure of American government to provide adequate health care for women and children. Third, it will examine the laws of two other nations, Canada and France, for purposes of comparative legal, cultural, and economic analysis, and will offer some informed speculation about the reasons why the American obsession with "fetal protection" is not matched by other nations. Here the Article will address four factors: 1) America's frequent reliance on constitutional litigation as a means of achieving law change; 2) America's federal system of government, which provides the opportunity for different legal rules to operate concurrently within the same nation; 3) the United States' unique prosecution system, which involves government attorneys who are chosen locally by the electorate, as opposed to the Canadian and French systems in which prosecutors are appointed through a centralized national process; and 4) and the lack of a system of universal health care and other government-funded social and economic supports. The Author will conclude with recommendations for reforming American law to embrace the unity of interests of pregnant women and their fetuses and promote the health of both, by providing treatment, not punishment, for addicted women.
Linda C. Fentiman,
Pursuing the Perfect Mother: Why America's Criminalization of Maternal Substance Abuse is Not the Answer- A Compartive Legal Analysis,
Mich. J. Gender & L.
Available at: https://repository.law.umich.edu/mjgl/vol15/iss2/4