Monday, March 27, 2023
Beety and Oliva on "Policing Pregnancy 'Crimes'"
Valena E. Beety and Jennifer D. Oliva have published "Policing Pregnancy 'Crimes'" in Volume 98 of the N.Y.U Law Review as an Online Feature. The abstract provides:
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds defense attorneys of their obligation to challenge junk science in the courtroom.
The essay concludes:
States have pursued criminal charges against pregnant people even when there was no scientific evidence to support any claim that they had caused harm to their fetus and when their children were born healthy. Worse yet, the policing of pregnant people heightens—rather than mitigates—maternal and fetal health risks because it incentivizes individuals to avoid healthcare services. It also instigates a cascade of attendant negative outcomes, including but not limited to the potential loss of custody of children, difficulty in obtaining employment, and exclusion from public benefit programs. There is little doubt that Dobbs will motivate the enhanced surveillance, policing, and prosecution of pregnant people. The post-Dobbs world is shaping up as an extraordinarily dangerous place for pregnant people and their families, and it is critical that defense attorneys are prepared to vigorously challenge the state’s evidence in these cases.
Read the full article here: https://www.nyulawreview.org/online-features/policing-pregnancy-crimes/.