By Aziza Ahmed*
Among the many important critiques made by reproductive justice (RJ) advocates, a key claim is that “choice” is a myth for poor women seeking reproductive health services. According to RJ advocates and scholars, a combination of laws and social realities—from welfare restrictions to discrimination in the hospital setting—have made it nearly impossible for poor pregnant women to have autonomy and agency in their health-related decision making. Some scholars have argued that the myth of “choice” reifies the woman’s responsibility for her purportedly bad reproductive decisions.
The idea that the “choice” rhetoric allows for blame is especially relevant to the criminal legal response to pregnancy and childbirth, where we see prosecutors, doctors, and nurses seeking to hold women responsible for their birth outcomes. This use of the criminal law to manage women’s pregnancies is an expected outcome of the expansion of the criminal legal system. Starting in the late 1960s and early 1970s, as the welfare state retracted, perceived social problems were recast as criminal problems. Criminal law encroached into nearly every aspect of social welfare from food assistance to the delivery of health services. For poor women, this often meant that their pregnancies—the types of foods they could afford to eat, as well as their healthcare from pregnancy to birth—took place under the specter of criminal law.
The persistent use of the criminal law to regulate pregnancies raises the need to explore how expertise—from forensic science to medical evidence—is utilized to prosecute women for crimes related to pregnancy. I recently explored the way particular modes of expertise and evidence operate in cases of still birth and abortion with regard to the controversial floating lung test (FLT). The FLT is often used in prosecutions of women for still births or self-induced abortion, and is designed to test whether an infant was born dead (a still birth) or alive. The FLT requires taking pieces of a fetus’ lung and placing it in water. If the pieces of the lung float, the baby had taken at least one breath and is classified as having been “born alive”; if the lungs sink, then the baby was a still birth. If born alive, women are frequently prosecuted for infanticide or homicide.
The FLT came to national attention in the case of Purvi Patel. Patel had ingested an abortifacient that she ordered from Hong Kong after learning she was pregnant. Trial records suggest that she had no idea how pregnant she was and assumed that she was still early in her pregnancy. After delivering the fetus, Patel placed it in a bag and went to the hospital. After examining her, a physician dated her pregnancy at a later stage and called the police, believing the child was still alive. To answer the question of whether or not there was a live birth, forensic scientists turned to the floating lung test. If the child had been born alive, Patel could be—and was—charged with numerous crimes in Indiana, including feticide and neglect of a dependent leading to death. The test, as I describe in detail in a recently published paper, is highly contested and viewed as unreliable by forensic scientists. This is primarily because there are numerous ways lungs can become oxygenated and generate false positives. And yet, even today, courts continue to accept this faulty evidence against women who have had still births. Some of these women, though not all, may have attempted to induce their abortions.
The FLT is not the only example. The supposed “crack baby” epidemic is another instance of the intersection of criminal law, expertise, and reproductive health. Documented in detail by Dorothy Roberts, the myth of the crack baby epidemic had catastrophic consequences for poor Black women. Starting in the 1980s, public officials and the media advanced a narrative of Black women as uncaring mothers who passed drugs to their fetus and resulting child. Hospitals doubled down on reporting drug use to law enforcement and social services, often targeting pregnant women of color in ways that neither addressed their health needs nor ensured better birth outcomes for their children.
Since then, research has found that the impact of crack cocaine on children’s lives was far less pernicious than that of poverty, inspiring a national conversation about the failed carceral response to the purported “crack baby” epidemic. This has spawned a public reckoning for the mainstream media, most notably the New York Times. Yet, despite the public reconsideration of criminal approaches to policing pregnancy and motherhood, Michele Goodwin’s pathbreaking new book, Policing the Womb: Invisible Women and the Criminalization of Motherhood, powerfully shows how little has changed. Goodwin carefully documents the variety of ways in which the criminal law continues to entangle poor women, especially poor women of color, throughout the courses of their pregnancies, whether by regulating their ability to decline surgeries or by prosecuting them for drug use.
The role of scientific expertise and evidence in the “crack baby” epidemic has raised several questions about the social and political environment facilitating the uptake of particular expert claims. Why were the media, courts, and legislatures so willing to accept “small n” studies asserting correlations between crack cocaine and birth outcomes in order to enable the prosecution of pregnant women? Why were courts and the public so willing to accept the narrative of the purported epidemic, when from the outset there were experts who argued that babies born to mothers using crack or cocaine were not experiencing the neurological symptoms and long-term effects that other physicians claimed?
The successful prosecutions of women who have still births, self-induce abortion, or use drugs during pregnancy is significant for another reason. Courts were not only accepting, but legitimating, problematic forensic science or research by allowing it to pass through procedural hoops and make it out the other side. This raises the question of why courts allowed unreliable evidence to survive procedural hurdles in the first place. In the case of the floating lung test, as well as in other forensic tests used in the pregnancy and abortion context, there are a few possibilities that I lay out below (which are discussed at greater length in my paper).
First, rules of evidence and procedure have been poor tools for excluding faulty science in the courts. Many scholars have documented how the flexibility of evidentiary standards allows judges—who may lack the capacity to understand and grapple with scientific questions—to admit forensic science of questionable merit. There is a general sense in the criminal law and procedure literature that such tests have failed defendants by allowing forensic tests riddled with issues to substantiate claims that lead to conviction.
Second, judges are not immune from societal bias or political pressure. As legal scholar Deborah Tuerkheimer has noted in the context of Shaken Baby Syndrome, the desire to blame someone for the death of a child can create its own momentum in courts. As I argue in my work, this momentum also has racial and gender dynamics, which are driven in part by moral panics surrounding pregnancy and mothering. The role of race is abundantly clear in the context of crack cocaine use in pregnancy. Public figures such as President Reagan churned out a narrative about Black mothers exploiting their children to extract payments from the welfare state. The criminalization of pregnancy flowed naturally from this narrative as the war on drugs took hold. Negative ideas about Black motherhood were so powerful, and prosecutions so common, that the research suggesting Black women were hurting their fetuses simply served to confirm an existing story.
Finally, as in the context of the supposed crack baby epidemic, prosecuting women for their still births and self-induced abortions expressed a moral panic about women who had betrayed their motherly instincts. This can be seen in the prosecutor’s painting of Patel as a cold-hearted murderer:
On July 13 the little boy was born on a cold, hard bathroom floor. The only touch he got from his mother was to move him from that bathroom floor into a garbage can. In that garbage can he was lying on and surrounded by waste that no one wanted. From there he went to the bottom of a cold, metal dumpster. He was born and died without being cared about, without experiencing anything good. Not one second of comfort, not one second of warmth. We’re here for a little boy that we can’t call by name because he never got one.
Aside from discounting Patel’s version of events in which she described being in a state of shock after delivering a dead fetus, the prosecution suggests that as a mother she should have instinctively cared for the child she gave birth to. By painting her in this light, the prosecution implied that Patel deserved to be punished for failing to live up to a set of prevailing notions of pregnancy and motherhood. And by accepting these arguments and the outcome of the floating lung test over the protestations of Patel’s defense attorney, the court legitimated both the faulty forensic science and the idea that mothers have not only moral but also legal duties towards their fetuses.
The criminalization of pregnancy and abortion is still rampant. Questioning expert claims that enable these prosecutions, as well as the procedural mechanisms that fail to check questionable and unreliable science, helps to dismantle the regulation of pregnancy and abortion through the criminal law.
*Aziza Ahmed is a Professor of Law at Northeastern University.
 Transcript of Record at A7, State v. Patel, No. 71D08-1307-FA-00017 (St. Joseph Super. Ct. Mar. 30, 2015).