At Women's Expense:

Abstract

Analyses of so-called maternal-fetal conflict typically take fetal rights as given. In contrast, this paper argues that rights are socially created and do not come free. It analyzes how courts participate in the social construction of fetal rights in the areas of pregnant women's medical treatment and drug and alcohol use. Women are forced to bear the costs of making fetal rights real, burdening them without demonstrating any clear pattern of benefit to fetuses. It concludes that social policy that cares about women and empowers them will serve fetuses as well.I can't work; I can't smoke; I can't drink. This isn't a fetus-it's a parole officer.-Susannah, ''thirtysomething'' 1 In the United States today, an extensive array of policies, practices, and ways of making decisions systematically burdens and harms women in the name of the fetus. This array often fails to achieve its goal of helping the fetus, or is simply not needed to achieve that goal. The abstract question whether the fetus is a person usually frames discussion of these measures. My discussion will bracket that debate, because it misses what is most important-the actual effects of these policies.Nobody knows exactly how many women have been directly affected by these policies and practices so far. Women have been subject to them in almost every state in the nation-at least 48 and the District of Columbiaduring the past decade. 2 The measures gained popularity throughout the 1980s and 90s, as more and more employers, hospitals, and government jurisdictions imposed limits on fertile, and especially on pregnant, women's actions. They are part of a larger set of contemporary social and political struggles to define the parameters of women's independence. In the U.S. political system, courts are important arbiters of these struggles, and their decisions often constitute a kind of moral discourse that governs both how women should be thought of and how women can be treated.Although she does not address fetal advocacy politics, Martha Minow offers some insights about the lure of establishing fetal rights. When someone makes rights claims, she asserts her identity as an individual entitled to equality and liberty, and emphasizes her essential sameness to others as a person and a member of the polity. Rights analysis further ''treats each individual as a separate unit, related only to the state rather than to a group or to social bonds'' (Minow 1990, 216). Fetal rights claims, then, present a rhetorically powerful strategy by giving the fetus an individual identity, asserting its equality with the woman, and establishing its independent relationship with the state that bypasses the pregnant woman.Rights rhetoric is also powerful because it obscures the question of costs. When a court or other institution decides to give fetuses rights, it has to assign the costs of making those rights real to some individual or collectivity. That assignment-who should bear the costs-is a political question that has received very little direct public debate. The explicit or ...