A quarter-century or so before he became president of the United States, Harvard Law student Barack Obama was studying constitutional law. And amid the crack (and “crack baby”) era, he turned his focus on the rights of pregnant women.
In the 1990 Harvard Law Review, the not-yet-30 Obama considers how policies upholding “fetal rights” could be used to establish state control over pregnant women’s behaviors. His insight is highly relevant today, as the rapidly rising rate of drug-exposed newborns fuels unprecedented punishment of mothers for drug use during pregnancy.
Almost predictive, young Obama’s paper weighs the value of punitive policies and champions public health interventions over state control.
He explains that “fetal rights” were motivating policies beyond abortion, creating standards by which pregnant women could be punished for behaviors deemed dangerous to their fetuses. He anchors his report to Stallman v. Youngquist—a 1988 case in which a woman attempted to sue her mother and another driver for injuries she sustained in a car accident before birth. In the Review, the young Obama summarizes why the case piqued his interest:
“Although the court in Stallman dealt exclusively with the fetus’ capacity to sue its mother for her negligent behavior during pregnancy, the case raises the broader policy and constitutional considerations that argue against using civil liability to control the behavior of pregnant women.”
He later adds:
“it also indicates the dangers such causes of action present to women’s autonomy, and the need for a constitutional framework to constrain future attempts to expand ‘fetal rights.’”
In a footnote, Obama explains why such lawsuits could be harmful, and how “fetal rights” and drug policy intersect:
“The interest in bearing a healthy child would generally serve as an insufficient deterrent only when the woman is either unaware of the impact her behavior has on her child, or because (as in the case of a drug-addicted mother) she is unable to control her behavior. As the Stallman court suggested, the solution to the first problem is prenatal education; the solution to the latter problem involves an expansion of drug treatment facilities for pregnant women, which currently remain in notoriously short supply.”
“In either of these circumstances, imposing civil liability on mothers may be as likely to deter the carrying of pregnancies to term as to deter maternal negligence during pregnancy, and in some circumstances liability may only discourage prenatal examinations”
Last year, Tennessee became the first state to use its legislature to allow for criminal (assault) charges for women who use drugs during pregnancy. Widespread panic about babies born in withdrawal from opioids has other states eyeingpunitive approaches. Harvard-era Obama seems to disagree.
“The Stallman court acknowledged the Illinois legislature’s power to establish a mother’s legal duty to her fetus,” he explains. “Even in that case, the court argued, the best way to achieve the laudable public policy of ensuring healthy newborns ‘is not . . . through after-the-fact civil liability in tort for individual mothers, but rather through before-the-fact education of all women and families about prenatal development.’”
Seemingly anticipating a legal trend, he warns about other policies springing from similar notions of the legal responsibilities of pregnant women to their fetuses:
“[t]he more difficult cases—those involving maternal activities that might be considered intentional or reckless infliction of prenatal injuries on the fetus—remain to be decided. As these cases arise, states should avoid adopting constitutionally dubious laws in pursuit of ill-conceived strategies to promote fetal health. Expanded access to prenatal education and health care facilities will far more likely serve the very real state interest in preventing increasing numbers of children from being born into lives of pain and despair.”
Altogether, 1990-vintage Barack Obama sounds uncannily like the advocates currently fighting against Tennessee’s fetal assault law.