Blaming Mothers

American Law and the Risks to Children's Health

Linda C. Fentiman

• Publisher: NYU Press
• Year: 2017
• ISBN:
  9780814760413
• Topic: Law
• Subtopic: Family Law
• Index: Law

A gripping explanation of the biases that lead to the blaming of pregnant women and mothers. Are mothers truly a danger to their children’s health? In 2004, a mentally disabled young woman in Utah was charged by prosecutors with murder after she declined to have a Caesarian section and subsequently delivered a stillborn child. In 2010, a pregnant woman who attempted suicide when the baby’s father abandoned her was charged with murder and attempted feticide after the daughter she delivered prematurely died. These are just two of the many cases that portray mothers as the major source of health risk for their children. The American legal system is deeply shaped by unconscious risk perception that distorts core legal principles to punish mothers who “fail to protect” their children. In Blaming Mothers, Professor Fentiman explores how mothers became legal targets. She explains the psychological processes we use to confront tragic events and the unconscious race, class, and gender biases that affect our perceptions and influence the decisions of prosecutors, judges, and jurors. Fentiman examines legal actions taken against pregnant women in the name of “fetal protection” including court ordered C-sections and maintaining brain-dead pregnant women on life support to gestate a fetus, as well as charges brought against mothers who fail to protect their children from an abusive male partner. She considers the claims of physicians and policymakers that refusing to breastfeed is risky to children’s health. And she explores the legal treatment of lead-poisoned children, in which landlords and lead paint manufacturers are not held responsible for exposing children to high levels of lead, while mothers are blamed for their children’s injuries. Blaming Mothers is a powerful call to reexamine who - and what - we consider risky to children’s health. Fentiman offers an important framework for evaluating childhood risk that, rather than scapegoating mothers, provides concrete solutions that promote the health of all of America’s children.

Part I

Introduction to Risk and Children’s Health

1

Are Mothers Hazardous to Their Children’s Health?

In 2007 Bridget Kevane, a mother in Bozeman, Montana, was charged with criminal child neglect after she dropped off her twelve-year-old daughter and a friend at the local mall, along with the two girls’ younger siblings, ages eight, seven, and three. After the two twelve-year-olds momentarily left the younger children alone while they were trying on clothes at Macy’s, the police were called. The police officers exercised their discretion to decide that the children were the victims of child neglect, and a prosecutor agreed that the mother had violated her duty of care.1 Kevane, a university professor, wanted to fight the charges but ultimately agreed to a plea deal after the results of a mock jury trial convinced her that if she actually went to trial she would be convicted.

Nearly every day brings a news story—in a major newspaper or on the Internet—suggesting that mothers have fallen short in their obligation to protect their children’s health and well-being. In 2011, in an article headlined “Teenage Obesity Linked to Poor Mother–Child Bond,” the New York Times reported on a study published in the prestigious journal Pediatrics which purported to show that children who had poor relationships with their mothers as toddlers were more likely to be obese as teenagers.2 Other studies have claimed that the more time mothers spend working outside the home, the more likely their children are to be overweight.3 During the past three decades there has been a growing emphasis—by doctors, the media, government officials, and prosecutors—on the “risks” that mothers pose to their children’s health. Mothers—and pregnant women—are increasingly seen as exclusively responsible for all aspects of their children’s health and well-being.4 At the same time, the enormous impact of poverty, genetics, environmental toxins, fathers, government, and private institutions on children’s health is largely ignored.

Pregnant women have borne the brunt of criminal prosecutions and civil interventions. In 2004 Utah prosecutors brought murder charges against Melissa Rowland, a mentally disabled young woman, after she declined to have a caesarean section and subsequently delivered a stillborn child.5 In 2009 a pregnant woman in New York, Jennifer Jorgensen, was charged with three counts of manslaughter after she was involved in an accident with another car. The prosecution claimed that she had been driving under the influence of alcohol and prescription drugs and that Ms. Jorgensen was reckless in driving without a seatbelt. Two of the victims were occupants of the other car; the third was Ms. Jorgensen’s daughter, who was delivered prematurely and lived only six days. Astonishingly, while the jury acquitted Ms. Jorgensen of manslaughter in the case of the two adult victims, it found her guilty of manslaughter for causing her daughter’s death. The trial judge sentenced Ms. Jorgensen to prison for three to nine years, and his ruling was upheld by a midlevel appellate court. Ultimately, Ms. Jorgensen’s conviction was reversed by the New York Court of Appeals. The Court ruled that women could not be subject to criminal liability for manslaughter based on their conduct while pregnant, holding explicitly that a child who was injured in utero could not be a “person” under New York homicide law.6

Pregnant women have faced criminal charges for other accidents. In 2010 Christine Taylor, a pregnant Iowa woman, was arrested and held on suspicion of attempted feticide after she fell down a flight of stairs. The arrest was based on Ms. Taylor’s statement to emergency room workers that she was not sure she wanted to have the baby because her husband had just abandoned her and her two young children. Eventually the case was dropped because Ms. Taylor’s pregnancy was not sufficiently advanced to permit prosecution.7

Pregnant women have also been subject to other deprivations of liberty. In 2013 a Wisconsin judge ordered Alicia Beltran, a pregnant Wisconsin woman, to be civilly committed—involuntarily detained in a “treatment” facility—for seventy-nine days based on her prior dependence on opioids, despite negative drug tests, because of the risk that she might harm her fetus. In 2014 Marlise Muñoz, a pregnant paramedic who was brain-dead, was kept on life support for nearly four months at the insistence of the Texas hospital where she had been taken after suffering a stroke; the hospital’s lawyer asserted that this was required by a Texas law that declared that life-sustaining treatment may not be withdrawn or withheld from pregnant women. And in 2010 a Florida judge ordered Samantha Burton, a pregnant woman, to be hospitalized for bed rest and treated over her objection, because Ms. Burton had declined to follow her doctor’s recommendations. The judge declared that because she had disagreed with her doctor’s advice her pregnancy was therefore “high risk” and posed a “substantial and unacceptable’” risk of harm to the fetus.8 Many of these criminal and civil actions reflect an underlying view of pregnant women as mere vessels for developing fetuses. While this perspective is not new, it has been gaining prominence since the beginning of the twenty-first century, along with the rise of the “personhood movement” and increased efforts to limit women’s access to abortion.

Moving beyond pregnancy, over the past decade a rising chorus of medical professionals and government officials has embraced the message that mothers who do not breastfeed are actively risking their children’s health. From 2004 to 2006 the U.S. Department of Health and Human Services sponsored a series of public service announcements to promote breastfeeding. These included ads that equated the “risks” of not breastfeeding with the dangers of riding a mechanical bucking bronco while eight months’ pregnant.9 Since 2012 in an effort to get more mothers to breastfeed, some New York City hospitals have treated infant formula like a drug, which must be held under lock and key and is not available to new mothers without an approved “medical reason.”10

Mothers have been criminally prosecuted for child abuse, manslaughter, and murder for failing to act to protect their children from sexual abuse or violent assault by a husband or boyfriend. Yet fathers are rarely prosecuted when they fail to protect their children from similar abuse by a wife or girlfriend. In nearly half of the cases, the mothers who are prosecuted are themselves the victims of intimate partner violence by the same man who has abused or injured their children.

This book proceeds in four parts. Part I, “Introduction to Risk and Children’s Health” explores the multiple ways in which mothers are blamed for risking—or actually harming—their children’s health. Chapter 1, “Are Mothers Hazardous to Their Children’s Health?,” documents the ever-expanding and insistent narrative that mothers are “risky” to their children. This chapter demonstrates the myriad ways in which mothers are portrayed as dangerous to their children’s health—and often held legally responsible for it. Chapter 2, “The Social, Psychological, and Legal Construction of Risk,” explores the psychosocial processes of risk construction, demonstrating how they interact with substantive legal principles to make a singular focus on mothers both possible and likely. The chapter first explains the processes of risk perception, risk communication, and risk management, which are highly value-laden, neither neutral nor objective. These psychosocial processes are both unconscious and very powerful, affecting the way we perceive and talk about risk and how we act on these perceptions. Subliminal biases and stereotypes, reflecting individual worldviews as well as enduring cultural scripts,11 play out in the legal system in two distinct ways. First, American law expressly incorporates socially constructed legal norms. These include “the reasonable person,” which defines the standard of behavior called “negligence,” and the requirements of causation known as “actual cause” and “proximate cause.” Second, deciding whether an individual’s acts meet legal criteria involves the exercise of discretion, which is often affected by unconscious cognitive shortcuts and biases.

Discretionary decisionmaking pervades both the civil and criminal law arenas. On the civil side, discretion is exercised when investigators choose whether to pursue a case, lawyers consider whether to sue, juries decide whether a defendant was negligent (and thus liable for damages), and judges determine that a person’s past behavior threatens future harm, justifying involuntary civil commitment for treatment. In the criminal setting, discretionary decisions are made when police officers choose to arrest or warn someone who has broken a law, prosecutors initiate or drop criminal charges, juries convict or acquit, and judges affirm or overturn a conviction. Each occasion for individual choice is also an opportunity for unacknowledged prejudices and cultural norms (including those based on gender, marital status, class, and race) to affect not only how key legal requirements are framed but also judgments about whether those requirements are met in a particular case; frequently these biases and unarticulated norms are outcome determinative.12 Health care professionals—doctors, nurses, and others—wield tremendous power, deciding when—and when not—to disclose confidential patient information to law enforcement if they believe that a patient has engaged in “risky” behavior.

Chapter 3, “How Healthy Are America’s Children? Myths and Realities,” situates the health of America’s children in historical and comparative context. Today the reality is that American children are quite healthy, compared with children in prior eras.13 Life expectancy rates for American children are at historic highs. A baby born in 2013 can expect to live 78.8 years, the longest life expectancy for American children ever projected.14 In contrast, in the early 1900s newborn American infants faced significant odds of an early death. One-fifth of children died before age five, and many did not reach their first birthdays. Infant deaths were so common that babies were often buried in unmarked graves.15

Even in the middle of the twentieth century the risk of a child’s dying from an infectious disease, such as polio or pertussis (whooping cough), was alarmingly real. Before these afflictions were brought under control, more than a million Americans were infected each year with serious contagious diseases, with thousands dying each year. In the year 1950 alone there were 120,000 cases of pertussis, with 1,118 deaths; 33,000 cases of polio, with 1,904 deaths; and 319,000 cases of measles, with 468 deaths.16 Today, all of these diseases are preventable through childhood vaccination. In the United States, childhood death is rare, because of achievements in sanitation,17 child labor laws,18 the discovery of antibiotics, breakthroughs against childhood cancer, and the development of vaccines.19 For most diseases now preventable by vaccination, death rates have fallen by more than 90 percent from their twentieth-century peak.20

Yet compared with other economically developed countries, the United States falls far short, especially in measures of infant mortality, preterm birth, and childhood injury and death.21 These differences can be attributed largely to significant racial and economic disparities in health care access in the United States,22 as well as to the profound impact of economic and social disadvantages in all aspects of life. The Affordable Care Act (“Obamacare”) has the potential to reduce these disparities, but class- and race-based differences in health care access and outcomes are likely to persist for some time.23 There is also a strong correlation between childhood stressors (including physical and sexual abuse, domestic violence, and parental alcoholism and mental illness) and poor health as adults, resulting in a markedly shorter lifespan for some Americans. Many of these stressors are closely correlated with poverty and social and geographic isolation, whether in rural areas or the inner city. Mounting evidence shows that exposure to stress at a young age results in permanent damage to the brain and other organs.24

Chapter 3 also examines the impact of fathers and other men, the government, and environmental and social factors on children’s health. Most obviously, fathers shape children’s health through their genetic contributions. In addition, fathers contribute to the child’s fetal and post-birth environment when they use tobacco, alcohol, or other drugs at home or are exposed to toxins at work. Men transmit HIV to children by having sex with the child’s mother and by sharing contaminated needles with other drug users. Most notably, male sexual and physical abuse of children, particularly girls, not only causes immediate harm but also contributes to children’s subsequent physical and mental illnesses and substance abuse.

The American legal system has largely taken a hands-off approach to domestic violence, which encompasses intimate partner violence and child abuse. In part, this reflects the value Americans place on protecting individual liberty and family privacy, although one can also see it as the legacy of a patriarchal system that accepted male “discipline” of wives and children as long as the harm was not too great. Tolerance of domestic violence by judges and the police, though much less prevalent today, continues. Since the 1980s the Supreme Court has twice rebuffed lawsuits seeking to hold the government accountable for failing to protect childre...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Part I. Introduction to Risk and Children’s Health
• Part II. Mothers as Vectors of Risk
• Part III. Environmental Hazards to Children: Toxic Substances and Contagious Diseases
• Part IV. A New Framework for Risk Assessment and Risk Reduction
• Appendix: Criminal Prosecutions of Parents Based on a Failure to Act
• Notes
• Index
• About the Author