Roe vs. Wade, criminal law and the legal protection of the unborn podcast

Featuring Emma Milne, Assistant Professor in Criminal Law and Criminal Justice at Durham University and author of Criminal Justice Responses to Maternal Filicide, this episode considers renewed interest to legal protection of the unborn in the wake of the overturning of Roe vs. Wade.

Delving into the modern implications of infanticide, the act of a mother killing her child, in our contemporary social context and chatting us through the criminal justice response to this phenomenon, Emma reflects on contemporary ideals of motherhood, women’s rights, and the interaction of criminal law with women’s bodily autonomy and legal protection of the unborn.

As an expert on criminal justice responses to protection of the unborn and infants, our host gets Emma’s thoughts on the trajectory of abortion rights in the US and UK. Looking ahead, Emma shares her opinion on whether providing the foetus with legal protection prevents harm to foetuses, and what lies ahead for criminal justice responses to maternal infanticide in the UK and beyond.

Read a sample chapter from Emma’s book, Criminal Justice Responses to Maternal Filicide: Judging the Failed Mother (Emerald, 2021).

Speaker profile(s)

Emma Milne is Assistant Professor in Criminal Law and Criminal Justice at Durham University. Emma's research is interdisciplinary, focusing on criminal law and criminal justice responses to new-born child killing and foetal harm.

The wider context of Emma's work is social controls and regulations of all women, notably in relation to pregnancy, sex and reproduction.

In this episode:

  • What does maternal infanticide tell us about how women's use of violence is perceived and understood?
  • In Emma's book, Criminal Justice Responses to Maternal Filicide, what does she find were the causes and conviction outcomes of criminal infant homicide cases in England and Wales? What vulnerabilities lead to maternal infanticide in modern social contexts?
  • What is Roe vs. Wade, and what does the overturning of Roe vs. Wade tell us about how criminal law interacts with women’s bodily autonomy and legal protection of the unborn in the US? What does this mean for the future of abortion rights in the US, UK and beyond?
  • What is the 'born alive' rule and how does this interact with criminal law and legal protection of infants and foetuses?
  • Is there evidence that providing the foetus with legal protection prevents harm to foetuses?
  • What does the application of law in this context tells us about contemporary ideals of motherhood?

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Roe vs. Wade, criminal law and the legal protection of the unborn

Thomas Creighton (TC): Hello, welcome to the Emerald Podcast Series. My name is Thomas and today my guest is Emma Milne, an Assistant Professor in Criminal Law and Criminal Justice at Durham University. Emma’s research is interdisciplinary focusing on criminal law and criminal justice responses to newborn child killing and fetal harm. The wider context of Emma's work is social controls and regulations of all women, notably in relation to pregnancy, sex, and reproduction.

So, Dr Emma Milne, thank you very, very much for joining me.

Emma Milne (EM): Thank you for inviting me on today.

TC: What is the key focus of your research?

EM: I look at how the criminal law and the criminal justice system respond if they believe a woman has killed or harmed her infant or her late term fetus. So I'm covering the areas that we would traditionally think of as infanticide, but also thinking about the criminalisation of abortion.

TC: And you've outlined this in your recent book, Criminal Justice Responses to Maternal fill Filicide: Judging the Failed Mother?

EM: Yes, uh, it's almost a year old this year, so happy first birthday to my book!

TC: Happy birthday to your book!

EM: The book is a mixture of my PhD research, and also some expansion of that research that I conducted in my immediate post-PhD work. It was very much one of those studies that developed, as I would hope most good research does of coming from the data and coming from the literature, so when I started my PhD, my supervisor and I had this rather odd conversation where we knew that I wanted to look at women's use of violence and how women's use of violence was understood and perceived and we had to kind of pick a crime. So, we had this very odd conversation of thinking about all the sorts of awful things that that everybody does, including women, and landed on infanticide. It very much just went from there of when I started looking at the law and looking at cases and looking at how the law has continued to be used and has developed, that some real oddities started to come about, and a real pressing need to really look into these cases and to understand how this law is being used, and what the implications of the law are, became the real focus of the research.

TC: Because this is an unusual crime, as you mentioned, when it was mentioned to me, I was thinking King Herod in terms of killing children, but it is a very present issue as well?

EM: Yes, so infant killing, it's mostly done by men and fathers, and stepfathers in particular, however, women do commit a significant proportion of these types of killing, which is unusual, because generally women don't commit a huge amount of violence. But when they do kill, one of the groups that they are most likely to kill are their infants. And when the child is a newborn child, it is almost certainly going to be the mother that commits that type of killing. I should say that this is in the research I look at is England and Wales and this is a pattern we see mostly in the Western world and the Global North, the killings of infants tend to be quite different in the Global South.

TC: I haven't heard that before, can you tell me a little bit about the differences?

EM: I think one of the other things that is often associated with the word infanticide is the sorts of killings that we see in India and China, which tend to be of baby girls in particular, that's a very different type of killing of infants and it's done for very different reasons. What we see in England and Wales and other countries in the Global North is these killings tend to happen, particularly when the woman kills the child in the context of a crisis pregnancy and a crisis for that woman as she mothers those children. So it's not targeting a baby because of its sex, it's not a desire to rid the family of an unwanted baby. Instead, this is much more likely to be a mother in crisis responding in a way that she probably regrets almost instantly.

TC: I'm very interested about that term crisis pregnancies. You looked at a number of case studies. Could you describe for our listeners, what makes a crisis pregnancy?

EM: The first thing to keep in mind about these women is that they are incredibly vulnerable. They have different types of vulnerabilities and different levels of vulnerabilities, but we are talking about situations where women are living in a significant amount of poverty, where they have experienced intimate partner violence and abuse, where they are incredibly fearful of what will happen and the response by their family and by their partner if it is found out that they are pregnant. Some of these women have a history of not being able to recognise that they are pregnant or recognising incredibly late that they are pregnant. Essentially, the recognition of pregnancy sends them into a form of panic and denial. So all of these reasons for these women for various reasons here there, their various different vulnerabilities, experience a pregnancy that they conceal or they deny, and that's both from the people around them, but also from themselves. So I use the term crisis pregnancy because I think it really adequately captures that notion of the pregnancy has caused them a crisis. Now, one of the things I want to be clear about is crisis pregnancy is a term that's used by anti-abortion clinics in the US, so they set up crisis pregnancy centers, and that's a very different use of the word which doesn't fit with what I'm saying. So, in those centers, they encourage women in who say they want abortions, and then effectively to try and convince them to not have an abortion. So, the definitions aren't as I use it, it is very different. An unwanted pregnancy is not going to be a crisis pregnancy, as long as a woman has options to be able to deal with that pregnancy. If it's unwanted, and she can't deal with it, either because of legal abortion not being available, or for some of the other reasons that I've previously outlined, then it could become a crisis pregnancy.

TC: I see. Thank you very much for making clear some of those differences. And yes, they are different in different contexts. So especially between the US and the UK. So in the UK, well, it looks like what we're looking at is pregnancies where there's no support, and real personal crisis.

EM: Absolutely, yes, absolutely. So to give you an example, from one of the cases that I looked at in the books, the woman was in an abusive relationship, people around her reported later that they say that they knew she was pregnant, she says she knew, but she couldn't really tell anybody, she couldn't admit it, she attempted to seek an abortion within the time limit but within England and Wales, abortion is generally not legal after 24 weeks of pregnancy. So she attempted to obtain an abortion. But her abusive partner prevented her from leaving the house that day, and so she wasn't able to seek that medical care. He claims that he had no idea she was pregnant, even though other people say that she was very clearly showing. And the pregnancy ended after he assaulted her and she gave birth on her own to a premature baby. So this is an instance where this woman has limited opportunities to be able to address this pregnancy, her crisis pregnancy, because of her abusive partner. If she hadn't been in that relationship, or if she'd been away able to get away from that man, then very possibly, she'd have happily continued the pregnancy and, and happily mothered that child, but the context of the abusive relationship was what made that a crisis pregnancy.

TC: And you mentioned something about the cutoff date, right for when abortion is legal?

EM: Yes, so in England and Wales, abortion is actually always illegal under the 1861 Offenses Against the Person Act. What makes abortion legal in this country is the Abortion Act of 1967, which provides a number of reasons that would give a legal defense to a medical doctor who allows an abortion to go ahead if it's done under the regulations and the controls of the Abortion Act. So there's a couple of those regulations that allow abortion at any gestational stage. So for example, if the woman's health is at risk, or if the woman's life is at risk, and abortion can take place at any stage. Also, if the child or the fetus has a disability or severe disability, that potentially means it won't survive after birth or might die in utero, then the abortion could take place in those instances. But abortions that are categorised as for the health and well-being and mental health of the pregnant woman or her family, so what we would consider to be Section A abortions, they can only take place up to 24 weeks. And as I've said that legal defense is only there for doctors. It's not there for women who self-abort, either through ordering medication via the Internet or perhaps other means.

TC: Yeah, we're really looking at England and Wales, very different legal situation in say, Ireland and then we have it as the headline of this topic, this podcast, we have abortion in America, where the situation has recently changed due to Roe vs. Wade. So, if you don't mind, the very simple and very complex question, what is Roe vs. Wade?

EM: So Roe vs. Wade was a landmark case in 1973 that was brought as a test case to challenge the ban of abortion in states in the US. So. the principle of Roe vs. Wade that was put forward and that the Supreme Court of the United States agreed with and therefore found in favor of Roe was that a woman has the right to privacy and the 14th Amendment of the US Constitution, and as a consequence the state can't interfere with that right, until the state itself has a pressing need to be involved with the fetus. So, in that, that need doesn't happen until the fetus has essentially met the point of viability which is understood to be 24 weeks. So, prior to viability, Roe vs. Wade upheld the idea that a woman has a right to an abortion and the state doesn't have the right to stop that abortion from taking place. Now, over the years since Roe v. Wade happened and was found in favor of Roe, the abortion rights in the US have been slowly being chipped away, chipped away, chipped away and it's very much being seen as a matter of when not if Roe vs Wade is overturned, for a whole variety of reasons. Most recently, we can see the reasons being that the division of the court, rather than being a balance between those who lean more to the right, and those who lean more to the left has very much fallen along the lines of the right under Trump. So, the ability for the overturning of Roe vs Wade and, as a consequence, the ending of this notion that a woman has a right to legal abortion has been the consequence of the recent hearing and therefore, in some states, you know, the outcome has been that women have lost the right to abortion at any stage of gestation. So, women who are in the, you know, the very earliest stages, even they can't obtain that medical care. You know, it's an incredibly, it's a dire situation for women in America, and it's one of those odd things where in the US, women technically had the right prior to Roe vs. Wade being overturned, women technically had the right to abortion. And yet, in certain states, it was incredibly difficult to access abortion. Whereas in England and Wales, women have no legal right to an abortion because abortion is illegal unless it's conducted in line with the Abortion Act, and yet abortion is generally very easily accessible in England and Wales. So having a legal right to something doesn't necessarily allow it to manifest itself as we saw in the US prior to Roe vs. Wade. Roe vs. Wade, obviously got rid of that legal right. So unfortunately, women in many states in America are now in dire situations in terms of their reproductive rights.

TC: That is a very interesting illustration of the difference between ‘in theory’ and ‘in practice’.

EM: Absolutely. And this is something I'm sure we're gonna come on to talk about. But, one of the reasons why there was an expectation that Roe v Wade was eventually going to be overturned, and the fear that this wasn’t a solid foundation on which women would be able to access their reproductive rights, has been the development that we've seen in America, in relation to fetuses been given criminal protection in various states, and in federal law, which is a big feature of something I talk about in the book.

TC: Would you like to elaborate?

EM: One of the key things… So, bearing in mind I'm looking at cases in England and Wales… In the book, I wasn't looking directly at US law, although I do use it as a comparator. So, in England and Wales, we still have in place what is known as the ‘born alive rule’. Now, the ‘born alive rule’ is a requirement that in order to become a legal person with the full protection of the criminal law, you have to have been born alive. If you haven't been born alive, and you are in utero or even still, a part of your body has not fully left your mother's birth canal, then you are not considered a legal person. And as a consequence, you're not protected by the criminal law in the same way as you and I are now. So, this has a real impact on the sorts of cases that I look at in the book. Because depending on whether or not there is proof that a person has been born alive, the child has been born alive, depends upon the sorts of offenses that are able to be used by the prosecution to charge the woman after the baby has died. Now, this becomes incredibly important when we think about the behaviour of these women who are in crisis. So, that's something to keep in mind. These women are not going and getting pregnant because they really want to kill a newborn baby. That's not what happens in these cases. These are women who are experiencing crisis. But there's a real difference between if there is clear evidence that the baby was born alive, and then the woman didn't do anything to stop that baby from dying. So say, one of the cases she gave birth to the baby this woman, and then passed out very soon afterwards, and when she woke up, the baby had died. Now, there was evidence in that case that that baby had been born alive and as a consequence she was facing potential convictions for murder, potentially, because of neglect. You know other crimes such as child neglect, which is what she was eventually convicted of, rather than a homicide offense. Now, if there was no evidence that that baby was born alive, then you've got a situation where she potentially hasn't committed any crimes at all, because the child was never a legal person. So, it becomes incredibly important when you have a ‘born alive rule’ as to the sorts of criminal offenses that can be used to capture the behaviour of these women. In the United States, dating back to the 1970s - so, this was actually before Roe v. Wade – the hearing of Roe v. Wade – the US State started changing their penal code to remove the principle of the born alive rule. So, the first state that did this was California. And, when we look at this case, we can see that it was potentially done for very, very positive and good reasons. The phrase, ‘the road to hell is paved with good intentions’ comes into mind. So, a man had attacked his ex-wife who was pregnant after he found out that she was having a baby with her new partner. And, he purposely attacked her with the intention of hurting the fetus. That was that was quite clear. He said something like, ‘I'm gonna stamp it out of you’, or something like that. Absolutely horrendous. You know, this man deserved to have the full force of the criminal law. However, the ruling was that he couldn't be convicted of a homicide offense of the fetus, who sadly did die, because the fetus had never been born alive. So, the law was changed quite quickly in order to add the fetus to potential victims of homicide. California was the first state to do that. Now, that was the start of lots of different changes to penal codes across states in the US and changes in slightly different ways. So, the fetus being added as a victim, a criminal offense of ‘feticide’ being created as an example, other states brought in a change to the definition of ‘a child’ so child abuse could now be committed against a fetus because a fetus was legally deemed to be a child. In many respects, a lot of these changes were done with the intention of helping to protect fetuses, when women were attacked by third parties. In some instances, though, it's quite clear this was done, the changes to the legislation were done, with the intention of stopping (or trying to stop) pregnant women from acting in ways that are deemed to harm the fetus. So, one example being, in Alabama they have a criminal offense of exposing a minor to a chemical substance. That's called chemical endangerment. Now that piece of legislation was brought in with the purpose of making it illegal for parents to cook meth in an environment where their children were. So, it was very much to try and protect children from being exposed to those sorts of chemicals. And then very quickly, prosecutors started applying it to pregnant women who were known to have taken drugs whilst they were pregnant, regardless of the outcome for the fetus. So, the baby could be born completely healthy, with no detrimental impact from the substance that she had taken. And yes, because she had tested positive for drugs while she was pregnant, she was then considered to be committing chemical endangerment and was prosecuted accordingly. There's also been a couple of cases where this has been used, this offense has been used, where women have been using prescription drugs. So, for example, using methadone, which is a drug that's prescribed to help women who are addicted to heroin, they've also found themselves being prosecuted. So, the consequence for women of constructing the fetus as a legal subject that is protected under criminal law has just been absolutely devastating for women in the United States. So, although as I said earlier, sorry, we do have the ‘born alive rule’ here in England and Wales that is still in place. However, when you look at the cases that I've looked at, actually, what you can see is that although on paper, the ‘born alive rule’ continues to exist, we still see a number of prosecutions and a number of cases where there's no evidence that the baby was born alive. And yet women are being talked about as if they have killed a fetus, as if it has the same level of legal protection as a born child. So, although we technically don't have fetal homicide laws in this country, what we do have are a number of pieces of legislation that can be used as if they are proxies for fetal homicide.

TC: When we're looking at all these laws, are they effective in protecting fetuses, protecting baby's health, life, well-being?

EM: That is possibly one of the most horrifying aspects, if we go back to the US, and we think about what's happening there. So, in states where it is now illegal for women to do certain things, to have to exhibit certain behaviour while they are pregnant, the consequence for the health and well-being of both women and their unborn children is absolutely horrendous. So, one of the things that we absolutely know is true is that a negative pregnancy outcome is much more likely to happen if a woman doesn't have medical care while she's pregnant. One of the things that is most important is to ensure that that a woman is being seen by midwives, by doctors, while she's pregnant. Now, if a woman is terrified that she is going to be reported to the police, if she presents and tells them such information, or they assume certain information about her, you know as I've already said, there's a really good chance she's just going to avoid medical care. And, there's been clear evidence of that in certain states in the US. There's also clear evidence that there have been instances where women have been concerned about prosecution, and as a consequence, have decided to have an abortion. So, one of the stories that I read about, and this is one of the things I've read about and I have now never been able to find it ever again after the first time, was a story where a woman had been painting a fence while she was pregnant. And she later found out the paint had a level of toxins in it. And as a consequence, she was deemed to have exposed her fetus to these toxins. So, it came on to the similar chemical endangerment laws I was talking about earlier. This was a baby she wanted, you know, she wanted to be pregnant, but she was facing criminal prosecution. So, as a consequence, she had an abortion in order to ensure she wasn't going to be prosecuted.

TC: That's an extraordinary case.

EM: Now, that is a horrifying situation, absolutely, completely horrifying situation, protecting fetuses using the criminal law to try and stop women's behaviour just doesn't work. It has horrendous consequences for women, but also for their unborn children.

TC: Again, the cases you looked at in your book was very complete over a 10-year period. And it seemed very much to be the situation around these women the choices they were able to make. Is that fair?

EM: I think using the phrase, ‘the choices they were able to make’ is a really important phrase to be using when thinking about these cases, specifically thinking about the cases that I looked at in England and Wales. Because, you know, the reality is, the sort of cases I looked at, they're incredibly vulnerable women who feel they can't recognise themselves or tell people that they are pregnant. It's an incredibly unusual situation to have happen, you know. Generally, if a woman finds out she's pregnant, and either she doesn't want to be, or it sends her into a panic at the thought of being pregnant. Usually, she goes and talks to someone you know, she has someone there, who she can confide in. Usually, she recognises it quite early on as well. So, she's able to take steps reasonably quickly. These women for the various reasons of their vulnerability just couldn't do that. And one of the questions I really ask about these cases, and about the decisions to prosecute, and the conviction outcomes is, all of these women are treated as if they took purposeful, intentional steps at every point during this process, intentional steps to hide the pregnancy, intentional steps to not seek assistance, intentional steps to go into labour and have the baby without anybody there to support them. And, when you look at these cases, and the background of these cases, and the levels of vulnerability of the women, and the crisis that's caused by the pregnancy, it's just not the reality that they had clear steps they could take to stop this, and that they just chose not to do it like… that is… it's a very naive reading of these cases and of the situations that these women face. And I think the same can be said for when you're looking to the situation in the United States of women who, for example, take recreational drugs while they're pregnant. You know, to simply look at these women and say, ‘well, you shouldn't have smoked marijuana’ or ‘you shouldn't have taken crack cocaine’, or you know, whatever it was… Again, it completely misrepresents and misunderstands what's going on in women's lives and the situations they are in. And it does, both the cases in England and Wales and the cases in the US. It does lead me to wonder and to conclude that actually, this is far less about understanding and wanting to ensure a healthy fetus and a healthy baby, and much less about wanting to control and regulate women's bodies. So, a number of American scholars, particularly women of color, they have pointed to the fact that this is about the state control and regulation of motherhood, because something that should absolutely be said about what's happening in the US. And the use of fetal homicide laws is that it is mostly women of color who are being targeted by these offenses. So, it's not being applied equally. You know, your white woman who lives in a nice bit of Beverly Hills and has private medical insurance, who uses drugs find that she's pregnant, and has a positive pregnancy test when she goes to see her, her doctor is probably not going to have the police found on her, she's possibly going to be quietly put into a very well-funded drug rehabilitation program that her medical insurance will fund for her. It's the woman who lives in inner city LA, who's black, who is going to a state funded medical facility who was much more likely to have the police phoned. So, this isn't just about the universal, we want to protect all fetuses. This seems to be much more about we want to punish certain women, because they failed to demonstrate the correct behaviour that we expect from women, and we expect from mothers. And that's, you know, it's a key theme that comes out throughout the cases that I looked at in England and Wales. It's a key theme that comes out from analysis that's been done the cases in the US is there are clear narratives here about what does it mean to be a good mother? And what does it mean to be a responsible pregnant woman. They are standards that are, you know, almost universally, unable to be met by any woman because they are so high. This notion of the woman will do absolutely anything she had that is possible at all, to protect the fetus and to protect her baby, it's just not feasible for, for most women, and particularly for the most vulnerable women in our societies. Again, I think it goes back to something I've said before, which this is not about protecting fetuses, because if it was about protecting fetuses, we'd have support and care to enable women to get the support and care they need we wouldn't have punishment and criminalisation.

TC: Okay, thank you very, very much for outlining that. And we've looked at some very, very challenging cases. And we've looked at where some of these laws originate. Can I ask, where do you see the future of your field going?

EM: The future is unfortunately quite scary. If I'm honest, it's been made scarier by the overturning of Roe v. Wade because what Roe v Wade being overturned shows us is that it is very possible to rollback abortion rights. These are not rights that once one women will simply continue to have. The anti-abortion lobbies have been working really hard. And it's taking them you know, a good number of years, but they finally done it, they finally overturned Roe v. Wade. And the introduction of fetal homicide laws was part of that process because if you introduce into the canon of the criminal law and into the minds of lawyers, doctors, politicians, the general public, the media, that fetuses are victims and fetuses are people, then you introduce the idea that they should also be protected. They should be equally protected, if not potentially more protected than a pregnant woman because unlike a pregnant woman who can supposedly make, you know, any decision she wants, again, thinking about that vulnerability that I've just been talking about, then the fetus is more vulnerable and needs to be protected much more than a pregnant woman ever would need to be protected. And it also creates this notion that if third parties are going to potentially face prosecution for killing a fetus, if they attack a pregnant woman, why on earth would a pregnant woman not similarly face prosecution if she also kills a fetus which many would argue abortion is a killing of a fetus. It's a killing of a human. That's not a position I would take. I would say abortion is medical care that women need and is a form of contraception, but that's not how it's conceptualised by many. So in the US, we can very much see this creation of the fetus being seen as a legal person who needs to be protected has led directly to the overturning of Roe v. Wade. Now in England and Wales, as I outlined earlier, abortion isn't legal. It's illegal for women to have abortions. If a woman's self abort she is breaking the law and we've seen two women convicted of the criminal offence of procuring a miscarriage in the last 10 years, there are two more women standing trial or facing trial for the same offense. And these are all women who ended their own pregnancies, again, after crises, and the criminal law has basically come down on them like a ton of bricks for choosing to do that. So, we have a situation where abortion is already illegal in this country, we have a situation where we have these proxy fetal homicide laws. We have a situation where the position is a woman should do everything she can to protect her fetus, although that's not cemented into law it's certainly there in public discussion, the World Health Organization, when they released their guidance on the reduction of alcohol use stated that all women of reproductive age should be discouraged from drinking any alcohol just because she because she could become pregnant. So we can see this. It's it's already there in the cultural discussions of pregnancy and of women. So for me, it seems like unless we do something very soon, we are heading towards the same place that they are in the US. We are heading towards the same place where fetuses have legal protection, where a woman who does something that is perceived to harm a fetus will be facing criminal prosecution. And the next step from there is abortion becomes illegal because why would we protect older fetuses if we're not going to protect younger fetuses? It's a really, really scary face for women's rights at the moment.

TC: And thank you very much for outlining some of those key issues that could well be ahead and many with us now. Thank you very, very much.

EM: Thank you.

TC: Thank you for listening to today's episode. For more information about our guests. And for a transcript of today's episode, please see our show notes on our website. I would like to thank Kathy Mathis and Daniel  for their help today's episode. Alex Jungius from This is Distorted.

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