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Buffalo Law Review

First Page

1501

Document Type

Article

Abstract

Criminal law and reproductive justice scholars are calling attention to the increase in prosecutions for pregnancy outcomes in the United States. Trace amounts of controlled substances in newborns are prosecuted as child abuse. Miscarriages are prosecuted as illegal abortions or homicides. This area of criminal law existed side-by-side with Roe v. Wade for late-term pregnancy outcomes. The Dobbs decision has further emboldened these prosecutions by removing the protections of the Due Process Clause from the pre-viability phase of the pregnancy.

Using a case study of a woman who was pressured to plead guilty to manslaughter and sentenced to eight years in prison after having a miscarriage, this Article examines the epistemic and procedural mechanisms that result in unwarranted certainty about the accused’s guilt. In the case study presented, as in many similar cases, crucial facts about the pregnancy outcome, such as the cause of the miscarriage or the fact of a stillbirth, are never established. Yet these cases result in conviction, often through guilty pleas. Due in part to inadequate pretrial opportunities to challenge the narrative of guilt, these pregnancy prosecutions are propelled forward on the momentum of the outrage against the pregnant person’s real or apparent rejection of the pregnancy.

The central contribution of this Article is an analysis of how stock narratives about fetal personhood and maternal failure lead to “epistemic closure,” meaning the premature decision that the truth is known and that there is no reason to doubt. Stock narratives trigger and suppress epistemic emotions which, in turn, influence inferential thinking and confidence about one’s conclusions, leading to epistemic closure. The narrative of a dead baby and failed mother is etched into the case from the first moment when criminal charges are filed. Pre-trial criminal procedure provides little to no opportunity to introduce doubt or even curiosity about the merit of the criminal charges.

The significance of epistemic closure goes well beyond pregnancy prosecutions and is applicable to criminal cases in general, but what may be unique to the pregnancy crime setting is the deployment of emotionally powerful stock narratives about maternal failure. This Article concludes with a critique of existing methods for addressing biased judgment in criminal cases, then offers recommendations for changes to pre-trial criminal procedure that could highlight weak evidence and challenge the unwarranted presumption of guilt.

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