This Article examines the psychosocial processes of risk construction and explores how these processes intersect with core principles of Anglo-American law. It does so by critiquing current cultural and legal perceptions that mothers, especially pregnant women, pose a risk to their children’s health. The Article’s core argument is that during the last four decades, both American society and American law have increasingly come to view mothers as a primary source of risk to children. This intense focus on the threat of maternal harm ignores significant environmental sources of injury, including fathers and other men, as well as exposure to toxic chemicals, dangerous social environments, poverty, and other multi-factorial contributors to childhood harm. The singular focus on mothers as a source of harm to children is scientifically unfounded and reflects persistent racial, gender, and class stereotypes. It also can lead to poor public policy. Risk that is misunderstood is likely to be met with measures that are both misguided and ineffective.
The Article first explicates the landscape of mothers and risk, contrasting common misperceptions with the hard data on children’s health. The Article then considers how and why this distorted view has arisen, relying on new social science research about risk perception and risk communication. Building on that research, the Article examines American legal history and theory, casting a wide net in criminal, environmental, and tort law to demonstrate how core legal doctrine both reflects and reinforces existing sociocultural norms, particularly in the areas of mothers’ responsibility for children’s health. The Article urges a reengagement with the precautionary principle, based on solid scientific evidence, to improve the health of all of America’s children.
Linda C. Fentiman, Are Mothers Hazardous to Their Children’s Health?: Law, Culture, and the Framing of Risk, 21 Va. J. Soc. Pol’y & L. 295 (2014), available at http://digitalcommons.pace.edu/lawfaculty/898/.