Granting personhood to fetuses makes women criminally responsible, not only for the life of the fetus, but also for its well-being. This is a particularly high burden. Pregnancy in our society tends to be idealized and women counted on to provide a perfect uterine environment.

Fetal rights can be employed to justify punishing any deviation from this standard. This is not hypothetical: Pregnant women have already been prosecuted for using drugs, refusing a cesarean section, having sex against a doctor’s recommendation and attempting suicide.

Prosecutors could, in theory, use the notion of “prenatal abuse” to pursue pregnant women who consumed too little folic acid; neglected exercise; gained too much or too little weight; continued on a course of anti-depressants; or had a stressful job. Under the mantle of fetal protection, pregnancy could become subject not only to criminal sanction but to pervasive state regulation.