But criminal prosecution is another matter. Historically, in fact, she couldn't be. Regina McKnight's situation wasn't all that different. Given the severity of criminal sanctions, society demands rather specific notice of what constitutes a violation of the criminal law. The Need for Consensus Along with notice, the criminal law requires a foundation of consensus.
Criminal law is, today, mostly statutory.
Voters who disagree can register their disapproval in the next election. But there is no consensus in our society regarding criminal liability for pregnant mothers who harm their unborn children. Our society is riven on virtually every question involving the rights and responsibilities of pregnant women, including the question whether criminal penalties are appropriate in cases like these. For what it's worth, the medical community generally opposes criminal approaches on the grounds that pregnant women will be discouraged from seeking much needed prenatal care. Criminal liability may, as a result, ultimately harm more unborn children than it protects.