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Boston University School of Law




Pregnancy that ends in stillbirth or late miscarriage—particularly where a person gives birth outside of a hospital—raises the specter of criminal behavior. To successfully prosecute a person for the death of a child, however, requires proving that the child was born alive. Prosecutors mobilize forensic science as an objective way to determine life. This Essay focuses on one such forensic method: the hydrostatic lung test (“HLT”), also known as the floating lung test (“FLT”). Although there are debates about the “correct” way to perform the exam, in essence, the test requires that a forensic scientist take pieces of the lung and place them in water. If the lungs float, indicating a breath has been taken, scientists conclude that the baby was born alive. If the lungs sink, the infant is thought to have died in utero, thereby exculpating the accused.

The evidence that a fetus has taken at least one breath and was therefore born alive has numerous legal consequences. Depending on the jurisdiction, prosecutors can charge the woman with homicide, infanticide, neglect of a dependent, and neglect of a dependent resulting in death. Each charge carries harsh criminal penalties. Despite numerous doubts within the scientific community about the test’s veracity and growing advocacy against it, when examining cases that have used the HLT over the decades, we see that the perceived reliability of the test by adjudicators remains.

Drawing on historical research and a review of cases from the mid-1800s to the present, this Essay engages with a larger literature on forensic science and criminal law to interrogate the relationship between scientific expertise, evidence, and lawmaking in the context of self-induced abortion late in pregnancy. The Essay makes two arguments: First, it argues that adjudication is integral to the validation of forensic science and the legitimation of the HLT. In other words, courts play a key role in sustaining the belief that the HLT is a true test of whether a child was born alive. Second, this Essay argues that given the lack of scientific evidence on the HLT, it becomes necessary to turn to broader social and moral rationales for the ongoing reliance on the test. I explore two possibilities: First, as the carceral state has taken hold, forensic science offers a purportedly scientific means of furthering the project of holding individuals responsible for their behavior. Second, courts rely on the HLT as a means to respond to a moral panic about pregnancy and abortion.

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