About a year and a half into gathering the data for this book, I hired a law student to assist in data analysis. She was in law school at the time but had worked as a labor and delivery nurse at a local hospital for many years. She was, to say the least, an ideal candidate for the research team. One of the first assignments I gave her drew on her medical and practice knowledge. I asked her to go through the criminal court files for the women who were prosecuted and look specifically at the allegations contained in the charging document. Her task was to determine whether or not the public criminal allegations against the fetal assault defendants included information obtained by health care providers in the health care setting. Several days later she stopped by my office visibly upset. As it turned out nearly every file contained such information.

Inevitably, when we criminalize care, we affect far more than just the road to any particular program or support. Chapters 6 and 7 focused on those roads, describing how rules, practices, and bias draw women and families out of care systems into punishment systems and how the locations of care inside punishment systems draws them further in. In this chapter, the focus turns from the road to care to the end of that road, to the care itself. It asks and, in the context of this study, answers, a fundamental question: What happens to care itself when care is criminalized? As we learned in Chapter 3, care for those who we stigmatize, for those who we deem worthy of surveillance and punishment, for those who we are willing to label “criminal,” is all too often substantively different than the care we provide for everyone else.

Physicians are entrusted as the sole authorities to assess the competence of fellow physicians, and peer review is the primary pillar in assuring medical quality. A new era of intelligent tools may serve as the death knell for this insular physician-led, self-regulatory process. Increasingly, medical decision-making relies on advanced decision support with AI, and algorithms are asked to triage and prioritize patient care semi-autonomously. These technologies often lie beyond physician expertise, limiting the ability of any review process to determine where fault lies. Since machine learning may identify data patterns that guide treatments where there is current clinical equipoise, the best course of treatment may be swayed by information a physician may not have considered prima facie relevant, or by information that lies beyond published literature. Peer review committees determining if an error occurred will have less information than the machine that directed treatment. Our chapter discusses these challenges; explores implications that intelligent tools have on the organization of medicine and its structures of authority; considers the need for maintaining physician self-regulation; alternative legal approaches to maintaining quality assurance; and proposes new approaches to peer review and quality assurance for an era of medicine that utilizes these smart machines.

Is it ethical when doctors breach their pregnant patients’ confidentiality? Is it legal? What about HIPAA (properly known as the Health Insurance Portability and Accountability Act of 1996)? Are there different rules for pregnant women than for men? These are some of the questions women ask me after I give a talk. I understand this bewilderment and, for many, fear. At the heart of their questions resides this chilling thought: Could this happen to me or my daughter? Depending on where they live, the answer may be yes. And, increasingly, wealth will not save them. As this Chapter explains, physicians owe their patients care, confidentiality, loyalty, and trust, and the principle that undergirds all of this – the fiduciary relationship – is not contingent on the sex of the patient. However, with increased pressure from state legislatures and prosecutors, some doctors and nurses have abrogated their responsibilities to their patients. Among them, some are genuinely fearful that unless they adhere to whatever law enforcement demands of them, they may lose their licenses to practice medicine. Some of these doctors are genuinely ambivalent about their duties. These doctors tell me they feel powerless.