The research literature often exaggerates the frequency and extent of fetal harm due to maternal behavior and overlooks the reality that reproductive outcomes are influenced by multiple variables. Criminalizing the behavior of pregnant women results partly from perceptions of the fetus as a person with enforceable rights. However, government intervention to protect the fetus establishes an adversarial relationship between the mother and the fetus. In addition, criminalizing illicit drug use for pregnant women ignores the most serious threats to fetal well-being: alcohol and tobacco. Moreover, criminalizing maternal conduct may have unintended consequences such as discouraging women from seeking the prenatal care that is essential to improving fetal and maternal outcomes. A particular issue in the criminal justice approach to this issue involves latent gender, social class, and racial bias. A more appropriate response to maternal drug use is to place it in an ecological context and regard it as one of many factors that can negatively influence both maternal and fetal outcomes. The billions spent in the drug war and for incarceration could do much to bring prenatal care, nutrition programs, counseling, parenting classes, housing assistance, and income support programs to pregnant women. These programs are cost effective and would do more to ensure infant health than would maternal prosecution and incarceration strategies. Case citations and 67 references