The Free Exercise Rights of Pregnant Women Who Refuse Medical Treatment

61 Pages Posted: 23 Jan 2014

See all articles by April Cherry

April Cherry

Cleveland State University, Cleveland-Marshall College of Law

Date Written: Spring 2002


This article addresses the free-exercise claims of pregnant women who are judicially compelled to submit to medical treatment despite their religious objections. Although most of the pregnant women in the reported cases assert a claim of religious freedom, scholars and lower courts alike tend to address these refusal under the privacy doctrine, and insufficiently address, of not completely ignore, the pregnant women’s free exercise claims. Courts that do address these women’s free exercise claims seem to assume that the woman’s right to the free exercise of her religious beliefs regarding her own health care and the health care of the fetus is easily overridden by whatever interest the state may have in the woman’s fetus. This article argues that this assumption is without legal support or analysis, is particularly disrespectful of the claims of religious minorities, and is judicially inappropriate if the free exercise clause is to have any meaning in the lives of those whose faith guides them in these matters.

Section One outlines the values protected by the free exercise clause, including modern free exercise jurisprudence, and the status of religious exemptions from laws of general applicability since the Supreme Court’s decision in Employment Division v. Smith. Section Two discusses the law regarding the right to refuse medical treatment; exploring the state’s rationales for using the force of law on pregnant women who resist medical treatment that might benefit their fetuses, and examining the reported cases of compelled medical treatment of pregnant women in cases where the women have asserted religious motivations for their refusals to comply with physicians’ recommendations. Finally, Section Three analyzes, more specifically, the free exercise of religion claims made by pregnant women in the non-consensual treatment cases and concludes that even in a post Smith world, the state must prove that it has a compelling interest in order to mandate treatment, which indeed it cannot. The state interest in a viable fetus is simply not compelling outside the context of abortion. Pregnant women retain the constitutional right to refuse medical treatment even if such refusals work to the detriment of their fetuses.

Keywords: free exercise clause, religious freedom, pregnant women, fetal protection measures, fetal health, fetal rights, right to privacy, non-consensual medical treatment, women, abortion jurisprudence

JEL Classification: K30

Suggested Citation

Cherry, April, The Free Exercise Rights of Pregnant Women Who Refuse Medical Treatment (Spring 2002). Tennessee Law Review, Vol. 69, No. 3, 2002; Cleveland-Marshall Legal Studies Paper No. 14-263. Available at SSRN:

April Cherry (Contact Author)

Cleveland State University, Cleveland-Marshall College of Law ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States

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