Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront

Abstract

This Article shines a probing light on the escalation of women's reproduction serving as a site for state regulation, monitoring, and criminal policing. Professor Goodwin exposes the ways in which women's pregnancies serve as an expedient space for "tough on crime" criminal policing and prosecutions, including targeting women for refusing c-sections, falling down steps, and attempting suicide. She queries the constitutional legitimacy of such prosecutions and reveals the myriad ways in which women's reproduction now serves as a political battleground. As such, this contemporary battleground shows a hostility toward women's historic reproductive rights by states: ensnaring doctors as modern-day police informants of their pregnant patients; overriding medical directives of pregnant patients; criminalizing miscarriages and still births; stigmatizing poor women's reproduction; and instantiating rights in embryos and fetuses that carry greater legitimacy and protection than that of pregnant women. This article argues that the platform for recognizing women's Fourteenth Amendment rights is undermined by states' disparate treatment of women's privacy, autonomy, and equality.

Keywords: Constitutional Law, Reproduction, Privacy, Due Process, Abortion, Race, Society, Punishment, Privilege, Fiduciary Duty

JEL Classification: I00, I1, I10, I12, I18, I3, I31, J7, J71, J78, K14, K32, K42