State Created Fetal Harm
Georgetown Law Journal, 2021 Forthcoming
48 Pages Posted: 16 Mar 2020
Date Written: March 13, 2020
Half a century of abortion litigation might suggest that state governments have a longstanding commitment to protecting fetal life. And yet, over the last several decades, state governments and local law enforcement are increasingly taking steps that actively undermine fetal health. Through the passage of state fetal endangerment laws and the prosecution of pregnant women under stretched interpretations of existing criminal law, states are actively creating conditions that result in poorer fetal health outcomes — including an increase in fetal and infant death.
This Article seeks to make three important contributions to the scholarly literature regarding the undesirability of fetal endangerment laws. First, it shows — for the first time through empirical evidence — that fetal endangerment laws fail to accomplish the state’s stated goal of protecting and promoting fetal and infant health. Second, it shows that these laws actually have a statistically significant negative impact on fetal and infant health. In particular, we examine the impact of Tennessee’s 2014 fetal endangerment law — a law which explicitly criminalized prenatal drug use — by analyzing comprehensive datasets on births, fetal deaths, and infant deaths. We find consistent evidence that this law undermined the ability of mothers to access prenatal care, worsened birth outcomes, and increased both fetal and infant death rates. For example, in 2015 alone, this law resulted in 20 more fetal deaths and 60 more infant deaths. Finally, based on this empirical evidence, this Article argues the Constitution prohibits states from either passing additional fetal endangerment laws or continuing to enforce current ones because such state action fails to survive even rational basis review.
Keywords: reproductive rights, constitutional law, equal protection, empirical legal studies
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