63 Pages Posted: 6 Jun 2007
This article examines recent "fetal protection" efforts, which demonize, disenfranchise, and punish pregnant women. These actions erase the bright line of birth which has historically distinguished children from fetuses, and include criminal prosecutions of pregnant women, civil commitments of pregnant women who use alcohol and other drugs, and fetal "guardianship" proceedings. The article critiques the ostensible rationale of fetal protection - that by treating the "unborn" as children, the government will support the birth and life of healthier children - and suggests that the real goal of fetal protection is to limit abortion rights and the ability of women to participate equally in the workplace.
But even if the goal of fetal protection was actually to ensure the birth of healthy children, the means chosen are insufficient, discriminatory, and counter-productive. Fetal protection initiatives are insufficient because they focus only on one narrow aspect of risk to fetal and child health, ignoring exposures in the environment and workplace which place many fetuses and children at risk. The new fetal protection is discriminatory. Fetal protection proponents overlook the risks created by the use of assisted reproductive technology, used primarily by wealthier women, and largely ignore the risks posed by alcohol and tobacco use, which is much more widespread than the use of illicit drugs. Instead, fetal protection efforts fall disproportionately at poor women and women of color. Fetal protection efforts are counter-productive, discouraging pregnant women who are using alcohol and other drugs from speaking candidly to their physicians. Most importantly, fetal protection initiatives fail to address the systemic problems of domestic violence, poverty, and lack of access to health care which make it difficult for pregnant women with substance abuse problems to overcome their drug addiction. The article shows how government could achieve the goal of bringing healthy children into the world, by implementing a comprehensive public health strategy to promote women's and children's health across the lifespan, not just during the few months when women are pregnant.
Keywords: fetal protection, abortion, criminal law, pregnant, women, children,health care, environment, workplace
JEL Classification: K13, K14, K32, K42
Suggested Citation: Suggested Citation
Fentiman, Linda Christine, The New 'Fetal Protection': The Wrong Answer to the Crisis of Inadequate Health Care for Women and Children. Denver University Law Review, Vol. 84, p. 537, 2006. Available at SSRN: https://ssrn.com/abstract=991412