What to Expect When You’re Expecting: Fetal Protection Laws that Strip Away the Constitutional Rights of Pregnant Women

Abstract

Many states have enacted fetal protection laws as a way of promoting fetal health and combatting the problem of in utero fetal drug abuse. These laws, however, unduly compromise the constitutional rights of pregnant women, implicating a woman’s rights to privacy, due process, and equal protection under the laws. Additionally, such laws compromise both maternal health and fetal health by discouraging at-risk pregnant women from seeking medical attention. Requiring procedural protections before the enforcement of fetal protection laws may mitigate the laws’ extensive constitutional problems. Additionally, enacting programs that provide pregnant women with positive incentives to promote fetal health throughout their pregnancies would be more effective in promoting fetal health than fetal protection laws.