Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront

Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront



Increasingly, state statutes are the primary means through which legal norms affecting low-income pregnant women’s autonomy, privacy, and liberty are introduced and shaped. Arrests, forced bed rests, compelled cesarean sections, and civil incarcerations of pregnant women in Alabama, Florida, Indiana, Iowa, Mississippi, New Mexico, South Carolina, Texas, Utah, and Wisconsin merely scratch the surface of a broad attack on pregnant women. This recent era of maternal policing reshapes physician and police interactions with pregnant women accused of violating fetal protection laws (FPLs); inspires (and sometimes requires) medical officials to breach confidentiality when treating pregnant women; motivates selective prosecution against poor women, particularly those of color; and evinces improper judicial deference to medical authority rather than law.

This Article makes three claims. First, it argues that doctors breach what should be an unwavering duty of confidentiality to pregnant patients by trampling the well-established expectations of the patient-physician relationship. Second, it argues that even if states’ chief goal is to promote fetal health by enacting protectionist laws, punitive state interventions contravene that objective and indirectly undermine fetal health. Finally, the Article argues that FPLs unconstitutionally situate pregnant women as unequal citizens by unjustly denying them basic human and legal rights afforded other citizens.

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