Volume 109

State-Created Fetal Harm

by Meghan Boone & Benjamin J. McMichael

Half a century of state-level restrictions on abortion access might cause a casual observer to conclude that state governments have a long-standing 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 laws, 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 schol-arly 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 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 that 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 twenty more fetal deaths and sixty more infant deaths. Finally, based on this empirical evidence, this Article argues that states should be prohibited from passing additional fetal endangerment laws and continuing to enforce current ones because such state action fails to survive even rational basis review. 

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