This Note argues that Minnesota’s prenatal substance use statutes, enacted in response to the racialized “crack baby” panic of the late 1980s, violate the state constitutional protections for reproductive rights affirmed in Doe v. Gomez and codified in the 2023 Protect Reproductive Options (PRO) Act. By classifying prenatal substance use as child abuse, these laws embed the logic of fetal personhood into the child welfare framework and create a separate, unequal system of compelled treatment for pregnant individuals who use substances. Although treatment is framed as voluntary, noncompliance triggers involuntary civil commitment under a vague and discriminatory standard that bypasses due process protections and permits compelled treatment without informed consent.

These statutes disproportionately target Black and Native pregnant individuals, deter prenatal care, and rest on outdated, scientifically discredited assumptions about substance use and fetal harm. Therefore, they cannot withstand strict scrutiny and are fundamentally incompatible with Minnesota’s constitutional and statutory protections of reproductive freedom and should be repealed.

While based on Minnesota law, the article has broader significance. Twenty-four states and Washington, D.C., classify substance use during pregnancy as child abuse or neglect. At least four others—Oklahoma, North Dakota, South Dakota, and Wisconsin— permit involuntary commitment and compel treatment for prenatal substance use. In the post-Dobbs era, punitive laws targeting perceived risks to fetal health—often grounded in the logic of fetal personhood—threaten reproductive rights even in states that have codified protections.

Continue reading Control, Not Care: The Conflict Between Minnesota’s Prenatal Substance Use Statutes and Reproductive Rights