This article examines both the state’s role in the detention, confinement, and incarceration of pregnant women for the purported benefit of fetal health, the constitutionality of these actions, and the rights the state endangers when it does act. Section One discusses the effect of drug policy on the detention and confinement of pregnant women, outlines three types of fetal protection measures that result in the detention, confinement, or incarceration of pregnant women in the name of fetal health, and examines the legal rationales behind these mechanisms. Section Two discusses the constitutional rights at issue by addressing the ways in which detention violates two essential components of women’s rights: the right to be free from unwarranted detention and confinement and the right to reproductive decision making that is based in both the privacy and liberty doctrines. This section also focuses on the standards currently used by the United States Supreme Court both to assess the constitutionality of civil commitment, detention, and other types of confinement by the state and to evaluate violations of women’s reproductive rights. Section Three suggests two additional ways of thinking about privacy and liberty that may better protect women’s physical integrity and their other constitutional rights. First, the right to privacy should be viewed as an affirmative right. Second, privacy should be understood as an anti-totalitarian principle. Finally, this article concludes by suggesting that investing our energies in basic health care and drug treatment for pregnant women is the more effective and constitutionally acceptable way to produce better fetal outcomes.
Download it here. Via the Reproductive Rights Prof Blog.
