The detention, confinement, and incarceration of pregnant women for the benefit of fetal health.

• Author: Cherry, April L.

In 1998, Yuriko Kawaguchi appeared before Cleveland, Ohio Municipal Court Judge Patricia Cleary and entered a guilty plea to a fifth-degree felony forgery count resulting from her use of a counterfeit credit card. Approximately two weeks before her sentencing hearing, Ms. Kawaguchi wrote to Judge Cleary, informing the judge that she was pregnant and wished to end her pregnancy by obtaining an abortion. At the sentencing hearing the judge objected to the defendant's plans to obtain an abortion and offered her a "quid pro quo" deal. If the defendant agreed to bring the fetus to term, Judge Cleary promised to sentence her to probation. If Ms. Kawaguchi insisted on having the abortion, then the Judge indicated that she would sentence Ms. Kawaguchi to a prison term of six months. Ms. Kawaguchi refused "the deal." By the time Ms. Kawaguchi was released by an order of the Eighth District Court of Appeals granting bond, she was too far along in her pregnancy to obtain a legal abortion in the State of Ohio. (1)

It is difficult, if not impossible, to know whether cases as egregious as Ms. Kawaguchi's are common in American courts because such quid pro quo "deals" between judges and criminal defendants usually are not on the record. Nevertheless, we do know that some judges use incarceration, and threats thereof, to control the behavior of pregnant women who come before them in order to protect the fetuses. Some pregnant women who pose no risk to their fetuses come before judges as a result of crimes that are completely unrelated to their pregnancies, as in the case of Ms. Kawaguchi. Other pregnant women are before judges on civil or criminal charges related to their use of alcohol or illicit drugs--behavior that is believed to be detrimental to their fetuses. Others become involved with the state when their doctors report their non-conforming behavior, sometimes drug-related, to state social service agencies. Finally, others become involved with state agencies because their behaviors are restricted by state statutes designed to protect fetuses from the improvident behaviors of their mothers. Regardless of how these women become involved with the court or other state actors, judges use their power to detain women as a way to influence pregnancy-related decisions.

In Kawaguchi, the judge used incarceration to "encourage" the pregnant defendant to bring her fetus to term; in the end, incarceration prevented Ms. Kawaguchi from obtaining an abortion. In other cases, in hopes of benefiting the fetuses, judges have used incarceration as a way to prevent drug use by pregnant addicts. (2) Judges have also used incarceration, detention, orders of hospital confinement, and threats thereof, to compel pregnant women to access prenatal care or to submit to their physicians' directions regarding medical treatment for the benefit of fetal health, (3) even when such medical care is contrary to the pregnant woman's deeply held religious beliefs. (4) In every case, detention of the pregnant woman is predicated on some version of fetal rights and is meant to influence the pregnant woman's decision regarding the course of her pregnancy. Surely, in some cases, the threat of detention, confinement, or incarceration for the fetus's sake must inevitably lead some women to forego pregnancy altogether or to abort a fetus to avoid confinement. Finally, detentions, confinement, and incarceration for the sake of fetal health result in the normalization or standardization of motherhood. Only those who meet the state-enforced standard are permitted to reproduce without state interference. In the end, all of these detentions violate the pregnant woman's reproductive rights--rights to privacy and bodily integrity. Detention and commitment for the benefit of fetal health reduces pregnant women from citizens to "fetal containers" and "maternal environments." (5)

At the heart of these confinements lies the belief that the pregnant woman's behavior has a negative long-term effect on the health of the fetus. This assumption is often fallacious, particularly when applied to the use of illicit drugs. (6) Nevertheless, these restrictions of women's physical liberty are poor solutions to the problem of maternal drug and alcohol use or other maternal behaviors that may result in poor fetal outcomes. In addition to a lack of significantly better fetal outcomes, detention inappropriately violates these women's physical bodily integrity and restricts their reproductive decision making. This Article argues that all these methods--detention, confinement, and incarceration--violate women's constitutional rights and in the end leaves a jurisprudence of physical integrity and reproductive rights that permits coercive action on the part of the state, even when non-coercion is the principal constitutional norm and a necessary prerequisite of democratic citizenship. (7)

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. Although this Article is about rights, it recognizes the potential dangers of rights discourse. Rights discourse can be at the very least disingenuous, if not dangerous, particularly when the conditions of rights are disconnected from the real needs of the people they are ostensibly intended to protect. Such disconnection results in either injustice or limited substantive justice. (8) In the cases of pregnant women who are confined or detained for the benefit of their fetuses, (9) rights discourse can divert our attention away from the social and economic conditions under which women live. Moreover, it can divert our attention away from the ways in which these women experience pregnancy and childbirth. (10) Nevertheless, rights discourse also can be of great assistance in the fight for social change. (11) In the circumstance of the detention and confinement of pregnant women for the purported benefit of fetal health, rights discourse has considerable merit. It recognizes both injustice and the social and economic conditions under which many women live. Furthermore, it reveals the very real need of women for social change by requiring respect for the bodies of women, refusing to objectify women and their bodies, and resisting the transformation of women into mere fetal containers.

Section One of this Article discusses the effect of drug policy on the detention and confinement of pregnant women. This section also 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 One then questions whether detention is an effective way to reach the state's articulated goal of better fetal outcomes. Section Two offers a discussion of the constitutional rights at issue. This section addresses 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. Section Two 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. With respect to the Court's detention and confinement jurisprudence, the Article examines both United States v. Salerno (12) and Addington v. Texas (13) and argues that the physical restraint of non-compliant pregnant women is unconstitutional because the state can neither articulate a satisfactory compelling interest nor demonstrate that confinement is the least restrictive alternative available to protect the state's interest.

With respect to reproductive rights jurisprudence, this Article argues that the proper standard for review of these detentions is found in Griswold v. Connecticut (14) and Eisenstadt v. Baird, (15) cases in which the Court articulated women's fundamental rights to reproductive decision making outside of the context of abortion. In these cases the Court describes privacy as a fundamental right with which the government cannot interfere without a showing of a compelling state interest and a demonstration that the government's chosen action is the alternative that is least restrictive of the individual's right. The government fails on its requisite showing when these standards are applied to the cases under discussion. This Article argues that there is no compelling state interest in incarceration for fetal protection and that detention is not the least restrictive alternative for these women. Furthermore, this Article argues that the less protective standard relating to abortion regulations, the undue burden standard articulated in Planned Parenthood v. Casey, (16) while not applicable to these cases as they do not relate to abortion, is also violated under the circumstances described herein. At the very least, the undue burden standard must be read to mean that the state cannot coerce a woman's reproductive decision making without violating the rights of privacy and liberty. Because detention is highly coercive of women's reproductive decision making, it must be understood to violate the principles articulated by the Court in Casey.

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...