State-created Fetal Harm

ARTICLES

State-Created Fetal Harm

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.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476

* Assistant Professor, Wake Forest University School of Law. © 2021, Meghan Boone & Benjamin

J. McMichael. The authors would like to extend their sincere thanks to Professor Ron Krotoszynski for

his early and extremely helpful input on this project. They would also like to thank the editors of The

Georgetown Law Journal for their thoughtful and thorough edits and comments.

** Assistant Professor, University of Alabama School of Law. The protocols employed in this

Article were approved by the University of Alabama Institutional Review Board (approval number 19-

OR-256-ME). The National Center for Health Statistics approved this study and granted the authors

permission to analyze the restricted-use data described below (approval number DVS2019-1837).

475

I. FETAL ENDANGERMENT LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478

A. STATUTES SPECIFICALLY CRIMINALIZING FETAL ENDANGERMENT . . 480

B. STRETCHED INTERPRETATIONS OF EXISTING CRIMINAL LAW . . . . . . . 481

C. PUNITIVE CIVIL FETAL ENDANGERMENT LAWS. . . . . . . . . . . . . . . . . . 484

II. EXISTING ARGUMENTS AGAINST THE CRIMINALIZATION OF PREGNANCY . . 485

A. FETAL ENDANGERMENT LAWS UNDERMINE REPRODUCTIVE

AUTONOMY............................................. 485

B. FETAL ENDANGERMENT LAWS PUNISH ONLY THE RISK OF HARM . . . 486

C. FETAL ENDANGERMENT LAWS ARE AT ODDS WITH PUBLIC HEALTH

GOALS................................................. 487

D. FETAL ENDANGERMENT LAWS ARE UNEQUALLY ENFORCED . . . . . . . 489

III. EMPIRICAL ANALYSIS OF FETAL ENDANGERMENT LAWS . . . . . . . . . . . . . . 491

A. DATA, MEDICOLEGAL CONTEXT, AND HYPOTHESES . . . . . . . . . . . . . . 492

1. Data on All Births in the United States . . . . . . . . . . . . . . 492

2. Data on All Fetal Deaths in the United States . . . . . . . . . 493

3. Data on All Infant Deaths in the United States. . . . . . . . . 494

B. EXAMINING THE EFFECT OF TENNESSEE’S FETAL ENDANGERMENT

LAW ON PREGNANCY, FETAL, AND INFANT OUTCOMES . . . . . . . . . . . 496

C. REGRESSION ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501

D. SYNTHETIC CONTROL MODELS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507

IV. FETAL ENDANGERMENT LAWS CREATE FETAL HARM . . . . . . . . . . . . . . . . 512

A. LEGISLATIVE PURPOSE OF FETAL ENDANGERMENT LAWS . . . . . . . . . 513

B. FETAL ENDANGERMENT LAWS FAIL RATIONAL BASIS REVIEW . . . . . . 514

C. ADDITIONAL CONSTITUTIONAL ARGUMENTS . . . . . . . . . . . . . . . . . . . 519

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522

INTRODUCTION

The criminalization of pregnancy started slowly. Initially, only a few women

were prosecuted under the theory that their own actions harmed the fetuses they

476 THE GEORGETOWN LAW JOURNAL [Vol. 109:475

were carrying.

1

Even then, most of the cases involved extreme facts.

2

But in the

last several decades, more women have been prosecuted for their behavior during

pregnancy.

3

And for the f‌irst time, state legislatures have introduced and passed

laws that specif‌ically criminalize pregnancy, as opposed to simply applying exist-

ing criminal laws to pregnant people.

4

From the outset, scholars, advocates, and public health off‌icials rang the alarm

over potential harms—to women and to babies—that could result from the crimi-

nalization of pregnancy.

5

They argued that criminalization of addiction in preg-

nancy would cause more women to avoid the healthcare system entirely to avoid

prosecution. Such avoidance would result in additional adverse outcomes for

pregnant women and children. Nevertheless, over the last two decades, state

legislators and local prosecutors have aggressively sought to criminalize a larger

swath of conduct in pregnancy under the guise of protecting fetal life.

6

Any

potential negative outcomes for pregnant women were ignored or accepted as

necessary to attain the positive results that such laws would have in terms of

improving fetal and infant health.

7

Unsurprisingly, the alarm bells were warranted. This Article shows—using,

for the f‌irst time, an empirical, data-driven analysis—that fetal endangerment

1. See LINDA C. FENTIMAN, BLAMING MOTHERS: AMERICAN LAW AND THE RISKS TO CHILDREN’S

HEALTH 110–12 (2017) (describing the f‌irst several high-prof‌ile criminal prosecutions of pregnant

women, spanning from 1977 to 1999).

2. See id. at 111 (describing the prosecution of Regina McKnight, a homeless, drug-addicted woman

who gave birth to a stillborn baby and was subsequently convicted of murder).

3. See id. at 112, 130–31 (noting both the increase in the prosecution of women for prenatal drug use

and the increasing severity of the criminal charges leveled against them).

4. See infra Section I.A.

5. One of the f‌irst academic treatments of the subject was a 1991 article by Dorothy E. Roberts that

critically examined the reaction to the “crack epidemic” and its particular effects on pregnant Black

women. See generally Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color,

Equality, and the Right of Privacy, 104 HARV. L. REV. 1419 (1991).

6. See Michele Goodwin, Fetal Protection Laws: Moral Panic and the New Constitutional

Battlefront, 102 CALIF. L. REV. 781, 787 (2014) (“According to proponents, fetal protection laws are

intended to promote the health and safety of fetuses by criminalizing actual or intended harm to the

unborn.”).

7. See Cortney E. Lollar, Criminalizing Pregnancy, 92 IND. L.J. 947, 996 (2017) (“The state

legislators creating laws specif‌ically criminalizing the use of drugs by pregnant women, the prosecutors

who rely on these and other generally applicable criminal laws to punish women for this same behavior,

and the judges who sanction punishment based on these justif‌ications all vocally rely on the harm to the

fetus and subsequent child as motivation for their actions.”); see also Lanetra Bennett, Woman Charged

with Child Abuse for Drug Use During Pregnancy, WCTV (Mar. 10, 2010, 7:11 PM), https://perma.cc/

E5NQ-9TT9 (quoting a law enforcement off‌icer supporting the prosecution of pregnant drug users

because of his belief that drug use during pregnancy is “a self‌ish act by the mother of the child [because]

the important thing is the child”). Some also voice the hope that such laws will act as either a deterrent to

would-be pregnant drug users or an incentive to seek help. These goals, however, are often framed as

secondary to the goal of protecting fetal and infant life (or punishing “bad” mothers). See, e.g., Andrea

Grimes, Pregnant Texans Are Being Charged with Crimes That Don’t Exist, REWIRE NEWS GROUP (Oct.

16, 2014, 9:49 AM), https://rewire.news/article/2014/10/16/pregnant-texans-charged-crimes-dont-exist

[https://perma.cc/R7P5-BS2R] (quoting Assistant District Attorney Joel Wilks who believes “there’s a

deterrence factor” in prosecution of prenatal drug use, while also serving as an opportunity for

“retribution”).

2021] STATE-CREATED FETAL HARM 477